                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-3408-18T1

THOMAS MCKEOWN,

      Plaintiff-Appellant,            APPROVED FOR PUBLICATION

                                             February 7, 2020
v.
                                          APPELLATE DIVISION
AMERICAN GOLF
CORPORATION, d/b/a BEAVER
BROOK COUNTRY CLUB, and
BRIAN ROBINSON,

      Defendants,

and

PHILIP CAPAVANNI,

     Defendant-Respondent.
______________________________

            Submitted January 14, 2020 – Decided February 7, 2020

            Before Judges Fisher, Gilson and Rose.

            On appeal from the Superior Court of New Jersey, Law
            Division, Morris County, Docket No. L-0996-17.

            Piro Zinna Cifelli Paris & Genitempo, LLC, attorneys
            for appellant (Daniel Robert Bevere, on the briefs).

            Law Office of Patricia Palma, attorneys for respondent
            (Jane C. Nehila, on the brief).
      The opinion of the court was delivered by

FISHER, P.J.A.D.

      A simple round of golf led to this personal injury suit. Plaintiff claims he

was injured when struck by a golf cart rented by defendant Philip Capavanni and

driven by defendant Brian Robinson. All plaintiff's claims have been reso lved

except for that which we now consider: whether the evidential materials, when

viewed in the light most favorable to plaintiff, Brill v. Guardian Life Ins. Co. of

Am., 142 N.J. 520, 540 (1995), created a jury question whether Capavanni

negligently entrusted the operation of his rented golf cart to Robinson. Because

there was a genuine factual dispute about Robinson's competency to operate a

golf cart, we reverse the summary judgment entered in Capavanni's favor.

      The record reveals that Capavanni is an experienced golfer.                He

acknowledged at his deposition that he has played approximately sixty rounds

of golf per year over the last thirty-five years. Robinson – Capavanni's then

eighty-two-year-old father-in-law – is a resident of Scotland. At the time of the

incident in question, Robinson was in the United States for only the second time.

Capavanni testified at his deposition that he had never seen Robinson drive a

motor vehicle or a golf cart; he also did not think Robinson possessed a driver's

license.


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      Capavanni and Robinson were playing in a foursome at the Beaver Brook

Country Club on May 24, 2015, with plaintiff and another golfer. Capavanni

rented a golf cart, as did plaintiff, from defendant American Golf Corporation

(AGC), which operates Beaver Brook.          In signing his rental agreement,

Capavanni agreed to "assume all risk" associated with the cart's use; he also

represented that he was "familiar with [its] operation and proper use" and he

promised he would not permit the cart to be operated by anyone under the age

of sixteen "or anyone unfamiliar with the operation and proper use of the cart."

      At the ninth hole, Capavanni drove the cart to a spot approximately 100

yards from the green. Robinson then got behind the wheel and drove alone

toward the green. Meanwhile, plaintiff parked his cart near the green. As

plaintiff retrieved his putter from the rear of his cart, he heard the other cart

approaching. He tried to get out of the way but was pinned between his cart and

the Capavanni cart Robinson was driving. When Capavanni arrived, he saw that

plaintiff's leg was "split open," so Capavanni used his belt as a makesh ift

tourniquet.   In explaining what occurred, Robinson told Capavanni that a

rangefinder, which was unsecured on a shelf near the steering wheel, fell and

became lodged under the brake pedal, thereby preventing him from stopping.




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        Plaintiff's suit was brought against AGC, Capavanni, and Robinson. AGC

obtained summary judgment in July 2018. Capavanni's summary judgment

motion was granted in January 2019, for the reasons expressed by the judge in

a written opinion. A default judgment was entered against Robinson in February

2019.

        In appealing, plaintiff argues, in a single point, that the motion judge erred

in granting summary judgment on his claim that Capavanni negligently

entrusted his leased cart's operation to Robinson. We agree and reverse.

        Although the motion judge correctly assumed there was evidence to

support plaintiff's assertion that Robinson was unfamiliar with the oper ation of

golf carts,1 he incorrectly conflated plaintiff's negligent entrustment theory with



1
  In citing to relevant portions of Capavanni's deposition, the judge determined
that "Robinson is a longtime golfer, and Capavanni and Robinson have played
golf together many times in Scotland, Robinson's home country. However, in
Scotland, the birthplace of golf, it is not common to use a golf cart, and
Capavanni stated his belief that Robinson had never driven a golf cart before"
(footnote omitted). In his brief in this court, Capavanni argues that it is not
"accurate" that "Capavanni should have known Robinson never drove a golf
cart." In making this statement, Capavanni refers to that portion of his
deposition where he said that he (Capavanni) has "used a golf cart when [he has]
played golf with" Robinson. That statement, however, does not require an
assumption that Robinson ever operated the golf cart on those other occasions.
We agree with the judge that, because the question was posed by way of a
summary judgment motion, the record requires an assumption that Robinson was
unfamiliar with and inexperienced in the operation of golf carts.
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the scope of the rental agreement and, on top of that, viewed the falling

rangefinder as an unforeseen event that negated or superseded the significance

of Robinson's inexperience behind the wheel of a golf cart.

      In short, the disposition of the negligent entrustment theory seems to be

based solely on the motion judge's following two observations:

               • the rental agreement "is an adhesion contract that
                 places a duty upon Capavanni to operate the cart
                 in a careful manner so as to avoid loss or risk to
                 the Golf Club," and

               • it was not "foreseeable that the rangefinder would
                 become lodged under the pedals as a result of
                 Robinson's inexperience with golf carts."

We reject both these assumptions.

      First, we reject the notion that the golf cart rental agreement supports

Capavanni's position.    With or without that agreement, Capavanni had a

common law obligation to refrain from entrusting the golf cart to an incompetent

operator. In a similar context, our Supreme Court has broadly held that "persons

must use reasonable care in the employment of all instrumentalities – people as

well as machinery – where members of the public may be expected to come into

contact with such instrumentalities." Di Cosala v. Kay, 91 N.J. 159, 171 (1982).

In Di Cosala, the Court recognized that liability may attach when one retains an

aggressive or reckless employee. The Di Cosala opinion also referred to, with

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approval, a federal district court decision, Nivins v. Sievers Hauling Corp., 424

F. Supp. 82, 89 (D.N.J. 1976), that predicted our Supreme Court would come to

this conclusion in a case – more like that here – where an employer was alleged

to have hired an incompetent or unfit crane operator. Di Cosala, 91 N.J. at 169-

70. Very recently, the Court reaffirmed its adherence to these concepts. See

G.A.-H. v. K.G.G., 238 N.J. 401, 416 (2019).

      Like the hiring of an employee who could not competently operate a crane,

as in Nivins, Capavanni entrusted a golf cart to someone allegedly unfamiliar

with its use.   The only difference here is the absence of an employment

relationship between the defendant and the alleged incompetent operator, but

that was not an essential feature of those earlier holdings. An owner of a chain

saw, a firearm, a boat, or a motor vehicle, as well as any other device capable of

causing injury when misused, has an obligation to avoid entrusting such a device

to a person unfamiliar with its use. See Restatement (Second) of Torts, § 390.2

Taking the most obvious and frequently occurring example, is there any doubt



2
  This section states that "[o]ne who supplies directly or through a third person
a chattel for the use of another whom the supplier knows or has reason to know
to be likely because of his youth, inexperience, or otherwise, to use it in a
manner involving unreasonable risk of physical harm to himself and others
whom the supplier should expect to share in or be endangered by its use, is
subject to liability for physical harm resulting to them."
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that it is a negligent act to allow use of a motor vehicle to an uncredentialed

individual who has no experience operating a motor vehicle on public roadways?

Our Supreme Court has recognized a motor vehicle owner's liability in such an

instance. See Mead v. Wiley Methodist Episcopal Church, 4 N.J. 200, 206

(1950); see also Karen L. Ellmore, Annotation, Negligent Entrustment of Motor

Vehicle to Unlicensed Driver, 55 A.L.R. 4th 1100 (1987).              Is there any

conceptual difference when the vehicle is a golf cart? We think not.

      Because we have determined that Capavanni had a common law duty not

to allow the cart's use by an incompetent operator, our analysis does not require

consideration of the judge's determination that the rental agreement is a contract

of adhesion or that the agreement did not impose such a duty. We consider the

agreement only because of the parties' and the judge's emphasis of it.

      To start, we reject the assumption that the agreement was a contract of

adhesion. There is no evidence that it was presented to Capavanni on a "tak e-

it-or-leave-it basis . . . without opportunity for the 'adhering' party to negotiate

except perhaps on a few particulars." Rudbart v. No. Jersey Dist. Water Supply

Comm'n, 127 N.J. 344, 353 (1992).            But, even assuming otherwise, those

circumstances only open the door to an inquiry into whether the alleged contract

of adhesion is enforceable. Interestingly, despite the assertion that the rental


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                                         7
agreement is a contract of adhesion, there seems to be no claim that the

agreement was unenforceable. 3 That label merely seems to have been affixed to

the agreement as a way of minimizing its significance to plaintiff's claim.

      The real assertion on which the ruling was based was the judge's

determination that the agreement's scope of intended beneficiaries was limited.

That is, the judge determined – as revealed by his emphasis in his opinion on

the phrase "to the Golf Club" – that only AGC was a beneficiary of Capavanni's

promise to keep the cart out of the wrong hands. To be sure, AGC's interest in

securing a renter's promise not to entrust the cart to someone incapable of safely

using it was not altogether altruistic. AGC's own well-being was obviously of

great interest to it. By securing Capavanni's promise, AGC was undoubtedly




3
   An agreement's status as a contract of adhesion only begins the analysis into
its enforceability. In determining enforceability, a court must consider "the
subject matter of the contract, the parties' relative bargaining positions, the
degree of economic compulsion motivating the adhering party, and the public
interests affected by the contract." Id. at 356. The judge did not analyze the
rental agreement in light of these factors. If he had, he would have found it
readily apparent there was no economic compulsion motivating Capavanni.
This was not a contract for something that is "a common and necessary adjunct
of daily life." Rudbart, 127 N.J. at 354 (quoting Henningsen v. Bloomfield
Motors, Inc., 32 N.J. 358, 387 (1960)); see also McBride v. Minstar, Inc., 283
N.J. Super. 471, 491 (Law Div. 1994), aff'd o.b., 283 N.J. Super. 422 (App. Div.
1995). No one needs to rent a golf cart, and the public has no great interest in
the content of such agreements.
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                                        8
creating the grounds upon which it could seek indemnification if an injury

resulted.

      But there is no reason to assume – even accepting AGC's prime motivation

was its own self-interest – that AGC was not looking to ensure the safety of all

its patrons, including those who might be injured from the cart renter's

negligence. Barring any compelling evidence to the contrary, the law would

assume from such an agreement that a party who allows another to use some

instrumentality in exchange for both a fee and a promise that the

instrumentality's use will be limited, not only seeks to insulate itself from

liability but also seeks to prevent incidents that might generate the reason for

seeking indemnification in the first place.4 So, the only question about the

agreement – regardless of whether it was a contract of adhesion – concerns

whether the injured person fell within the scope of foreseeable beneficiaries of

Capavanni's promise. The fact that plaintiff was on the golf course and, in fact,




4
  We assume the judge was not suggesting – through his emphasis of the fact
that Capavanni only contracted with AGC – that the absence of privity of
contract between plaintiff and Capavanni constituted a bar to plaintiff 's claim.
The reach of one's duty of care is not limited by contract principles but by
"considerations of foreseeability and fairness." Carter Lincoln-Mercury v.
EMAR Group, 135 N.J. 182, 196 (1994); Ranier v. Frieman, 294 N.J. Super.
182, 188 (App. Div. 1996).
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                                       9
in the same foursome with Capavanni and Robinson, meant that he fell within

the agreement's scope of protected persons.

      For these reasons, we reject the judge's first assumption that the rental

agreement governed Capavanni's acts or omissions and that it was intended to

insulate only AGC.

      Second, we reject the judge's determination that Capavanni was entitled

to summary judgment on this theory based on an assumption that it was not

"foreseeable that the rangefinder would become lodged under the pedals as a

result of Robinson's inexperience with golf carts." This assumption actually

combines two separate notions, the first being that the rangefinder's fall was

unforeseeable, and the second apparently being the judge's conclusion – if we

have interpreted his observation correctly – that the same incident would have

resulted if an experienced operator was driving the golf cart.

      Questions like this are particularly fact sensitive. Not only did the judge

mistakenly give the summary-judgment movant the benefit of reasonable

inferences instead of the opponent, but we are also satisfied that the judge took

over the role of the jury in drawing his multifaceted assumption. It was for the

jury to decide whether it was foreseeable that the particular placement of an




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                                      10
unsecured item – here a rangefinder – could lead to its falling to the operator's

feet where it could cause problems with the operation of the cart's foot pedals.

      Viewing this event in the light most favorable to plaintiff instead of the

movant, the placing of a loose item in a place in a vehicle where it could interfere

with the operator's use of the cart's pedals seems reasonably foreseeable. Indeed,

the particular placement of the rangefinder could be viewed as simply another

alleged act of negligence on the part of the cart's users or possessors. In addition,

it was for the jury to determine whether Robinson's inexperience with golf carts

was a proximate cause of the cart's collision with plaintiff.

      Reversed and remanded. We do not retain jurisdiction.




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