NOT FOR PUBLICATION WITHOUT THE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-5375-15T2
SEUNG YON CHOI and
GERALD J. KEANE on behalf
of E.K., a Minor as Guardian
Ad Litem, and SEUNG YON CHOI,
and GERALD J. KEANE, individually,
Plaintiffs-Appellants,
v.
HUNTERDON COUNTY YMCA, INC.,
MICHAEL TRIANIO, CHRIS NALLEN,
ALEX BAKER, ERICA CROAT, THE NEW JERSEY
PROFESSIONAL GOLFERS ASSOCIATION, INC.,
JAMES MULLEN,
Defendants,
and
THE PROFESSIONAL GOLFERS ASSOCIATION, INC.,
Defendant-Respondent.
_______________________________________________
Submitted September 19, 2017 – Decided November 1, 2017
Before Judges Yannotti and Leone.
On appeal from Superior Court of New Jersey,
Law Division, Hunterdon County, Docket No. L-
0159-14.
Carter, Van Rensselaer and Caldwell, attorneys
for appellant (William J. Caldwell, on the
brief).
Cascio & Capotorto, attorneys for respondent
(Jeffrey A. Savage, on the brief).
PER CURIAM
This action arises out of injuries sustained by a five-year-
old girl, E.K., while attending a golf camp. Plaintiffs, E.K.'s
parents Seung Yon Choi and Gerald J. Keane, brought suit on their
own behalf and on behalf of E.K. They appeal from a June 28, 2016
order granting summary judgment to defendant Professional Golfers
Association of America, Inc. (PGA). We affirm.
I.
In the summer of 2013, plaintiffs enrolled E.K. in a summer
"Golf Camp" offered by defendant Hunterdon County YMCA, Inc.
(YMCA). The YMCA summer camp brochure's description of the Golf
Camp stated that "PGA (Professional Golf Association)
Professionals will provide a friendly and relaxing environment
where your child can learn the fundamentals of" golf, and that
"campers will spend half of the day with PGA professionals playing
golf[.]" The PGA's logo was displayed above the description of
the Golf Camp in the brochure.
On July 27, 2013, E.K. was accidentally struck in the mouth
by a golf club swung by another minor child. E.K. sustained
2 A-5375-15T2
injuries to her face and mouth including the loss of multiple baby
teeth.
Plaintiffs filed suit against multiple defendants including
the YMCA and several of its employees; Chris Nallen, the
professional golfer hired as an instructor at the camp; the parents
of the minor child that hit E.K. with the golf club; the New Jersey
Professional Golfers Association, Inc. (NJPGA); the New Jersey
Golf Foundation, Inc. (NJ Golf Foundation); the PGA Foundation;
and the PGA. In their amended complaint, plaintiffs alleged that
E.K. would not have been injured but for the negligent supervision
of the Golf Camp and the campers. Plaintiff also alleged that
Nallen was a member, official, agent, servant, or independent
contractor of the PGA, that the PGA had a duty to ensure Nallen
would properly supervise the Golf Camp, and that the PGA was an
independent contractor of the YMCA.
The PGA filed a motion for summary judgment. The motion was
denied on January 28, 2016, because discovery had not yet been
completed and the court wanted to give plaintiffs the opportunity
to develop their claim against the PGA. Plaintiffs then settled
with the NJPGA, NJ Golf Foundation, Nallen, and the YMCA and its
employees. After the close of discovery, the PGA filed a renewed
motion for summary judgment, arguing that it owed no duty of care
3 A-5375-15T2
to plaintiffs. On June 28, 2016, Judge Michael F. O'Neill granted
the PGA's renewed motion for summary judgment. Plaintiffs appeal.
II.
Summary judgment must be granted if "the pleadings,
depositions, answers to interrogatories and admissions on file,
together with 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." R. 4:46-
2(c). The court must "consider whether the competent evidential
materials presented, when viewed in the light most favorable to
the non-moving party, are sufficient to permit a rational
factfinder to resolve the alleged disputed issue in favor of the
non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142
N.J. 520, 540 (1995). "[T]he court must accept as true all the
evidence which supports the position of the party defending against
the motion and must accord [that party] the benefit of all
legitimate inferences which can be deduced therefrom." Id. at 535
(citation and internal quotation marks omitted).
An appellate court "review[s] the trial court's grant of
summary judgment de novo under the same standard as the trial
court." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co.,
224 N.J. 189, 199 (2016). We must hew to that standard of review.
4 A-5375-15T2
Based on our standard of review, we affirm substantially for
the reasons set forth in Judge O'Neill's thoughtful and well-
reasoned decision issued on June 28, 2016. We add the following.
III.
"[A] negligence cause of action requires the establishment
of four elements: (1) a duty of care, (2) a breach of that duty,
(3) actual and proximate causation, and (4) damages." Jersey
Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 594
(2013). "The determination of the existence of a duty is a
question of law for the court." Petrillo v. Bachenberg, 139 N.J.
472, 479 (1995). "Under respondeat superior, an employer can be
found liable for the negligence of an employee causing injuries
to third parties, if, at the time of the occurrence, the employee
was acting within the scope of his or her employment." Carter v.
Reynolds, 175 N.J. 402, 408-09 (2003). To establish liability, a
plaintiff must show "that a master-servant relationship existed."
Id. at 409. "If no master-servant relationship exists, no further
inquiry need take place because the master-servant relationship
is sine qua non to the invocation of respondeat superior." Ibid.
The record indicates Nallen was hired by the NJ Golf
Foundation as an independent contractor to run the YMCA's Golf
Camp. The NJ Golf Foundation paid Nallen $2700 for his services,
which was reflected in an IRS form 1099-MISC used for reporting
5 A-5375-15T2
income paid to independent contractors. The PGA is not mentioned
in the agreement signed by the YMCA and the NJPGA. Plaintiffs
failed to offer any evidence that would show, or even create a
genuine dispute of fact, that Nallen was in a master-servant
relationship with the PGA. We agree with the trial court that a
master-servant relationship was not established merely because
Nallen was a professional golfer who had competed in PGA events
as a member of the PGA. See Basil v. Wolf, 193 N.J. 38, 62 (2007)
(a principal is generally immune from liability for the negligence
of an independent contractor).
IV.
Plaintiffs argue that even if Nallen was an independent
contractor, liability can still be imposed under the doctrine of
apparent authority or agency. See Sears Mortg. Corp. v. Rose, 134
N.J. 326, 337-38 (1993). "If a principal cloaks an independent
contractor with apparent authority or agency, the principal can
be held liable as if the contractor were its own employee if it
held out the contractor to the plaintiff as its own servant or
agent." Basil, supra, 193 N.J. at 63. Liability may be imposed
on the principal based upon "apparent authority" when "the
principal's actions have misled a third-party into believing that
a relationship of authority in fact exists." Mercer v.
Weyerhaeuser Co., 324 N.J. Super. 290, 317 (App. Div. 1999).
6 A-5375-15T2
Liability arises if "the principal has by his voluntary act placed
the agent in such a situation that a person of ordinary prudence,
conversant with business uses, and the nature of the particular
business, is justified in presuming that such agent has the
authority to perform the particular act in question." Id. at 318
(citation omitted).
To satisfy its burden of establishing the apparent authority
or apparent agency relationship, plaintiffs had to establish: "(1)
that the appearance of authority has been created by the conduct
of the alleged principal and it cannot be established 'alone and
solely by proof of [conduct by] the supposed agent,' (2) that a
third party has relied on the agent's apparent authority to act
for a principal, and (3) that the reliance was reasonable under
the circumstances." Ibid. (citations omitted).
Plaintiffs seek to impose liability on the PGA based on the
use of the PGA logo and references to the PGA in the YMCA's summer
camp brochure. In Mercer, we reversed summary judgment granted
to Weyerhaeuser, a large building and lumber supply company,
because "[t]here was no dispute that Weyerhaeuser authorized [the
home builder] to use its logo on [the home builder's] business
cards, brochures, press lists, correspondence and newspaper
advertisements at the time that plaintiffs purchased their homes."
Mercer, supra, 324 N.J. Super. at 321. As such, there was a
7 A-5375-15T2
factual dispute over "whether plaintiffs relied on Weyerhauser's
conduct (lending [the home builder] its name and logo for marketing
purposes) in deciding to purchase these homes[.]" Id. at 319.
By contrast, there was no evidence of voluntary conduct on
the part of the PGA to create an appearance that the YMCA or Nallen
had authority to act for the PGA. Indeed, there was no evidence
the PGA was involved in any aspect of the planning or
administration of the YMCA's camp. There was no evidence the PGA
was even aware of the use of its logo or name in the YMCA's
brochure prior to this lawsuit, let alone that it authorized its
use for the YMCA's marketing purposes. Again, the appearance of
authority "cannot be established 'alone and solely by proof of
[conduct by] the supposed agent[.]'" Mercer, supra, 324 N.J.
Super. at 318 (citations omitted).1
Moreover, the PGA did not hold Nallen out as its agent or
employee. Indeed, there was no evidence the PGA was involved in
any aspect of the planning or administration of the YMCA's camp.
Thus, plaintiffs, unlike the plaintiffs in Mercer, have failed to
meet their burden to show apparent authority. Therefore, we need
1
The PGA asserts the use of its logo was apparently authorized by
the NJ Golf Foundation or the NJPGA, which contracted with the
YMCA. Plaintiffs have not shown those entities were alter egos
of the PGA.
8 A-5375-15T2
not address whether plaintiffs relief on the alleged apparent
authority, or whether that reliance was reasonable.
Affirmed.
9 A-5375-15T2
SEUNG YON CHOI VS. HUNTERDON COUNTY YMCA, INC.(L-0159-14, HUNTERDON COUNTY AND STATEWIDE)
Combined Opinion