August 6, 2007
CAMILLO RAMBERAN, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF CASEY RAMBERAN, AN INFANT DECEASED, AND CAMILLO RAMBERAN, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
HIALEAH RESORT MOTEL AND JOSEPH CONNERS, DEFENDANTS-RESPONDENTS, AND GRACE FERMIN, PATRICIA FERMIN, AND JOSE MANUEL FERMIN, DEFENDANTS.
On appeal from Superior Court of New Jersey, Law Division, Essex County, No. L-5255-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 2, 2007
Before Judges Wefing, Yannotti and Messano.
Plaintiff appeals from a judgment of no cause for action entered following the return of a jury verdict in defendants' favor. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings.
Plaintiff brought this action for damages following the death of his daughter Casey Ramberan, then seven-years-old, in a swimming pool on the premises of the Hialeah Resort Motel in Wildwood. The motel is owned and operated by defendant Joseph Connors.
On August 15, 2003, Casey Ramberan went with a number of her family members to Wildwood. Those in the party were her grandfather Jose Fermin, his wife Patricia Fermin, his daughter Grace Fermin and his daughter Mercedes Fermin and her children. Casey's parents, Christine Fermin and plaintiff Camillo Ramberan, did not go on the trip, but each gave permission for Casey to go. Casey did not know how to swim, and her mother gave to Casey's grandparents inflatable devices to be placed on the girl's arms when she was in the water. Throughout the trial these inflatable devices were referred to as "floaties." Casey's mother stressed the importance of Casey wearing her floaties each time she was in the water.
The family traveled in two cars and arrived in Wildwood around 12:30 a.m. on August 16 and were at first unable to find a motel room. They slept for several hours in their cars and awoke in the early morning hours to continue the search for a motel room. The search led them to the Hialeah where they learned accommodations were available but would not be ready until after 11:00 a.m. They were told they could use the facilities of the motel in the interim. They went and slept on the beach for some period of time and returned to the motel in the vicinity of 10:00 a.m. when the pool was scheduled to open.
Defendant Conners owned another hotel in Wildwood several blocks away. Approximately thirty minutes after the pool opened, he left the Hialeah to check on the other hotel. He left his mother in charge at the motel desk.
The children, including Casey, changed into their bathing suits and went in the pool when it opened. Despite the instructions of Casey's mother, no one put the floaties on Casey. There was no lifeguard at the motel pool, but the adults in the Fermin party were seated around the pool area. Initially, fourteen-year-old Grace played with Casey in the shallow end of the pool, but after a while she wanted to join her cousins who were playing in the deep end. She offered to put Casey on her shoulders so the young girl could accompany her, but the young girl was afraid and declined. Grace told Casey to wait for her and she would return and play with her some more.
Casey's grandfather was thirsty, and his wife Patricia went to a nearby area just off the pool to get him some ice. As she left, she told him to watch the children. When she returned, she asked where Casey was. Grace screamed when she saw something at the bottom of the deep end. Jose dove in and retrieved Casey. The police and an ambulance were summoned, but all efforts to revive Casey were unsuccessful.
Plaintiff settled his claims against Jose, Patricia and Grace Fermin and proceeded against the motel, presenting various assertions of negligence, including the failure to have a lifeguard, improper and inadequate signage, failure to have a rope indicating the division between the shallow and deep ends of the pool and a failure to close the pool when Conners was not physically present on the scene. During the course of the trial, the trial court dismissed all of plaintiff's claims except that relating to the failure to have the dividing rope. The jury found the defendant motel was not negligent in this regard.
The safety of the bathing public is regulated by N.J.S.A. 26:4A-4 to -7 and N.J.A.C. 8:26-5.1 to 5.14. Plaintiff contends that defendant Hialeah did not comply with these various provisions and that the jury should have been instructed to that effect.
N.J.S.A. 26:4A-5 provides in pertinent part that a specially exempt facility shall be exempt from mandatory compliance with the first aid personnel and lifeguard requirements of N.J.A.C. 8:26-5 et seq, except that a . . . motel . . . which does not voluntarily comply with these requirements shall have a manager or owner on the premises when its swimming area . . . is open for use.
Hialeah, which restricted the use of its pool to those who rented rooms there qualified as a specially exempt facility. N.J.S.A. 26:4A-4.
In addition, N.J.S.A. 26:4A-6 provides that a specially exempt facility such as Hialeah which does not voluntarily comply with the personnel and lifeguard requirements of N.J.A.C. 8:26-5 must post signs stating
No lifeguard on duty. Persons under the age of 16 must be accompanied by an adult. No swimming alone. This pool shall be closed when the owner or manager is not on the premises.
These signs are to be posted at each entrance to the swimming area, at the registration desk and in each guest room. These requirements are restated at N.J.A.C. 8:26-5.1. It is undisputed that the sign posted by Hialeah at its pool did not comply with these requirements in that it omitted the last statement, with respect to closing the pool if the owner or manager was not on the premises.
N.J.S.A. 26:4A-7 provides that, notwithstanding any of the foregoing, the Department of Health may promulgate regulations requiring the presence of first aid personnel or a lifeguard, or both, at a specially exempt facility which has a functional diving board or water slide "that may present an increased safety risk or hazard." N.J.A.C. 8:26-5.7 calls for a lifeguard to supervise "the waterfront area of waterslides." It is undisputed that Hialeah had both a diving board and a water slide. N.J.A.C. 26:1.3, however, defines a water slide as "a slide exceeding 15 feet in height." There is no evidence in the record as to the height of the slide on the premises of the Hialeah, and it is thus impossible to determine the legal ramifications, if any, of the presence of such a slide at the Hialeah pool. N.J.A.C. 8:26-5.1, in any event, specifically exempts specially exempt facilities from the scope of N.J.A.C. 8:26-5.7.
During the course of pretrial preparation, plaintiff retained John Hanst, an expert in recreational hazards. Mr. Hanst prepared a report in which he identified the following deficiencies in the operation of the Hialeah pool:
1. The failure to install a floatation rope separating the deep end from the wading portion.
2. The failure to install the proper required depth markings on the side of the pool.
3. The failure to maintain sufficient chlorine levels as required by the New Jersey State Sanitary Code--Chapter IX--Public Recreational Bathing.
4. The failure to maintain adult supervision of the swimming facility.
Following a Rule 104 hearing (N.J.R.E. 104), the trial court ruled that the only area in which Mr. Hanst could express an opinion in front of the jury was with regard to the absence of a rope dividing the deep end of the pool from the shallow end of the pool. The trial court held that the balance of Mr. Hanst's report was insufficient on the ground that the opinions he expressed were net opinions.
Plaintiff raises a number of arguments on appeal. Plaintiff's initial contention is that defendant Hialeah lost its status as a specially exempt facility because the sign posted at the pool area failed to contain the statement that the pool would be closed when the owner or manager was not on the premises. We are unable to agree. Plaintiff's argument is based on the constructional proposition that the use of the word "shall" in the statute and implementing regulation is mandatory.
While we have no quarrel with that general principle, AponteCorrea v. Allstate Ins. Co., 162 N.J. 318, 325 (2000), we are satisfied that its use in the statute and regulation does not lead to the conclusion plaintiff desires. In fact, in our judgment, plaintiff's argument overlooks the definition of specially exempt facility contained in N.J.S.A. 26:4A-4 and N.J.A.C. 8:26-1.3. Nothing within that definition provides that the status of a specially exempt facility is dependent upon the facility complying with the various signage requirements.
Plaintiff's argument, moreover, disregards N.J.A.C. 8:26-8.11 which provides that a person violating any of the applicable regulations "shall be liable for the penalties set forth at N.J.S.A. 26:1A-10." Those penalties are all monetary and contain no reference to a facility's loss of its status as a specially exempt facility.
Plaintiff also argues that the trial court erred when it did not submit to the jury the question whether Hialeah was required to have a lifeguard present in light of the fact that the pool contained both a diving board and a water slide. We see no error. First, the interpretation of these statutes and regulations presented a question of law, to be resolved by the trial court, and not by the jury. State in re M.G., 307 N.J. Super. 348, 354 (App. Div.), certif. denied, 154 N.J. 607 (1998). It would have been improper for the trial court to ask the jury to interpret the statute and regulation. Additionally, as we noted earlier, there was no evidence that the water slide at the motel fit within the regulation's definition of a water slide. And, because Hialeah qualified as a specially exempt facility, it was, in any event, exempt from the requirement to have a lifeguard present.
Plaintiff argues that the trial court erred when it precluded the showing of a videotape of the premises that had been taken on August 29, 2003, shortly after this incident. The videotape, however, had been taken by defendant's expert, and plaintiff proposed to merely display the tape to the jury, without the benefit of any explanatory testimony. The trial court's ruling was entirely correct, and plaintiff's contention to the contrary lacks merit. R. 2:11-3(e)(1)(E).
Plaintiff also argues that the trial court erred when it limited the scope of the testimony of Mr. Hanst. Specifically, plaintiff contends that he should have been permitted to testify as to the clarity of the water in the pool and as to the improper depth markings. The trial court's rulings, however, were correct. There was absolutely no testimony that the clarity of the water in the pool on the morning of August 16 played any role in Casey's tragic death. Nor was there any testimony that the search for her was hampered in any way because of the water's lack of clarity. In that evidential context, Mr. Hanst's opinion that the water clarity was deficient was simply immaterial to what had occurred.
The trial court also correctly precluded Mr. Hanst from testifying as to the depth markings on the pool. First, Mr. Hanst candidly admitted that when he inspected this pool, he took no measurements. His opinion that the pool's depth markings were incorrect was based upon his "eyeballing" it. Secondly, there was no testimony that seven-year-old Casey was aware of the significance of the depth markings or had been instructed not to go beyond a certain point.
Plaintiff also contends that the trial court erred in its charge to the jury in that it failed to instruct the jury that the absence of a floating rope dividing the shallow and deep ends was a departure from the industry's standard of care. The trial court did permit Mr. Hanst to testify to that effect. The trial court in its charge did not mention that opinion to the jury but framed its instruction in general terms as to a landowner's responsibility to see that the premises are in reasonably safe condition for the use of an invitee.
While it might have been preferable for the trial court to refer to the testimony of Mr. Hanst in this regard, we are unable to conclude that the matter should be reversed on that basis. The unrefuted testimony was that Casey was four foot, one inch in height. If she attempted to walk from the shallow end to the deeper end to join the others playing there (and the record contains no evidence at all as to how she came to enter the pool again), she would have been submerged long before she came upon that dividing point.
Similarly, we see no reversible error in the trial court's refusal to submit to the jury the question whether Hialeah was culpably at fault because the sign posted at the pool did not fully comply with the governing statute and regulation. The testimony at trial was that defendants Jose and Patricia Fermin knew that there was no lifeguard on duty while the children were swimming. There was no causal link between the deficient sign and Casey's tragic death.
We also reject plaintiff's assertion that this jury was in some manner rushed into reaching its verdict. The record contains no factual support for the argument. If plaintiff was concerned about that possibility, counsel was obligated to create a record in that regard.
We are, however, concerned about one aspect of the trial court's rulings and charge. N.J.S.A. 26:4A-5 requires the pool of a specially exempt facility to be closed when the owner or manager is not on the premises. As we noted earlier, Mr. Conners had left the Hialeah to attend to business at his other hotel and left his mother in charge at the motel desk. Faced with plaintiff's argument that under N.J.S.A. 26:4A-5, the pool should have been closed upon Mr. Conner's departure, the trial court, after examining a dictionary definition of manager, determined that his mother was functioning in that capacity and thus that there had been no violation of the statutory requirement.
We are satisfied that in doing so, the trial court erred. Whether Mr. Conners' mother was functioning as a manager and satisfied the terms of the statute was, in our judgment, a jury question that could not be resolved as a matter of law by the trial court. Rather, the trial court should have, with the assistance of counsel, formulated a charge as to the meaning of the term manager and then posed the question to the jury whether Mrs. Conners functioned as a manager when her son departed the premises. Several reported cases have commented upon the term manager or managerial executive and may provide a starting point in formulating a charge applicable to this factual complex.
N.J. Tpk. Auth. v. Am. Fed'n. of State, 289 N.J. Super. 23 (App. Div. 1996), aff'd as mod'd, 150 N.J. 331 (1997); State v. Alexander, 136 N.J. 563 (1994).
On retrial, the jury should determine whether the mother of defendant Conners was functioning as the manager of the Hialeah. If it answers that question in the affirmative, that will conclude the matter. If it answers the question in the negative, it will have to go on to consider whether the failure to close the pool when no manager was present constituted negligence and, if so, whether that negligence was a proximate cause of the accident. Defendant would only be liable if the jury found in plaintiff's favor on all three questions.
Because the trial court did not submit this question of fact to the jury, we are constrained to reverse the judgment under review and remand the matter to the trial court for a new trial.
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