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NOT FOR PUBLICATION WITHOUT THE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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