MADISON MONE VS. KIM GRAZIADEI(L-3240-13, UNION COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-4578-15T2
MADISON MONE,
Plaintiff-Appellant,
v.
KIM GRAZIADEI,
Defendant-Respondent,
and
GIRLS SOFTBALL LEAGUE OF
WESTFIELD, INC.,
Defendant.
_______________________________________________
Argued October 2, 2017 – Decided October 30, 2017
Before Judges O'Connor and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Docket No.
L-3240-13.
Ralph P. Ferrara argued the cause for
appellant (Ferrara Law Group, PC, attorneys;
Mr. Ferrara and Anthony A. Skalski, on the
brief).
Robert F. Ball argued the cause for
respondent (Weber Gallagher, attorney; Mr.
Ball on the brief).
PER CURIAM
In this personal injury action, plaintiff Madison Mone was
injured just before she and her team were to play in a softball
game for defendant Girls Softball League of Westfield, Inc.
(League). Defendant Kim Graziadei (coach) was the team's coach.
Plaintiff filed a complaint alleging defendants had been both
negligent and grossly negligent for failing to properly instruct
and supervise plaintiff at the time she was injured. She
appeals from a May 13, 2016 order granting defendants summary
judgment dismissal. After reviewing the record and applicable
legal principles, we reverse.
I
The pertinent facts in the motion record, which we present
in the light most favorable to plaintiff, are as follows. In
June 2007, plaintiff, then thirteen years of age, was a member
of and played softball for the League. According to plaintiff's
deposition testimony, just before one of the games, the coach
selected her to be the catcher in the upcoming game.
Plaintiff testified one of her responsibilities as catcher
was to warm up the pitcher before a game; specifically, as
catcher, she caught the practice balls the pitcher threw in
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order to warm up. After the coach instructed plaintiff to warm
up the pitcher, plaintiff and the pitcher practiced in an area
adjacent to but not on the field. During the warm-up, plaintiff
did not wear a face mask, although she had donned shin guards
and "chest protection." One ball the pitcher threw to plaintiff
hit her in the face, knocking out a tooth and injuring her jaw
and other teeth.
Plaintiff testified the coach previously had instructed the
players to wear "full equipment" when they were either the
catcher during a game or warming up a pitcher on the field
before it. Plaintiff understood the term "equipment" to mean a
face mask, helmet, shin guards, and chest protection. In
response to three questions posed to her during her deposition,
plaintiff clearly stated the coach never told the players they
had to wear the subject equipment when practicing off the field.
After providing such testimony, the following exchange took
place between plaintiff and defense counsel:
[DEFENSE COUNSEL:] Did your coach ever
instruct you did not have to wear equipment
when you warmed up a softball pitcher prior
to a game?
[PLAINTIFF:] I don't recall.
[DEFENSE COUNSEL:] Do you recall if she told
you were supposed to wear equipment prior to
warming up a pitcher prior to a game?
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[PLAINTIFF:] Can you repeat that?
[DEFENSE COUNSEL:] Sure. I'll withdraw that
question. You just told me that you don't
recall if your coach told you to wear
equipment while you were warming up a
pitcher off the field?
[PLAINTIFF:] Yes.
[Emphasis supplied.]
During her deposition the coach testified that, on the
first day of practice, she instructed all players to wear
protective equipment when warming up a pitcher. Her testimony
did not clarify whether she also advised the players to wear
such protective gear even when they were practicing off the
field. The coach also claimed that, on the day of the incident,
plaintiff had not been selected to be the catcher and the player
plaintiff warmed up had not been chosen to be the pitcher,
either. The coach maintained plaintiff and the other player
merely walked off into "foul territory," where the player
pitched balls at plaintiff, who served as her catcher.
After the close of discovery, defendants moved for and the
court granted summary judgment dismissal. The court cited a
portion of plaintiff's deposition testimony in which she stated
the coach had advised the players to put on the subject safety
equipment before warming up a pitcher. The court found such
statement to be an admission plaintiff knew to put on the safety
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equipment when warming up a pitcher even when off of the field.
However, such testimony referred to the coach's instruction to
wear such equipment when warming up the pitcher on the field.
There is no dispute the coach had instructed the players, when
designated a catcher, to wear all safety equipment when warming
up the pitcher on the field and during the game. The issue was
whether the coach had instructed the players to wear the safety
equipment when warming up a pitcher off the field.
The court also relied upon plaintiff's affirmative response
to the last question in the passage quoted above to find there
was no dispute the coach had told the players to wear the
equipment even when acting as a catcher off the field. The
pivotal question was: "You just told me that you don't recall if
your coach told you to wear equipment while you were warming up
a pitcher off the field?"
Although defense counsel mischaracterized plaintiff's
testimony, she answered in the affirmative. By doing so she in
effect acknowledged she had just testified she did not remember
the coach telling her to wear the equipment when warming up a
pitcher off the field. Relying upon plaintiff's response to
this question and the coach's claim she had instructed all
players acting as a catcher to don safety equipment when warming
up a pitcher, the court determined there was no evidence to
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refute the coach's assertion plaintiff knew she was to wear the
subject safety equipment when warming up a pitcher, regardless
of her location.
The court also noted the coach's conduct had to be measured
under the "heightened standard" of gross negligence. The court
did not cite the applicable statute, but it is not disputed
N.J.S.A. 2A:62A-6 applies to this matter and defendants' conduct
is to be evaluated under the standard of gross negligence, not
negligence.1
II
On appeal, plaintiff's principal contention is the trial
court erred when it determined there was no question plaintiff
had been informed she must wear full protective gear when
warming up a pitcher off the field. Plaintiff argues the court
improperly engaged in a credibility determination when it
rejected those portions of her deposition testimony in which she
unequivocally stated the coach had never instructed the players
to wear the safety equipment when warming up a pitcher off the
field. Plaintiff claims it was inappropriate for the court to
1
This statute provides immunity from tort liability to
volunteer athletic coaches who provide their services to
nonprofit sports organizations, subject to the conditions and
exceptions in such statute. See N.J.S.A. 2A:62A-6(c). The
trial court did not make a finding any of the conditions or
exceptions in the statute applied to the coach.
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rely upon her response to a question that mischaracterized her
previous testimony even though, when read literally, it
indicated she had testified she had been advised to wear such
gear under these circumstances.
When considering a challenge to the grant of a summary
judgment motion, like the trial court, we "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 fact finder 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); see also R. 4:46-
2(c). The trial court may not resolve contested factual issues;
it may only determine whether there are any genuine factual
disputes. See Agurto v. Guhr, 381 N.J. Super. 519, 525 (App.
Div. 2005).
If there are materially disputed facts, a motion for
summary judgment may not be granted. Brill, supra, 142 N.J. at
540. A court may grant such motion only if the evidence in the
record "'is so one-sided that one party must prevail as a matter
of law.'" Id. at 540 (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214
(1986)). Similarly, a party may defeat a motion for summary
judgment by demonstrating the evidential materials relied upon
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by the moving party, considered in light of the applicable
burden of proof, raise sufficient credibility issues "to permit
a rational factfinder to resolve the alleged disputed issue in
favor of the non-moving party." Id. at 523.
Here, viewing the facts in the light most favorable to
plaintiff, we conclude the evidential materials defendants
relied upon to secure summary judgment raise credibility issues
that should have resulted in the denial of their motion. There
is no question the coach testified she informed the players they
were to wear full protective equipment when serving as the
catcher for a pitcher warming up before a game, but there is a
question about the content of plaintiff's deposition testimony
and whether she disputed the coach's factual claim.
More than once during her deposition, plaintiff testified
the coach had not instructed the players to wear the safety
equipment when off the field. Then, later in her deposition, in
response to a question that mischaracterized her testimony,
plaintiff testified the coach did tell her to wear such gear
when warming up a pitcher off the field. In our view, the
circumstances under which the latter testimony – which was
diametrically opposed to her previous testimony – was given
raises the issue whether she misheard or misunderstood the
subject question. After all, plaintiff's response to the
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subject question indicates she had previously testified to and
affirmed the assumed fact included in the question when, in
fact, she had not done so at all. The assumed fact was that she
did not recall the coach telling her to wear the equipment while
warming up a pitcher off the field. However, her previous
testimony had been the coach had not instructed the players they
were required to wear protective gear when warming up a pitcher
off-field.
The trial court not only failed to appreciate plaintiff
may well have misheard the question, but also went a step
further and decided this testimony was more credible than her
testimony to the contrary. It was not the court's function on
summary judgment to weigh the evidence and determine the truth
of conflicting evidence; the court's obligation was only to
identify the existence of such genuine disputes. Id. at 540.
The discrepancy in plaintiff's testimony warrants resolution by
the fact finder and not the court on a summary judgment motion.
Accordingly, we reverse the grant of summary judgment dismissal.
In addition, even if plaintiff testified she was changing
her testimony and intended to say the coach had advised the
players to wear the safety equipment even when warming up a
pitcher off the field, there remains the issue of the coach's
supervision, one of the allegations in the complaint. If
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plaintiff knew she was required to but failed to wear the
equipment when warming up the pitcher off-field, the question
remains whether the coach was grossly negligent for failing to
properly supervise her.
The coach claims plaintiff had not been chosen to be the
catcher for the upcoming game that day and the player she warmed
up had not been designated the pitcher, but this factual claim
is also disputed. Moreover, the coach's responsibility for the
players, whether they are on or off the field during a practice
and a game, remains a factual question to be resolved. Of
course, plaintiff's comparative negligence is a factor, but only
the fact finder can determine if plaintiff's comparative
negligence so far exceeded the coach's alleged gross negligence
so as to absolve the coach of all liability.
The trial court also found that, as a matter of law, none
of "the proofs adduced . . . remotely established that any
reasonable fact finder could . . . find [the coach was grossly
negligent]."
In Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344
(2016), our Supreme Court explicitly adopted the definition of
"gross negligence" contained in the New Jersey Civil Model Jury
Charge: "Gross negligence . . . is more than ordinary
negligence, but less than willful or intentional misconduct,"
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Model Jury Charge (Civil) 5.12. Id. at 364. The difference
between negligence and gross negligence "is a matter of degree."
Id. at 366. "[G]ross negligence is an indifference to another
by failing to exercise even scant care or by thoughtless
disregard of the consequences that may follow from an act or
omission." Id. at 364-365.
Here, according to the coach, the players were required to
wear the subject safety equipment when they served as a catcher.
Viewing the evidence in the light most favorable to plaintiff, a
rational fact finder could conclude the coach's conduct
constituted gross negligence if the coach, as plaintiff's
supervisor, failed to ensure plaintiff was wearing a safety mask
at the time she was warming up the pitcher. Therefore, the
trial court erred when it determined that, as a matter of law,
the coach was not grossly negligent.
Reversed.
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