CORA KERTON, ON BEHALF OF J.R. VS. HUDSON COUNTY (L-3406-17, HUDSON COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: May 20, 2020
• Docket: A-2753-18T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2753-18T1

CORA KERTON, on behalf of J.R., a minor,

Plaintiff-Appellant,

v.

HUDSON COUNTY, HUDSON COUNTY BOARD OF EDUCATION FOR SCHOOLS OF TECHNOLOGY, SUPERINTENDENT FRANK GARGIULO, and PRINCIPAL BARBARA MENDOLLA,

Defendants-Respondents. _________________________________

Argued telephonically April 21, 2020 – Decided May 20, 2020

Before Judges Yannotti, Currier and Firko.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3406-17.

Luretha M. Stribling argued the cause for appellant. John R. Dineen argued the cause for respondent Hudson County (Netchert, Dineen & Hillmann, attorneys; Esther Bodek, of counsel and on the brief).

Roshan D. Shah argued the cause for respondents Hudson County Schools of Technology, Frank Gargiulo and Barbara Mendolla (Scarinci & Hollenbeck, LLC, attorneys; Roshan D. Shah, of counsel and on the brief; Kevin M. Foltmer and Brent M. Davis, on the brief).

PER CURIAM

Plaintiff appeals from orders entered by the trial court on February 15,

2019, which granted motions for summary judgment by defendants County of

Hudson (County), the Board of Education for the Hudson County Schools of

Technology (HCST), Frank Gargiulo, and Barbara Mendolla. We affirm.

I.

In August 2017, plaintiff filed a complaint on behalf of her daughter, J.R.,

who was a minor at the times relevant to the claims asserted.1 Plaintiff alleged

that on October 8, 2014, J.R. sustained an injury to her foot while participating

as a student in a gym class at County Prep, a high school in the HCST's district.

She claimed defendants were negligent in the management and scheduling of

1 We use initials to identify J.R. because the claims arose when she was a minor. A-2753-18T1 2 gym classes at the school and that such negligence was a proximate cause of

J.R.'s injury.

The record shows that in the fall of 2014, J.R. was a sophomore at County

Prep. At that time, Gargiulo was Superintendent of the HCST and Mendolla

was Principal of County Prep. Hudson County provides funds for the HCST,

but it does not hire, fire, or supervise teachers in the HCST. Moreover, the

County does not own the HCST's school buildings.

Mendolla was responsible for creating the school's master calendar. At

County Prep, there are nine scheduled class periods during the school day, each

approximately forty minutes. The County Prep building has one gymnasium,

which is shaped like a rectangle. A fitness room is located at the rear of the

gymnasium, which includes treadmills and free weights. The gym teachers have

an office located on one side of the gymnasium.

In 2014, two gym classes and one fitness class typically used the

gymnasium during a single class period. Each class consisted of between twenty

to twenty-four students, and one teacher would be assigned to each class.

According to HCST, the gymnasium's maximum capacity is 135 students.

Each gym teacher ordinarily provided instruction to that teacher's class

for an assigned activity. However, at certain times in 2014, all three classes

A-2753-18T1 3 were brought together for joint instruction, which sometimes included running

exercises. Such joint instruction occurred at least once a week. In the fall of

2014, J.R.'s schedule at County Prep included a second-period physical

education class with teacher Doreen Bryant. A gym class, taught by a "Mr.

Downs," and a fitness class, taught by Peter Ohanyan, also were assigned to the

gymnasium for that period.

On October 8, 2014, students in all three classes performed certain

stretching exercises separately. The three classes then were brought together

for other exercises. A teacher instructed the students to begin interval running,

which required that they transition from walking to running and back to walking

at the sound of a whistle.

J.R. stated that she had transitioned from walking to running for about

thirty seconds when she approached students who were still walking. She

attempted to go around them when she fell. J.R. claimed certain students were

using cell phones at the time.

Ohanyan and Downs were present in the gym when J.R. fell. Ohanyan

testified that in 2014, students were permitted to use cell phones during running

exercises "to create a little bit more motivation." He stated, however, that at the

A-2753-18T1 4 time, the school did not have a policy prohibiting students from using

cellphones.

At her deposition, J.R. testified that when she fell, Bryant was either in

the gym teacher's office or seated outside of the office. J.R. said she did not see

Bryant enter the office after Bryant led the students in her class in the stretching

exercises. After J.R. fell, Ohanyan helped her into a chair. She was placed in a

wheelchair and taken to the nurse's office. Plaintiff came to the school and

transported J.R. to a hospital where x-rays were taken.

J.R. began treatment with Dr. Thomas J. Azzolini. He opined that when

J.R. fell, she suffered a "displaced fracture of the fifth metatarsal base" of her

right foot and an "avulsion fracture to the tip of the fibular malleolus" in her

right ankle. On October 21, 2014, J.R. had surgery to repair the fracture of her

foot and stabilize the ankle. Thereafter, J.R. received physical therapy and

periodically returned to Dr. Azzolini for checkups. In July 2016, J.R. underwent

another surgical procedure and a screw that had been used to repair the fracture

was removed.

In August 2018, when she was deposed, J.R. was a sophomore in college.

By that time, Dr. Azzolini had cleared her to return to any activity in which she

chose to participate. J.R. testified that the injuries did not cause her to miss

A-2753-18T1 5 work or prevent her from participating in any activities. She also testified that

she would occasionally work a five-hour shift, on her feet at a restaurant, without

taking a break.

J.R. was asked to identify the activities she has difficulty engaging in since

the accident. She stated that she has trouble wearing "three-inch-and-above"

high-heeled shoes for extended periods of time, which she used to do about six

times a year before the accident. J.R. also stated that she now walks with a limp,

which she described as a "waddle."

In December 2018, the HCST, Gargiulo, and Mendolla (the HCST

defendants) filed a motion for summary judgment. They argued that plaintiff

failed to establish that at the time J.R. fell, the County Prep gymnasium

constituted a dangerous condition of public property under the Tort Claims Act

(TCA), N.J.S.A. 59:1-1 to 12-3. They also argued that: J.R.'s injuries did not

meet the threshold for recovery under the TCA; plaintiff did not show that the

HCST defendants breached any duty of care; and plaintiff failed to establish any

basis for liability on the part of Gargiulo or Mendolla.

Thereafter, the County filed a cross-motion for summary judgment. The

County argued that it could not be liable for J.R.'s injuries because it merely

provides funding for the HCST and does not employ or supervise the HCST's

A-2753-18T1 6 teachers. The County further argued that plaintiff's negligence claim failed

because she could not establish a standard of care for the teachers at County

Prep without expert testimony. Plaintiff opposed the motions.

The judge heard oral argument and placed his decision on the record. The

judge noted that plaintiff was not asserting a claim that the County Prep

gymnasium constituted a dangerous condition of public property. Rather,

plaintiff was asserting claims based on the alleged negligence of defendants.

The judge determined that the negligence claims failed as a matter of law

because plaintiff did not establish the standard of care owed by a "teacher who

is supervising a large gym class in the middle of the day[.]"

The judge stated that proving such a standard would require the "expertise

of someone who has experience training in education . . . and [in] supervising

children in class." The judge also found that the common knowledge doctrine

did not relieve plaintiff of the obligation to present expert testimony. The judge

stated that the doctrine did not apply because determining the duty owed by a

person teaching a high school gym class is "beyond the ken of an ordinary jury."

The judge did not decide whether J.R.'s injuries met the threshold for

recovery under the TCA. The judge emphasized that plaintiff's failure to present

expert testimony on the standard of care applicable to her negligence claims was

A-2753-18T1 7 "the only reason why [he was] going to grant [summary judgment]."

Accordingly, the judge entered orders granting summary judgment in favor of

defendants. This appeal followed.

II.

On appeal, plaintiff argues that the motion judge erred by failing to apply

the correct standard for summary judgment motions. She contends the judge

erroneously weighed and evaluated the evidence, which is a task that should be

performed by the trier of fact. She also argues that the judge erred by finding

that she required expert testimony to establish the standard of care for her

negligence claims and by refusing to apply the common knowledge doctrine. In

addition, plaintiff argues the judge exhibited bias during the oral arguments on

the summary judgment motions.

When reviewing an order granting summary judgment, we apply the same

standard that the trial court applies when ruling on the motion. Globe Motor

Co. v. Igdalev, 225 N.J. 469, 479 (2016) (quoting Bhagat v. Bhagat, 217 N.J.

22, 38 (2014)). The court should grant summary judgment when the evidence

before the court on the motion "show[s] that there is no genuine issue as to any

material fact challenged and that the moving party is entitled to a judgment or

order as a matter of law." R. 4:46-2(c).

A-2753-18T1 8 "An issue of fact is genuine only if, considering the burden of persuasion

at trial, the evidence submitted by the parties on the motion, together with all

legitimate inferences therefrom favoring the non-moving party, would require

submission of the issue to the trier of fact." Ibid. The trial court should not

hesitate to grant summary judgment "when the evidence 'is so one-sided that one

party must prevail as a matter of law.'" Brill v. Guardian Life Ins. Co. of Am.,

142 N.J. 520, 540 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 252 (1986)).

To succeed in a negligence action, a plaintiff must prove that: (1) the

defendant owes the plaintiff a duty of care, (2) the defendant breached that duty,

(3) the breach was the proximate cause of the plaintiff's injury, and (4) the

plaintiff suffered actual damages. Brunson v. Affinity Fed. Credit Union, 199

N.J. 381, 400 (2009) (quoting Polzo v. Cty. of Essex, 196 N.J. 569, 584 (2008)).

If a plaintiff fails to establish any of the above elements, the defendant is entitled

to judgment as a matter of law. Davis v. Brickman Landscaping, LTD., 219 N.J.

395, 414 (2014).

Here, the material facts are not in dispute. As noted previously, in October

2014, J.R. was a student at County Prep and she was injured while participating

in certain exercises during gym class. She claims defendants were negligent

A-2753-18T1 9 because the school scheduled three classes for gym at the same time; failed to

ensure that all three teachers remained with their students during gym class; and

permitted students to listen to electronic devices while performing exercise s.

The motion judge determined that in order to prevail on these claims,

plaintiff was required to present expert testimony establishing the applicable

standard of care. Plaintiff argues, however, that expert testimony was not

required in this case. We disagree.

It is well established that teachers and school administrators in New Jersey

have a duty to supervise children in their facilities. Jerkins v. Anderson, 191

N.J. 285, 296 (2007); see also L.E. v. Plainfield Public School District, 456 N.J.

Super. 336, 346 (App. Div. 2018) (listing examples of cases imposing a duty of

supervisory care on school officials). Therefore, teachers and other school

officials have a general duty to exercise "that degree of care which a person of

ordinary prudence, charged with comparable duties, would exercise under the

same circumstances." Caltavuturo v. City of Passaic, 124 N.J. Super. 361, 366

(App. Div. 1973).

However, if "the jury is not competent to supply the standard by which to

measure the defendant's conduct, . . . the plaintiff must instead establish the

requisite standard of care and defendant's deviation from that standard by

A-2753-18T1 10 presenting reliable expert testimony on the subject . . ." Davis, 219 N.J. at 407

(internal quotations omitted). Expert testimony is required when the matter to

be dealt with is "so esoteric that jurors of common judgment and experience

cannot form a valid judgment as to whether the conduct of the [defendant] was

reasonable." Ibid. (citing Butler v. Acme Mkts., Inc., 89 N.J. 270, 283 (1982)).

Without expert testimony, the jury would have to speculate as to the applicable

standard of care. Ibid. (citing Torres v. Schripps, Inc., 342 N.J. Super. 419, 430

(App. Div. 2001)).

Therefore, a plaintiff must present expert testimony to establish the

applicable standard of care where the subject matter to be addressed is beyond

the ken of the average juror. See Hopkins v. Fox & Lazo Realtors, 132 N.J. 426,

444 (1993) (functions and responsibilities of real-estate brokers); Giantonnio v.

Taccard, 291 N.J. Super. 31, 43 (App. Div. 1996) (precautions required for the

safe conduct of a funeral procession); Fantini v. Alexander, 172 N.J. Super. 105,

108-10 (App. Div. 1980) (standards of conduct for those teaching karate).

Here, the motion judge correctly decided that the average juror does not

have the required understanding of the manner in which school administrators

schedule classes, whether students in gym class should be permitted to use

electronic devices while exercising, and the level of teacher supervision required

A-2753-18T1 11 when three gym classes have class in a gymnasium at the same time. The judge

correctly determined that these subject matters are "so esoteric that jurors of

common judgment and experience cannot form a valid judgment." Scully v.

Fitzgerald, 179 N.J. 114, 127 (2004) (quoting Butler, 89 N.J. at 283). As the

judge noted, expert testimony on these matters is required from a person who

has experience and training in education and the supervision of students.

Plaintiff argues, however, that the common knowledge standard relieves

her of any obligation to present expert testimony to establish the standard s of

care for her negligence claims. The doctrine applies in "exceptional

circumstances" when the common knowledge of jurors "is sufficient to enable

them, using ordinary understanding and experience, to determine a defendant's

negligence without the benefit of the specialized knowledge of experts."

Cowley v. Virtua Health Sys., N.J. , (2020) (slip op. at 16) (quoting

Hubbard v. Reed, 168 N.J. 387, 394 (2001)).

Here, the motion judge correctly determined that the scheduling of

classes, the use of electronic devices by students while exercising in gym class,

and the proper level of supervision by teachers are not matters in which jurors

of ordinary intelligence can resolve plaintiff's negligence claims. Although

teachers and school administrators have a general duty to exercise reasonable

A-2753-18T1 12 care for their students, an expert with experience and training in education and

the supervision of students is required to establish the standard of care for the

specific claims asserted in this case.

In support of her arguments on appeal, plaintiff cites Jerkins, 191 N.J. at

285. In that case, a school dismissed a nine-year-old student on an early-

dismissal day. Id. at 290. The student's family members claimed that they did

not know early dismissal was scheduled that day. Id. at 291. The student walked

off school grounds without an adult and he was stuck by a car a few blocks away.

Id. at 290.

The Court held that in New Jersey, the schools have a duty of reasonable

care for supervising the safety of students at dismissal. Ibid. The Court stated

that schools must exercise reasonable care in supervising students , commencing

when the students begin to arrive at the school and continuing from that point

on. Id. at 299 (quoting Titus v. Lindberg, 49 N.J. 66, 74-75 (1967)).

We are convinced plaintiff's reliance upon Jerkins is misplaced. Jerkins

addressed the standard of care that applies to the dismissal of students. In this

case, plaintiff has raised specific claims regarding the scheduling of classes, the

use of electronic devices by students, and the number of teachers required to

A-2753-18T1 13 supervise three classes in a gymnasium. The standards of care that apply to

these specific claims must be established by expert testimony.

Plaintiff also contends the judge exhibited bias during the arguments on

defendants' summary judgment motions. Plaintiff asserts that during the

proceedings, the judge repeatedly interrupted her attorney, thereby showing a

bias against plaintiff and favoritism towards defendants. The record does not,

however, support this contention.

The transcript of the argument indicates that at times, the judge interrupted

plaintiff's attorney during her argument, but the judge also interrupted the

arguments by defendants' attorneys. Indeed, at one point, the judge told counsel

for the HCST defendants that since he had cut off plaintiff's counsel during her

argument, he would "cut [him] off too." We therefore reject plaintiff's

contention that the judge exhibited bias during the proceedings.

Plaintiff further argues that: the judge failed to apply the correct summary

judgment standard, weighed and evaluated the evidence which is the role of the

trier of fact, failed to cite case law in support of his decision, and did not set

forth a legal basis for the grant of summary judgment. We have thoroughly

considered these arguments and conclude that they lack sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

A-2753-18T1 14 III.

Plaintiff also contends the motion judge erred by failing to consider the

serious nature of J.R.'s injuries. She maintains J.R.'s injuries meet the threshold

under the TCA for a permanent loss of bodily function in N.J.S.A. 59:9-2. The

judge did not, however, decide whether plaintiff's injuries met the statutory

threshold for recovery. The judge granted summary judgment to defendants

because plaintiff did not present expert testimony to establish the standard of

care for her negligence claims. Therefore, we need not address plaintiff's

contention that J.R.'s injuries meet the threshold for recovery under the TCA.

In addition, plaintiff contends the judge erred by finding the County had

no liability in this matter. Plaintiff argues that because the County provides

substantial funding to the HCST it is financially responsible for the alleged

negligence on the part of the HCST defendants.

We note that at oral argument, the judge agreed the County had no

potential liability in this case. The judge commented that the County "gets out

separately" but he would not "put that in the order" because it was "on the

record." The judge also stated that if plaintiff's claims were ever reinstated, the

HCST would be the only defendant.

A-2753-18T1 15 In any event, as we have explained, the judge granted summary judgment

to the County and the HCST defendants because plaintiff did not present expert

testimony to support her negligence claims. We affirm the orders granting

summary judgment on that basis and that basis alone. Therefore, we need not

address plaintiff's contention that the County is potentially liable for the alleged

negligence of the HCST defendants.

Furthermore, on appeal, the HCST defendants argue that plaintiff failed

to establish a basis for liability under N.J.S.A. 59:4-2, which applies to claims

based on the dangerous condition of public property. At oral argument, the

judge noted that plaintiff was not pursuing a claim based on an alleged

dangerous condition of public property. Because we have decided that the judge

correctly granted summary judgment in favor of defendants on other grounds,

we need not consider this argument.

Affirmed.

A-2753-18T1 16