BRENDA CUMMINGS v.RAHWAY BOARD OF EDUCATION, RAHWAY MIDDLE SCHOOL, RAHWAY 7TH AND 8TH GRADE AND ACADEMY GARRY MARTIN

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0271-17T1
C.H., an infant by her Guardian
ad Litem, Brenda Cummings,
APPROVED FOR PUBLICATION
and BRENDA CUMMINGS,
individually, June 19, 2019
APPELLATE DIVISION
Plaintiffs-Appellants,
v.
RAHWAY BOARD OF EDUCATION,
RAHWAY MIDDLE SCHOOL,
RAHWAY 7TH AND 8TH GRADE
ACADEMY, and GARRY MARTIN
Defendants-Respondents.
________________________________
Argued October 10, 2018 – Decided November 16, 2018
Before Judges Yannotti, Gilson, and Natali.
On appeal from Superior Court of New Jersey, Law
Division, Union County, Docket No. L-3701-15.
Juan C. Cervantes argued the cause for appellants
(Forman & Cardonsky, attorneys; Juan C. Cervantes,
on the briefs).
Howard M. Nirenberg argued the cause for respondents
(Nirenberg & Varano, LLP, attorneys; Howard M.
Nirenberg, of counsel; Sandra N. Varano, on the brief).
The opinion of the court was delivered by
GILSON, J.A.D.
Plaintiff C.H. was injured while playing in a student-teacher fundraising
basketball game. She appeals from an August 23, 2017 order granting summar y
judgment and dismissing her claims against defendants, who were her school,
the school board, and a teacher. We affirm because the undisputed facts
establish that defendants did not breach a duty of care to plaintiff.
I
We take the facts from the summary judgment record and view them in
the light most favorable to plaintiff. In June 2013, plaintiff was fourteen years
old, in eighth grade, and a member of her school basketball team.
On June 11, 2013, plaintiff participated in a basketball game in which a
team of teachers played against a team of students. The game was an annual
fundraising event, and student participation was voluntary. Approximately
fifteen teachers and school safety officials and seventeen students participated
in the game. The game was officiated by at least one referee. There were also
five other teachers who did not play in the game, but attended to provide
supervision.
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During the game, plaintiff went up for a rebound, and made contact with
defendant Garry Martin, who was a teacher. Plaintiff landed awkwardly, fell,
and injured her knee. At her deposition, plaintiff described how her injury
occurred:
Everyone swarm[ed] in, but the teacher [came] running
down, like, I guess, because he wanted to get the ball,
and it was offensive rebound I was going for. And he
went up, I went up. But he shoved me, like, to get me
out of the way so that he could get the rebound. And
when I came down I had to stop myself from falling.
And I couldn't plant right.
Defense counsel questioned plaintiff further as to the details of the events that
preceded her injury. Specifically, counsel asked and plaintiff answered:
[Counsel] [I]f I understood your testimony, when you
went up, everybody close to the basket
went up also?
[Plaintiff] Yes.
....
[Counsel] So you are going up for the rebound, and
contact is made?
[Plaintiff] Yes.
[Counsel] And do you know who made contact with
you?
[Plaintiff] Mr. Martin.
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[Counsel] And where was Mr. Martin when he made
contact with you?
[Plaintiff] On my left side.
....
[Counsel] Mr. Martin is to your left. Is he even with
you?
[Plaintiff] No. He's on an angle.
[Counsel] Is he on an angle in front of you or behind
you?
[Plaintiff] Yes, in front of me.
[Counsel] So he's closer to the basket?
[Plaintiff] Yes.
....
[Counsel] So as he’s in front of you to the left and he's
going up for the rebound and you're going
up for the rebound, what happens?
[Plaintiff] He shoves back to try to rip through.
[Counsel] When you say "he shoves back," does he
push his body backwards to create more
space between him and the rim?
[Plaintiff] Yes.
[Counsel] And he does that in order to be able to get
a better angle - -
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[Plaintiff] Yes.
[Counsel] - - to get the ball?
[Plaintiff] Yes.
[Counsel] And as he did that, you are, I assume, going
for the ball so you are leaning forward?
[Plaintiff] Yes.
[Counsel] And jumping forward?
[Plaintiff] Yes.
[Counsel] And as you're leaning and jumping forward
and he's pushing back to create some space,
contact is made?
[Plaintiff] Yes.
....
[Counsel] And what part of his body makes contact
with what part of your body?
[Plaintiff] His upper body hits my upper body.
Plaintiff then testified that after her upper body and Martin's upper body
collided, she could not stop herself from falling.
In October 2015, plaintiff, through her guardian ad litem, filed a complaint
against Martin, her school, and the school board. Thereafter, she amended her
complaint. In her amended complaint, plaintiff asserted claims for negligence
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and intentional conduct and she and her guardian ad litem sought damages
related to plaintiff's knee injury. The parties engaged in and completed
discovery. Thereafter, defendants moved for summary judgment.
The trial court heard oral arguments and, on August 23, 2017, the court
issued a written opinion and entered an order granting summary judgment to
defendants. The court first determined that plaintiff had failed to present
evidence that defendants had engaged in negligent supervision. In that regard,
the court found that the game was officiated by a referee and there were
approximately five teachers, who did not participate in the game, but who
attended to provide supervision. The court went on to reason that there was no
showing that plaintiff's injury, which occurred when the players jumped for a
rebound, could have been prevented by further supervision.
The court next held that a participant in recreational sport activity cannot
assert a claim of negligence against a co-participant who causes her injury.
Instead, such a plaintiff must show that the co-participant engaged in reckless
or intentional conduct that caused the injury. See Crawn v. Campo, 136 N.J.
494, 497 (1994). Accepting plaintiff's description of the incident, the court
found that there were no facts showing that Martin had acted recklessly or
intentionally. Plaintiff now appeals.
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II
On appeal, plaintiff makes two arguments. First, she contends that Martin,
as a teacher, and her school and the school board, as Martin's employers, owed
her a duty of supervisory care, which they breached. Second, she argues that
there was a material fact issue concerning whether Martin acted recklessly
during the basketball game. We disagree. There are no facts showing
defendants breached their duty to provide supervision to plaintiff as a student
participating in a basketball game. Moreover, accepting plaintiff's description
of the incident, the material undisputed facts do not show that Martin acted
recklessly or intentionally.
We conduct a de novo review of an order granting summary judgment,
and apply the same standard employed by the trial court. Davis v. Brickman
Landscaping, Ltd., 219 N.J. 395, 405 (2014) (first citing Manahawkin
Convalescent v. O'Neill, 217 N.J. 99, 115 (2014); then quoting Murray v.
Plainfield Rescue Squad, 210 N.J. 581, 584 (2012)). Accordingly, we determine
whether the moving party has demonstrated that there are no genuine disputes
as to material facts and, if so, whether the facts, viewed in the light most
favorable to the non-moving party, entitle the moving party to a judgment as a
matter of law. Id. at 405-06 (first quoting R. 4:46-2(c); then quoting Brill v.
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Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). When no issues of
material fact exist, but a question of law remains, our review of that legal issue
is plenary. Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of
Pittsburgh, 224 N.J. 189, 199 (2016) (citing Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
A. The School's Duty to Supervise
School officials have a duty to supervise the children in their care. See
e.g., Jerkins v. Anderson, 191 N.J. 285, 296 (2007) (stating that "[s]chool
officials have a general duty 'to exercise reasonable supervisory care for the
safety of students entrusted to them, and [are accountable] for injuries resulting
from failure to discharge that duty'" (second alteration in original) (quoting
Caltavuturo v. City of Passaic, 124 N.J. Super. 361, 366 (App. Div. 1973))).
Accordingly, "[t]eachers must at times be present to oversee students on school
playgrounds and in hallways, classrooms, lunchrooms and auditoriums." Kibler
v. Roxbury Bd. of Educ., 392 N.J. Super. 45, 55 (App. Div. 2007). That duty
may be violated by inactions, as well as actions. Titus v. Lindberg, 49 N.J. 66,
74 (1967).
The supervisory duty extends to "foreseeable dangers . . . [that] arise from
the careless acts or intentional transgressions of others." Frugis v. Bracigliano,
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177 N.J. 250, 268 (2003). School officials must exercise "that degree of care
which a person of ordinary prudence, charged with comparable duties, would
exercise under the same circumstances." Caltavuturo, 124 N.J. Super. at 366
(citing Dailey v. L.A. Unified Sch. Dist., 470 P.2d 360, 363-64 (Cal. 1970)).
Here, there was no showing of a breach of the duty to supervise plaintiff.
The basketball game was officiated by a referee. Moreover, additional
supervision was provided by approximately five teachers who did not participate
in the game. There were no facts showing that the game was being conducted
in a reckless or out-of-control manner before plaintiff was injured. In that
regard, plaintiff testified that she had only played for a few minutes in the first
half of the game, and her injury occurred within five minutes of the start of the
second half of the game. While plaintiff testified that the teachers were
beginning to play "aggressively," she also acknowledged that the game was a
typical basketball game and the referee was not calling many fouls.
Plaintiff was injured when she jumped for a rebound and came into contact
with another player who happened to be a teacher. Those undisputed facts
establish that plaintiff's injury did not result from a lack of supervision. Instead,
the undisputed facts establish that plaintiff was injured while participating in a
recreational sport activity.
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B. Injuries in Recreational Sports
"[T]he duty of care applicable to participants in informal recreational
sports is to avoid the infliction of injury caused by reckless or intentional
conduct." Schick v. Ferolito, 167 N.J. 7, 12 (2001) (alteration in original)
(quoting Crawn, 136 N.J. at 497). Accordingly, a participant who causes injury
to another participant in a recreational sporting activity cannot be found liable
for simple negligence. Our Supreme Court has explained that two
considerations support this heightened standard: "the promotion of vigorous
participation in athletic activities, and the avoidance of a flood of litigatio n
generated by participation in recreational games and sports." Id. at 12-13 (citing
Crawn, 136 N.J. at 501). The Supreme Court has reasoned that a recklessness
standard is more appropriate because a certain level of risk of harm is a normal
part of a recreational game. Id. at 13 (citing Crawn, 136 N.J. at 506-08). In that
regard, the Court has explained:
Our conclusion that a recklessness standard is the
appropriate one to apply in the sports context is founded
on more than a concern for a court's ability to discern
adequately what constitutes reasonable conduct under
the highly varied circumstances of informal sports
activity. The heightened standard will more likely
result in affixing liability for conduct that is clearly
unreasonable and unacceptable from the perspective of
those engaged in the sport yet leaving free from the
supervision of the law the risk-laden conduct that is
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inherent in sports and more often than not assumed to
be "part of the game."
[Crawn, 136 N.J. at 508.]
Here, plaintiff has conceded that Martin "was not intentionally trying to
injure [her]." Indeed, the record contains no facts that would support a finding
that Martin acted intentionally to injure plaintiff.
Consequently, the question here is whether plaintiff has presented facts
showing that Martin acted recklessly when he jumped for a rebound. According
to plaintiff's own testimony, Martin was on an angle in front of her. Martin then
pushed his body backward to create more space between himself and the
basketball rim while jumping for the ball. The contact occurred when plaintiff
leaned and jumped forward to try to get the ball and her upper body came into
contact with Martin's upper body. Such facts, even when viewed in the light
most favorable to plaintiff, do not establish reckless conduct in a basketball
game. Instead, those facts describe normal activity that occurs when players
attempt to make rebounds during a basketball game.
Plaintiff did not describe any conduct by Martin that could be found to be
excessively harmful conduct. Ibid. ("The heightened recklessness standard
recognizes a commonsense distinction between excessively harmful conduct and
the more routine rough-and-tumble of sports that should occur freely on the
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playing fields and should not be second-guessed in courtrooms."). Moreover,
plaintiff's testimony provides no evidence that Martin disregarded a known or
obvious risk that was so great as to make it highly probable that harm would
follow. Indeed, there was no evidence that Martin was aware that plaintiff was
angled behind him and was jumping forward as he was pushing backwards and
jumping for the rebound.
To the extent that plaintiff argues that a negligence standard should apply
because Martin was a teacher, we find no support for such a change in the law.
Martin and plaintiff participated in the game as players. As already pointed out,
the school provided appropriate supervision by a referee and other teachers. In
her candid testimony, plaintiff described Martin's actions as the actions typical
of any basketball player. There are no facts in the record to demonstrate that
Martin used his position as a teacher to conduct himself differently than a normal
player. Accordingly, there is no basis to impose a greater duty on Martin than
any other participant in a recreational sporting activity.
Affirmed.
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