                                NOT FOR PUBLICATION WITHOUT THE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-0271-17T1

C.H., an infant by her Guardian
ad Litem, Brenda Cummings,
and BRENDA CUMMINGS,
individually,

          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).

PER CURIAM

      Plaintiff 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 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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                                           2
      During the game, plaintiff went up for a rebound, and made contact with

defendant Garry Martin, who is 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?

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                                       3
[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 - -

[Plaintiff] Yes.


                                                              A-0271-17T1
                            4
            [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

and intentional conduct and she and her guardian ad litem sought damages


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                                         5
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.




                                                                          A-0271-17T1
                                         6
                                       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.


                                                                        A-0271-17T1
                                       7
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 ex rel. 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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                                        8
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.


                                                                             A-0271-17T1
                                         9
      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

                                                                          A-0271-17T1
                                       10
             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. See Crawn, 136 N.J. at 508 ("The heightened

recklessness standard recognizes a commonsense distinction between

excessively harmful conduct and the more routine rough-and-tumble of sports

                                                                         A-0271-17T1
                                         11
that should occur freely on the 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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