CHRISTOPHER J. PANICO VS. MEREDITH WINNER(L-2290-13, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1431-15T2
CHRISTOPHER J. PANICO,
Plaintiff-Appellant,
v.
MEREDITH WINNER, AUSTIN S.
PANDZA, ROBERT SOCKWELL, MARK
K. LEVITSKY, M.D., COHANZICK
ORTHOPEDICS, P.A., SOUTH JERSEY
HEALTHCARE REGIONAL MEDICAL CENTER,
SOUTH JERSEY HEALTH SYSTEM, INC.,
SOUTH JERSEY HOSPITAL, INC.,
and INSPIRA MEDICAL CENTERS, INC.,
Defendants,
and
DANIEL MYERS and GRETCHEN
MYERS,
Defendants-Respondents.
——————————————————————————————————
Argued May 10, 2017 – Decided July 3, 2017
Before Judges Hoffman and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Docket No. L-
2290-13.
Jared N. Kasher argued the cause for
appellant (Hockfield & Kasher, LLC,
attorneys; Susan L. Moreinis, on the
briefs).
Robert S. Florke argued the cause for
respondents (Kent & McBride, P.C.,
attorneys; Kelly C. Scheese and John P.
Shea, on the brief).
PER CURIAM
Plaintiff Christopher Panico appeals from the January 2,
2015 summary judgment order dismissing his personal injury
negligence complaint against defendant Daniel Myers, and his
wife, defendant Gretchen Myers (defendants).1 We vacate and
remand, finding genuine issues of material fact as to whether
defendants breached the standard of care.
I.
We discern the following facts from the record, viewing the
evidence in the light most favorable to plaintiff, the non-
moving party. Davis v. Brickman Landscaping, Ltd., 219 N.J.
395, 405-06 (2014). This case arises from an accident that
occurred on June 3, 2011, when plaintiff suffered a serious leg
injury while using a trampoline at a high school graduation
party. Homeowner Meredith Winner (Winner) held the party at her
residence to celebrate the graduation of her daughter, Amelia.
Plaintiff, then eighteen years old, attended the party along
1
Because plaintiff's claims against all other defendants have
been resolved or dismissed, we refer to Daniel and Gretchen
Myers as "defendants" for ease of reference.
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with approximately twenty teenage guests. While most of the
guests were at least eighteen years of age, plaintiff believed
at least two of the guests were "under [eighteen]."
Winner testified at deposition that she initially planned
on attending the party and serving as chaperone. However, she
learned of a work obligation for that date, prompting her to
tell Amelia she would have to cancel the party unless Amelia's
grandfather (Winner's father), defendant Daniel Myers, could
attend. Amelia then spoke with her grandfather, who agreed to
attend with his wife. Winner stated she also spoke with her
father about his attending the party, including his role as
chaperone until Winner arrived. Winner said she "would not let
[her] daughter have that party without an adult's supervision."
Winner further stated defendants "knew [the party] was going to
be inside," and Amelia knew the party was to be indoors.
At the time of the party, Winner owned a fourteen-foot
diameter trampoline, located in the backyard of her home.
Although she did not recall having a specific conversation with
Amelia regarding trampoline use at the party, Winner said Amelia
knew "the rules" that "nobody goes on [the] trampoline without
me being there. We had those rules from the day we bought the
trampoline. It's always a supervised situation." Winner
imposed these rules because Amelia and her friends were "not to
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be trusted, they're kids." She added, "Amelia was the one who
knew the rules, so she had talked to her grandfather prior [to
the party]. They knew it was inside."
The following colloquy occurred at Winner's deposition
regarding defendants:
Q: Did you speak with your father or
Gretchen about the trampoline rules?
A: Not that I recall at that moment, but
in the time we owned the trampoline
it's been discussed.
Q: Were your father and Gretchen aware of
the one[-]person rule on the
trampoline?
A: You'd have to ask them.
Q: Is that something you've ever told
them?
A: Possibly.
. . . .
Q: And was it your expectation that your father and
Gretchen would have prohibited any of the guests
from using the trampoline?
. . . .
A: Yeah. I have supervisors there to make
sure the children aren't doing stupid
things. . . .
She also stated her father was "at my home a lot. . . . He
knew we had a trampoline." Winner further acknowledged that if
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she had been at the party, "It's safe to say I would not have
allowed anybody on the trampoline."
Despite Winner's rules and her efforts to secure adult
supervision for the party, at some point during the party,
several of the teenage guests went outside to use the
trampoline. According to guest Austin Pandza, he used the
trampoline first by himself. After using it again with guest
Robert Sockwell, Pandza entered the house and suggested the
guests go outside to play a game on the trampoline. Pandza said
plaintiff agreed to play the game, which involved multiple
people on the trampoline. The rules were that a user would be
"out" if he fell down without bouncing back to his feet.
At his deposition, plaintiff testified he had never used a
trampoline before the party. He initially did not want to use
the trampoline, but Pandza "carried" him outside to use it.2
However, after Pandza placed him down by the trampoline,
plaintiff climbed onto the trampoline by himself. Plaintiff
then jumped with Pandza and Sockwell for approximately one
minute. At that point, Pandza jumped toward him, and "his leg
came up and collided with [plaintiff's] leg," causing plaintiff
to feel it "snap." Plaintiff described his injury as an
accident, stating Pandza never intended to harm him.
2
Pandza, a 6'5" football player, weighed approximately 200
pounds at the time of the accident.
5 A-1431-15T2
Plaintiff's leg fracture resulted in multiple surgeries and
the insertion of rods and screws. He eventually developed
reflex sympathetic dystrophy (RSD), a chronic pain syndrome,
resulting in his referral to a pain specialist. According to
plaintiff, his doctor informed him he will "need a pain
specialist pretty much forever because RSD won't go away."
Plaintiff stated defendants were the only adults at the
party. He helped them with the food when they arrived, and they
helped to set up. According to plaintiff, Amelia said her
grandparents were going to "take charge" until her mother
arrived. Plaintiff noted that prior to his accident, he
observed Sockwell and a female guest tell defendants they were
going to use the trampoline, and defendants responded, "Okay."
He also noted defendants "were on the screened porch facing the
trampoline" when Pandza "walked past them . . . carrying me."
Daniel Myers testified he was not responsible for ensuring
the safe use of the trampoline at the party. He said his
daughter asked him to supply refreshments, and he was not a
chaperone but "in a sense" a "guest[] like everybody else." An
attorney licensed in New Jersey and Virginia, he further stated,
"I don't even know what a chaperone is." He denied receiving
instructions to keep the guests safe, but he noted no one
thought the guests would use the trampoline because it was "not
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part of the party." He claimed to be "[v]aguely" familiar with
trampolines in general, and he "might have been aware" of the
trampoline prior to the accident.
Gretchen Myers testified that prior to plaintiff's injury
she never observed the trampoline in the backyard. She denied
having any conversations with Winner regarding a supervisory
role at the party. She noted she was "[n]ot exactly" a guest,
but she was there to help with food.
In May 2013, plaintiff filed a personal injury complaint
against defendants, Winner, Pandza, Sockwell, and other parties
not relevant to this appeal. Plaintiff alleged, in relevant
part, that Daniel and Gretchen Myers negligently supervised the
"premises" by allowing multiple persons to use the trampoline at
the same time. Plaintiff also alleged defendants negligently
failed to warn him of the dangers associated with multi-person
trampoline use.
Thereafter, the parties engaged in extensive discovery,
including numerous depositions. Plaintiff attempted to schedule
Amelia's deposition, but she was away at college. On September
22, 2014, before the discovery end date, defendants filed a
motion for summary judgment, asserting plaintiff failed to
produce any precedent establishing a "duty requiring
[defendants] to supervise the activities of guests at a private
7 A-1431-15T2
party, particularly when [defendants] had no special
relationship to the plaintiff."
Plaintiff filed a response to defendants' motion on October
7, 2014. Plaintiff argued discovery was not complete, and
contradictory deposition testimony raised issues of facts for a
jury to resolve. Plaintiff also filed a cross-motion for
partial summary judgment on the issue of defendants' liability,
contending defendants breached their duty of care as possessors
of the premises by failing to warn him of the risks of
trampoline use and by failing to prevent him from using it.
Plaintiff further moved to extend discovery. The court granted
this motion on November 7, 2014, extending discovery to March
20, 2015.
On December 19, 2014, the parties appeared before the
motion judge for oral argument on the summary judgment motions.
Following argument, the judge granted summary judgment in favor
of defendants and rendered an oral opinion on the record.
Assuming for the purposes of the motion that defendants were
"host[s]/guest[s]" of the party, the judge relied on Hanna v.
Stone, 329 N.J. Super. 385 (App. Div. 2000), finding,
[Hanna involved] an underage party, under
[eighteen] party, at which parents of the
one child were sued by parents of other boys
who got into a fight. The [c]ourt said the
parents had no obligation to supervise the
friends of the child in the party and that
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supervision is using reasonable care. That
is the host's duty is to refrain from any
active wrongdoing or any willful injury and
warn of any unknown dangers. And I think
here there has been no showing even
accepting facts as asserted by the
plaintiff.
The judge further concluded defendants owed no duty to warn
plaintiff of the dangers of trampoline use because they "were
not the homeowner[s], and they were not in any better position
than the plaintiff." He also declined to impose a "new duty" on
defendants because "there really wasn't any relationship between
the plaintiff and [defendants] here."
During argument, plaintiff's counsel raised the issue of
Amelia's pending deposition. The judge inquired whether Amelia
would testify to any issues besides whether defendants were
hosts of the party; counsel responded that "[Amelia's] specific
discussions [with defendants] were about the actual trampoline
or any use of the property." The judge determined the
incomplete discovery did not provide a reason to defer his
decision on the cross-motions. Plaintiff then filed a motion
for reconsideration, which the judge denied without oral
argument. This appeal followed.
II.
In deciding a summary judgment motion on appeal, we "review
the trial court's grant of summary judgment de novo under the
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same standard as the trial court" and accord "no special
deference to the legal determinations of the trial court."
Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of
Pittsburgh, 224 N.J. 189, 199 (2016). Under this standard, we
must grant summary judgment "if the pleadings, depositions,
answers to interrogatories and admissions on file, together with
the 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." Ibid.(quoting R. 4:46-2(c)).
"If there is no genuine issue of material fact, we must
then 'decide whether the trial court correctly interpreted the
law.'" DepoLink Court Reporting & Litig. Support Servs. v.
Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting
Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App.
Div. 2007), certif. denied, 195 N.J. 419 (2008), overruled in
part on other grounds, Wilson ex rel. Manzano v. City of Jersey
City, 209 N.J. 558 (2012)). We review issues of law de novo and
accord no deference to the trial judge's legal conclusions.
Nicholas v. Mynster, 213 N.J. 463, 478 (2013).
We first address whether defendants owed a duty of care to
plaintiff. "To sustain a cause of action for negligence, a
plaintiff must establish four elements: '(1) a duty of care, (2)
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a breach of that duty, (3) proximate cause, and (4) actual
damages.'" Townsend v. Pierre, 221 N.J. 36, 51 (2015) (quoting
Polzo v. Cnty. of Essex, 196 N.J. 569, 584 (2008)). The
existence of a duty is a matter of law. Kernan v. One
Washington Park Urban Renewal Assocs., 154 N.J. 437, 445 (1998).
In circumstances where the duty of care "is not well
settled" by our previous case law, we must conduct a "full duty
analysis." Peguero v. Tau Kappa Epsilon Local Chapter, 439 N.J.
Super. 77, 88 (App. Div. 2015) (quoting Desir, Estate of ex rel.
Estiverne v. Vertus, 214 N.J. 303, 317 (2013)). This analysis
considers "the relationship of the parties; the nature of the
attendant risk; the opportunity and ability to exercise care;
and the public policy considerations." Id. at 89. "[W]hether a
duty exists is ultimately a question of fairness." Hopkins v.
Fox & Lazo Realtors, 132 N.J. 426, 439 (1993) (quoting Weinberg
v. Dinger, 106 N.J. 469, 485 (1987)).
However, as the motion judge noted, our decision in Hanna
v. Stone guides our analysis in the instant matter. In Hanna,
the defendants hosted a party for their son's fourteenth
birthday at their home; the son invited approximately forty to
fifty teenagers, who mainly congregated in the defendants'
basement. Hanna, supra, 329 N.J. Super. at 388. At the party,
"one boy struck and injured another boy" with whom he had a
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"history of mutual dislike." Id. at 388, 390. The parents of
the injured boy sued the defendants, asserting the defendants
negligently failed "to properly supervise all visitors and
invitees on the premises for the birthday party." Id. at 389.
In affirming summary judgment in favor of the defendants,
we determined that "parents have no absolute duty to be
constantly present among the teenagers at a social function and
no duty to check the background and relationships of the
invitees." Ibid. However, we rejected the defendants' position
that they only owed the duty of a "social host," which "requires
only that the hosts refrain from willful injury or active
wrongdoing and warn of known risks that are not apparent or
known to the licensee." Ibid. Instead, we found "the duty of
the person conducting [an] activity [on his or her premises],
such as parents sponsoring a party for their son, is 'simply to
use reasonable care in all the circumstances.'" Ibid. (quoting
Copanese v. Martinez, 35 N.J. Super. 118, 122-23 (App. Div.
1955)). We then concluded no reasonable jury could find the
defendants breached this standard of care, and the defendants
had no legal obligation to conduct background checks of the
party guests. Id. at 389-90.
Conversely, applying this standard in the instant matter,
we conclude plaintiff presented sufficient evidence to raise a
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jury question whether defendants breached the duty they owed to
plaintiff. First, although defendants did not own the home in
question, there was a genuine issue of fact as to whether they
were the de facto "sponsor[s]" of the party in Winner's absence.
Second, the deposition testimony raises clear issues of fact as
to defendants' understanding of their role at the party,
specifically, whether they were bound to supervise the guests
and keep them indoors. Last, there is an issue of fact
regarding the extent of defendants' knowledge of the trampoline
and the house safety rules. We find these issues are material
to whether defendants exercised "reasonable care in all the
circumstances," id. at 389, and therefore, must be decided by a
jury at trial.
We also note the trial judge erred by granting summary
judgment before the parties could depose Amelia. Courts should
refrain from granting summary judgment before discovery is
complete unless "it is readily apparent that continued discovery
would not produce any additional facts necessary to a proper
disposition of the motion." DepoLink, supra, 430 N.J. Super. at
341 (citing R. 4:46-5). Here, we reject the conclusion of the
motion judge that Amelia's deposition would not have revealed
any material facts. Rather, her testimony will likely provide
additional information regarding facts relevant to this case,
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particularly regarding the extent of defendants' knowledge of
the trampoline and their knowledge of Winner's house rules
regarding its use.
Furthermore, contrary to defendants' assertion, plaintiff's
responsive cross-motion for summary judgment does not preclude
our determination that the motion judge improperly entered
summary judgment. Although "[t]he filing of a cross-motion for
summary judgment generally limits the ability of the losing
party to argue that an issue raises questions of fact," no per
se rule bars the movant from seeking trial as an alternate form
of relief. Spring Creek Holding Co. v. Shinnihon U.S.A. Co.,
399 N.J. Super. 158, 177 (App. Div.), certif. denied, 196 N.J.
85 (2008). Here, while summary judgment in favor of plaintiff
is clearly inappropriate, we find his responsive cross-motion
does not bar the matter from proceeding to trial.
Finally, we comment briefly on Bagnana v. Wolfinger, 385
N.J. Super. 1 (App. Div. 2006), a relevant case addressing
liability for trampoline injuries, which the motion judge found
distinguishable from the instant matter. Plaintiff relied on
this case in his cross-motion for summary judgment, arguing that
as social hosts and temporary possessors of the land, defendants
had a duty to warn plaintiff of the danger posed by the
trampoline.
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In Bagnana, an adult plaintiff sued the defendant
homeowners after she received an injury "double jumping" with
her husband on the defendants' trampoline at a backyard
barbeque. Id. at 3-4. The plaintiff claimed she was
inexperienced on trampolines, so she sued the homeowners for
failure to warn and make safe the dangerous condition on the
premises. Id. at 3-4, 8. The trial court granted summary
judgment, finding the plaintiff was aware of the "inherent"
dangers associated with trampoline use. Id. at 4. We reversed,
finding the jury should have assessed the relevant
circumstances, including
(1) whether defendants failed to enforce the
manufacturer's rules and prohibitions
pursuant to the User's Manual, (2) whether
defendants removed the yellow warning
placard from the trampoline prior to the
accident, (3) whether defendants may have
condoned or encouraged double jumping by
allegedly failing to object when it occurred
in their presence, and (4) whether plaintiff
was comparatively negligent for failing to
use due care for her own safety.
[Id. at 10.]
In the instant matter, while defendants were not the
homeowners, Winner's testimony indicated she had had discussed
the trampoline rules with defendants "in the time we owned the
trampoline." She further stated her expectation that defendants
would have prohibited the party guests from using the
15 A-1431-15T2
trampoline. We conclude the record contains sufficient evidence
from which a reasonable jury might conclude that defendants knew
or should have known that, as chaperones of the party, there was
a necessity and opportunity for them to have prevented guests
from using the trampoline at the party, or to have limited its
use to one person at a time. In sum, we conclude the record
presents genuine issues of material fact, precluding summary
judgment. We therefore vacate the order granting defendants'
motion and remand for further proceedings.
Vacated and remanded. We do not retain jurisdiction.
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