SIMONE ASSIS, et al. v. ROBERT R. BONARDI, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2197-04T12197-04T1

SIMONE ASSIS; LUIS ASSIS, infant,

by his g/a/l Simone Assis; SIMONE

ASSIS; individually on behalf of

Luis Assis; SIMONE DaMATA,

individually,

Plaintiffs,

and

LINDSEY DaMATA, infant by her

g/a/l SIMONE DaMATA,

Plaintiff-Appellant,

v.

ROBERT R. BONARDI; RURAL/METRO

CORPORATION; KEEFE & KEEFE;

STATE FARM INSURANCE COMPANY and/

or STATE FARM INDEMNITY COMPANY,

Defendants,

and

GERALDO MATA,

Defendant-Respondent.

_____________________________________

 

Argued: November 28, 2005 - Decided May 5, 2006

Before Judges A. A. Rodr guez and C. S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Union County, L-3704-02.

Gregg Alan Stone argued the cause for appellant (Kirsch, Gelband & Stone, attorneys; Mr. Stone, on the brief).

Jeff J. Czuba argued the cause for respondent (Hoagland, Longo, Moran, Dunst & Doukas, attorneys; Mr. Czuba, of counsel; Frank J. Caruso, on the brief).

PER CURIAM

On October 6, 2001, plaintiff Lindsey DaMata, then nine years old, was a back seat passenger in a car operated by her father, defendant Geraldo Mata. Geraldo was driving west on Summer Street in Elizabeth when his vehicle was hit by an ambulance owned by Keefe & Keefe and operated by Robert R. Bonardi, an employee of Rural/Metro Corporation (collectively "the ambulance defendants"). Lindsey was not restrained by a seatbelt. The collision caused Lindsey to be ejected from the vehicle. She was taken from the scene by ambulance to the University Hospital of Medicine and Dentistry. There she was diagnosed with a Salter II fracture of the distal epiphysis of the right femur, as well as a concussion, multiple abrasions and an avulsion of the right gastroc. Lindsey was admitted to the hospital where she remained until October 11, 2001. She required a skin graft. Subsequently, she underwent physical therapy for four months. Presently, her right leg is two inches shorter than her left leg.

Several claims were filed by the occupants of the Mata vehicle, including Lindsey, against the ambulance defendants and Geraldo. Lindsey, through her guardian ad litem, settled her claim against the ambulance defendants for $425,000. However, the suit against her father is pending. One of the allegations against her father is that he proximately caused her injuries or a worsening thereof by negligently failing to restrain her with a seatbelt.

Geraldo moved for summary judgment seeking dismissal of the claim against him. Judge Katherine R. Dupuis granted the motion and dismissed Lindsey's complaint. The judge found that Geraldo had no legal duty to his daughter to make sure she was wearing her seatbelt.

Lindsey appeals, contending that Geraldo "owed a duty to [her] under general principles of negligence to ensure that she was wearing a seatbelt." We disagree.

Lindsey has not identified compelling authority for the existence of such duty. She relies on Kelly v. Gwinnell, 96 N.J. 538 (1984), to support her argument. In Kelly, the Supreme Court described the analysis for determining, generally, the existence of a duty. The Court held that the judge must weigh the relationship of the parties, the nature of the risk and the public interest involved. Id. at 544. However, in Kelly, the issue was the liability of a social host who served liquor to an adult guest when the host knew that guest was intoxicated. Id. at 548.

We conclude that this general principle, which is the beginning point of any analysis of the concept of duty, by itself is insufficient to create a duty. This is particularly so, in light of the Legislature's definition of public policy, at the time, being limited to the safety risks to front seat passengers who do not us a seatbelt restraint. At the time of the accident, an earlier version of N.J.S.A. 39:3-76.2f governed seat belt usage. That section read:

2. a. Except as provided in [N.J.S.A. 39:3-76.2a] for children under five years of age and except as provided in subsection b of this section for, passengers who are at least five years of age but less than 18 years of age, each driver and front seat passenger of a passenger automobile operated on a street or highway in this State shall wear a properly adjusted and fastened safety seat belt system as defined by Federal Motor Vehicle Safety Standard Number 209.

b. The driver of a passenger automobile shall secure or cause to be secured in a properly adjusted and fastened safety seat belt system, as defined by Federal Motor Vehicle Safety Standard Number 209, any passenger in the front seat who is at least five years of age but less than 18 years of age.

[L. 1984, c.179, 2 (emphasis added).]

Another section of the statute read, "This act shall not be deemed to change existing laws, rules, or procedures pertaining to a trial of a civil action for damages, for personal injuries or death sustained in a motor vehicle accident." N.J.S.A. 39:3-76.2h. The express and unambiguous language of this section created a duty on the driver to make sure that only the front seat passengers are seat belted. There is no duty to rear seat passengers. Therefore, the public policy of the state at that time did not contemplate that rear-seat passengers needed seatbelt protection.

We are mindful that effective January 1, 2002, the Legislature amended the statute to its present form, N.J.S.A. 39:3-76.2f, which extends the driver's duty to "any passenger." However, this enactment had prospective application only. Therefore, it is not a governing authority in this dispute.

Lindsey also contends that, "parental immunity applies only to customary care, not a parent's failure to provide for the safety of their child." She argued that her father's failure to make sure her seatbelt was securely fastened rises to the level of culpability identified by the Court in Foldi v. Jeffries, 93 N.J. 533 (1983). Because this is raised for the first time on appeal, it must be evaluated pursuant to the plain error standard. R. 2:10-2.

In Foldi, the Court reaffirmed the State's policy of parental immunity, but provided for instances in which a parent could be liable for injuries suffered by a child. The Court held, "[T]he doctrine of parental immunity will continue to preclude liability in cases of negligent supervision, but not for a parent's willful or wanton failure to supervise his or her children." Id. at 549. The Court explained, "Only where the supervision, or lack there of, rises to the level of willful or wanton misconduct should the judicial process be involved." Id. at 550. A parent is wanton or reckless when s/he "consciously and intentionally does some wrongful act or omits to discharge some duty which produces the injurious result." Id. at 549.

Murray by Olsen v. Shimalla, 231 N.J. Super. 103 (App. Div. 1989), provides the court with a useful framework with which to analyze claims of parental immunity. There, the court stated:

The first step in applying the Foldi analysis requires the judge to determine what acts or omissions by the parent a fact finder could reasonably find were the proximate cause of the child's injury. The next step is to determine whether that conduct is protected by parental immunity, i.e., whether it involves the exercise of parental authority or the provision of customary child care. If it does, the next step is to determine whether the conduct constitutes a lack of parental supervision. If it does, the final step is to determine whether a fact finder could reasonably find that the conduct was willful or wanton thereby removing it from the immunity.

[Id. at 106.]

Judged against this standard, we conclude that there are no facts here that would support a finding that Geraldo acted willfully or wantonly, just negligently.

Accordingly, we conclude that at the time of the accident, Geraldo had neither a common law nor a statutory duty to seatbelt Lindsey while she rode in the back seat of the vehicle he was operating.

Affirmed.

 

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A-2197-04T1

May 5, 2006