We are pleased to announce that Gerry Wixted has been admitted to the New York bar. Gerry is also admitted in New Jersey and Pennsylvania. For more information, click here.
CLAIM OF PARENT AGAINST CHARITABLE INSTITUTION BARRED BY NEW JERSEY CHARITABLE IMMUNITY ACT WHERE PARENT OBTAINS A DERIVATIVE, PERSONAL BENEFIT FROM BENEFICIARY STATUS OF CHILD.
In its unreported opinion in Neumann v. Brick Township Soccer Association, decided October 7, 2013, the Appellate Division held that a claim of a parent/coach against a non-profit soccer association who was injured while practicing with her child's team was barred by the New Jersey Charitable Immunity Act because plaintiff was a "beneficiary to whatever degree" of the association. The court's holding proceeded in part from the direct personal benefit that the plaintiff/coach derived from her position with the soccer association. The court also ruled that plaintiff received a derivative personal benefit through her child's involvement, utilizing broad language which on its face extends beneficiary status to any parent whose child receives a benefit from a charitable institution.
In Neumann, plaintiff was an assistant coach on her daughter's youth soccer team who was injured while practicing with the team on a poorly lit, uneven field. The team was part of a local non-profit youth soccer association of which both plaintiff and her daughter were active members. Plaintiff acknowledged that she benefitted from her position by guaranteeing her daughter playing time as well as from the recreational exercise she received while practicing with the team.
While plaintiff benefitted from her own involvement, the court was careful to state that she also benefitted indirectly (but personally) through her daughter's participation on the team. As the court explained, "parents are obligated to maintain a basic level of moral care and education for their child." As the participation of her daughter on the soccer association's team furthered the discharge of these parental obligations, plaintiff benefitted from her daughter's involvement.
Neumann constitutes support for the sweeping proposition that a parent is a beneficiary within the meaning of N.J.S.A. 2A:53A-7 whenever a parent's child benefits from an organization's charitable works. As such, the Appellate Division's opinion is consistent with the Act's stated purpose of being "liberally construed so as to afford immunity" to New Jersey's charitable institutions.
For more information on Neumann and New Jersey's charitable immunity, contact Peter Freed.
Smith Stratton partners collaborate on Resource Guide
Smith Stratton partners Christine Nici and Bill McGrath recently collaborated with Munich Reinsurance America, Inc. on the Third Edition of the Construction Defect Resource Guide, a 50 state survey of case law and statutes that impact claims and insurance coverage for construction defect claims. For more information on the survey or Smith Stratton's practice in construction defect claims, contact Christine Nici or Bill McGrath.
Download a PDF of the Construction Defect Resource Guide
Smith Stratton lawyers recognized in the 2013 New Jersey Super Lawyers Magazine
Smith Stratton announces that Bill McGrath and Bill Quackenboss have been recognized in the 2013 edition of New Jersey Super Lawyers Magazine. Bill McGrath was selected for an eighth consecutive year as a New Jersey Super Lawyer for 2013 for his practice in insurance coverage law. Bill Quackenboss was named to the 2013 Rising Stars list in the field of insurance coverage law.
New Jersey Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement, published in New Jersey Monthly and in New Jersey Super Lawyers Magazine. New Jersey Super Lawyers are selected based on a peer-review survey mailed to more than 32,000 attorneys throughout the state, a blue-ribbon panel review process, and independent research on each candidate. The Rising Stars list recognizes up and coming legal talent. Polling, research and selection are performed by Law & Politics, a publication of Key Professional Media, Inc.
For more information contact Bill McGrath or Bill Quackenboss
Appellate Division Rules That Discredited Testimony Of A Party Is Not Sufficient To Defeat Motion For Summary Judgment
The ramifications of the reformulation of New Jersey's standard governing motions for summary judgment continue to emerge. In a reported opinion released on February 14, 2013, Alfano v. Schaud, ____ N.J. Super. ___ (App. Div. 2013), the Appellate Division confronted the issue of whether testimony by a party that is blatantly contradicted by the record is nevertheless sufficient to create a genuine issue of material fact so as to defeat a motion for summary judgment under the 1984 reformulated standard.
Plaintiff's claim in Alfano concerned alleged violations of the New Jersey Civil Rights Act. Plaintiff Frank Alfano was a county employee who became involved in an encounter with Patrolman Pierce Schaud, a local police officer, after Schaud responded to a report of a parked vehicle that was creating a hazard to other motorists. Plaintiff had illegally parked the county-owned vehicle while making a delivery to the local municipal building. Alfano alleged that the encounter lasted about 40 minutes during which Schaud made political threats, while defendant recalled that the duration of the encounter was 10 to 15 minutes and did not include any improper exchanges. Significantly, an authenticated, real-time audio recording and a transcript of police dispatch marked the duration of the encounter at 9 minutes and otherwise corroborated Schaud's testimony and completely refuted the testimony of plaintiff.
In affirming the trial court's order entering summary judgment in favor of defendant, the Appellate Division held that plaintiff's testimony was so thoroughly contradicted by the audio recording and transcript that no reasonable jury could believe it. As such, the discredited testimony did not create a genuine issue of material fact sufficient to defeat defendant's motion for summary judgment.
The Appellate Division's opinion in Alfano v. Schaud encourages parties to consider moving for summary judgment in any scenario where one party's testimony may be so discredited by objective evidence as to be unworthy of consideration.
For more information on the court's opinion in Alfano v. Schaud, contact Peter Freed.