DENNIS WHITE, ETC. VS. JAMES ASTACIOÂ (L-4771-11, ATLANTIC COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-3654-15T3
DENNIS WHITE,
Administrator Ad
Prosequendum and General
Administrator of The Estate
of DAFIQ RASHEED, Deceased,
Plaintiff-Appellant,
v.
JAMES ASTACIO, SR.,
and DORIS ASTACIO,
Defendants-Respondents.
________________________________________________________________
Argued May 23, 2017 – Decided July 21, 2017
Before Judges Messano and Espinosa.
On appeal from the Superior Court of New
Jersey, Law Division, Atlantic County,
Docket No. L-4771-11.
Christopher S. Lipari argued the cause for
appellant (Lipari & Walcoff, LLC, attorneys;
Mr. Lipari, of counsel and on the brief).
Chad M. Moore argued the cause for
respondents (Hoagland, Longo, Moran, Dunst &
Doukas, LLP, attorneys; Mr. Moore, of
counsel; Dawn P. Marino, on the brief).
PER CURIAM
Defendants Doris and James Astacio1 permitted Doris's sister
and brother-in-law, Diana and Jason Adams, to host a party at
their home. Dafiq Rasheed, an adult guest, drowned in their pool.
Dafiq's father, plaintiff Dennis White, brought this negligence
action against defendants, alleging a survivorship claim on behalf
of Dafiq and a wrongful death claim on behalf of Dafiq's estate.
Plaintiff appeals from an order granting summary judgment to
defendants. We affirm.
I.
We review the facts, drawing all legitimate inferences in
plaintiff's favor, to determine if a genuine issue of material
fact exists that precludes summary judgment. R. 4:46-2(c).
Diana and Jason hosted a sixteenth birthday party for their
son at defendants' home. Although the complaint alleges defendants
hosted the party, plaintiff admitted in answers to interrogatories
that Diana was the host and that Doris was not present at the time
of the party. James testified he was doing yardwork in the front
of the house most of the time "because it wasn't [his] party," and
he actually left the premises at some point.
1
Because some witnesses and parties share last names, we refer
to them all by their first names to avoid confusion. No disrespect
is intended.
2 A-3654-15T3
Diana testified that, as the party was ending, Dafiq decided
to go into the pool. She observed him putting on goggles, dancing
around and then jumping in, feet first, into the deep end of the
pool. Christopher Maglione, another adult guest, laughed as he
watched Dafiq dancing on the side of the pool.
Jason was in the pool when he saw Dafiq jump in. He stated
Dafiq "started bobbing for like 30 seconds" and then grabbed
Jason's shoulder, pulling him under the water. Jason testified,
"Chris said he was in trouble" and Dafiq "went under water right
away, within a minute['s] time." Christopher jumped into the
pool, fully clothed. He brought Dafiq's head above the water, and
pulled him to the edge of the pool where Jason helped to pull
Dafiq out of the water and onto the concrete. The immediacy of
the response was confirmed by Diana, who testified she saw
Christopher jump into the pool within one minute of the time that
Dafiq had jumped in.
Jason administered cardiopulmonary resuscitation (CPR) to
Dafiq for several minutes. James heard someone call out, "somebody
call 911." He ran to the backyard, saw Dafiq and ran inside to
call 911.
Emergency medical technicians (EMTs) administered CPR when
they arrived, but to no avail. Dafiq was pronounced dead at the
hospital. Dr. Ian Hood, a forensic pathology expert retained by
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plaintiff, issued a report in which he concluded Dafiq likely
struggled in the water for two to four minutes before dying from
"asphyxia due to drowning."
When asked whether a person had been assigned to watch the
pool area that day, James testified: "No, not necessarily. We
just try and keep a vigilant eye on it, you know, in general."
James also testified he owned a shepherd's crook2 and kept it along
the fence near the pool on the day of the incident. At his
deposition, James was shown a photograph of the area where he
purportedly kept the shepherd's crook and acknowledged it was not
shown there. Jason could not recall whether a shepherd's crook
was present.
Christopher testified "safety devices or flotation devices"
were affixed to a three-foot-high fence that surrounded the pool
area on the day of the incident, including a shepherd's crook. He
explained he did not grab any of the safety devices because he was
very close to the pool and going to get them would have taken
longer than jumping in. He and Jason were able to get Dafiq out
of the pool quickly, within "[f]our or five seconds," without any
of the safety devices.
2
A shepherd's crook is a ten-to-twelve-foot pole with a loop on
the end that can be used to pull someone out of water.
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Jason testified seeing signs around the pool at the time that
said "swim at your own risk, deep end, shallow end, stuff like
that . . . I think one was no lifeguard present, swim at your own
risk."
Plaintiff's pool safety expert, Dr. Francesco Pia, stated
"defendants owed an inherent duty to provide both a safe swimming
environment to invited pool party guests who were using their in-
ground backyard pool and to protect their invited guests from
drowning by the exercise of reasonable care." He identified pool
safety recommendations of the American Red Cross for pool safety
that defendants failed to follow, two of which are relevant for
this appeal. First, defendants did not provide a shepherd's crook,
which would have been used to pull Dafiq out when he was in
distress. Second, defendants failed to have a lifeguard or
"designated water watcher," trained in first aid, CPR, and water
safety, "whose specific responsibility is to supervise bathers
during a pool party" and who could have used the shepherd's crook
to prevent Dafiq from drowning. Dr. Pia opined that defendants'
"deviat[ions] from acceptable unguarded backyard pool party safety
standards . . . were substantial factors which contributed to
[Dafiq's] drowning."
At his deposition, Dr. Pia testified, "[Christopher]
correctly made a determination that it would be faster for him to
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hop over the fence . . . to dive into the pool and pick [Dafiq]
up as opposed to running over and getting the shepherd's crook."
He clarified that Christopher's actions were appropriate to
recover Dafiq's body even if the shepherd's crook had been present.
II.
The complaint alleged Dafiq was an invitee to defendants'
premises; they owed him a duty to use reasonable care to keep the
premises free from dangerous conditions; and defendants breached
that duty by allowing a dangerous condition that was the proximate
cause of Dafiq's death. The breaches of duty alleged are based
on Dr. Pia's opinion, that defendants failed: (1) to have a
shepherd's crook easily accessible while guests were in the pool,
and (2) to designate a water watcher while guests were in the
pool.
In their motion for summary judgment, defendants argued that,
pursuant to Tighe v. Peterson, 175 N.J. 240 (2002), they did not
owe any duty to Dafiq, a social guest, to make their pool safer
for him than for themselves because he was familiar with the pool.
In opposition, plaintiff argued defendants failed to exercise
reasonable care. The Law Division granted defendants' motion,
holding,
Defendants had no duty . . . to obtain a water
watcher or shepherd's crook. [Dafiq] was an
adult swimmer, who was at [d]efendants' pool
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before, and he was intelligent enough to
notice that there was no water watcher present
before, during or after the party. More so,
the shepherd's crook is immaterial as [Dafiq]
was taken out of the pool quickly by
[Christopher].
. . . .
Defendants were not throwing a party, hosting
a party, or conducting activities on the date
in question. Rather, [d]efendants
allowed . . . Diana . . . to use their
backyard to host a birthday party, wherein
Diana . . . hosted the party and invited
guests.
In this appeal, plaintiff argues the trial judge erred by
applying an incorrect standard of care, defendants had a duty to
exercise reasonable care when permitting a pool party to occur at
their residence, and genuine issues of fact exist, precluding
summary judgment. We have considered these arguments in light of
the record and applicable principles of law and conclude they lack
merit.
III.
In reviewing a summary judgment decision, we apply the same
standard as the trial court. Murray v. Plainfield Rescue Squad,
210 N.J. 581, 584 (2012). Viewing "the evidence in a light most
favorable to the non-moving party," we "determine if there is a
genuine issue as to any material fact or whether the moving party
is entitled to judgment as a matter of law." Rowe v. Mazel Thirty,
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LLC, 209 N.J. 35, 38, 41 (2012) (second quotation citing Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995)). We
review questions of law de novo, and need not accept the trial
court's conclusions of law. Davis v. Devereux Found., 209 N.J.
269, 286 (2012).
To defeat a motion for summary judgment, "[t]he opponent must
'come forward with evidence' that creates a genuine issue of
material fact." Horizon Blue Cross Blue Shield of N.J. v. State,
425 N.J. Super. 1, 32 (App. Div.) (quoting Brill, supra, 142 N.J.
at 529), certif. denied and appeal dismissed, 211 N.J. 608 (2012);
see R. 4:46-2(c). "An issue of fact is genuine only if,
considering the burden of persuasion at trial, the evidence
submitted by the parties on the motion, together with all
legitimate inferences therefrom favoring the non-moving party,
would require submission of the issue to the trier of fact." Ibid.Plaintiff argues the duty defendants owed to Dafiq was not
merely that of a landowner to disclose or neutralize dangerous
conditions the landowner knows or should know exist on the
property. Relying upon Hanna v. Stone, 329 N.J. Super. 385 (App.
Div. 2000), he argues defendants owed a "heightened standard" to
him "to exercise reasonable care for the protection of his/her
guest." Model Jury Charge (Civil), 5.20F(4), "Social Guest –
Defined and General Duty Owed," Note to Judge 2, "Exception as to
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Host's Activities" (2014). This duty arises "[i]n cases where the
host is conducting some 'activity' on the premises at the time of
his/her guest’s presence." Ibid.Hanna, the case relied upon by plaintiff, instructs that
where the focus is not on a physical condition of the property but
on activities conducted thereupon, the duty to use reasonable care
falls upon "the person conducting the activity." 329 N.J. Super.
at 389. The "activity" defendants conducted was to allow their
adult relatives to host a party on their property. Although
plaintiff acknowledges that Diana and Jason were the hosts, he
contends defendants had a duty to exercise reasonable care at a
party hosted by others that required them to do the following
while guests are in the pool: (1) have a shepherd's crook easily
accessible, and (2) designate a water watcher.
In Parks v. Rogers, the Court "revisit[ed] the scope of a
homeowner's duty to protect an unsuspecting social guest of dangers
on the premises," 176 N.J. 491, 494 (2003) (emphasis added), and
noted, "[a] landowner is not required to provide greater safety
on his premises for a social guest than he would for himself," id.
at 497-98. The landowner has "the duty to disclose to the social
guest the dangerous condition or to correct it" so the social
guest has "the same knowledge possessed by the host of dangerous
conditions." Id. at 498 (citation omitted). "If, however, 'the
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guest is aware of the dangerous condition or by a reasonable use
of his faculties would observe it, the host is not liable' because
of the guest's failure to use due care." Ibid. (citation omitted).
It is undisputed that Dafiq was familiar with defendants'
pool, having used it previously. It is also evident that he would
have been aware of the absence of a shepherd's crook or a water
watcher through "a reasonable use of his faculties." Even if we
do not impute knowledge of the dangerous condition to Dafiq,
defeating any claim that defendants are liable, plaintiff's proofs
fail to establish a genuine issue of fact as to proximate cause.
To prove a breach of duty proximately caused an alleged
injury, a plaintiff must establish "any cause which in the natural
and continuous sequence, unbroken by an efficient intervening
cause, produces the result complained of and without which the
result would not have occurred." Townsend v. Pierre, 221 N.J. 36,
51 (2015) (quoting Conklin v. Hannoch Weisman, 145 N.J. 395, 418
(1996)). While causation is an issue ordinarily determined by the
factfinder, "in the unusual setting in which no reasonable
factfinder could find that the plaintiff has proven causation by
a preponderance of the evidence, summary judgment may be granted
dismissing the plaintiff's claim." Id. at 60.
As we have noted, plaintiff's expert opined that it was the
breach of the duty to have a shepherd's crook and a water watcher
10 A-3654-15T3
that proximately caused Dafiq's death. However, Dr. Pia's
testimony that the action taken by Christopher – to hop over the
fence, dive into the pool and pick up Dafiq – would have been the
correct course of action even if a shepherd's crook had been
present and would also have been faster than attempting to rescue
Dafiq with a shepherd's crook.
Turning to the function of a water watcher, Dr. Pia stated:
Once [Dafiq's] surface struggle started in the
defendants' in-ground backyard pool, an
attentive trained "water watcher" would have
used ordinary care to rescue [him] while he
was struggling on the surface of the water.
The extension of the shepherd's crook by the
"water watcher" on the pool deck of the
defendants to the decedent would have taken
seconds and enabled the rescue of [Dafiq]
before his submersion.
The record shows Dafiq was observed by the other adults
present continuously from the time he jumped into the pool and
Christopher jumped into the pool to rescue him within a minute.
CPR was administered immediately. The actions taken correspond
to Dr. Pia's description of activities a designated water watcher
would perform. And, as noted, Dr. Pia acknowledged the actions
taken would have been the correct choice even if a shepherd's
crook had been available.
On this record, no reasonable factfinder could conclude that
the failures to have a shepherd's crook or a water watcher
11 A-3654-15T3
constituted breaches of a duty that proximately caused Dafiq's
death and therefore, summary judgment was appropriate.
Affirmed.
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