SEUNG YON CHOI VS. HUNTERDON COUNTY YMCA, INC.(L-0159-14, HUNTERDON COUNTY AND STATEWIDE) ( 2017 )


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  •                         NOT FOR PUBLICATION WITHOUT THE
                          APPROVAL OF THE APPELLATE DIVISION
         This opinion shall not "constitute precedent or be binding upon any court."
          Although it is posted on the internet, this opinion is binding only on the
            parties in the case and its use in other cases is limited. R. 1:36-3.
    
    
    
    
                                           SUPERIOR COURT OF NEW JERSEY
                                           APPELLATE DIVISION
                                           DOCKET NO. A-5375-15T2
    
    SEUNG YON CHOI and
    GERALD J. KEANE on behalf
    of E.K., a Minor as Guardian
    Ad Litem, and SEUNG YON CHOI,
    and GERALD J. KEANE, individually,
    
            Plaintiffs-Appellants,
    
    v.
    
    HUNTERDON COUNTY YMCA, INC.,
    MICHAEL TRIANIO, CHRIS NALLEN,
    ALEX BAKER, ERICA CROAT, THE NEW JERSEY
    PROFESSIONAL GOLFERS ASSOCIATION, INC.,
    JAMES MULLEN,
    
            Defendants,
    
    and
    
    THE PROFESSIONAL GOLFERS ASSOCIATION, INC.,
    
            Defendant-Respondent.
    
    _______________________________________________
    
                  Submitted September 19, 2017 – Decided November 1, 2017
    
                  Before Judges Yannotti and Leone.
    
                  On appeal from Superior Court of New Jersey,
                  Law Division, Hunterdon County, Docket No. L-
                  0159-14.
                Carter, Van Rensselaer and Caldwell, attorneys
                for appellant (William J. Caldwell, on the
                brief).
    
                Cascio & Capotorto, attorneys for respondent
                (Jeffrey A. Savage, on the brief).
    
    PER CURIAM
    
           This action arises out of injuries sustained by a five-year-
    
    old girl, E.K., while attending a golf camp.        Plaintiffs, E.K.'s
    
    parents Seung Yon Choi and Gerald J. Keane, brought suit on their
    
    own behalf and on behalf of E.K.       They appeal from a June 28, 2016
    
    order granting summary judgment to defendant Professional Golfers
    
    Association of America, Inc. (PGA).       We affirm.
    
                                     I.
    
           In the summer of 2013, plaintiffs enrolled E.K. in a summer
    
    "Golf Camp" offered by defendant Hunterdon County YMCA, Inc.
    
    (YMCA).    The YMCA summer camp brochure's description of the Golf
    
    Camp    stated    that   "PGA   (Professional      Golf     Association)
    
    Professionals will provide a friendly and relaxing environment
    
    where your child can learn the fundamentals of" golf, and that
    
    "campers will spend half of the day with PGA professionals playing
    
    golf[.]"     The PGA's logo was displayed above the description of
    
    the Golf Camp in the brochure.
    
           On July 27, 2013, E.K. was accidentally struck in the mouth
    
    by a golf club swung by another minor child.              E.K. sustained
    
    
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    injuries to her face and mouth including the loss of multiple baby
    
    teeth.
    
          Plaintiffs filed suit against multiple defendants including
    
    the   YMCA   and   several   of   its       employees;   Chris   Nallen,   the
    
    professional golfer hired as an instructor at the camp; the parents
    
    of the minor child that hit E.K. with the golf club; the New Jersey
    
    Professional Golfers Association, Inc. (NJPGA); the New Jersey
    
    Golf Foundation, Inc. (NJ Golf Foundation); the PGA Foundation;
    
    and the PGA.   In their amended complaint, plaintiffs alleged that
    
    E.K. would not have been injured but for the negligent supervision
    
    of the Golf Camp and the campers.              Plaintiff also alleged that
    
    Nallen was a member, official, agent, servant, or independent
    
    contractor of the PGA, that the PGA had a duty to ensure Nallen
    
    would properly supervise the Golf Camp, and that the PGA was an
    
    independent contractor of the YMCA.
    
          The PGA filed a motion for summary judgment.           The motion was
    
    denied on January 28, 2016, because discovery had not yet been
    
    completed and the court wanted to give plaintiffs the opportunity
    
    to develop their claim against the PGA.            Plaintiffs then settled
    
    with the NJPGA, NJ Golf Foundation, Nallen, and the YMCA and its
    
    employees.    After the close of discovery, the PGA filed a renewed
    
    motion for summary judgment, arguing that it owed no duty of care
    
    
    
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    to plaintiffs.        On June 28, 2016, Judge Michael F. O'Neill granted
    
    the PGA's renewed motion for summary judgment.                Plaintiffs appeal.
    
                                           II.
    
          Summary    judgment       must   be    granted     if    "the       pleadings,
    
    depositions, answers to interrogatories and admissions on file,
    
    together with affidavits, if any, show that there is no genuine
    
    issue as to any material fact challenged and that the moving party
    
    is entitled to a judgment or order as a matter of law."                     R. 4:46-
    
    2(c).     The court must "consider whether the competent evidential
    
    materials presented, when viewed in the light most favorable to
    
    the   non-moving       party,    are   sufficient   to    permit      a    rational
    
    factfinder to resolve the alleged disputed issue in favor of the
    
    non-moving party."        Brill v. Guardian Life Ins. Co. of Am., 
    142 N.J. 520
    , 540 (1995).           "[T]he court must accept as true all the
    
    evidence which supports the position of the party defending against
    
    the   motion    and    must   accord   [that   party]    the    benefit      of   all
    
    legitimate inferences which can be deduced therefrom."                    Id. at 535
    
    (citation and internal quotation marks omitted).
    
          An appellate court "review[s] the trial court's grant of
    
    summary judgment de novo under the same standard as the trial
    
    court."    Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co.,
    
    
    224 N.J. 189
    , 199 (2016).         We must hew to that standard of review.
    
    
    
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         Based on our standard of review, we affirm substantially for
    
    the reasons set forth in Judge O'Neill's thoughtful and well-
    
    reasoned decision issued on June 28, 2016.        We add the following.
    
                                     III.
    
         "[A] negligence cause of action requires the establishment
    
    of four elements: (1) a duty of care, (2) a breach of that duty,
    
    (3) actual and proximate causation, and (4) damages."                 Jersey
    
    Cent. Power & Light Co. v. Melcar Util. Co., 
    212 N.J. 576
    , 594
    
    (2013).    "The determination of the existence of a duty is a
    
    question of law for the court."     Petrillo v. Bachenberg, 
    139 N.J. 472
    , 479 (1995).    "Under respondeat superior, an employer can be
    
    found liable for the negligence of an employee causing injuries
    
    to third parties, if, at the time of the occurrence, the employee
    
    was acting within the scope of his or her employment."             Carter v.
    
    Reynolds, 
    175 N.J. 402
    , 408-09 (2003).         To establish liability, a
    
    plaintiff must show "that a master-servant relationship existed."
    
    Id. at 409.   "If no master-servant relationship exists, no further
    
    inquiry need take place because the master-servant relationship
    
    is sine qua non to the invocation of respondeat superior."               Ibid.
    
         The   record   indicates   Nallen   was    hired   by   the    NJ   Golf
    
    Foundation as an independent contractor to run the YMCA's Golf
    
    Camp.   The NJ Golf Foundation paid Nallen $2700 for his services,
    
    which was reflected in an IRS form 1099-MISC used for reporting
    
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    income paid to independent contractors.              The PGA is not mentioned
    
    in the agreement signed by the YMCA and the NJPGA.                  Plaintiffs
    
    failed to offer any evidence that would show, or even create a
    
    genuine dispute of fact, that Nallen was in a master-servant
    
    relationship with the PGA.        We agree with the trial court that a
    
    master-servant relationship was not established merely because
    
    Nallen was a professional golfer who had competed in PGA events
    
    as a member of the PGA.      See Basil v. Wolf, 
    193 N.J. 38
    , 62 (2007)
    
    (a principal is generally immune from liability for the negligence
    
    of an independent contractor).
    
                                            IV.
    
          Plaintiffs argue that even if Nallen was an independent
    
    contractor, liability can still be imposed under the doctrine of
    
    apparent authority or agency.           See Sears Mortg. Corp. v. Rose, 
    134 N.J. 326
    , 337-38 (1993).         "If a principal cloaks an independent
    
    contractor with apparent authority or agency, the principal can
    
    be held liable as if the contractor were its own employee if it
    
    held out the contractor to the plaintiff as its own servant or
    
    agent."    Basil, supra, 193 N.J. at 63.             Liability may be imposed
    
    on   the   principal     based   upon    "apparent     authority"   when     "the
    
    principal's actions have misled a third-party into believing that
    
    a    relationship   of    authority      in   fact    exists."      Mercer     v.
    
    Weyerhaeuser Co., 
    324 N.J. Super. 290
    , 317 (App. Div. 1999).
    
                                             6                             A-5375-15T2
    Liability arises if "the principal has by his voluntary act placed
    
    the agent in such a situation that a person of ordinary prudence,
    
    conversant with business uses, and the nature of the particular
    
    business, is justified in presuming that such agent has the
    
    authority to perform the particular act in question."         Id. at 318
    
    (citation omitted).
    
         To satisfy its burden of establishing the apparent authority
    
    or apparent agency relationship, plaintiffs had to establish: "(1)
    
    that the appearance of authority has been created by the conduct
    
    of the alleged principal and it cannot be established 'alone and
    
    solely by proof of [conduct by] the supposed agent,' (2) that a
    
    third party has relied on the agent's apparent authority to act
    
    for a principal, and (3) that the reliance was reasonable under
    
    the circumstances."    Ibid. (citations omitted).
    
         Plaintiffs seek to impose liability on the PGA based on the
    
    use of the PGA logo and references to the PGA in the YMCA's summer
    
    camp brochure.   In Mercer, we reversed summary judgment granted
    
    to Weyerhaeuser, a large building and lumber supply company,
    
    because "[t]here was no dispute that Weyerhaeuser authorized [the
    
    home builder] to use its logo on [the home builder's] business
    
    cards,   brochures,   press   lists,   correspondence   and   newspaper
    
    advertisements at the time that plaintiffs purchased their homes."
    
    Mercer, supra, 324 N.J. Super. at 321.         As such, there was a
    
                                       7                             A-5375-15T2
    factual dispute over "whether plaintiffs relied on Weyerhauser's
    
    conduct (lending [the home builder] its name and logo for marketing
    
    purposes) in deciding to purchase these homes[.]"           Id. at 319.
    
          By contrast, there was no evidence of voluntary conduct on
    
    the part of the PGA to create an appearance that the YMCA or Nallen
    
    had authority to act for the PGA.       Indeed, there was no evidence
    
    the   PGA   was   involved   in   any   aspect   of   the    planning     or
    
    administration of the YMCA's camp.      There was no evidence the PGA
    
    was even aware of the use of its logo or name in the YMCA's
    
    brochure prior to this lawsuit, let alone that it authorized its
    
    use for the YMCA's marketing purposes.       Again, the appearance of
    
    authority "cannot be established 'alone and solely by proof of
    
    [conduct by] the supposed agent[.]'"         Mercer, supra, 324 N.J.
    
    Super. at 318 (citations omitted).1
    
          Moreover, the PGA did not hold Nallen out as its agent or
    
    employee.   Indeed, there was no evidence the PGA was involved in
    
    any aspect of the planning or administration of the YMCA's camp.
    
    Thus, plaintiffs, unlike the plaintiffs in Mercer, have failed to
    
    meet their burden to show apparent authority.         Therefore, we need
    
    
    
    
    1
      The PGA asserts the use of its logo was apparently authorized by
    the NJ Golf Foundation or the NJPGA, which contracted with the
    YMCA. Plaintiffs have not shown those entities were alter egos
    of the PGA.
    
                                        8                              A-5375-15T2
    not address whether plaintiffs relief on the alleged apparent
    
    authority, or whether that reliance was reasonable.
    
        Affirmed.
    
    
    
    
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