FAYE G. MUCCIA and DINO MUCCIA, Plaintiffs-Appellants,
EL CORONADO CONDO ASSN., individually, and d/b/a EL CORONADO, Defendant-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 16, 2013
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2229-10.
Cory Anne Cassidy argued the cause for appellants (Riposta, Lawyers, L.L.C., attorneys; Ms. Cassidy, of counsel and on the brief).
AnnMarie Flores argued the cause for respondent (Gage Fiore, L.L.C., attorneys; Ms. Flores, on the brief).
Before Judges Axelrad and Nugent.
This is a personal injury action. Plaintiffs, Faye G. Muccia and Dino G. Muccia, appeal from the summary judgment entered in favor of defendant, El Coronado Condo Assn., the association of unit owners of the El Coronado Resort where plaintiff Faye G. Muccia fell while walking from the lower level to the upper level of a condominium unit. Plaintiffs contend their engineering expert's report established a genuine issue of material fact that should have defeated El Coronado's summary judgment motion, even though plaintiff, upon entering the unit, recognized the alleged dangerous condition in the unit and pointed it out to others. We reject plaintiffs' contention and affirm.
We derive the following facts from the summary judgment record. Located in the Borough of Wildwood Crest, the El Coronado Resort is a six-story hotel open for business five and one-half months each year. The resort's 123 units, all privately owned, are available to rent. The unit owners, who are permitted to use their units only two weeks each year, share in the revenue. El Coronado Management Company is responsible for the resort's operations.
Plaintiff, age seventy-five, her husband, and another couple with whom they were friends, rented unit 305 for the 2009 Labor Day weekend. Unit 305 has two levels. The bedrooms and bathrooms are on the upper level and the kitchen and living room are on the lower level. A person entering unit 305 through the door from the common hallway walks into the unit's foyer on the upper floor; the bedrooms and bathrooms are on the right and left. Straight ahead, the foyer leads to the lower level living room on the left, and kitchen on the right.
The entryway or transition area from the upper-level foyer to the lower-level rooms is two feet ten inches wide, and the single riser between the two levels is six-and-three-eighths inches high. The lower-level floor at the base of the riser, where the living room floor on the left meets the kitchen floor on the right, is covered for ten inches (left to right) with brown living room carpet, and for two feet (right to left) with beige-colored ceramic kitchen tile. The carpet on the lower-level living room floor, the upper-level foyer floor, and the riser between levels, is the same color. Visible to those walking from the foyer into the living room or kitchen is a sign with gold lettering on a red background, attached to the side of a wall-mounted kitchen cabinet to the right. The sign reads: "Watch Your Step." Plaintiff fell while attempting to walk from the living room to the foyer.
Plaintiff and those with her arrived at the resort at approximately three o'clock on the afternoon of September 7, 2009. Plaintiff's husband and the other man loaded the luggage on a luggage cart and the two couples took the elevator to the third floor. Plaintiff entered unit 305 ahead of the others. Upon entering the unit, she "saw the step and . . . said[:] 'Wait a moment. Hold it. There's a step there.'" Plaintiff did not see the sign, but she "saw the step right away and . . . yelled to the men." The men "acknowledged that [she] yelled out to them and they didn't move." According to the transcript of plaintiff's deposition, she recalled that her husband might have said: "Oh my. Look at the step here. Very dangerous with no sign." Plaintiff did not see the sign until after she fell.
The couples went into their respective bedrooms, took about twenty minutes to unpack, and then went downstairs, that is, down the one step, to the living room. After socializing for approximately forty-five minutes, plaintiff decided to return to her bedroom to dress for dinner. She gave the following account of her fall at her deposition:
I was heading for my bedroom and I was in the living room and I was on the right side of the step as I recall. I was going up the step, and the next thing I know I fell. I fell in the foyer on my body. My arms . ...