Joseph Ronne v. Borough of Dumont ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-1269-22
JOSEPH RONNE, a minor, by his
parent and natural guardian DAINA
RONNE and DAINA RONNE,
individually,
Plaintiffs-Appellants,
v.
BOROUGH OF DUMONT,
DUMONT BOARD OF
EDUCATION, MARC FERRARA,
MAXABILITY SPORTS AND
CROSSFIT, and CROSSFIT, INC.,
Defendants-Respondents.
Argued May 8, 2024 – Decided July 15, 2024
Before Judges Currier and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-4907-17.
Joseph M. Cerra argued the cause for appellants (Lynch
Law Firm, PC, attorneys; Arthur V. Lynch and Joseph
M. Cerra, on the briefs).
Richard J. Williams, Jr. argued the cause for respondent
Dumont Board of Education (McElroy, Deutsch,
Mulvaney & Carpenter, LLP, attorneys; Richard J.
Williams, Jr., of counsel and on the brief).
PER CURIAM
Plaintiffs Joseph Ronne, by his parent Daina Ronne, and Daina 1
individually, appeal from the September 30, 2022 judgment in favor of
defendant following a jury verdict in which the jury found Joseph sixty percent
negligent for his injuries incurred during an after-school workout. Plaintiffs also
appeal the December 22, 2022 order denying their motion to alter or amend the
judgment, or alternatively, for a new trial. We affirm.
I.
A.
The trial took place in September 2022. Joseph had graduated high
school, was attending college, and working in a surveying office.
At the time Joseph was injured, he was in his first year of high school and
determined to play baseball. Joseph testified that he believed in eighth grade he
"was at the top of the pack" as a hitter, fielding was his "strong suit," and he was
one of the fastest runners. He had played on numerous travel and recreational
1
As plaintiffs share a surname, we use first names for the ease of the reader.
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teams. Joseph stated he wanted to play baseball in high school and was striving
to make the varsity team.
To prepare for the baseball season, Joseph began working out at a gym
during the summer before starting high school and continued after school began
in September 2015. He said he went to the gym five times a week in the
mornings before school, and sometimes he went back again to work out after
school.
Joseph stated he usually worked out with heavy weights at the gym and
completed three to five "reps" or rounds of exercises with a lot of rest in
between. He explained he did "bench press[es], squats, leg extension[s], leg
curls, tricep extensions, bicep curls, [and] overhead press[es]." He bench
pressed 225 pounds and squatted with 285 pounds. He did not do any cardio
specific exercises.
Joseph testified he received a group text message from other students on
February 17, 2016, informing him of a workout in the high school weight room.
He believed the workout was important to making the baseball team. He knew
Marc Ferrara, the assistant junior varsity (JV) baseball coach, would be
overseeing the workout. Ferrara had been Joseph's sixth grade math teacher.
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Joseph said there were approximately twenty students at the workout, and
they began with a stretching warmup led by one of the baseball players. Ferrara
then explained the workout, which consisted of four rounds of three one -minute
exercises—kettlebell swings, squats with a weight, and burpees (a cardio
exercise)—during which they would try to complete as many repetitions as
possible followed by one minute of rest. The students worked in pairs. One
partner completed the exercise while the other partner kept time.
Joseph stated he had not done a workout formatted this way before. He
said the students were told to use a dumbbell that they "felt comfortable with"
so he chose a forty-pound dumbbell. 2 Joseph stated he believed he was stronger
than most of the other students and he wanted to impress the coaches. He never
considered slowing down or stopping because he was not "there to stop or quit."
He conceded he knew he could stop if he wanted to.
Joseph said after he finished the workout, he felt "[h]orrible, the wors[t]
[he'd] ever felt in [his] life." He was "extremely" sore, "like nothing else [he]
had ever felt before." He testified it was the most intense workout he had ever
experienced, and he was having trouble breathing. After the Wednesday
2
The emergency department notes reflected Joseph's statement that he used a
thirty-pound dumbbell to do the exercises.
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workout, according to Joseph, Ferrara said the students should tell anyone who
wanted to try out for the baseball team to attend the next workout to be held on
Friday.
That night, Joseph felt very sore and went straight to bed when he got
home. He said the following day he "felt like a piece of wood," could not bend,
had a pain in his abdomen, and "could not focus on anything other than the pain
that was in [his] back." He went to school and when he got home, he tried to
alleviate the pain by lying on his stomach on the couch, icing, using a heating
pad, and taking over-the-counter pain medication.
On Friday, Joseph explained he felt even worse but went to school so he
could go to the workout. He completed the workout which was two laps around
the track. Afterwards, he went to the bathroom because he felt like he had to
vomit. He said Ferrara saw him and told him he looked horrible. Joseph called
his mother to pick him up.
Joseph testified his pediatrician prescribed a muscle relaxant, which he
took. However, when he woke up in the middle of the night and did not feel
well, his mother took him to the hospital. He testified generally regarding his
medical treatment, two surgeries to his back and physical therapy sessions.
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Joseph returned to school the following week and stated his grades were not
affected by these events.
Joseph testified he was cleared to play baseball approximately a month
after the surgeries and played on the freshman and JV baseball teams that season,
missing only three or four games. However, he stated he "was very
uncoordinated with any type of twisting, turning, or bending. Anything where
[his] back was pretty much stretched out felt very unnatural." He felt his injury
negatively impacted his hitting, running, fielding, and pitching.
After the season ended, Joseph began working out again to build up his
strength to recover from his injuries and to prepare for the sophomore season.
Joseph explained he did the same exercises as before his surgeries but used less
than half the weight. He played on the JV team his sophomore year and in
several varsity games.
Joseph again worked out at the gym during the summer prior to his junior
year, although not as often as the previous summer. He made the varsity team
his junior year. Although he tried out for the team his senior year, he later
decided not to play. Joseph admitted he stated in his 2018 deposition testimony
that he did not participate in sports as a senior "mostly because of work."
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Joseph testified he is self-conscious about the scars on his back from the
surgery. He said he has trouble sleeping in certain beds. Joseph testified his
pain fluctuates depending on the weather and the day. He said the pain is worse
when he doesn't work out because he gets tight. He does not take any pain
medication for his back.
During Daina's testimony, she explained Joseph started playing baseball
in first or second grade and that he was very motivated. She said he wanted to
play baseball in college, and he prepared for the baseball season by getting up
at 5:00 a.m. "at least every other" morning to work out at the gym.
After the workout on February 17, 2016, Daina said Joseph came home
and was exhausted and sore but did not report any other concerns. The next
morning, he complained that his back was "on fire," and Daina stated he looked
"a little pale."
Two days after the workout, on Friday, Joseph "looked a little ill" and
"withdrawn." Daina thought he might have a cold or the flu, but he went to
school so he could go to baseball tryouts. After Joseph called Daina to pick him
up from school, she observed that "he was . . . walking very slow" and that "he
looked very pale and almost . . . nauseous." She took him to the pediatrician,
who examined his back and said Joseph might have pulled a muscle.
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Daina took Joseph home and testified he did not eat that evening, which
was not normal, and he took some of the muscle relaxers the pediatrician had
prescribed before falling asleep in the basement. At about 3:00 a.m., Joseph
came up the stairs. Dania said he was moaning and "looked like he was going
to collapse." She took him to the hospital.
Daina described the treatment given to Joseph—fluids—and the
subsequent diagnoses of rhabdomyolysis and compartment syndrome and the
need for surgery. She showed the jury pictures of Joseph in the hospital after
his surgeries.
Daina reiterated Joseph's testimony about his baseball career in high
school. She said Joseph decided not to play baseball his senior year because he
was not as good as he used to be, and he was in pain.
Daina testified she bought Joseph a new bed that was more comfortable,
and he experiences pain when he takes out the garbage cans. She also said he
has to sit down after walking and stretches to make himself more comfortable.
Several baseball players testified regarding these events. Kyle McKeary
said he used a twenty-five-pound dumbbell during the workout and Joseph used
one that was "definitely more than" that. Joseph's cousin also testified. He said
he was partners with Joseph during the workout and they used a thirty-five or
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forty-pound weight. Joseph did not mention any back pain to him. A third
student said he used a thirty- or thirty-five-pound weight for the workout and
Joseph's dumbbell was ten to fifteen pounds heavier. All of the students said
the workout was voluntary and there was no sign in sheet.
John J. LoCurto, Jr., M.D., testified at trial via a de bene esse deposition
done in 2020. He was the associate director of trauma surgical critical care at
Hackensack University Medical Center and treated Joseph in the pediatric
intensive care unit. Dr. LoCurto diagnosed Joseph with traumatic
rhabdomyolysis and consulted with an orthopedic surgeon and a neurosurgeon.
Dr. LoCurto performed compartment release surgery on Joseph's back to release
the pressure and take out any dead or necrotic muscle. He explained that the
cause of the necrotic muscle tissue "was extreme muscle exercise . . . and muscle
fatigue."
The doctors did not close up Joseph's back at the end of surgery because
they wanted to monitor him to make sure they had removed all of the dead
muscle. The initial surgery was done February 22, and doctors went back in on
February 24, took out more dead muscle, and closed his back. Joseph was
discharged on February 28. Dr. LoCurto opined that 25 to 30% of Joseph's
paraspinal muscles were removed during the surgeries. He testified that Joseph
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would never be "100[%] of what he was because there's stuff missing" from his
back.
Plaintiffs also presented James W. Cahill, M.D., an orthopedic surgeon
specializing in sports medicine. Dr. Cahill explained to the jury that the
paraspinal muscles help individuals move in different directions and stabilize
the spine. He stated when a person works out, their muscles break down and
then rebuild.
Dr. Cahill further explained that exertional rhabdomyolysis occurs when
a person trains so intensely that the muscles break down beyond a point where
they can easily stabilize or recover. Dr. Cahill said the February 17 workout
described by Joseph was "high[]intensity" and "an exercise to failure," because
he was transitioning from rest to lifting sizable weight rapidly and doing as many
reps as possible. Dr. Cahill did not think the workout was appropriate for a high
school student who had "sat on the couch for the past whatever amount of
months."
Dr. Cahill testified the connection between high-intensity exercise and
rhabdomyolysis was "well[]established," and he had treated other patients with
the condition. The doctor also described exertional compartment syndrome as
when the muscles are damaged and swell so much in the casings around them
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that they do not absorb any blood which shuts off the circulation and damages
the nerves.
Dr. Cahill explained the initial treatment for rhabdomyolysis was
intravenous hydration, which Joseph received. After Joseph began to retain
fluid, doctors performed a fasciotomy, removing the dead tissue as described by
Dr. LoCurto.
Dr. Cahill then described the results of his June 19, 2019 examination of
Joseph. He said the scars from the surgery ranged from about six to ten inches
and that he had thick scar tissue, which was not normal. He found Joseph's back
movement was diminished and "compromised . . . particularly for his age." The
mobility was impacted by the removal of muscle and the scar tissue. Dr. Cahill
testified that the surgery impacted Joseph's ability to play baseball. He stated
physical therapy and weightlifting would improve Joseph's back.
Dr. Cahill diagnosed Joseph with rhabdomyolysis, compartment
syndrome of the right and left paraspinal muscles in the lumbar spine, and a
decompressed fasciotomy. He opined that Joseph's "[r]habdomyolysis was
caused by a high-intensity, low-recovery, exercise to failure-type of exercise
regimen that resulted in damage to his muscle." He said that the loss of 25 to
30% of his paraspinal muscles and internal and external back scars were
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permanent conditions. Cahill conceded the medical community did not know
why some individuals developed rhabdomyolysis and some did not after high -
intensity workouts.
Dr. Cahill testified that Joseph's limited mobility in his back stressed other
areas of his spine and there was a risk other parts of his spinal column could
become symptomatic over time. The decreased flexibility of Joseph's ligaments
and muscles would also stress the set joints of his spine. Dr. Cahill stated
Joseph's condition would accelerate the aging process and result in lumbar discs
that might degrade earlier than normal.
Plaintiffs also presented James S. Weagley through his de bene esse
deposition. The trial court qualified Weagley as an expert in the field of
coaching, athletic training, and recreational safety. Weagley testified that the
New Jersey State Interscholastic Athletic Association (NJSIAA) rules allowed
players, who decided on their own and without input by the coaches, to hold a
workout in the school gymnasium prior to the particular sport's season.
Weagley explained the higher weight, lower-intensity weight training
Joseph did before the February 17, 2016 workout did not prepare him for the
after-school workout. Weagley also stated that the exercises in the voluntary
workout all stressed the paraspinal muscles.
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Weagley was concerned there was no pre-assessment to determine what
weight Joseph should use for the workout. He also explained that if proper form
was not followed in completing the exercises, and students were doing as many
reps as possible, there would be more stress on the muscles.
In his review of the record, Weagley did not see any indication Ferrara
had experience or was certified in strength training. Weagley opined the
workout was not appropriate for the students because of the methodology of
choosing weights, and the exercises did not have any "carryover value" to
baseball.
Weagley conceded he did not personally speak with Joseph, Daina, or any
of the students who were present at the workout. He testified he was aware from
Ferrara's deposition that Ferrara participated in a CrossFit 3 program which
included the particular exercises, and he then incorporated those exercises into
this workout with the students. Wegley also said these exercises were functional
exercises not invented by CrossFit.
3
On its website, CrossFit is described as "a fitness program" that is "centered
on training and nutrition" and includes workouts comprised "of constantly
varied, high-intensity, functional movements." What is CrossFit?, CrossFit,
https://www.crossfit.com/what-is-crossfit (last visited July 9, 2024).
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B.
Marc Ferrara was defendant's first witness. In February 2016, he was a
sixth-grade math teacher employed by defendant, and coached high school
bowling, soccer, and the cross-country teams. As stated, he was also the
assistant JV baseball coach. He had previously been a member of Maxability
Sports, a gym, but was never employed by them or paid to promote the business
or work out there.
Ferrara explained he considered CrossFit to be a methodology of
exercising. He stated the February 2016 workout was not a CrossFit workout.
He described the workout as consisting of three minutes where the students did
twenty-five kettlebell swings, fifteen burpees, and then as many air squats as
they could complete in the remaining time. They completed four rounds of the
exercises and had one minute of rest between rounds. It was a pre-season
workout for conditioning that "focuse[d] on . . . stability, midline strength,
strengthening your core, [and] cardiovascular endurance."
Ferrara learned about the workout from Jason Cannici, who sometimes
supervised the weight room after school and was the head baseball coach. He
said fifteen to twenty students attended the workout which was voluntary, no
attendance was taken, and there was no sign-in sheet. According to Ferrara, the
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workout was open to anyone from the high school who wanted to participate,
and it did not impact a student's chance of making the baseball team. He testified
the weight room was always open after school for students to work out in.
Ferrara stated he did not violate any rules in holding the workout because teams
were allowed to meet as long as they did not use baseball equipment.
Ferrara described Joseph as "a big kid[] [and] muscular," and stated that
"he was bigger than the average kids on the team." On the day of the workout,
the captain of the team led a dynamic warmup, which Ferrara supervised, for
about twelve minutes. The students then went from the small gym to the weight
room where they discussed the workout and he "instructed . . . parameters of
what we wanted the students to be working on."
Ferrara explained the three exercises were chosen after a discussion
between the students and himself. The students worked in pairs, and while one
partner completed the exercises, the other made sure they were doing the
workout correctly, kept time, and cheered them on.
Ferrara learned of Joseph's injury from another school staff member
approximately a week after the workout. Ferrara then informed the athletic
director, who asked him to fill out an accident report. In addition to his accident
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report, Ferrara stated he knew the workout was what he had described because
he specifically recalled it and he was there supervising it.
Ferrara explained the students had time to practice with the weights and
choose what they were comfortable using for the workout. Then Ferrara and
other students demonstrated the specific exercises. He stated the students were
instructed not to use a weight over thirty pounds so that they could complete the
workout and to do as many squats as possible. He testified the available
dumbbells ranged from 5 to 110 pounds, there were multiple dumbbells of
certain weights, and probably more weights than were needed. Ferrara did not
specifically recall what weight Joseph used but stated if he saw him using a forty
or forty-five-pound dumbbell, he would have told him to choose a weight less
than thirty pounds.
Ferrara also agreed that students were instructed if they could not
complete any of the exercises, they could stop. The students were not told to
work out as hard or as fast as possible. He also testified he did not tell the
students "to get their butts here for the next workout" or words to that effect.
Ferrara stated he supervised the workout and walked around the room to
monitor students as they completed the exercises. Coach Cannici was also
present as he was supervising the weight room that afternoon.
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Ferrara did not notice anything unusual about Joseph while he was
working out and Joseph did not complain to him during or after the workout.
When Ferrara saw Joseph on Friday for another pre-season workout, he noticed
that he looked "fluish" after he returned from the bathroom after the warmup .
Ferrara told him he did not look good and that he should go home. Joseph did
not say anything to Ferrara about his back.
Ferrara did not believe the workout was intense. He said he had done the
exercises himself before and considered them "fairly common."
Ferrara explained Joseph returned to the baseball team during his
freshman year and that, other than a scrimmage or two, he played in every
freshman baseball game and some additional JV games. When Ferrara coached
him, Joseph did not complain about any back pain.
Ferrara stated Joseph played JV baseball his sophomore year and a few
varsity games as a pinch runner. Ferrara saw Joseph working out several times
after his injury in the weight room and stated he did pull ups, pushups with a
twenty-five-pound plate on his back, and back squats.
Cannici next testified. In 2016, he was a special education teacher in the
school district and the varsity baseball coach. He had since retired. On the day
of the workout, Cannici was the weight room supervisor, which he explained
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meant supervising students in the weight room after school to make sure they
were doing the exercises safely and the weight room was organized and clean.
Cannici explained the day of the workout, he and Ferrara planned a
dynamic warmup upstairs in the small gym, and then the workout in the weight
room. He recalled twenty to twenty-five students attended the workout, and that
he, Ferrara, and other students modeled the exercises. He recalled walking
around facilitating the workout, and that he and Ferrara came up with the plan
for the specific exercises.
He agreed the students completed the exercises as described by Ferrara.
He also said the students took rests during the workout and drank water. Cannici
said the workout began at approximately 3:30 p.m. and was over at about 4:10
p.m. The workout was voluntary and there was no attendance or sign-in sheet,
or record of which students participated. The workout did not impact whether a
student made the baseball team, and it was not limited to only students who
wanted to play baseball because the gym was open to all students at the school.
If students from other sports wanted to attend the workout, Cannici stated they
would have been allowed to participate.
According to Cannici, students were allowed to attend workouts before
March 1, as long as they did not use baseball equipment. Cannici stated the
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students (usually the captains) scheduled the workouts, and he had informed
Ferrara there was a workout that day. They were intended to be pre-conditioning
workouts.
The students were told to choose a weight that was appropriate and there
were about two sets of dumbbells for "the standard weights" of five, ten, fifteen,
twenty, twenty-five, and thirty pounds. Cannici did not observe the weight
Joseph used but said if he had seen him using a forty or forty-five-pound weight,
he would have stopped him. Cannici further explained students were instructed
to stop if they could not complete the exercises and were not told to work as
hard or as fast as they could. He did not recall telling students to encourage
other students to come to the next workout.
Cannici stated he did not observe anything unusual about Joseph and
Joseph did not complain to him during or after the workout. Cannici explained
Ferrara saw Joseph after the warmup for the Friday workout and Ferrara told
him to go home because he was not feeling well.
Cannici was unfamiliar with rhabdomyolysis before he was informed
Joseph was diagnosed with it. Cannici did not think the February 2016 workout
was intense. He and other students had done the exercises before. Cannici
testified Joseph was medically cleared to return to baseball that same year and
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that he played on the freshman and JV teams. Cannici coached Joseph in his
junior year and did not recall him complaining about his back or any physical
limitations.
Alphonses Heraghty, MSE, CPSI,4 was qualified as an expert in the
NJSIAA Handbook. He explained the NJSIAA oversees high school sports in
New Jersey and provides rules and regulations for high school athletic programs.
In preparing his report, Heraghty stated he reviewed the 2018-20195
handbook and did not find that defendant violated any rule. He explained off -
season weightlifting was allowed if it was not limited to only student athletes.
He stated the February 2016 workout complied with the policy because
attendance was not taken, there was no sign-in sheet, and no indication the
workout was only for baseball players. He also stated Article 2 of the handbook
allowed coaches to supervise open gym programs when athletes are not involved
in their specific sport during the off-season. Heraghty noted there was no
testimony that any baseball equipment was used during the workout.
4
Heraghty's professional titles included holding a Master of Science in Physical
Education and being a Certified Playground Safety Inspector.
5
Heraghty said he used the 2018-2019 handbook because Weagley used it, and
it was the one provided by defense counsel.
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Ariz Mehta, M.D., was qualified as an expert in physical medicine and
rehabilitation, pain medicine, sports medicine, and orthopedics. He examined
Joseph in June 2019 and reviewed his medical records. During the examination,
Joseph described the pain in his lower back as a six out of ten. He described his
back "as tight and sore" and that the pain was worse when he woke up in the
morning. Joseph told Dr. Mehta he did an exercise program in the morning and
that his back difficulties were aggravated by going up and down stairs. He took
over-the-counter pain medication if needed.
During Dr. Mehta's physical examination, he found some spasm in
Joseph's back muscles and that he had a limited range of motion of his back,
most significantly when he was bending backwards or extending. He concluded
Joseph "had no functional limitations with regards to his activities of daily living
or independent activities . . . . [Joseph]'s physical examination show[ed] no
strength abnormalities and the range of motion was functional." He concluded
Joseph could participate in sporting activities. He also stated Joseph could
experience issues in his lumbar area as he aged.
Marc Allen Rabinoff, M.D., was qualified as an expert in sports
administration, liability, sports and recreation training, standards of care in the
weight room setting on the high school and collegiate level, sports risk
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management and liability, and human performance and sport. After
summarizing the facts of the case and testimony from various individuals, Dr.
Rabinoff explained the exercises Joseph completed during the workout were not
CrossFit-inspired because they were "normal exercises that you would see
anywhere." He stated CrossFit did not invent any of the exercises and that it
was only a brand name.
Dr. Rabinoff stated each exercise was appropriate for an individual
intending to join a baseball team to complete. Burpees were helpful for general
conditioning and shoulders, and upper body strength was important in baseball.
Air squats were important for catchers and for bending over to pick up baseballs
and throwing. Kettlebell swings helped with weight resistance and was a "whole
body" workout beneficial for conditioning.
Dr. Rabinoff stated Weagley made assumptions and conclusions in his
report that were not based in fact. There were no references to industry
standards or reference materials, but instead Weagley stated his conclusions
were based on his experience. Dr. Rabinoff also disagreed with Weagley's
opinion that the exercises were inappropriate for the situation.
Dr. Rabinoff further testified that, in addition to being caused by trauma,
exertional rhabdomyolysis can develop over time and was not something that
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Joseph sustained from the twelve-minute workout. Instead, he explained it was
"critical to look at what a person who [was] diagnosed with [e]xertional
[r]habdomyolysis . . . d[id] leading up to it." Dr. Rabinoff stated Joseph was at
the gym for seventeen days doing "hardcore workouts, with no cardio and maybe
no drinking." But Weagley had not considered that testimony.
Rabinoff stated he had experience writing about exertional
rhabdomyolysis and some experience treating students who were dehydrated. In
his opinion, defendant had appropriately supervised the weight room because
Ferrara and Cannici, who had weight training experience, oversaw it and
"followed all kinds of standards." He explained they made sure they were in the
weight room, demonstrated the exercises, and allowed students to use lighter
weights if they chose. The workout was properly timed because it was for
conditioning.
Defendant also presented Joshua Schwimmer, M.D., qualified as an expert
in nephrology and general internal medicine. He explained rhabdomyolysis is
the breakdown of skeletal muscle and compartment syndrome occurs when the
damaged muscles swell so much they expand into the fascia.
Dr. Schwimmer testified that Joseph's exertional rhabdomyolysis was
unforeseeable because Joseph: was athletic; routinely lifted weights for three or
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four hours three to five times a week; routinely exercised his paraspinal muscles;
the workout only lasted twelve minutes; no other student at the workout
developed exertional rhabdomyolysis; he had no risk factors for developing
rhabdomyolysis; and it was rare for the exercises he completed to cause
rhabdomyolysis, especially without any risk factors. Risk factors for
rhabdomyolysis included: having sickle cell disease, genetic risk factors, being
dehydrated, exercising on a hot day, and having underdeveloped muscles.
Dr. Schwimmer explained exertional rhabdomyolysis usually occurred
within one or several days to people who were not used to working out and
undertook intense exercise. Although Joseph did not fit that mold, Dr.
Schwimmer opined his condition was caused by the February 2016 workout.
Dr. Schwimmer stated exertional paraspinal rhabdomyolysis with
compartment syndrome caused by these kinds of exercises was "extremely rare"
and he had not personally seen it in his nineteen years of practicing medicine.
His impression was that, considering Joseph's condition before the February
2016 workout, this was a "very rare occurrence." He found very few similar
cases in his review of medical literature and most of the relevant peer reviewed
papers included individuals who exhibited risk factors.
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Dr. Schwimmer conceded exertional rhabdomyolysis could occur in
trained individuals that greatly increased their workouts, worked different
muscle groups or used different contraction types, or were encouraged to
overexert themselves. However, he reiterated that Joseph's diagnosis of the
condition could not have been reasonably anticipated or foreseen.
C.
Following the close of the evidence, the court gave the parties a draft of
the proposed jury charges. The parties agreed to the jury charges and the
proposed verdict sheet.
Pertinent to this appeal, the court charged the jury with the following
instructions:
In determining whether reasonable care has been
exercised, you will consider whether the [d]efendant
ought to have foreseen, under the attending
circumstances, that the natural and probable
consequence of [d]efendant's act or omission to act
would have been some injury. It is not necessary that
the [d]efendant have anticipated the very occurrence
which resulted from [d]efendant's wrongdoing[,] but it
is sufficient that it was within the realm of
foreseeability that some harm might occur thereby.
The test is the probable and the foreseeable
consequences that may reasonably be anticipated from
the performance[,] or the failure to perform[,] a
particular act. If an ordinary person[,] under similar
circumstances and by the use of ordinary care[,] could
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have foreseen the result, by way of example, that some
injury or damage would probably result and either
would not have acted or[,] if the ordinary person did
act, would have taken precaution to avoid the result.
Then the performance of the act or the failure to take
such precautions would constitute negligence.
[See Model Jury Charges (Civil), 5.10B,
"Foreseeability (As Affecting Negligence)" (rev. Oct.
2022).]
The court also charged the jury with Model Jury Charge (Civil), 7.11(A), "Care
Required of Children" (approved May 1991):
A child[,] old enough to be capable of
negligence[,] is required to act with the same amount of
care as children of similar age, judgment[,] and
experience. In order for you to determine whether a
child has acted negligently, you should take into
consideration the child's age, intelligence[,] and
experience.
Also, you must consider the child's capacity to
understand and avoid the danger to which [the child]
was exposed in the actual circumstances and situation
in this case. You[,] the jury[,] must decide the factual
question of whether this child was comparatively
negligent.
The court further charged the jury with Model Jury Charge (Civil), 7.31,
"Comparative Negligence/Fault: Ultimate Outcome" (rev. Nov. 2023):
If you find that the [p]laintiff, Joseph Ronne, and
[d]efendant, Dumont Board of Education, were
negligent or at fault and proximately caused the
accident or injury, then you must compare the negligent
conduct or fault of that individual or entity in terms of
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percentages. You will attribute to each of them that
percentage that you find describes or measures [the
individual's or entity's] negligent contribution or fault
in proximately causing the accident or injury.
The percentages must add up to 100[%]. You
should not allocate any percentage to any individual or
entity who you have found was not both negligent, at
fault[,] and a proximate cause of the accident or injury.
I will explain to you the effect of these percentages.
In order for the [p]laintiff to recover against
[d]efendant, [p]laintiff's percentage of fault must be
50[%] or less. If the [p]laintiff['s] percentage is more
than 50[%], [the plaintiff] will not recover damages at
all and your deliberations are concluded[,] and you
should not make any determination as to damages. A
plaintiff whose percentage is 50[%] or less will recover
from any defendant whose fault you have found was a
proximate cause of the accident or injury . . . .
D.
Following deliberations that spanned over two days, the jury returned a
verdict finding both Joseph and defendant were negligent, and their negligence
was the proximate cause of Joseph's injury. They attributed 40% of the total
negligence to defendant and 60% to Joseph. On September 30, 2022, the court
entered judgment of no cause of action in favor of defendant.
Thereafter, plaintiffs moved under Rule 4:49-2 for reconsideration to alter
or amend the judgment in their favor and schedule a trial for damages , or
alternatively for a new trial. Plaintiffs asserted there was evidence to support a
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finding of defendant's negligence, but there was no evidence that Joseph was at
fault for his injuries or knew they were foreseeable.
In a lengthy, thoughtful oral decision, the court noted the parties agreed
on the model civil jury charge regarding foreseeability. After summarizing the
proofs presented at trial and the parties' arguments on the motion, the court
found it was required to enter judgment consistent with the jury's verdict. In
addition, plaintiffs had not presented a specific basis for the motion, or a
statement of the matters or caselaw the court overlooked. Therefore, the court
denied the motion for reconsideration.
The court then considered the motion for new trial, noting Rule 4:49-1(a)
required a consideration of tangible and credibility factors and the overall feel
of the case to examine if the jury's verdict was erroneous. After citing to the
applicable caselaw, the court reiterated both parties "fully participated in the
drafting and ratification of the jury charges and verdict sheet." Plaintiffs did not
object to the charge or verdict sheet at any time.
The court rejected plaintiffs' argument there was no evidence to find
Joseph was negligent. The court found Joseph exerted himself in the workout
to impress his coaches, chose a heavier weight than the other students, did not
stop to take a break during the workout, despite acknowledging he knew he
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could, and did not hydrate on breaks. Although he was in "terrible" and "severe
pain," Joseph chose to attend the second workout instead of seeking medical
attention. Therefore, the court concluded that "to suggest there is no evidence
in the record to support the jury's finding of comparative negligence and the
allocation of [sixty percent] fault is patently incorrect."
As to foreseeability, the court noted the parties "heavily disputed" the risk
and foreseeability of developing exertional rhabdomyolysis from the February
17 workout. Dr. Rabinoff testified about the "appropriateness" of the chosen
exercises and supervision of the workout, and Dr. Schwimmer explained how
rare the condition was. In contrast, plaintiffs produced evidence that the
exercises were high-intensity and not appropriate for high school students.
The court stated it was the jury's province to weigh the witnesses'
testimony and credibility. The court noted the jury requested a copy of the
negligence instructions and deliberated for a number of hours.
The jury was charged with assessing Joseph's capacity to know and avoid
danger, specifically the actual danger in this case the risks from over-exertion.
The court stated defendant was not required to establish Joseph knew or should
have known he would suffer specifically from exertional rhabdomyolysis as a
result of the workout. The court reiterated the test of foreseeability was "the
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probable and foreseeable consequences that may[ be] reasonably anticipated
from the performance or the failure to perform a particular act."
The court further found there was no evidence confirming defendant and
its coaches knew the workout could lead to rhabdomyolysis. The court
concluded the verdict was "manifestly reasonable and . . . amply supported by
the evidence in the record." The court stated: "The evidence adduced at trial
revealed that [Joseph] over-exerted himself during the course of the workout
using weight and other exercises in rapid succession with breaks, that ultimately
led to his compartment syndrome and [r]habdomyolysis, which is a rare
condition." The court denied the motion for a new trial in a December 22, 2022
order.
II.
On appeal, plaintiffs contend the court erred in denying their motion for a
new trial by misapprehending the concepts of risk and foreseeability. We
disagree.
Pursuant to Rule 4:49-1(a), a new trial should be granted if, after having
accorded deference to the jury's ability to evaluate the credibility of witnesses,
the court "clearly and convincingly" finds "there was a miscarriage of justice."
On review, the "court should give considerable deference to a trial court's
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decision" because it "has gained a 'feel of the case' through the long days of the
trial." Lanzet ex rel. Ests. of Lanzet v. Greenberg, 126 N.J. 168, 175 (1991).
Plaintiffs assert they are not challenging the substance of the jury charge
or the verdict sheet. Instead, they contend there was no evidence to support the
jury's finding that Joseph was negligent. Plaintiffs contend Joseph assumed the
reasonable risks of an intense workout, like thirst, muscle fatigue, nausea, and
weakness. However, Joseph did not know the workout could result in exertional
rhabdomyolysis. Since there was no proof that Joseph could have foreseen the
risk of developing rhabdomyolysis, plaintiffs contend the jury could not find he
was negligent. Therefore, the court erred in not vacating the comparative
negligence verdict and remanding for a trial on damages.
Plaintiffs' reliance on Rule 4:49-2 for relief is misguided. The Rule only
applies to the reconsideration of a judgment or final order. Although plaintiffs
technically requested the court reconsider the entry of judgment, they were
actually asking the court to overturn the jury's verdict. That is a motion for a
new trial governed by Rule 4:49-1. The court cannot alter the jury's verdict. It
entered judgment as required under Rule 4:47(a).
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We turn then to the court's decision denying plaintiffs a new trial and
begin with a consideration of the general principles of negligence and
foreseeability.
Negligence is the "failure to exercise, in the given circumstances, that
degree of care for the safety of others, which a person of ordinary prudence
would exercise under similar circumstances." Maison v. N.J. Transit Corp., 245
N.J. 270, 313-14 (2021) (Patterson, J., concurring in part and dissenting in part)
(quoting Model Jury Charges (Civil), 5.10A, "Negligence and Ordinary Care—
General" (rev. May 2009)). The court instructed the jury how it should
determine whether Joseph and defendant exercised reasonable care in their
actions surrounding the workout. The jury was told to
consider whether [the parties] ought to have foreseen,
under the attending circumstances, that the natural and
probable consequence of [their] act or omission to act
would have been some injury. It is not necessary that
the [parties] have anticipated the very occurrence which
resulted from [their] wrongdoing but it is sufficient that
it was within the realm of foreseeability that some harm
might occur . . . .
[See Model Jury Charges (Civil), 5.10B.]
Plaintiffs' argument that Joseph could not be negligent because he did not
know about the increased and unreasonable risk of developing rhabdomyolysis
is unsupported by caselaw. Joseph did not have to understand there was an
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unreasonable risk of being injured. For a jury to find him negligent, it only
needed to conclude that Joseph could have foreseen that overexerting himself in
a workout could result in a risk of harm or injury. See Koenig v. Gen. Foods
Corp., 168 N.J. Super. 368, 372-73 (App. Div. 1979).
As our Court has stated, "An act is foreseeable when a reasonably prudent,
similarly situated person would anticipate a risk that [their] conduct would cause
injury or harm to another person. So long as the injury or harm suffered was
within the realm of reasonable contemplation, the injury or harm is foreseeable."
Komlodi ex rel. Komlodi v. Picciano, 217 N.J. 387, 417-18 (2014) (citation
omitted). However, the precise injury does not need to be foreseen, instead there
must only be conduct that "creates an unreasonable risk of foreseeable harm."
Koenig, 168 N.J. Super. at 373.
The jury heard evidence that Joseph chose a forty-pound dumbbell for the
workout, did not drink water, and did not stop even when tired. Joseph testified
he believed he was stronger than many of the other students and he wanted to
impress the coaches. As the trial court found, there was ample proof for the jury
to conclude Joseph was negligent in his conduct during the workout which was
the proximate cause of his injury and resulting damages. Plaintiffs have not
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demonstrated a "miscarriage of justice" entitling them to a new trial. See R.
4:49-1(a).
Affirmed.
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