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Buono v. Scalia3/11/2003
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 11, 2003
Plaintiffs appeal from a December 7, 2001 summary judgment order dismissing their personal injury complaint. The action was brought on behalf of a child, Kathryn Buono, who was injured when Michael Scalia, then aged five years and nine months, struck her with the bicycle he was riding. Plaintiffs sued Michael on a theory of direct negligence and sued Michael's parents Alphonse and Lisa Scalia on a theory of negligent supervision. The trial judge determined that under Foldi v. Jeffries, 93 N.J. 533 (1983), parental immunity exists in the instant situation, where failure to supervise was neither willful nor wanton, even though suit was not brought on behalf of the defendant parents' child. This appeal raises only issues as to the liability of Michael's father, inasmuch as it was conceded at oral argument before us that Michael is not liable to plaintiffs and that his mother also is not liable because she had not undertaken to supervise him at the time of the events in suit. We affirm.
The essential facts are these. Michael Scalia, then five years and nine months old, injured sixteen month old Kathryn Buono when the bicycle he was riding struck her. The victim's father, Vincent Buono, filed this lawsuit on behalf of himself and on behalf of his daughter. Plaintiffs assert on appeal that Alphonse Scalia was negligent in supervising and controlling his son, and that his negligence proximately caused the accident which led to plaintiff Kathryn's injuries.
The accident occurred around mid-day on June 17, 2000, on Sunset Avenue in Bayonne, which was closed to traffic for a block party. Between fifteen and twenty neighbors, including approximately fourteen adults and six children, had gathered for the party at the time of the accident. Michael's mother Lisa was inside their home, preparing food to bring to the party. Vincent Buono was inside his home exercising. Neither Lisa nor Vincent observed the accident. Kathryn was standing on the street beside her mother, Diane Buono, who was engaged in conversation. Diane testified there was "a lot of activity" on the block including an open fire hydrant and "children riding bikes."
Michael was nearby riding a two-wheel bicycle. He had been taught to ride a bicycle by both his parents, and he had been riding without training wheels for about two months prior to the accident. Michael's parents allowed him to ride his bicycle outdoors as long as he remained on the sidewalk in front of his or in front of one or two neighboring houses in either direction. Because of the block party, however, Michael was permitted to ride in the street that day.
Alphonse Scalia was following his son Michael as he rode his bicycle that day, "keeping an eye on him[.]" Alphonse watched from five to eight feet behind, as his son came closer to Kathryn, who Alphonse claims walked toward the path of Michael's bicycle. Anticipating an accident, Alphonse shouted to Michael, " atch out!" Michael did not respond to his father's warning, however, struck Kathryn with his bicycle, and both children fell to the ground, with the bicycle landing on Kathryn.
Plaintiffs appeal from the grant of summary judgment, alleging that the trial court erred in determining that parental immunity barred plaintiffs' claims against Michael's parents because their supervision had not been negligent, willful, or wanton.
In granting the motion, the trial judge relied on Foldi, and noted that Foldi dealt with liability for injuries to an allegedly negligent parent's own child. The judge in effect reasoned from Foldi that the determinative cons
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