JASON BROWN v. SUHARY D. DIAZ, MARIA R. DIAZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0861-04T30861-04T3

JASON BROWN, an infant by his

Guardian Ad Litem, ADAM BROWN,

Plaintiff,

v.

SUHARY D. DIAZ, MARIA R. DIAZ,

Defendants,

and

FLORENCE KRAINSKI,

Defendant/Third-Party

Plaintiff-Appellant,

v.

SAYREVILLE YMCA, NICOLE DELIKAT

and NICOLE FETZKE,

Third-Party Defendants-

Respondents.

 

Argued September 20, 2005 - Decided

Before Judges Kestin and Hoens.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7670-02.

Frank J. Caruso argued the cause for appellant (Hoagland, Longo, Moran, Dunst & Doukas, attorneys; Mr. Caruso, on the brief).

Howard Z. Myerowitz argued the cause for respondents (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Mr. Myerowitz, of counsel and on the brief).

PER CURIAM

Defendant/third-party plaintiff Florence Krainski appeals from the July 9, 2004 order of the Law Division dismissing her third party complaint against the Sayreville YMCA and two of its employees, Nicole Delikat and Nicole Fetzke. We affirm.

The following facts are germane to our consideration of the issues on appeal. On January 3, 2000, plaintiff Jason Brown, who was then a ten-year-old child, was a participant in an after-school program operated by the YMCA. The program included approximately fifty or sixty children and was overseen by five counselors, including Delikat and Fetzke. On the afternoon in question, the children in the program were returning to the YMCA facility with the two counselors from a church playground located across the street. At approximately 4:30 or 5:00 p.m., as he was crossing the street, Brown was struck by a vehicle driven by Krainski and was injured.

According to Delikat, Fetzke waited for the traffic light at a nearby intersection to turn red and then walked into the road to stop any oncoming traffic. Delikat also walked into the road to ensure that no vehicles were approaching before signaling the children to cross the street. While the children were crossing, Delikat held up her hand to stop any cars and "occasionally" looked back to the intersection for oncoming traffic.

Delikat testified that just before the accident, she turned and looked back to the intersection and saw that the light was yellow. At the same time, she saw a car, driven by Krainski, approaching the light. Delikat thought that the car would stop because the light was about to turn red. She therefore permitted the remaining three or four children, including Brown, to continue to cross the road. She was aware that when the light turned red, traffic from the cross street would also begin to turn onto the roadway. She watched the children with her back toward the intersection and urged them to hurry. Delikat did not see the light turn red and next saw Krainski's car when it hit Brown. She saw Brown being propelled into the air by the force of the impact and saw him being hit a second time by another vehicle, which was coming in the opposite direction. That vehicle was driven by defendant Suhary Diaz and owned by defendant Maria Diaz.

According to Fetzke, she was standing in the roadway helping with the crossing procedure when the accident happened. She said that she waited for the light to turn red before walking into the road and that she had been there for about "a half a minute" when she saw Krainski's car proceed through a red light.

Krainski had a somewhat different recollection of the accident. She said that neither of the counselors was in the roadway. Instead, they were on the sidewalk where she could hear them talking. In addition, Krainski testified that she stopped at the traffic light, waited until it turned green and then proceeded down the road for 100 to 200 feet at a speed of fifteen or twenty miles per hour before hearing a "thump." She also testified that an oncoming car hit Brown before she did.

Plaintiff Adam Brown, Jason's father, filed a complaint in August 2002 on behalf of the child as his guardian ad litem. The complaint named Krainski, along with Suhary and Maria Diaz, as the only defendants and sought to recover for the injuries that Jason had sustained in the accident. In February 2003, Krainski filed her third-party complaint, asserting contribution and indemnification claims against the YMCA and the two individual counselors.

In May 2004, the third-party defendants moved for summary judgment, contending that the claims against them were barred by the Charitable Immunity Act, N.J.S.A. 2A:53A-7. Krainski opposed the motion, arguing that her claims were not barred by the Act because she was not a beneficiary of the charity. In the alternative, she asserted that the acts of the two individual employees constituted gross negligence for which the Act affords no protection. For reasons expressed on the record on July 9, 2004, Judge Chambers granted the motion for summary judgment.

On appeal, Krainski argues that the motion judge erred in concluding that the Charitable Immunity Act operated as a bar to the third-party complaint and in finding that the acts of the individual counselors were insufficient to constitute gross negligence falling outside of the protections of the Act. We disagree and affirm.

Krainski concedes that the YMCA is a charity and Brown was a participant in one of its programs. She concedes as well that the YMCA is immune from any liability to Brown, because he was a beneficiary of its charitable endeavors. See Brown v. St. Venantius School, 111 N.J. 325 (1988); Loder v. St. Thomas Greek Orthodox Church, 295 N.J. Super. 297, 301 (App. Div. 1996). Nevertheless, Krainski contends that because she was not a beneficiary of the charity, the Act cannot bar her claim against it. She points out that the Act provides immunity against actions grounded in ordinary negligence brought by beneficiaries, see N.J.S.A. 2A:53A-7(a), but not by those who are "unconcerned in and unrelated to and outside the benefactions of [the charitable organization]." Monaghan v. Holy Trinity Church, 275 N.J. Super. 594, 598 (App. Div. 1994)(quoting N.J.S.A. 2A:53A-7); see Ryan v. Holy Trinity Evangelical Lutheran Church, 175 N.J. 333, 353 (2003). In rejecting this argument, Judge Chambers reasoned as follows:

The charitable immunity statute bars claims for damages due to the negligence of the nonprofit and its workers, and that's essentially what Krainski is attempting to do here. The fact that she was not a beneficiary of the nonprofit organization is immaterial and does not negate the statute. What is material is that the plaintiff, Jason Brown, was the beneficiary of the nonprofit. It's undisputed that he was and, as a result, Krainski's claims cannot proceed against the nonprofit and its workers under these circumstances.

We concur in this analysis and conclude that Krainski's arguments to the contrary are unpersuasive. Regardless of whether or not Krainski was a beneficiary of the charity, the claim she seeks to assert against the charity is derived from the injury suffered by Brown. In light of the fact that he was a beneficiary of the charity, it cannot be held to answer to him or to anyone else seeking to recover compensation for the injuries he sustained.

Indeed, the very definition of joint tortfeasors included in the Joint Tortfeasors Contribution Act, N.J.S.A. 2A:53A-1 to -5, compels this result. That term is defined to mean: "two or more persons jointly or severally liable in tort for the same injury to person or property." N.J.S.A. 2A:53A-1. Because the third-party defendants cannot be liable to Brown, they do not fall within the statutory definition of joint tortfeasors. Nor do we conclude that Krainski is entitled to indemnification from the third-party defendants. This equitable remedy would only be available were her responsibility "merely constructive, secondary or vicarious." New Milford Bd. of Educ. v. Juliano, 219 N.J. Super. 182, 186 (App. Div. 1987); see Ramos v. Browning Ferris Industries, 103 N.J. 177, 191 (1986); Cartel Capital Corp. v. Fireco of New Jersey, 81 N.J. 548, 566 (1980). We discern no support in the record for application of this equitable remedy. In short, because Krainski's sole claims are for contribution or indemnification arising from Krainski's liability to Brown, and because her liability to Brown arises from injuries he sustained while participating in the YMCA program, her claim is barred.

In addressing Krainski's alternate contention, that the two individual counselors were grossly negligent and therefore not immune from suit, Krainski concedes, as she must, that the YMCA is immune from suit for even grossly negligent acts. See Monaghan, supra, 275 N.J. Super. at 604; N.J.S.A. 2A:53A-7(c). The record as it relates to Delikat and Fetzke is largely undisputed. The counselors directed the children to cross the street without using a marked crosswalk. They did not have flashlights, reflective vests or stop signs. It is undisputed, however, that they followed the procedures for crossing the road that had been established by the YMCA. Although there is some conflicting testimony about the lighting conditions, Delikat described the time of day as dusk and Krainski testified that it "wasn't that dark out."

The motion judge concluded that these facts fell short of demonstrating that the actions of the counselors were grossly negligent. We agree. Gross negligence is behavior that falls in the "upper reaches of negligent conduct." Parks v. Pep Boys, 282 N.J. Super. 1, 17 (App. Div. 1995). It includes behavior that demonstrates an "indifference to consequences," Banks v. Korman Assocs., 218 N.J. Super. 370, 373 (App. Div. 1987), or "a wanton or reckless disregard of the safety of others." In re Kerlin, 151 N.J. Super. 179, 185 (App. Div. 1977). Gross negligence is "conduct that comes somewhere between 'simple' negligence and the intentional infliction of harm [otherwise referred to as] 'willful misconduct.'" Ivy Hill Park Section III v. Smirnova, 362 N.J. Super. 421, 425 (Law Div. 2003). "[T]he difference between negligence and gross negligence is a matter of degree, and the differences cannot always be stated with mathematical precision." Stuyvesant Assocs. v. Doe, 221 N.J. Super. 340, 344 (Law Div. 1987).

On appeal, Krainski relies on an alternate definition, contending that gross negligence is "the want or absence of, or failure to exercise, slight care or diligence." Crothers v. Caroselli, 125 N.J.L. 403, 406 (Sup. Ct. 1940), aff'd, 126 N.J.L. 590 (E. & A. 1941). She points to examples of actions that the counselors could have undertaken in an effort to demonstrate that they failed to employ even slight care. That analysis, however, misses the point entirely. Although the counselors could have done many things in helping the children cross the road that would have been more careful, the inquiry is not whether they could have done more but whether what they did was itself the absence of even slight care. We agree with Judge Chambers that nothing in the record demonstrates that the actions of the two individual counselors constituted gross negligence.

 
Affirmed.

After entry of the order dismissing the third-party complaint, Krainski settled with plaintiff and consented to entry of final judgment.

The assertions concerning gross negligence as a basis for recovery are directed solely at the two individual counselors who assisted the children in crossing the roadway.

(continued)

(continued)

10

A-0861-04T3

December 8, 2005