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King v. Venetian Corp.

October 19, 2009

MICHAEL KING, PLAINTIFF,
v.
VENETIAN CORP., DEFENDANT,
VENETIAN CORP., THIRD-PARTY PLAINTIFF
v.
SICO INC., DANIELLE MACIVER COLLURA, & JOSEPH COLLURA THIRD-PARTY DEFENDANTS
VENETIAN CORP., THIRD-PARTY PLAINTIFF
v.
DOROTHY MACIVER THIRD-PARTY DEFENDANT



The opinion of the court was delivered by: Linares, District Judge.

OPINION

There are three separate motions for summary judgment currently before the Court in this matter. First, Defendant/Third-Party Plaintiff Venetian Corporation ("Venetian") has moved for summary judgment as to all claims filed against it by Plaintiff Michael King. Second, Third-Party Defendant Sico, Inc. ("Sico") has moved for summary judgment as to the third-party claims filed against it by Venetian. Finally, Third-Party Defendants Danielle MacIver Collura, Joseph Collura, and Dorothy MacIver (collectively the "individual third-party defendants") have moved for summary judgment as to the third-party claims filed against them by Venetian and as to any cross-claims filed against them by Sico. The Court has considered the parties' submissions and decides this matter without oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure. For the reasons set forth below, Venetian's motion is denied, and the motions filed by both Sico and the individual third-party defendants are granted.

I. BACKGROUND

The underlying cause of action arises out of a slip and fall incident that occurred at the Venetian on September 10, 2005. (Civ. R. 56.1 Stmt. of Mat'l Facts Not in Dispute, ¶ 1 [hereinafter "Venetian Fact Stmt."].) The Venetian is a reception and catering hall located in New Jersey. (Third-Pty. Defs.' Stmt. of Undisputed Mat'l Facts Pursuant to Local Civ. R. 56.1, ¶ ¶ 1-2 [hereinafter "Collura Fact Stmt."].) Mr. King alleges that he "fell while dancing on a portable dance floor." (Venetian Fact Stmt. ¶ 1.) Mr. King was a guest at the Venetian for the wedding reception of third-party defendants Danielle MacIver Collura and Joseph Collura (collectively "the Colluras"). (Collura Fact Stmt. ¶ 2.) Third-party defendant Dorothy MacIver is the mother of the bride. (Id. at ¶ 7.) Mr. King is the grandfather of the bride. (Id. at ¶ 15.)

On August 27, 2003, the Colluras decided to hold their wedding reception at the Venetian, and a written agreement for catering services ("the agreement") was signed by Mrs. MacIver. (Id. at ¶¶ 4, 7.) The Colluras did not sign the agreement. (Id. at ¶¶ 8, 10.) The agreement provided that the wedding reception would be held at the Venetian on September 10, 2005. (Id. at ¶ 12.) The agreement contained an indemnification clause. (Id. at ¶ 13.) It provided:

CONDITION OF PREMISES, REPAIR AND INDEMNIFICATION

The Lessee undertakes to take good care of all fixtures, furnishings, and other property in the facilities rented, and assumes responsibility for damages that may be caused by the Lessee, the Lessee's guests (invited or uninvited), and agrees to hold the Lessor harmless for any claim that may be asserted against it. (Id.)

At the Collura's wedding reception, Mr. King slipped and fell while dancing, injuring himself. Mr. King testified that he had one drink and a sip of another while at the reception. (Cert. of Richard J. Zeitler, Jr. [hereinafter "Zeitler Cert."], Ex. A, Dep. of Michael King, Tr. 37:10-12, 42:25-43:4.) When asked how he fell, he stated that he was dancing on the dance floor when he "hit into something" and then fell and landed on the rug. (Id. at 49:24-50:1-4.) Mr. King also testified that he did not observe anything wet or slippery in the area where he fell. (Id. at 52:2-8.)

Mr. King's wife, Agnes King, testified that she was less than five feet away from where Mr. King was dancing at the time of the incident. (Id. at Ex. B, Dep. of Agnes King, Tr. 51:17-52:2.) She testified that he was dancing toward the end of the dance floor, and that he fell onto carpet. (Id. at 51:17-20, 66:9-11.) She further stated that the perimeter of the dance floor had a small metal lip on the edge. (Id.at 56:5-16.) She stated that she noticed the dance floor was raised a little because when she came into the reception area, she "tripped a little." (Id.)

Mr. King's daughter, with whom he was dancing immediately preceding his fall, testified that he fell "right on the edge of the dance floor, because his back landed on the carpeting and his legs were on the floor." (Id. at Ex. C, Dep. of Colleen Rinaldi, Tr. 61:14-25.) She also testified that the perimeter of the dance floor was raised, that "there was a lip," and that it was angled. (Id.at 74:19-75:7.) Other deposition testimony also indicated that Mr. King was dancing near the edge of the dance floor at the time of the incident. (Id. at Ex. D, Dep. of Kathleen Collura, Tr. 21:22-22:6.) Kathleen Collura further testified: "When I walked into the hall... my mother had almost tripped... so we shuffled to our left[;] I noticed at the time [the dance floor] was wood with a lip." (Id. at 23:19-23.) She testified that the lip was "about five or six inches... approximately" and "went all the around the dance floor." (Id. at 25:13-22, 26:3-9.) She stated that there was a seam, and that "you could see that it was joined together." (Id.)

In 2001, the Venetian purchased the portable cam-lock dance floor used during the reception from Sico. (Sico, Inc.'s Local Civ. R. 56.1 Stmt. of Mat'l Facts, ¶ 2 [hereinafter "Sico Fact Stmt."] (located within Sico's moving brief)). Sico manufactured the dance floor. (Venetian Fact Stmt. ¶ 13.)The dance floor is made up of "square wood panels that feature interlocking devices." (Sico Fact Stmt. ¶ 3.) The panels are connected to each other to assemble the dance floor. (Id.) According to Sico, "[t]he panel's tongues, grooves and positioning pins, in conjunction with the rotating cam locks, function to horizontally and vertically align the panels and lock them together into a uniform dance floor surface." (Id.) "The dance floor also has an aluminum edge trim around it that connects the outer square panels and has the same rotating cam locks." (Id. at ¶ 4.) If assembled correctly, the edge trim is supposed to align flush with the surface of the dance floor. (Id.)

At the time of sale, Sico provided the Venetian with an information sheet concerning the dance floor assembly. (Id. at ¶ 5.) The "sheet cautions users not to use the floor panels '[u]nless the panels are locked tightly together,' '[i]f 1/8 [of an inch] or more gap shows between the panels and/or edge trim,' and/or '[i]f [the] surface is uneven or has missing sections.'"(Id. (emphasis and alteration in original).) The sheet further states that the user "assumes full responsibility for the installation and use of all dance floor components" and warns that "failure to follow [the] instructions could cause a fall and serious injury." (Id. at ¶¶ 5-6.)

On the date of the reception, the dance floor was assembled by the Venetian's busboy or setup staff. (Zeitler Cert., Ex. F., Dep. of Dave Mocera, Tr. 48:3-10.) Prior to the incident, the Colluras did not complain to the Venetian about the condition of the dance floor. (Def. Venetian Corp.'s Br. in Supp. of Mot. for Summ. J. to Dismiss the Compl. [hereinafter "Venetian Br."], Ex. 12, Dep. of Danielle Collura, Tr. 15:11-16; id. at Ex. 13, Dep. of Joseph Collura, Tr. 8:23-9:4.) Dave Mocera, the Venetian's general manager, testified that after the accident he inspected the dance floor and did not notice any separation between the floor portions or between the floor and the edge trim. (Cert. of Michael R. Sarno, Esq. in Supp. of Sico, Inc.'s Mot. for Summ. J., Ex. E, Dep. of Dave Mocera, Tr. 23:21-24:22.)

In his complaint, Mr. King pleads one cause of action against Venetian based in premises liability. (Compl. ¶ 11.) Mr. King has asserted no claims against Sico. In response to Mr. King's complaint, Venetian filed two third-party complaints. The first complaint alleges causes of action for contribution and common law indemnification against Sico, as well as a contractual indemnification claim against the Colluras. (First Venetian Compl. ¶¶ 12, 14, 19.) Venetian's second third-party complaint alleges one count of contractual indemnificationagainst Mrs. MacIver. (Second Venetian Compl. ¶ 9.) Finally, Sico's Answer to Ventian's third-party complaint alleges cross-claims against the individual third-party defendants for both contribution and indemnification. (Sico Ans., at 14.)Venetian presently moves for summary ...


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