Summary
holding that the defendant lifeguards were not entitled to immunity under N.J.S.A. 59:3-2 for failing to "scan or sweep their respective zones to identify swimmers in distress" because the defendant "failed to establish that the lifeguards' duty to scan involved high-level policymaking decisions"
Summary of this case from Pucca v. City of Long BranchOpinion
DOCKET NO. A-4007-11T2
01-08-2015
YOUN WHA JUNG, Administratrix ad Prosequendum of the ESTATE OF SOO HYEON PARK, YOUN WHA JUNG, individually, SEONG WOOK PARK, individually, and YOUN WHA JUNG as guardian ad litem to SU IN PARK, Plaintiffs-Respondents/Cross-Appellants, v. VILLAGE OF RIDGEWOOD, Defendant/Third-Party Plaintiff-Appellant/Cross-Respondent, v. YOUN WHA JUNG, SEONG WOOK PARK, IL HEE KIM, WAE SOOK SUNG, SANG KYU KIM, and SUNG KYU KIM, Third-Party Defendants-Respondents.
John Robertelli argued the cause for appellant/cross-respondent (Rivkin & Radler LLP, attorneys; Mr. Robertelli, of counsel and on the brief; Francis J. Leddy, III, on the brief). Joseph M. Cerra argued the cause for respondents/cross-appellants (Kim, Cho, Lim, LLC, and Forman Holt Eliades & Youngman, LLC, attorneys; Neil S. Weiner, of counsel; Mr. Cerra and Henry Kim, on the brief). James L. Sonageri argued the cause for respondents (Sonageri & Fallon, LLC, Kim, Cho, Lim, LLC, and Forman Holt Eliades & Youngman, LLC, attorneys; Neil S. Weiner and Joseph M. Cerra, on the joint brief). Ira C. Kaplan, attorney and guardian ad litem for Su In Park, joins in the brief of respondents/cross-appellants.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Grall, Nugent and Accurso. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1702-09. John Robertelli argued the cause for appellant/cross-respondent (Rivkin & Radler LLP, attorneys; Mr. Robertelli, of counsel and on the brief; Francis J. Leddy, III, on the brief). Joseph M. Cerra argued the cause for respondents/cross-appellants (Kim, Cho, Lim, LLC, and Forman Holt Eliades & Youngman, LLC, attorneys; Neil S. Weiner, of counsel; Mr. Cerra and Henry Kim, on the brief). James L. Sonageri argued the cause for respondents (Sonageri & Fallon, LLC, Kim, Cho, Lim, LLC, and Forman Holt Eliades & Youngman, LLC, attorneys; Neil S. Weiner and Joseph M. Cerra, on the joint brief). Ira C. Kaplan, attorney and guardian ad litem for Su In Park, joins in the brief of respondents/cross-appellants. The opinion of the court was delivered by NUGENT, J.A.D.
The appeal and cross-appeal are from a judgment entered following a jury trial in a survival and wrongful death action stemming from the drowning of a thirteen year old, Soo Hyeon Park, in Graydon Pool, a municipal swimming area operated by defendant Village of Ridgewood (Ridgewood). The plaintiffs are Soo's father Seong Wook Park, Soo's mother Youn Wha Jung, Soo's sister Su In Park, through her mother as guardian ad litem, and Soo's estate, represented by his mother as the administratrix ad prosequendum.
Plaintiffs alleged that Soo's death was caused by Ridgewood's negligence, and they asserted a separate claim for severe emotional distress as a result of witnessing Soo's death. Ridgewood asserted immunities under the Tort Claims Act (TCA), N.J.S.A. 59:9-1 to 12-3, and alleged negligence on the part of Soo, Soo's parents, Soo's friends Steven and Peter (Sang Kyu Kim and Sung Kyu Kim), who were his swimming companions on the day he drowned, and the friends' parents (Il Hee Kim and Wae Sook Sung). Ridgewood pled Soo's negligence as a defense and sought indemnification and contribution from Soo's parents and the Kims based on their alleged negligence.
Ridgewood's claims for contribution and indemnification were dismissed on summary judgment, but its defense based on Soo's negligence was preserved for trial. The court denied Ridgewood's motion for summary judgment on plaintiffs' emotional distress claim.
The judge dismissed plaintiffs' claims based on negligent training, plan and design, and plaintiffs withdrew, with prejudice, a claim based on dangerous condition of public property.
The case was presented to the jury on two theories of negligence: 1) negligent supervision and scanning of the patrons in the water; and 2) negligent response and rescue efforts. The jury found no negligence on Soo's part and determined that Ridgewood's negligent supervision of Graydon Pool and negligent scanning caused Soo's death. Following the directions on the verdict sheet, the jury did not decide the question whether Ridgewood's response and rescue efforts were also negligent. The jury did, however, find defendant responsible for negligently causing Soo's sister and parents emotional distress.
The jury awarded plaintiffs a total of $10,000,000: $4,000,000 on the Survivor's Act claim for the pain and suffering Soo endured as he drowned; $5,000,000 on the family members' claims for emotional distress - $2,000,000 for each of Soo's parents and $1,000,000 for his sister; and $1,000,000 on the wrongful death claim as compensation for Soo's parents' and sister's loss of Soo's guidance, support, and services.
The verdict and damage award were modified on Ridgewood's post-trial motion for judgment notwithstanding the verdict or remittitur. Accepting Ridgewood's argument that plaintiffs were not entitled to damages for their pain and suffering because they failed to meet the TCA's verbal threshold, N.J.S.A. 59:9-2(d); see Toto v. Ensuar, 196 N.J. 134, 144-45 (2008), the court granted Ridgewood's motion for a judgment notwithstanding the verdict as to the emotional distress claims and vacated the jury's award on those claims. The court otherwise denied Ridgewood's motion. The parties then filed the appeal and cross-appeal.
On appeal, Ridgewood challenges the dismissal of its claims for contribution and indemnification on summary judgment, and the denial of its motion for judgment at the close of plaintiffs' case. In addition, Ridgewood contends that it is entitled to a new trial on several grounds: admission of evidence of emotional distress experienced by Soo's family members that skewed the verdict on liability and damages; misapplication of the TCA; erroneous evidentiary rulings; and plaintiffs' attorney's inflammatory summation. In their cross-appeal, plaintiffs challenge the court's post-verdict dismissal of the favorable verdict on their claims of emotional distress.
Having considered the parties' arguments in the light of the record and controlling law, we reverse the judgment and remand for a new trial.
I.
Soo and his family lived in Korea. The day before the tragedy, they flew to the United States where Soo's father was to begin a one-year sabbatical in Rhode Island. Before travelling to Rhode Island, they went to Ridgewood to visit friends, the Kim family.
The next day, Soo, his family, and the Kim children went to Graydon Pool. Soo was thirteen years old and his sister was nine years old. The Kim children, Peter and Steven, were thirteen and eleven years old, respectively. Soo and his family spoke and read some English; Peter and Steven Kim spoke and read English.
The group arrived at the pool at 2:09 p.m. The weather was sunny. Graydon Pool is a man-made, hybrid type of open water environment that is a combination of a pool and a lake. It is larger than a standard pool and follows a free form like a lake with bends and circles, sand on the perimeter, and deeper water that is dark.
The Kim brothers had season passes and the Park family purchased day passes to enter the grounds. Estimates of the number of people at Graydon Pool that day ranged from a couple hundred to five hundred. After the group changed into bathing attire, Soo's father remained on the beach guarding their valuables. Soo's sister and mother went to the shallow end of the pool, where they remained. Shortly after entering the shallow end of the pool, the Kim brothers and Soo began to swim from the shallow end to the "twelve-foot dock" in the deep end. Soo, according to his father, was a smart, healthy, athletic young man and an experienced swimmer who had taken swimming lessons for three or four years beginning at age seven.
Soo never reached the dock. Eleven-year-old Steven was the only person who witnessed Soo drown. Steven reached the dock first and went to the diving board. Before diving, he saw his brother, Peter, and Soo swimming toward him. Soo did not appear to be struggling. Steven dove, returned to the dock, and saw his brother Peter on the platform. He started to look for Soo, heard Soo say in Korean that he could not breathe, and saw Soo struggling in the water.
Soo was "pulling down in the water with his two arms, trying to come up out of the water." Steven saw Soo struggle for between twenty and forty-five seconds. Steven told Peter that Soo was struggling, dove into the water, and swam to Soo. Steven had to "stop[] a few moments to know where [Soo] was and [Soo] was still screaming so [Steven] could hear him." Steven estimated that he reached Soo approximately ten seconds after diving into the water. When Steven reached Soo, Soo was underwater, but Steven could see his head. Steven grabbed Soo's hair and tried to lift him up to the surface, but Steven was too young and too weak. He let go and swam back to the dock. No one saw Soo again until after fire department divers pulled his body from the water.
When Steven returned to the dock, he began stomping his feet. Soo's mother, who was still at the shallow end of the pool, yelled to Steven and asked why he was stomping his feet and where Soo was. He said that Soo had drowned, but he did not think Soo's mother heard him, so he dove into the water, swam to her, and told her that Soo had drowned.
Ridgewood's attorney attacked Steven's credibility during cross-examination. The attorney had Steven acknowledge that Graydon Pool had rules, some of which were posted on signs around the pool, and that Steven had seen them. Steven also acknowledged he had taken a deep water test the previous summer. He was aware that anyone under age eighteen who wanted to go into the deep water was supposed to take a test in which the swimmer had to swim to the twelve-foot dock and return freestyle. His brother Peter had not taken the deep water test and neither had Soo.
When Steven reached the twelve-foot dock, there were two people in line for the diving board and a few people in the water. He estimated that there were fifty to seventy people in the beach area around the pool. He did not tell Soo and Peter to stop after they began to swim toward the dock, and he did not tell them that they were not allowed in the deep end. The reason Steven did not tell them they could not swim in the deep end of the pool was that Peter swam better than he swam and Soo was very athletic.
In further response to Ridgewood's counsel's questions, Steven acknowledged that he panicked when Soo said he could not breathe. Steven did not call to the lifeguards, but did ask others on the dock, including his brother, for help. He first said that he waited twenty to forty-five seconds watching Soo struggle before he did anything, but as his cross-examination continued, he said he could have waited as little as five seconds.
Ridgewood also attacked Steven's credibility by presenting the testimony of Ridgewood Detective Douglas Henky, who was involved in the investigation of Soo's drowning. Detective Henky spoke with Soo's parents, Steven, and Peter at the hospital shortly after Soo's body was recovered.
According to the detective, Steven told him that he swam to the dock and dove off the low dive. When he surfaced, Steven heard Soo "yell out something in Korean, something to the effect of I can't breathe." Steven did not say that he saw Soo struggling in the water. Steven said he intended to swim to his friend, but on the way, he realized that even if he reached his friend, he would not be able to assist him, so he turned around and returned to the dock to report the incident to the lifeguard. According to Detective Henky, Steven never said he actually reached Soo and attempted to pull Soo up by the hair. He made notes of his interview with Steven and summarized Steven's statements in a report he prepared when he returned to the police station.
Ridgewood undertook search and rescue efforts after Soo reported to the lifeguards that his friend had drowned. The pool's manager initiated the child emergency action protocol. Pool personnel called out Soo's name on a loud speaker and also had Steven and Soo's father call out Soo's name. The manager then started a land search. Nobody on the premises matched Soo's description, so a lifeguard announced that all patrons were to clear the pool. The lifeguards then entered the water. According to the pool's manager, if a land search had not first been conducted, the lifeguards would have entered the water maybe a minute or so earlier.
Eventually, the police and fire department arrived and at 3:27 p.m. a fire department diver found Soo's body in the deep water. Soo's mother and father were present when Soo's body was pulled from the water. Although Soo's sister was on the premises, it is not clear when she first saw Soo's body after it was recovered. Soo's family buried him in Hackensack four days later.
Plaintiffs presented their liability proofs primarily through the testimony of Steven Kim, pool manager Steven Diamond, the lifeguards, and an aquatics expert, Dr. Thomas John Griffiths. Diamond, the pool's manager, identified the Graydon Pool Staff Orientation Manual that was in effect on the day that Soo died. The manual stated that "[s]upervision of the patrons on the water at Graydon Pool is the primary responsibility of the lifeguard." Diamond "absolutely" agreed with that statement while the lifeguards were "in their chair." In other words, when a lifeguard is in a stand, his or her "sole primary responsibility [is] to monitor swimmers in the water." Diamond added, however, that if a dock was within a lifeguard's zone, the lifeguard was required to observe it to make sure "kids aren't pushing, shoving, [and] are using the ladder in an appropriate manner."
Diamond explained that "scanning" is "a visual technique used by lifeguards to monitor the people in [Graydon Pool's] water." When asked if lifeguards were supposed to be sweeping their head across the zone, Diamond replied: "Yes, they have the head movement, . . . not focusing on the actual, just moving your head but actually taking point by point references as you're going through, yes." Diamond further explained that scanning is important because "that's how you identify people who are either distressed, actively drowning, or injured, or need assistance."
The terms "zone of coverage" and "area of responsibility," according to Diamond, referred to the area each lifeguard was responsible for scanning while sitting in a particular chair. The lifeguards in the stands at Graydon Pool were expected to be scanning continuously within their zone of coverage.
Nine lifeguards were on duty when Soo drowned. The testimony of the lifeguards was presented either in person, through a videotaped deposition, or through deposition readings. The lifeguards confirmed that the "scanning" technique was the technique they primarily used to monitor patrons in the pool. No lifeguard saw Soo or any other swimmer struggling in the water, and none saw Steven jumping up and down or crying. Except for the lifeguards at the manager's office, lifeguards first were informed of an emergency by walkie talkie and announcements on loudspeakers.
Dr. Griffiths, plaintiffs' aquatics expert, concluded that the quality of surveillance or scanning provided on July 15, 2008 fell below the proper standard of care. The lifeguards missed a drowning boy in deep water, significant time transpired, and as a result, he died.
Dr. Griffiths based his testimony on his inspection of the pool, his review of considerable material, including reports from the authorities and depositions that were taken during discovery, and from consulting a variety of sources and texts. According to Dr. Griffiths, the standard of care mandates that lifeguards recognize a distressed swimmer in their zones of coverage. This is a recommendation and suggestion in the American Red Cross Lifeguarding text and is a standard derived from a culmination of all lifeguard agency textbooks. The standard comes from a variety of sources, and reasonably prudent professionals come together to figure out what is best for each facility because every facility is different. In addition to the Red Cross text, Dr. Griffiths based his opinion on his education and forty years of writing, reading, and performing experimental design and publishing.
Dr. Griffiths also concluded that the placement of lifeguard stands was not within the standard of care because they were placed on the perimeter and it was difficult for lifeguards to guard the center of the pool due to the distance. A lifeguard should have been on a floating device in the water on July 15, 2008.
Dr. Griffiths found confusion among lifeguards as to their respective zones of coverage. The lifeguards had been asked during depositions to illustrate their zones of coverage and there was considerable variation. According to Dr. Griffiths, their understanding did not meet the standard of care. Additionally, in one zone, the lifeguard was put in a position of surveillance failure because she had to guard two diving boards. In another zone, there were two areas that created too much distraction for one lifeguard and two lifeguards should have been placed there.
Lastly, Dr. Griffiths testified that Diamond made "a terrible misjudgment" to first order a missing person search as opposed to a deep water search. Time lost during a missing person search escalated the risk of Soo's death.
Dr. Griffiths agreed that Graydon Pool met the standards of the New Jersey Bathing Code, but also opined that what happened during the incident fell below the standard of aquatic safety. He explained that a standard mandated by an act of the Legislature is the minimum that a facility must meet. He did not see any liability on the part of Soo. While parents are responsible for their children, here, the lifeguards' scanning techniques were inadequate.
Although Ridgewood did not present an aquatics expert, it did present evidence concerning the safety measures it had implemented, as well as evidence that some of the measures, including signage, were not observed by Soo's parents. The pool had rules for the general public and information on a swimming test that was required for all patrons age eighteen and younger who wanted to swim in the deep water section. One of the photographs included in the record shows a lifeguard stand with two signs on the back. One sign reads, "Do you have your wristband on to swim in the deep water area?" and the other has a "Notice" in big letters, followed by "A DEEP WATER SWIM TEST MUST BE PERFORMED BEFORE SWIMMING IN THE DEEP END IS ALLOWED." Another sign explains the requirements for the deep water test and signs elsewhere list health rules and general rules. There was also signage that warned: "DANGER! DEEP WATER FOR SWIMMERS ONLY ALL OTHERS KEEP OUT" and "THIS RULE WILL BE STRICTLY ENFORCED BY THE LIFEGUARDS."
Soo's parents testified that they did not see the signs. Soo's mother denied seeing any signs at the pool area. Soo's father testified that if there were signs at the pool in English, he would have been able to read them. He did remember seeing a sign saying how deep the water was. Soo's father also testified that Peter and Steven did not discuss the pool rules with his family and he did not hear about a deep water test. He did not give his children any instructions before they went in the pool. He testified that he and his wife permitted Soo to go into deep water.
To establish their claim for Soo's conscious pain and suffering, plaintiffs presented in addition to Steven's testimony the testimony of Dr. Jerome Modell, an anesthesiologist and intensive care physician, who explained what happened to Soo when he drowned. The doctor was well-qualified to discuss the subject and Ridgewood's counsel stated explicitly that he had no objection to the doctor being qualified as an expert in that area.
Dr. Modell explained that the autopsy report was consistent with an autopsy of one who died from drowning. The weight of Soo's lungs, which were twice as heavy as normal, indicated "that he inhaled a lot of water while he went through the drowning process." According to the doctor, pulmonary edema seen in the airway, the trachea, the bronchi, and the bronchioles of the lung "told" the doctor that the freshwater had been absorbed into the circulation "and the face of hypoxia, or decreased oxygen, as you have in drowning, [] ruptures red blood cells, releases the red content of them, the free hemoglobin, and [] covers the plasma pink to red, and the stem comes out in the alveoli layer, air sacs in the lungs, as pulmonary edema." The doctor also explained that Soo had water in the sphenoid sinus as well as some cerebral edema. The doctor concluded that Soo breathed in water and went through the drowning process; his death was not a result of sudden cardiac death.
Dr. Modell also explained that the drowning process begins when one's mouth and nose go under water so that the person "no longer [has] the opportunity to breathe air." When that occurs, drowning victims instinctively hold their breath, but carbon dioxide builds up in the blood and stimulates the person to take a breath. Consequently, the person begins to "get water in the back of [the] throat[,] . . . [the water] hits the vocal cords and larynx and [the vocal cords] snap close[d] to protect the lungs from breathing the liquid." The drowning victim then begins to take deep breaths, but cannot do so because the level of the larynx is obstructed. That becomes, according to the doctor, a very painful experience. The doctor explained that as "oxygen tension in the blood drops to a level that it no longer can sustain laryngospasm, . . . [that is,] the brain doesn't get enough oxygen and the reflexes go away[,] . . . the vocal cords relax and they start to breathe in liquid," which results in changes to the lungs. That causes pulmonary edema, which the doctor described as froth and foam in the layer of sacs in the lungs that normally contain air.
According to Dr. Modell, the blood then becomes more acidic than normal, and as that process continues, there is cardiac arrest or the heart stops. In the doctor's opinion, cardiac arrest occurs in three to four and one-half minutes. The doctor opined that Soo went through that process.
In the doctor's opinion, Soo "experienced pain and suffering for approximately a minute and a half to two minutes" when he became submerged. That was based in part on Steven's testimony that Soo hollered that he could not breathe before he actually went under. From Steven's testimony, the doctor concluded that Soo "may well have aspirated some water before he became totally submerged and went through the drowning process, and that would cause him to panic." During that time, a person who is drowning can think, appreciate the situation, and have fear and thoughts.
Ridgewood presented the testimony of Dr. Michael Baden, who at the time was board certified in three areas of pathology and had performed more than 20,000 autopsies over the years. Dr. Baden disagreed with Dr. Modell's opinion about the length of time Soo had suffered as he drowned. According to Dr. Baden, Soo's drowning was the type "that occurs because the individual blacks out and then just falls to the bottom of the pool unable to call for help because he's unconscious." Dr. Baden testified that if Steven's testimony were correct and Soo "said something in Korean that nobody else heard that he was in trouble, then [Soo] could have been conscious for a few seconds."
To prove their other damage claims, in addition to Steven's testimony and that of Dr. Modell, plaintiffs presented significant, poignant testimony from Soo's parents and sister, and from a psychiatrist concerning the extent of the family members' emotional distress and suffering since losing their son and brother. However, Soo's parents and sister had seen no doctor or psychiatrist before being evaluated by the forensic psychiatrist who testified for them at the trial. Ridgewood presented the testimony of a psychiatrist who minimized the emotional distress Soo's parents and sister had suffered as the result of his death.
The jury rejected Ridgewood's defenses as reflected by the verdict that we have noted above.
II.
In this appeal, Ridgewood contends that the judgment should be reversed and the case dismissed as to both liability and damages because the trial court improperly denied its motions for a directed verdict at the close of the plaintiffs' proofs and for a judgment notwithstanding the verdict. Our review of motions for judgment at the close of a plaintiff's case, R. 4:37-2(b), at the close of all of the evidence, R. 4:40-1, and for judgment notwithstanding the verdict, R. 4:40-2(b), are governed by the same standard:
[I]f accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be decide. . . .
[Verdicchio v. Ricca, 179 N.J. 1, 30 (2004) (quoting Estate of Roach v. TRW, Inc., 164 N.J. 598, 612 (2000)).]
Applying this standard to Ridgewood's claims requires that they be denied.
A.
Ridgewood argues that plaintiffs proved nothing as to liability other than the mere happening of an accident, which without more does not prove negligence. Ridgewood also claims that Dr. Griffiths' liability opinion was a net opinion. We disagree as to both points.
Applying the standard for a judgment at the close of a plaintiff's case to plaintiffs' proofs here, we conclude that the trial judge did not err by denying Ridgewood's motion; there was ample evidence from which the jury could have reasonably inferred the lifeguards' negligence was a proximate cause of Soo's drowning.
Ridgewood's lifeguards, when stationed in their stands, had a duty to continually scan their zones for, among other things, swimmers in distress. The pool's manager, Diamond, testified that when the lifeguards were in their stands, their sole primary responsibility was to monitor swimmers in the water. All lifeguards were supposed to be scanning continuously across their zones of coverage. That was their duty. Diamond explained it. The lifeguards acknowledged it. Dr. Griffiths confirmed it. Plaintiffs established circumstantially, through the testimony of Steven, that the lifeguards, or at least those responsible for the zones where Soo struggled and drowned, breached that duty. If the events unfolded as Steven described them, and if the lifeguards were discharging their duty to continuously scan their coverage zones, then the jury could reasonably have inferred that one of the guards should have seen both Soo as he struggled and screamed, and Steven shortly thereafter when, distraught, he stomped his feet. Steven testified to a sequence of events that occurred within one or more of the lifeguards' coverage zones, events that began when Steven heard Soo say he could not breathe and ended when Steven, distraught, stomped his feet on the dock. Between these beginning and ending events, Steven saw Soo struggle, dove into the water, heard Soo screaming, and swam to Soo. Steven grabbed Soo by the hair and tried to pull him up, but could not do so. He then swam back to the dock. When Steven stomped his feet, his distress was so obvious that Soo's mother observed it from the shallow end of the pool.
While the foregoing events were unfolding, not one lifeguard, including the lifeguard or lifeguards responsible for continually scanning the zone or zones where Soo struggled and drowned, and the dock or platform where Steven displayed his emotional distress, observed either Soo or Steven. That sequence of events presented a fact-sensitive issue as to whether the lifeguards discharged or breached their duty to continuously scan their zones for swimmers in distress.
Indisputably, there was contradictory testimony about how many people were at the pool, how many people were in the water in and around Soo, how long it took for the sequence of events recounted by Steven to unfold, and whether Steven's testimony was credible. But under the standard of review that applies to Ridgewood's motion, the evidence that supports plaintiffs' position must be accepted and plaintiffs must be given the benefit of all inferences which can reasonably and legitimately be deduced from that evidence. Viewed in that light, reasonable minds can differ as to whether plaintiffs established circumstantially that the lifeguards breached their duty to scan their coverage zones. For that reason, the trial court correctly denied Ridgewood's motion for judgment at the close of plaintiffs' proofs. Verdicchio, supra, 179 N.J. at 30.
Ridgewood emphasizes that Steven contradicted himself about the length of time, in seconds, that it took for the events to unfold, and that Steven also conceded during cross-examination that critical events could have occurred in as few as five seconds. Steven's quantifying the time in seconds, at the urging of the attorneys, is not dispositive of any issue. Steven was not timing the events, a fact undoubtedly not lost on the jurors. The jurors had the opportunity to observe, evaluate, and scrutinize Steven's testimony. They had ample testimonial and demonstrative evidence from which to gauge the distances encompassed within Steven's testimony and assess from their own experience how long the events described by Steven would likely have taken. Based upon the jurors' evaluation of the evidence and the conclusions they drew from their evaluations, they could have deduced from competent evidence that a lifeguard discharging his or her duty to continually scan the zone or zones where these events unfolded would have seen Soo in distress, as did Steven, as the events unfolded, and that the failure of the lifeguards to continuously scan the zones was a proximate cause of Soo drowning.
Steven's testimony also provided a factual basis for Dr. Griffiths' conclusion. Dr. Griffiths defined scanning as a "sweep," that is, "one visual trip through [the lifeguard's] zone of coverage." Applying the standards derived from the source material he cited to the facts established by Steven's and Diamond's testimony, Dr. Griffiths had a valid basis for his conclusion that one or more of Ridgewood's lifeguards breached their duty of care to the pool patrons.
Contrary to Ridgewood's contention, Dr. Griffiths' opinion was not a net opinion. A "'net opinion' is 'an expert's bare opinion that has no support in factual evidence or similar data.'" Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 123 n.3 (2013) (quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011)). The rule prohibiting net opinions requires that an expert explain the "why and wherefore" that supports the opinion. Pomerantz, supra, 207 N.J. at 372. Here, Dr. Griffiths explained the basis for his opinions. During his direct testimony, he explained what he did when he inspected the pool, and he enumerated the voluminous source materials from which he derived the factual basis for his opinions. Dr. Griffiths also testified that the standard of care for the lifeguards came from a variety of sources and lifeguard agency textbooks, including those from YMCAs, the United States Life Saving Association, Star Guard Aquatics, and the American Red Cross.
Ridgewood also argues that the lifeguards' duty to "scan" or "sweep" is immunized under the TCA, N.J.S.A. 59:1-1 to 12-3. The TCA provision that Ridgewood relies upon, N.J.S.A. 59:2-3, immunizes public entities in subsection a "for an injury resulting from the exercise of judgment or discretion vested in the entity"; in subsection b for "legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature"; in subsection c for the exercise of discretion in seeking or providing "resources necessary for the purchase of equipment, the construction or maintenance of facilities, the hiring of personnel and, in general, the provision of adequate governmental services"; and, in subsection d, "for the exercise of discretion when, in the face of competing demands, it determines whether and how to utilize or apply existing resources . . . ."
None of these provisions applies to Ridgewood's lifeguards' duty to scan or sweep their respective zones to identify swimmers in distress. When discharging their duty to scan their coverage zones, the lifeguards were not engaging in legislative, judicial, or administrative action or inaction (subsection b), exercising discretion in providing resources (subsection c), or exercising discretion in how to allocate existing resources (subsection d). And insofar as subsection a is concerned, there is no competent evidence that, while in their stands scanning their coverage zones, the lifeguards were either vested with, or exercised, discretion.
A party asserting immunity under the TCA "bears not only the burden of pleading it but also the burden of persuasion." Vanchieri v. N.J. Sports & Exposition Auth., 104 N.J. 80, 87 (1986). Generally, the "'exercise of . . . discretion' in N.J.S.A. 59:2-3(a) refers to actual, high-level policymaking decisions involving the balancing of competing considerations." Coyne v. DOT, 182 N.J. 481, 489 (2005) (quoting Costa v. Josey, 83 N.J. 49, 55 (1980)). Ridgewood has not only failed to establish that the lifeguards' duty to scan involved high-level policymaking decisions, but it also has failed to explain what discretion the lifeguards were actually exercising when Soo drowned. Ridgewood was therefore not immunized under N.J.S.A. 59:3-2(a). See Tice v. Cramer, 133 N.J. 347, 367 (1993) (noting that a police officer's "decision whether to pursue, how to pursue, and whether to continue to pursue [a fleeing automobile], is also infinitely distant from high-level policy or planning decisions[,]" and "to label this kind of determination by a public employee 'discretionary,' and therefore immune, would end all public employee liability, or practically all, for hardly any acts or omissions are not subject to some judgment or discretion").
Plaintiffs presented their negligent scanning theory in conjunction with their theory that Ridgewood negligently supervised patrons in the pool. Having concluded that Ridgewood's motion was properly denied based on plaintiffs' theory that the lifeguards negligently discharged their duty to scan the pool, we need not address in this section of this opinion Ridgewood's challenges to plaintiffs' broader negligent supervision theory of liability.
B.
Ridgewood also contends that the trial court should have granted its motion for a judgment notwithstanding the verdict as to plaintiffs' claims for Soo's conscious pain and suffering as well as their claim for the loss of Soo's companionship and services. Ridgewood argues that the jury award for Soo's conscious pain and suffering was not based upon any of the facts adduced at trial and was the product of a net opinion improperly introduced by way of plaintiffs' drowning expert, Dr. Jerome Modell. We find no merit in either asserted ground.
Steven heard Soo say he could not breathe, watched Soo struggle in the water, and heard Soo screaming again as he, Steven, swam to Soo, and saw or felt Soo submerge when he was unable to pull Soo up by the hair. In view of Steven's testimony, we fail to understand Ridgewood's argument that the jury's award for conscious pain and suffering was not based upon any of the facts adduced at trial.
Recognizing that plaintiffs established Soo's conscious pain and suffering after he disappeared beneath the water through the testimony of Dr. Modell, Ridgewood attacks Dr. Modell's opinion as a net opinion, arguing that Dr. Modell had no factual basis for equating the drowning process with conscious pain and suffering. In doing so, Ridgewood overlooks key parts of the doctor's testimony.
For example, when Dr. Modell testified, he not only explained the drowning process, but he also stated explicitly that Soo went through it. During his testimony, which was based on years of extensive study, experimentation, and talking to near-drowning victims, Dr. Modell explained, among other things, that the drowning process begins when one's mouth and nose go under water so that the person "no longer [has] the opportunity to breathe air." When that occurs, drowning victims instinctively hold their breath, but carbon dioxide builds up in the blood and stimulates the person to take a breath. The jury could have reasonably inferred that the process described by Dr. Modell, to that point, occurs while a victim is conscious. Ridgewood does not explain how any other inference is even possible.
Dr. Modell also explained that the drowning victim next begins to "get water in the back of [the] throat[,] . . . [the water] hits the vocal cords and larynx and [the vocal cords] snap close[d] to protect the lungs from breathing the liquid." According to Dr. Modell, the drowning victim then begins to take deep breaths, but cannot do so because the level of the larynx is obstructed. That becomes, according to the doctor, a very painful experience. Ridgewood overlooks that part of the doctor's testimony.
We have detailed the doctor's testimony in section I of this opinion and there is no need to repeat it here. Suffice it to say that the doctor's testimony was adequately grounded both in the evidence produced at trial and in the extensive studies the doctor had undertaken over many years. In short, Dr. Modell's opinion was not a net opinion.
Lastly, Ridgewood contends the trial court erred by failing to grant a judgment notwithstanding the verdict as to the jury's award for the loss of Soo's services to his parents and sister. Ridgewood claims the award "is excessive and totally unsupported by the evidence."
In Green v. Bittner, 85 N.J. 1, 4 (1980), our Supreme Court held that parents suing for the wrongful death of their child should not be limited to "pecuniary loss such as the loss of the value of the child's anticipated help with household chores, or the loss of anticipated direct financial contributions," but in addition, "the jury should be allowed, under appropriate circumstances, to award damages for the parents' loss of their children's companionship as they grow older, when it may be most needed and valuable, as well as the advice and guidance that often accompanies it." The Court confined such losses "to their pecuniary value, excluding emotional loss." Ibid. The Court cautioned that "[g]iven this expansion of permissible recovery, a verdict finding no damages for the death of a child should ordinarily be set aside by the trial court and a new trial ordered." Ibid. We applied Green's holding to the sole younger sister of a deceased sibling in Gangemi v. Nat'l Health Labs, Inc., 291 N.J. Super. 569 (App. Div. 1996).
Significantly, the Court recognized the speculative nature of such damages:
Given the speculative quality of the inferences, it might further be questioned whether one could realistically attach an estimated pecuniary value to such services. Our answer is, even assuming no special circumstances are proven, that the nature of these cases has led our courts to allow damages even though the inferences, and the estimate of damages, are based on uncertainties . . . . When a parent dies and loss of advice, guidance and counsel is allowed to the surviving children, and when an infant child dies and loss of prospective services is allowed to the parents, the proof that suffices is the parent-child relationship and what we assume the jury can conclude from that relationship alone.
Damages are allowed without any showing that the parent had actually been rendering valuable advice, or was likely to do so, or that the child — even if only five months old . . . — was likely to render services around the house.
[Green, supra, 85 N.J. at 15 (emphasis added).]
Here, plaintiffs established both a parent-child relationship and a sibling relationship. Under Green, those proofs were sufficient to permit a damage award.
III.
Having determined that the trial court properly denied Ridgewood's motions for a judgment at the close of plaintiffs' proofs and for a judgment notwithstanding the verdict, and that Ridgewood is not entitled to a dismissal of the case, we turn to Ridgewood's contentions that it is entitled to a new trial. Ridgewood contends that it is entitled to a new trial for the following reasons: (1) its claims for contribution and indemnification were improperly dismissed on summary judgment; (2) the trial court should have granted a new trial on liability when it dismissed plaintiffs' emotional distress claims on Ridgewood's post—trial motion; (3) the trial court made several erroneous evidentiary rulings that, separately and cumulatively, constituted reversible error; (4) the trial court failed to apply the appropriate legal standards to plaintiffs' distinct and separate claims required by the TCA; and (5) plaintiffs' attorney made highly inflammatory remarks during his summation.
We partially agree with Ridgewood's first two points. Our review of the record convinces us that summary judgment should not have been granted to Soo's parents on Ridgewood's claim for contribution and indemnification, and that the court properly granted Ridgewood's post-trial motion to dismiss plaintiffs' claims for emotional distress damages.
A.
The pre-trial judge dismissed Ridgewood's third-party complaint on the summary judgment motions filed by Soo's parents and the Kims. We review orders granting summary judgment de novo and apply the same standard as the motion judge under R. 4:46-2. See Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). When the parties do not dispute the material facts, we decide whether the motion judge's application of the law was correct, Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006), giving no special deference to the judge's legal conclusions. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
In opposing Soo's parents' summary judgment motion based on parental immunity, Ridgewood argued, among other things, that the parents "failed to obey posted warnings and instructions which required all children to take a deep water test prior to entering [the deep] area of the pond." Ridgewood also argued that Soo's parents were negligent because they failed to monitor their son and the Kims' sons, and because Soo's mother's failed to report the submersion of Soo to lifeguards for five to ten minutes after she learned of it. In its appellate brief, Ridgewood reiterates that Soo's parents disregarded the pool's posted rules, regulations, and warnings, and that Soo's parents' non-compliance with the pool's rules did not fall within the exercise of customary child care. We agree.
The doctrine of parental immunity shields a parent from liability for the negligent supervision of a child in matters involving customary child-care issues or the exercise of parental authority or supervision. Foldi v. Jeffries, 9 3 N.J. 533, 551 (1983). Tn determining whether the parental immunity doctrine applies to any factual situation, a court must undertake a four-step analysis: first, the court must determine what parental acts or omissions the fact finder could reasonably determine were the proximate cause of the child's injury; second, the court must determine whether that conduct is protected by parental immunity, namely, whether, it involves the exercise of parental authority or the provision of customary child care; third, if it does, the court must then determine whether the conduct constitutes a lack of parental supervision; and fourth, if it does, the court must determine whether a fact finder could reasonably determine that the conduct was willful or wanton thereby removing it from the immunity. Buono v. Scalia, 179 N.J. 131, 139 (2004); Murray v. Shimalla, 231 N.J. Super. 103, 106 (App. Div. 1989).
Although parental immunity applies to matters arising out of the exercise of parental authority or the provision of customary child care, the doctrine does not immunize a parent for acts of simple, ordinary negligence. Mancinelli v. Crosby, 247 N.J. Super. 456, 463 (App. Div. 1991). In Mancinelli, we declined to apply the doctrine to the conduct of a mother who led her seven-year-old daughter across a busy street in the middle of the block, despite the presence of controlled intersections with marked pedestrian crosswalks to the north and south of the location where the mother attempted to cross. In holding that the doctrine of parental immunity was not a bar to the child's claim against her mother, we explained that the "case simply involve[d] a mother's negligence in attempting to cross a street with the child at a dangerous location without making proper observation" rather than "a parent's philosophy of child rearing[.]" Id. at 461.
A parent's disregard of a statute, ordinance, regulation, or rule intended to safeguard a child is fundamentally different from a parent's determination that a child is mature enough and sufficiently capable to participate in an activity either with limited or no parental supervision. While the latter type of parental decision generally implicates "a parent's determination of how the physical, moral, emotional or intellectual growth of a child can best be promoted," ibid., a parent's disregard of statutes, ordinances, regulations, or rules that exist for the safety of adults or children does not generally implicate a child's physical, moral, emotional or intellectual development.
It is also clear that the parental immunity doctrine does not apply to conduct that is willful or wanton. Buono, supra, 179 N.J. at 138. "For behavior to fall within that definition, a parent must be 'conscious . . . that injury will likely or probably result from his conduct, and with reckless indifference to the consequences, [the parent] consciously and intentionally does some wrongful act or omits to discharge some duty which produces the injurious result.'" Ibid. (alteration in original) (quoting Foldi, supra, 93 N.J. at 549).
Here, the summary judgment record presented a factual dispute as to whether Soo's parents' disregarded the posted warnings and instructions which required all children to take a deep water test before entering the deep water. Informing Soo of the pool's rules and requiring him to comply with them did not involve a "special situation[] that involve[d] the exercise of parental authority and customary child care[,]" Buono, supra, 179 N.J. at 137, but rather required compliance with a recreational facility's rules that existed for the safety of children. In other words, disregarding the rules implicated an ordinary standard of care, not a parent's philosophy of child rearing.
To be sure, there was a factual dispute about whether Soo's parents observed the signs. And there was evidence that Ridgewood and its lifeguards did not enforce the pool's rules. But based on the location of the signs as well as the ability of Soo's parents to read English, there was a factual determination to be made by the jury.
We reject Ridgewood's claim that Soo's mother breached a duty to go for help sooner than she did, and that her breach of duty was a proximate cause of Soo's drowning. The claim is without sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(E). We discern from the record no competent evidence to support Ridgewood's claim that Soo's mother's action or inaction upon being informed that Soo had drowned would have in any way altered the outcome of this tragic incident.
We also reject Ridgewood's arguments that Steven and Peter were negligent for not hollering to or seeking the aid of lifeguards sooner than they did, and that the judge who granted summary judgment to the Kims erred by ruling to the contrary. Peter did not attempt to rescue Soo. The law generally does not impose a duty to take action in response to a distressed swimmer. Cf. Podias v. Mairs, 394 N.J. Super. 338, 347-48 (App. Div.) (stating the "common law rule imposes 'no independent duty of rescue at all' and relieves a bystander from any obligation to provide affirmative aid or emergency assistance, even if the bystander has the ability to help" (quoting Praet v. Borough of Sayreville, 218 N.J. Super. 218, 224 (App. Div.), certif. denied, 108 N.J. 681 (1987))), certif. denied, 192 N.J. 482 (2007).
Steven, unlike Peter, attempted to rescue Soo. "[A]t common law, those under no pre-existing duty may nevertheless be liable if they choose to volunteer emergency assistance for another but do so negligently." Id. at 347 (citing Praet, supra, 218 N.J. Super. at 223-24); Restatement (Second) of Torts, §§ 314 & 324 (1965). We noted in Podias that "[t]his feature of the common law rule has been abrogated by . . . the Good Samaritan Act, N.J.S.A. 2A:62A-1[.]" Id. at 347, n.1. Whether or not the Good Samaritan Act has that import in this context, liability for breach of the common law duties based on undertaking a rescue requires proof of additional factors not supported by the record: 1) an increase in the risk of harm or detrimental reliance on the part of the rescuee, Restatement, supra, § 323(a)-(b); or 2) bodily harm caused by failure to secure the rescuee's safety or a discontinuation of aid or protection that leaves the rescuee in a worse position than when the actor took charge. Restatement, supra, § 324(a)-(b).
Ridgewood has not challenged on appeal the grant of summary judgment to Mr. and Mrs. Kim.
B.
We turn to plaintiffs' emotional distress damages. Plaintiffs argue on their cross-appeal that the court erroneously granted Ridgewood's post-trial motion to vacate the award on their emotional distress claims, which they had asserted under the principles enunciated in Portee v. Jaffee, 84 N.J. 88 (1980), a case our Supreme Court decided eight years after the Legislature enacted the TCA. Ridgewood argues that not only should the trial court have granted its post-trial motion to vacate the award, but the court should also have granted a new trial as to all issues.
The TCA establishes a threshold for recovering pain and suffering damages. N.J.S.A. 59:9-2(d) provides:
[n]o damages shall be awarded against a public entity or public employee for pain and suffering resulting from an injury; provided, however, that this limitation of the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function,
permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3600. . . .
In the 1972 Report of the Attorney General's Task Force on Sovereign Immunity, the task force stated:
The limitation on the recovery of damages in sub-paragraph (d) reflects the policy judgment that in view of the economic burdens presently facing public entities a claimant shall not be reimbursed for non-objective types of damages, such as pain and suffering except in aggravated circumstances — cases involving permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $1,000. The limitation that pain and suffering may only be awarded when medical expenses exceed $1,000 insures that such damages will not be awarded unless the loss is substantial.
Subsection (d) was amended by L. 2000, c. 126, §32, which increased the monetary threshold to $3600.
It is undisputed that plaintiffs, neither individually nor collectively, incurred medical expenses in excess of $3600 for their emotional distress claims. Plaintiffs had the burden of proving their right to recover pain and suffering under the TCA. See Brooks v. Odom, 150 N.J. 395, 402-03 (1997) (stating that to recover under the [TCA] for pain and suffering, "a plaintiff must prove by objective medical evidence that the injury is permanent"); J.H. v. Mercer Cnty. Youth Det. Ctr., 396 N.J. Super. 1, 20 (App. Div. 2007) (concluding that "[i]n order to recover damages for pain and suffering, plaintiff must suffer a permanent injury and his medical expenses must exceed the monetary threshold of $3600"). They did not meet their burden.
The Legislature's decision to impose a monetary threshold is not subject to second-guessing by the courts. The Legislature has specifically declared
it . . . to be the public policy of this State that public entities shall only be liable for their negligence within the limitations of [the TCA] and in accordance with the fair and uniform principles established herein. All of the provisions of this act should be construed with the view to carry out the above legislative declaration.
[N.J.S.A. 59:1-2.]
The Legislature has not provided exceptions to the TCA's monetary threshold. Plaintiffs did not prove that they met the threshold. Consequently, they were not entitled to recover pain and suffering damages for their emotional distress.
By so holding, we do not mean to minimize the emotional distress suffered by Soo's parents and sister, or any parent or sibling, resulting from the loss of a child. But confronted with the profound task of balancing "the inherently unfair and inequitable results which occur in the strictest application of the traditional doctrine of sovereign immunity" on the one hand, and the need to impose reasonable limitations on the liability of public entities on the other hand, the Legislature struck that balance by, among other things, limiting recovery for pain and suffering. Courts should not question or second-guess such policy decisions.
Plaintiffs urge that, because Ridgewood did not raise the $3600 threshold until it filed its post-verdict motions, and for other reasons, it should be deemed to have waived the issue or should be estopped from asserting it. We disagree.
Ridgewood's pre-trial motion to dismiss plaintiffs' emotional distress claims was based on other grounds.
In view of plaintiffs' failure to meet the TCA's monetary threshold for recovering pain and suffering damages, and in view of the public policy underlying that threshold, we discern no reason for permitting plaintiffs to recover. Plaintiffs were aware, or should have been aware, of their burden of meeting the TCA's monetary threshold. The public policy underpinnings of the TCA threshold should not be circumvented because an adversary belatedly recognizes that a plaintiff has failed to establish a key element of a damage claim.
In view of our disposition of plaintiffs' cross-appeal based upon the monetary threshold, we need not address whether parental claims for emotional distress brought under the principles of Portee are recoverable under the TCA. See Srebnik v. State, 245 N.J. Super. 344, 352-54 (App. Div. 1991).
--------
C.
Having concluded that a new trial is required on the negligence claims, we must decide whether any part of the verdict can be preserved. Generally, "issues in negligence cases should be retried together unless the issue unaffected by error is entirely distinct and separable from the other issues." Ahn v. Kim, 145 N.J. 423, 434 (1996). "If issues are inextricably intertwined, then when one is remanded, the others, too, must be retried." Henebema v. S. Jersey Transp. Auth., 219 N.J. 481, 491 (2014). "[T]he determination of whether the issues are sufficiently distinct and separable is a fact-sensitive analysis, which ultimately depends on the particular circumstances in each individual case." Ibid.
Here, the facts underlying the claims of negligence against Soo and his parents are nearly identical: their failure to follow Graydon Pool's rules and Ridgewood's failure to enforce those rules. Because the facts are inextricably intertwined, a new trial is required as to all liability issues. Further, we cannot conclude that plaintiffs' damage claims for their emotional distress, for Soo's conscious pain and suffering, and for plaintiffs' loss of his services were so entirely distinct and separable that a new trial is unnecessary. Plaintiffs and their expert presented compelling testimony concerning their emotional distress occasioned by Soo's drowning. Their expert's description of the drowning was also compelling, and the synergistic effect of the testimony in its entirety cannot be discounted or overlooked. The same is true concerning the testimony of plaintiffs' loss of Soo's services. Consequently, a new trial is required as to plaintiffs' claims for Soo's conscious pain and suffering as well as their claims for loss of Soo's services. We cannot conclude that the proofs plaintiffs presented on their emotional distress damages — which should not have been presented to the jury and which shall not be retried — did not affect the other damage awards.
IV.
For the sake of completeness, and to provide some guidance for the parties when the case is retried, we briefly discuss some of Ridgewood's other arguments and add some additional comments.
Ridgewood's challenges to those evidentiary rulings by the trial court not previously addressed in this opinion are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(E). For the most part, they are based on factual assertions taken out of context or based on factual assertions unsupported by the record. For example, Ridgewood claims that the court permitted plaintiffs' counsel to elicit testimony from a witness concerning the negligent training of its lifeguards, an issue that had been dismissed before trial. Ridgewood overlooks that it elicited "training" testimony from the witness during cross-examination. Consequently, the court did not abuse its discretion when it permitted plaintiffs' attorney to explore that area on re-direct examination. Ridgewood cannot examine a witness on issues that have been precluded and then expect the court to bar plaintiffs from exploring those same issues that Ridgewood has injected into the case.
Ridgewood also contends the trial court failed to apply appropriate legal standards to plaintiffs' claims, as required by the TCA. Ridgewood primarily complains that the court did not adequately address whether plaintiffs' theory that Ridgewood negligently conducted a rescue effort was subject to immunity under the TCA. We need not consider the issue. The jury never reached it, and it was unsupported by competent evidence in the record. It appears that the only evidence on that issue came from plaintiffs' aquatics expert, who had not been qualified to give an opinion on drowning. The testimony of plaintiffs' drowning expert did not appear to support a reasonable inference that Ridgewood's rescue efforts had any chance of success.
The trial court has the discretion to conduct a hearing outside of the presence of the jury to determine whether TCA immunities apply to the liability theories espoused by plaintiffs' aquatics expert concerning plaintiffs' theory that Ridgewood negligently supervised the people swimming in Graydon Pool. See N.J.R.E. 104. Ridgewood's mere assertion that immunities apply is inadequate proof that they actually apply. Ridgewood has the burden of proving any immunity that it contends applies to the allegations of negligence contained in the opinions of plaintiffs' experts. A public entity has the burden to both plead and prove its immunity under the TCA. Wymbs v. Twp. of Wayne, 163 N.J. 523, 539 (2000) (citing Kolitch v. Lindedahl, 100 N.J. 485, 497 (1985)). Our review of the record does not disclose that Ridgewood adduced evidence to carry its burden on such claims. Nevertheless, Ridgewood can make appropriate evidentiary proffers prior to the retrial and the trial court will then be in a position to determine whether to conduct a hearing pursuant to N.J.R.E. 104.
Finally, we would be remiss if we did not comment on counsel's summations. Ridgewood claims that it was deprived of a fair trial because plaintiffs' summation was extremely inflammatory and prejudicial. Ridgewood claims, among other things, that plaintiffs' counsel disparaged Ridgewood's witnesses and its attorney. Ridgewood's argument is not entirely without merit. However, Ridgewood's attorney not only disparaged plaintiffs' key witness, Steven Kim, but also implied, not very subtly, that plaintiffs' attorney had manufactured Steven's testimony and then rehearsed it with Steven. Suffice it to say that the remarks of both counsel exceeded the bounds of propriety. See Henker v. Preybylowski, 216 N.J. Super. 513, 518-19 (App. Div. 1987); Taber v. O'Grady, 59 N.J. Super. 330, 340-41 (App. Div.), modified by, 61 N.J. Super. 446 (App. Div. 1960). The trial court should not hesitate to admonish counsel and give the jury a prompt curative instruction should counsel engage in such conduct during their summations on retrial.
In view of our disposition of this appeal, further discussion on the remaining issues is unwarranted. The judgment is reversed and the matter is remanded for a new trial.
Reversed and remanded. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION