C.H. by Cummings v. Rahway Bd. of Educ.

209 A.3d 222, 459 N.J. Super. 236
CourtNew Jersey Superior Court Appellate Division
DecidedNovember 16, 2018
DocketDOCKET NO. A-0271-17T1
StatusPublished

This text of 209 A.3d 222 (C.H. by Cummings v. Rahway Bd. of Educ.) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
C.H. by Cummings v. Rahway Bd. of Educ., 209 A.3d 222, 459 N.J. Super. 236 (N.J. Ct. App. 2018).

Opinion

GILSON, J.A.D.

*239Plaintiff C.H. was injured while playing in a student-teacher fundraising basketball game. She appeals from an August 23, 2017 order granting summary 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 *224event, 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 *240other teachers who did not play in the game, but attended to provide supervision.

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.
[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 - -*241[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.

*225Plaintiff 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 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 *242who 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, 643 A.2d 600 (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.

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.

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209 A.3d 222, 459 N.J. Super. 236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ch-by-cummings-v-rahway-bd-of-educ-njsuperctappdiv-2018.