Di Cosala v. Kay

Decision Date04 August 1982
Citation450 A.2d 508,91 N.J. 159
PartiesDennis Di COSALA, an infant by his Guardian ad Litem, Benita Di Cosala, and Benita Di Cosala, Individually, Plaintiffs-Appellants, v. Robert M. KAY, Philip Reuille, British Scouting Association and John Tantillo, Defendants, and Robert Treat Council, Boy Scouts of America and Boy Scouts of America, Defendants-Respondents.
CourtNew Jersey Supreme Court

William O. Barnes, Jr., Newark, for appellants.

William L'E Wertheimer, Newark, for respondents (Lum, Biunno & Tompkins, Newark, attorneys).

The opinion of the Court was delivered by


The primary question raised in this case is whether an employer owes a duty of reasonable care to third persons in the hiring and retention of employees whose aggressive or reckless characteristics or lack of competence in the performance of their employment duties may endanger such third persons.


On August 11, 1973, the plaintiff in this action, Dennis DiCosala, was accidentally shot in the neck by Robert M. Kay. At the time of the accident, the plaintiff was a child of only six years of age. The accident occurred in the living quarters of the plaintiff's uncle, defendant Philip Reuille, which were located on the grounds of Camp Mohican, a Boy Scout camp situated in Blairstown. Camp Mohican was owned and operated by the Robert Treat Council of the Boy Scouts of America. Reuille had been hired as a camp ranger by that organization in the spring of 1971. His duties at the camp included repair work, maintenance chores, and other general work related to the operation of the summer camp. His compensation included the provision of accomodations on the camp grounds. The building in which he lived, Collinmore Lodge, also contained, in addition to Reuille's living quarters, a camp office and meeting hall. 1

The Boy Scouts claim that the living quarters were regarded as Reuille's private dwelling within which he could entertain private house guests. David Greenlaw, a Robert Treat Council administrator, testified that his organization was well aware that Reuille did, in fact, entertain private guests in his quarters. Moreover, both the Robert Treat Council and the Boy Scouts of America note that they had no general access to Reuille's home and could enter it by invitation only.

On the other hand, despite the private nature of the dwelling, it was clear that representatives or employees of the two organizations had, in fact, been in the Reuille home on more than one occasion. For example, in 1973 Greenlaw had inspected Reuille's living quarters at Reuille's request because of "a bad water situation" in the building. Moreover, Greenlaw testified in a deposition that he visited the building occupied by the Reuille family approximately twice per month for business and social reasons. He also explicitly added that he had probably been in the quarters before August 1973 as recently as in June of that year, and that he was certain that other people connected with the Robert Treat Council had also visited Reuille in his quarters.

The plaintiff was present on the premises as part of an extended social visit that he and his mother, Benita, were paying to Philip Reuille and his wife, Bernice, who were the boy's uncle and aunt. The boy and his mother apparently visited the Reuilles on a yearly basis.

During the most recent visit, the Reuilles had introduced Benita DiCosala to Robert Kay, who was employed as a counselor at the camp during the summer of 1973. He was, at the time of the incident, 19 years of age. He had obtained his counselor's position as part of an exchange program with the British Scouting Association, another defendant later named in this action. Kay received no salary for his work. He was, however, provided with room and board. His duties at the camp included instructing the scouts in mountaineering.

On the day of the accident, Kay went to the Reuille's home, at the invitation of Benita DiCosala, intending to take her and the plaintiff on a mountain hike. The record is fairly clear that Kay's visit and the planned hike were entirely social and unrelated to Kay's duties as a counselor at the camp. When the plaintiff's mother was unable to leave as planned, she, along with the young boy and Kay, went outside and played hide and go seek for about one-half hour. The three then went into the Reuille living quarters to pass the time. The young boy and Kay first went into the dining room. While there, they were "playing with a toy pistol and a .22 automatic pistol that he (Robert) had found on top of a cubbard (sic) in the dining room." They then moved into the living room, where Kay found another handgun in a holster on the fireplace mantel. He removed it and, despite Benita's warning, pointed it at plaintiff in play. Kay threatened the boy in jest, saying that he was naughty and if he did not behave, Kay would shoot him. Kay then pulled the trigger, apparently assuming that the gun was not loaded. The boy was struck in the neck by Kay's shot. While the record does not indicate the precise nature and extent of the boy's wound, it seems undisputed that he has suffered severe and crippling injuries.

Kay admitted all of the foregoing facts relating to the shooting in a statement that he gave to the police shortly after the occurrence. Other facts on the record establish that the revolver used in the shooting was not the only gun on the Reuille premises. 2 Benita DiCosala testified that she had seen more than one gun--both rifles and revolvers--laying around the Reuille home before the date of the shooting. She had seen them in the front room, in the dining area, and in Philip Reuille's office on the other side of the house. Moreover, the police found the additional gun described in Kay's police statement during their search of the premises immediately after the shooting. Finally, Greenlaw stated he was aware of the presence of firearms in the Reuille home, although when asked, he could remember neither how many guns there were nor where on the premises they were located. 3 Nonetheless, he expressly admitted having seen them in Reuille's personal quarters. 4

Dennis DiCosala and his mother filed a civil action in the Superior Court against the following six defendants: Boy Scouts of America, the Robert Treat Council, Robert Kay, the British Scouting Association, Philip Reuille and John Tantillo. Only the two defendants currently before this Court--the Boy Scouts and the Robert Treat Council--responded. Default judgments were entered against the remaining defendants.

The Boy Scouts and the Robert Treat Council moved for a summary judgment on the following two grounds. First, they argued that since, as a matter of law, neither Kay nor Reuille had been acting within the scope of his employment in connection with the shooting, the two defendants could not be liable on the basis of the doctrine of respondeat superior. Second, the two defendants argued that even if the alleged negligence of Kay or Reuille could be imputed to them in their capacity as employees, they were nevertheless immune from liability by virtue of N.J.S.A. 2A:53A-7, which exempts nonprofit entities from liability for negligence where the individual who suffered the wrong is a "beneficiary" of the entities' works, as opposed to a person who is "unconcerned in and unrelated to and outside of the benefactions" of them.

The trial court granted defendants' motion for summary judgment. He first concluded that the conduct of both Kay and Reuille fell outside the scope of employment as contemplated within the common law doctrine of respondeat superior and within Section 228 of the Restatement Second of Agency. He stated that he did not see any purpose to serve the master and, further, that there was nothing to indicate the conduct was "even vaguely authorized." On the other hand, he rejected the defendants' contentions regarding the immunity statute, concluding that it was not applicable because the plaintiff was not a beneficiary of the charitable entities. 5

In granting the summary judgment motion, the trial court rejected the plaintiff's argument that the defendants were liable because they had negligently hired Kay or Reuille. While holding that a cause of action based on negligent hiring did exist under New Jersey law, the trial judge nevertheless concluded that the plaintiffs had failed to show any factual basis on which to support the legal conclusion that either of the two employees had been negligently hired or retained. Moreover, the fatal defect in the plaintiffs' showing, according to the trial court, was that they had failed to demonstrate the existence of a duty owed by either of the defendants to Dennis DiCosala, who was, concededly, a guest not of the camp, but of Reuille as a private individual.

In a brief per curiam opinion, the Appellate Division affirmed for substantially the reasons stated by the trial court. 6 We granted plaintiffs' petition for certification. 87 N.J. 375, 434 A.2d 1061 (1981). We reverse the Appellate Division's affirmance of summary judgment and remand this matter to the trial court for further proceedings consistent with this opinion.


In reviewing the dismissal of claims as legally insufficient on a motion for summary judgment, we must accept as true all of the allegations in the pleadings, the affidavits and the discovery submitted on the behalf of the opponent of the motion. We also draw all reasonable inferences most favorable to that party. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 73-75, 110 A.2d 24 (1954).

Initially, we consider the plaintiffs' argument that the defendants herein may be liable under the doctrine of respondeat superior. Their claim, in essence, is that under that doctrine, an employer may be liable if the actions of its employee either are within the scope of employment or could have been reasonably foreseeable by the employer,...

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