MARY CONSTANCE BATICH v. POLICE ATHLETIC LEAGUE OF WESTFIELD, NEW JERSEY, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5123-04T15123-04T1

MARY CONSTANCE BATICH,

Plaintiff-Appellant,

v.

POLICE ATHLETIC LEAGUE OF

WESTFIELD, NEW JERSEY, RYAN

BRAND, OWEN BRAND,

Defendants-Respondents,

and

MICHAEL McCREA, ROBERT McCREA,

and JAMES McCREA,

Defendants.

 

Argued: December 14, 2005 - Decided:

Before Judges Fall and Parker.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket Number UNN-L-1087-03.

Andrew Prince argued the cause for appellant (Prince and Portnoi, attorneys; Mr. Prince, of counsel and on the brief).

Paul F. Clark argued the cause for respondents (Wade Clark Mulcahy, attorneys; Mr. Clark, of counsel; Laurie S. Ross, on the brief).

PER CURIAM

Plaintiff Mary Constance Batich appeals from orders granting summary judgment to defendants Ryan Brand, Robert McCrea, Owen Brand, and the Police Athletic League of Westfield (PAL), dismissing her action seeking damages for personal injuries sustained as the result of an incident occurring on October 1, 2002, at approximately 7:30 p.m. in Tamaques Park, Westfield. She also appeals from an order denying her motion for reconsideration.

Plaintiff, who was age seventy-eight at the time, had completed her exercise walk and was walking in the parking lot of the Park when she was knocked down when one of the members of the PAL football team, playing an informal game of catch with other team members after their football practice had ended, backed up and bumped into her. The team members had been playing catch while waiting to be picked up by their parents. Plaintiff sustained severe injuries as a result of the fall.

On January 16, 2003, plaintiff filed a complaint in the Law Division, naming the PAL and fictitious parties as members of the PAL as defendants. The PAL is a non-profit organization. Plaintiff alleged that the negligence of defendants was the proximate cause of her fall and resulting injuries. On order entered on July 11, 2003, directed the PAL to release the names and addresses of the minor children involved in the incident, and that of their parents.

On leave granted by order issued on September 26, 2003, an amended complaint was filed on October 17, 2003, naming minors Michael McCrea, Robert McCrea, James McCrea, and Ryan Brand as defendants, contending that their negligence caused plaintiff's fall and resulting injuries, and that they had been improperly supervised by the PAL. It was determined that Michael McCrea had bumped into plaintiff as he moved to his left to avoid a two-hand touch by his brother James McCrea.

On further leave granted by order entered on April 16, 2004, plaintiff filed a second amended complaint on May 5, 2004, adding Owen Brand as a direct defendant. The allegation against Owen Brand was that he was the director of operations of the PAL football team and had been negligent in the supervision of the minor defendants. Owen Brand, who was also coach of the PAL football team, had remained in the parking lot after practice had ended to assure that all members of the team were picked up by their parents. At the time of the incident, he was a few feet from where Michael McCrea bumped into plaintiff.

On or about October 27, 2004, defendants PAL, Owen Brand, and Ryan Brand filed a motion seeking entry of summary judgment dismissing the amended complaint against them. The motion was opposed by plaintiff. The court heard oral argument on the motion on December 17, 2004, and granted summary judgment in favor of Ryan Brand and his father, Owen Brand, dismissing the complaint against them. In doing so, Judge Ross Anzaldi stated, in pertinent part:

What is before me is whether the other parties, that is, [Owen] Brand and Ryan Brand should be permitted to be removed from this case by was of summary judgment.

With regards to Owen, that's the father, in order for a party to be liable for negligence, you have to violate a duty owed to the injured party.

* * * *

Clearly, [Owen Brand] was there. His son was still there and he was remaining in the area for the purpose of safety, I guess, for the children, not to allow them to be in any way interfered with by any person who had improper intentions. But in any event he certainly wasn't in a sense coaching. He was observing.

I'm satisfied that at the time he was not acting as a coach at the time of the accident. His position as a coach, therefore, cannot give rise to a duty in this case. Therefore, the theories talking about a coaching, its immunities, whether she, the plaintiff, was a spectator or not, I find that it does not come into play.

Well, then did he owe a duty as a parent? His son was participating in a game of catch that ultimately led to the McCrea child striking, bumping into, knocking over the plaintiff.

And even if for a moment we could say that Ryan, his son, somehow could be construed as participating in that injury, Mr. Brand, I believe would have a parental immunity.

In order to find that [Owen Brand] was negligent in his supervision, there must be a showing of willful or wanton behavior. No one really disputes that.

There's another theory that plaintiff says that she's trying to hold him responsible for his own actions, specifically his failure to stop the children from playing in the parking lot. This amounts to nonfeasance on the part of the defendant.

Where there is nonfeasance, it's necessary to find some definite relation between the parties that would impose a duty to act. That is, a duty between Mr. Brand and the plaintiff.

Neither the plaintiff nor the opposing McCrea defendant offer any law as to why a negligent supervision claim is viable. He did not owe a duty to supervise the infants by position of his coaching position; the practice had ended, the children were waiting for their parents. They certainly cannot show any willful or wanton behavior.

Opposing parties make no argument and cite no case law nor any justification as to why this court should allow a claim for negligent supervision against the defendant.

Summary judgment, therefore, is granted on behalf of Mr. Owen.

With regards to Ryan [Owen], the measure of care to be exercised by a child is that measure which would be exercised by a child of his age, capacity, experience, under like circumstances.

He, in my analogy, was the wide receiver. He was the one running away from the plaintiff. Yes, he was having a catch. I don't know of any standard that would say having a catch, an 11 or 12 year-old having a catch with children of like age is somehow negligent no matter what the lighting conditions.

Therefore, I can find no facts demonstrating that Ryan [Brand] acted as anything but a reasonable 12 year-old boy.

Therefore, summary judgment is granted as to Ryan.

* * * *

I'm not ruling as to the PAL of Westfield.

And order memorializing the court's decision was issued on December 17, 2004.

On January 7, 2005, plaintiff filed a motion for reconsideration of the December 17, 2004 order. On or about January 18, 2005, the PAL field a motion seeking summary judgment dismissing plaintiff's claims against it. On or about January 20, 2005, defendants Michael McCrea, Robert McCrea and James McCrea also filed a motion seeking summary judgment. Those motions were argued in the Law Division before Judge Anzaldi on February 18, 2005. The judge entered orders on that date denying plaintiff's motion for reconsideration; denying the summary judgment motion as to Michael McCrea and James McCrea; granting summary judgment in favor of Robert McCrea; and granting summary judgment in favor of the PAL. Counsel for plaintiff conceded that in light of the court's ruling that no liability attached to defendant Owen Brand, the claim against the PAL also failed.

On March 31, 2005, we issued an order denying plaintiff's motion for leave to appeal from the orders entered in the Law Division on February 18, 2005. On May 2, 2005, the action against the remaining defendants Michael McCrea and James McCrea was dismissed after plaintiff settled with those defendants. The notice of appeal was filed on June 1, 2005.

On appeal, plaintiff presents the following arguments for our consideration:

POINT I

THE MOTION COURT ERRED AS A MATTER OF LAW IN HOLDING THAT PLAINTIFF HAD THE BURDEN OF PROVING COACH OWEN'S WILLFUL AND WANTON CONDUCT, RATHER THAN SIMPLY DEMONSTRATING HIS NEGLIGENCE.

POINT II

THE MOTION COURT ERRED AS A MATTER OF LAW IN HOLDING THAT DEFENDANTS, OWEN BRAND AND THE WESTFIELD PAL, HAD NO DUTY TO SUPERVISE THE MINOR CHILDREN AT THE TIME OF THE INCIDENT.

POINT III

THE MOTION COURT ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANTS OWEN BRAND, THE WEFTFIELD PAL, AND RYAN BRAND, IN THAT THERE ARE SUBSTANTIAL QUESTIONS OF FACT THAT MUST BE SUBMITTED TO THE JURY.

After analyzing the record in the light of the written and oral arguments advanced by the parties, we conclude that the issues presented by plaintiff are without sufficient merit to warrant extensive discussion, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons articulated by Judge Anzaldi in his oral decisions delivered on December 17, 2004, and February 18, 2005. We add the following.

With respect to the minor defendants Ryan Brand and Robert McCrea, the issue was whether they acted reasonably under the circumstances, in light of their age, training, judgment and other factors. Zuckerbrod v. Burch, 88 N.J. Super. 1, 7 (App. Div.), certif. denied, 45 N.J. 593 (1965). Summary judgment in their favor was properly granted since all of the evidence, viewed in the light most favorable to plaintiff, supported the conclusion that the conduct of these minor defendants was reasonable in the circumstances presented. Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995) (holding that where the evidence "is so one-sided that one party must prevail as a matter of law[,]" summary judgment is appropriate).

In assessing the potential liability of Owen Brand, it is necessary to differentiate between his personal liability as an adult supervisor and his vicarious liability as the father of his son Ryan. Owen Brand cannot be held vicariously liable since there is no viable claim against his son. Moreover, even if Ryan Brand was liable, there is no contention that Owen Brand's conduct was wanton and willful. See Buono v. Scalia, 179 N.J. 131, 136-37 (2004) (holding that the decision of a parent to permit his son to ride a bicycle during a block party did not amount to wanton and willful conduct).

With regard to vicarious liability as a coach, instructors and coaches owe a special duty of care not to increase risks over and above those inherent in the sport. Rosania v. Carmona, 308 N.J. Super. 365, 373 (App. Div.), certif. denied, 154 N.J. 609 (1998). In the performance of their duties, volunteer coaches are generally entitled to immunity where they coach for a nonprofit or governmental entity, and they have been properly trained. See N.J.S.A. 2A:62A-6. However, here, we concur with the conclusion of the motion judge that Owen Brand was not engaged in actual coaching activities when the incident occurred. Football practice had ended, and Owen Brand was merely standing and waiting for parents to arrive to retrieve their sons. Moreover, Owen Brand was a volunteer coach for the PAL, a non-profit entity, and had completed a requisite training course.

We also find no basis for imposition of personal liability on Owen Brand based on allegations of negligent supervision, since there are no allegations that his conduct amounted to wanton and willful conduct. Buono, supra, 179 N.J. at 136. The line of cases requiring school personnel to exercise reasonable supervisory care for the safety of students entrusted to them are inapplicable. See, e.g., Titus v. Lindberg, 49 N.J. 66, 68 (1967). Unlike school personnel, who are paid to supervise and educate children, in these circumstances Owen Brand was simply a parent making a supervisory decision. Moreover, school personnel owe a supervisory duty to students entrusted to them, not to third parties. Ibid. Lastly, since plaintiff has failed to establish a basis for imposition of liability against Owen Brand, there is no basis for a cause of action against the PAL.

 
Affirmed.

(continued)

(continued)

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A-5123-04T1

December 27, 2005