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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...