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Toribio v. Pine Haven, LLC

United States District Court, D. New Jersey

August 5, 2014

BETANIA TORIBIO, Administratix of the Estate of JOHN JOAQUIN TORIBIO, Deceased; and BETANIA TORIBIO, Individually Plaintiffs,

LAW OFFICE OF TERKOWITZ & HERMESMANN, Patrick J. Hermesmann, Esq., Mount Laurel, New Jersey, Counsel for Defendants/Third Party Plaintiffs Pine Haven, LLC & Diversified Investments, Inc.

BARNABA & MARCONI, LLP, Gary S. McDonald, Esq., Trenton, New Jersey, Counsel for Third Party Defendants Timothy Miller, Heather Miller a/k/a Heather Dioscon, and Anthony Dioscon.


JOSEPH E. IRENAS, Senior District Judge.

Plaintiff Betania Toribio brings this wrongful death suit on behalf of her son, decedent John Toribio, and in her individual capacity. Following the filing of Betania Toribio's Complaint, Defendants Pine Haven, LLC, and Pine Haven Holdings, LLC, [1] filed an Answer and Third Party Complaint, alleging that Third Party Defendants Timothy Miller, Heather Miller, [2] Anthony Dioscon, and Michelle Wheeler shared liability in John Toribio's death, and the Defendants were therefore entitled to indemnification and contribution for any negligent acts of the Third Party Defendants.

Currently pending before the Court is the remaining Third Party Defendants' Motion for Summary Judgment, [3] which seeks judgment in their favor on the counts of negligence, breach of contract, and indemnification and contribution asserted against them.[4] For the reasons explained herein, this motion will be granted.


The Court recounts only the facts necessary for deciding the Third Party Defendants' pending motion and construes any disputes in favor of the non-moving Third Party Plaintiffs.

The facts and events relevant to this lawsuit and the pending counterclaims begin before the tragic death of the decedent, fourteen year-old John Toribio ("Toribio" or "decedent"), on August 8, 2010. Decedent and Third Party Defendant Anthony Dioscon ("Dioscon") first became close friends in 2007 or 2008 when they began middle school, where they attended a number of the same classes and played recreational basketball and football together. (Anthony Dioscon Dep., Oct. 15, 2013, at 22:1-23:8) Dioscon and the decedent were the same age, saw each other every day in school, and spent many weekends together with friends near decedent's home on Friendship Street. (Id. at 23:9-25)

In addition to spending time at the decedent's home, Dioscon and the decedent also spent time with Dioscon's parents, Third Party Defendants Heather Miller and Timothy Miller. On at least one occasion, the decedent and Dioscon swam together in the Millers' above-ground pool. (Id. at 33:10-21; Heather Miller Dep., Oct. 29, 2013, at 26:3-12; Timothy Miller Dep., July 1, 2013, at 110:23-111:18) The Millers shared a general, "heightened concern" around the water because they had the pool, and they were "hyper concerned about any drownings, " and sensitive to the potential danger surrounding the water. (H. Miller Dep. at 56:16-24) As a result, there was always an adult present when the decedent and Dioscon swam in the pool. (T. Miller Dep. at 110:23-111:18)

In view of the Millers' sensitivity, both the Millers and Dioscon knew that the decedent could swim. (Dioscon Dep. at 121:11-13; H. Miller Dep. at 38:14; T. Miller Dep. at 114:23-116:4) All three reached this conclusion even with the knowledge that the decedent had a minor deformity on his right hand. (Dioscon Dep. at 121:11-13; H. Miller Dep. at 38:14; T. Miller Dep. at 114:23-116:4) Despite her knowledge of the decedent's abilities, Heather Miller nonetheless confirmed the decedent's swimming abilities with Betania Toribio, as well as the decedent's sister Odalie Toribio, when the two of them dropped off the decedent on Thursday, August 5, 2010. (H. Miller Dep. at 39:1-20)

After spending Thursday evening at the Millers' home, the family and the decedent set off for Pine Haven Campground on Friday, arriving around 8:00 p.m. (Id. at 41:18-42:1) On Saturday, the group traveled to Sea Isle City to spend some time on the beach and swim in the ocean. Sometime before arriving in Sea Isle City, Heather informed the decedent and Dioscon of the "main rules" for the weekend: "they were not to go near any water, they were not allowed to swim without me or my husband present, and that Saturday night they had to be home by curfew [at 10:00 p.m.], and it was Sunday night, too, it ended being for the curfew." (Id. at 42:2-12) In total, the Millers issued approximately twenty warnings to Dioscon and the decedent over the course of Saturday and Sunday, reiterating that the teenagers were not to swim without the Millers present. (E.g. Dioscon Dep. at 51:25) While visiting Sea Isle City (and complying with the Millers' warnings about swimming), Dioscon and the decedent spent a few hours swimming in the ocean, alternately swimming and throwing a football around while in the water. (H. Miller Dep. at 52:4-13; T. Miller Dep. at 114:23-116:18, 118:21-120:6, 122:21-123:2; Dioscon Dep. at 71:8-18)

After swimming in the ocean on Saturday, the group returned to Pine Haven and spent Sunday, August 8, at the campground. At lunchtime, Dioscon and the decedent changed into basketball shorts, which they wore as swim trunks, underneath their cargo shorts. (Dioscon Dep. at 73:12-74:12) As Dioscon recalled, the decedent made repeated requests on Saturday and Sunday - approximately four per day - to swim in the lake at Pine Haven. (Id. at 53:22-24) Though it is unclear whether Heather or Timothy knew that the teenagers had changed, the record clearly reflects that when Dioscon mentioned to Heather that the teenagers were considering swimming after lunch, the Millers reminded them to call them if they were going to go into the water, or otherwise make sure someone else's parents were there to supervise. (Id. at 74:19-21)

Later on Sunday afternoon, the decedent joined Dioscon and the Millers for dinner at the Millers' camper, and the family finished eating sometime between 5:00 p.m. and 6:00 p.m. (T. Miller Dep. at 76:15) After dinner, the teenagers headed off to the basketball court to meet up with other teenagers around their age, and Timothy took the Millers' young daughter to the playground near the lake. (Id. at 77:10-78:7; Dioscon Dep. at 75:20-76:9) When Timothy arrived at the lake, he found Dioscon, the decedent, and Michelle Wheeler nearby, searching for frogs along the banks of the water. (T. Miller Dep. at 77:10-78:7) Before Timothy left the playground, Dioscon remembered Timothy again warning him and the decedent: "to be careful, and I think he told us, Don't go swimming in the lake either, ' and then he left." (Dioscon Dep. at 76:17-19)

Shortly after Timothy left, Wheeler asked if anyone wanted to go swimming in the lake. (Michelle Wheeler Dep., Nov. 25, 2013, at 23:9-13) In spite of the recent warning, the decedent urged Dioscon to get into the water with him and Wheeler. (Dioscon Dep. at 76:21-77:5) As Dioscon recalled, "[Toribio] was just, like, kind of saying, Come on, let's - come on, just come with me' because, like, he, obviously, wanted to go swimming with Michelle. He wanted me to be there with him." (Id. at 76:23-77:1) Though this was the first time they had all met, Dioscon eventually relented and entered the water to swim with Wheeler and the decedent. (Id. at 77:15, 91:13-25)

As this Court recounted in a previous motion for summary judgment, after entering the water to swim but still near the shore, the three teenagers began splashing water on one another. (Id. at 107:1-14) Following a few minutes of splashing, the three began to swim out towards the middle of the lake, with Dioscon and Wheeler talking together and swimming in front of the decedent. (Wheeler Dep. at 30:2-5) Dioscon and Wheeler swam together ahead of the decedent for approximately two minutes before reaching almost the exact middle of the lake. (Id.; Dioscon Dep. at 110:13-111:2)

Just as Wheeler and Dioscon reached the middle of the lake, Wheeler turned 180 degrees to see the decedent flailing his arms a few feet behind her, and both Dioscon and Wheeler heard the decedent call out: "help." (Wheeler Dep. at 30:4-20; Dioscon Dep. at 106:10-21) As they both observed the decedent behind them "splashing around" and "flailing his arms up and down, " Wheeler asked Dioscon if the decedent was alright. (Dioscon Dep. at 106:10-15; Wheeler Dep. at 30:4-10) Dioscon told Wheeler, "Yeah, I think so, " and, as he watched the decedent, Dioscon believed that he "was in control of everything[, h]e looked like he was just out there messing around." (Dioscon Dep. at 106:16-21) Wheeler and Dioscon then turned back away from the decedent, ...

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