                        NOT FOR PUBLICATION WITHOUT THE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-4578-15T2


MADISON MONE,

        Plaintiff-Appellant,

v.

KIM GRAZIADEI,

        Defendant-Respondent,

and

GIRLS SOFTBALL LEAGUE OF
WESTFIELD, INC.,

     Defendant.
_______________________________________________

              Argued October 2, 2017 – Decided October 30, 2017

              Before Judges O'Connor and Vernoia.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Docket No.
              L-3240-13.

              Ralph P. Ferrara argued the cause for
              appellant (Ferrara Law Group, PC, attorneys;
              Mr. Ferrara and Anthony A. Skalski, on the
              brief).
            Robert F. Ball argued the cause for
            respondent (Weber Gallagher, attorney; Mr.
            Ball on the brief).

PER CURIAM

    In this personal injury action, plaintiff Madison Mone was

injured just before she and her team were to play in a softball

game for defendant Girls Softball League of Westfield, Inc.

(League).    Defendant Kim Graziadei (coach) was the team's coach.

Plaintiff filed a complaint alleging defendants had been both

negligent and grossly negligent for failing to properly instruct

and supervise plaintiff at the time she was injured.     She

appeals from a May 13, 2016 order granting defendants summary

judgment dismissal.    After reviewing the record and applicable

legal principles, we reverse.

                                 I

    The pertinent facts in the motion record, which we present

in the light most favorable to plaintiff, are as follows.      In

June 2007, plaintiff, then thirteen years of age, was a member

of and played softball for the League.    According to plaintiff's

deposition testimony, just before one of the games, the coach

selected her to be the catcher in the upcoming game.

    Plaintiff testified one of her responsibilities as catcher

was to warm up the pitcher before a game; specifically, as

catcher, she caught the practice balls the pitcher threw in
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order to warm up.   After the coach instructed plaintiff to warm

up the pitcher, plaintiff and the pitcher practiced in an area

adjacent to but not on the field.   During the warm-up, plaintiff

did not wear a face mask, although she had donned shin guards

and "chest protection."   One ball the pitcher threw to plaintiff

hit her in the face, knocking out a tooth and injuring her jaw

and other teeth.

    Plaintiff testified the coach previously had instructed the

players to wear "full equipment" when they were either the

catcher during a game or warming up a pitcher on the field

before it.   Plaintiff understood the term "equipment" to mean a

face mask, helmet, shin guards, and chest protection.   In

response to three questions posed to her during her deposition,

plaintiff clearly stated the coach never told the players they

had to wear the subject equipment when practicing off the field.

    After providing such testimony, the following exchange took

place between plaintiff and defense counsel:

         [DEFENSE COUNSEL:] Did your coach ever
         instruct you did not have to wear equipment
         when you warmed up a softball pitcher prior
         to a game?

         [PLAINTIFF:] I don't recall.

         [DEFENSE COUNSEL:] Do you recall if she told
         you were supposed to wear equipment prior to
         warming up a pitcher prior to a game?

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                                                         A-4578-15T2
           [PLAINTIFF:] Can you repeat that?

           [DEFENSE COUNSEL:] Sure. I'll withdraw that
           question. You just told me that you don't
           recall if your coach told you to wear
           equipment while you were warming up a
           pitcher off the field?

           [PLAINTIFF:] Yes.

           [Emphasis supplied.]

    During her deposition the coach testified that, on the

first day of practice, she instructed all players to wear

protective equipment when warming up a pitcher.      Her testimony

did not clarify whether she also advised the players to wear

such protective gear even when they were practicing off the

field.    The coach also claimed that, on the day of the incident,

plaintiff had not been selected to be the catcher and the player

plaintiff warmed up had not been chosen to be the pitcher,

either.   The coach maintained plaintiff and the other player

merely walked off into "foul territory," where the player

pitched balls at plaintiff, who served as her catcher.

    After the close of discovery, defendants moved for and the

court granted summary judgment dismissal.      The court cited a

portion of plaintiff's deposition testimony in which she stated

the coach had advised the players to put on the subject safety

equipment before warming up a pitcher.    The court found such

statement to be an admission plaintiff knew to put on the safety
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equipment when warming up a pitcher even when off of the field.

However, such testimony referred to the coach's instruction to

wear such equipment when warming up the pitcher on the field.

There is no dispute the coach had instructed the players, when

designated a catcher, to wear all safety equipment when warming

up the pitcher on the field and during the game.   The issue was

whether the coach had instructed the players to wear the safety

equipment when warming up a pitcher off the field.

    The court also relied upon plaintiff's affirmative response

to the last question in the passage quoted above to find there

was no dispute the coach had told the players to wear the

equipment even when acting as a catcher off the field.   The

pivotal question was: "You just told me that you don't recall if

your coach told you to wear equipment while you were warming up

a pitcher off the field?"

    Although defense counsel mischaracterized plaintiff's

testimony, she answered in the affirmative.   By doing so she in

effect acknowledged she had just testified she did not remember

the coach telling her to wear the equipment when warming up a

pitcher off the field.   Relying upon plaintiff's response to

this question and the coach's claim she had instructed all

players acting as a catcher to don safety equipment when warming

up a pitcher, the court determined there was no evidence to
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                                                         A-4578-15T2
refute the coach's assertion plaintiff knew she was to wear the

subject safety equipment when warming up a pitcher, regardless

of her location.

     The court also noted the coach's conduct had to be measured

under the "heightened standard" of gross negligence.   The court

did not cite the applicable statute, but it is not disputed

N.J.S.A. 2A:62A-6 applies to this matter and defendants' conduct

is to be evaluated under the standard of gross negligence, not

negligence.1

                                II

     On appeal, plaintiff's principal contention is the trial

court erred when it determined there was no question plaintiff

had been informed she must wear full protective gear when

warming up a pitcher off the field.   Plaintiff argues the court

improperly engaged in a credibility determination when it

rejected those portions of her deposition testimony in which she

unequivocally stated the coach had never instructed the players

to wear the safety equipment when warming up a pitcher off the

field.   Plaintiff claims it was inappropriate for the court to

1
   This statute provides immunity from tort liability to
volunteer athletic coaches who provide their services to
nonprofit sports organizations, subject to the conditions and
exceptions in such statute. See N.J.S.A. 2A:62A-6(c). The
trial court did not make a finding any of the conditions or
exceptions in the statute applied to the coach.

                                6
                                                         A-4578-15T2
rely upon her response to a question that mischaracterized her

previous testimony even though, when read literally, it

indicated she had testified she had been advised to wear such

gear under these circumstances.

       When considering a challenge to the grant of a summary

judgment motion, like the trial court, we "consider whether the

competent evidential materials presented, when viewed in the

light most favorable to the non-moving party, are sufficient to

permit a rational fact finder to resolve the alleged disputed

issue in favor of the non-moving party."    Brill v. Guardian Life

Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also R. 4:46-

2(c).    The trial court may not resolve contested factual issues;

it may only determine whether there are any genuine factual

disputes.     See Agurto v. Guhr, 381 N.J. Super. 519, 525 (App.

Div. 2005).

       If there are materially disputed facts, a motion for

summary judgment may not be granted.    Brill, supra, 142 N.J. at

540.    A court may grant such motion only if the evidence in the

record "'is so one-sided that one party must prevail as a matter

of law.'"     Id. at 540 (quoting Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214

(1986)).    Similarly, a party may defeat a motion for summary

judgment by demonstrating the evidential materials relied upon
                                7
                                                           A-4578-15T2
by the moving party, considered in light of the applicable

burden of proof, raise sufficient credibility issues "to permit

a rational factfinder to resolve the alleged disputed issue in

favor of the non-moving party."   Id. at 523.

    Here, viewing the facts in the light most favorable to

plaintiff, we conclude the evidential materials defendants

relied upon to secure summary judgment raise credibility issues

that should have resulted in the denial of their motion.     There

is no question the coach testified she informed the players they

were to wear full protective equipment when serving as the

catcher for a pitcher warming up before a game, but there is a

question about the content of plaintiff's deposition testimony

and whether she disputed the coach's factual claim.

    More than once during her deposition, plaintiff testified

the coach had not instructed the players to wear the safety

equipment when off the field.   Then, later in her deposition, in

response to a question that mischaracterized her testimony,

plaintiff testified the coach did tell her to wear such gear

when warming up a pitcher off the field.   In our view, the

circumstances under which the latter testimony – which was

diametrically opposed to her previous testimony – was given

raises the issue whether she misheard or misunderstood the

subject question.   After all, plaintiff's response to the
                                 8
                                                           A-4578-15T2
subject question indicates she had previously testified to and

affirmed the assumed fact included in the question when, in

fact, she had not done so at all.     The assumed fact was that she

did not recall the coach telling her to wear the equipment while

warming up a pitcher off the field.    However, her previous

testimony had been the coach had not instructed the players they

were required to wear protective gear when warming up a pitcher

off-field.

     The trial court not only failed to appreciate plaintiff

may well have misheard the question, but also went a step

further and decided this testimony was more credible than her

testimony to the contrary.   It was not the court's function on

summary judgment to weigh the evidence and determine the truth

of conflicting evidence; the court's obligation was only to

identify the existence of such genuine disputes.     Id. at 540.

The discrepancy in plaintiff's testimony warrants resolution by

the fact finder and not the court on a summary judgment motion.

Accordingly, we reverse the grant of summary judgment dismissal.

    In addition, even if plaintiff testified she was changing

her testimony and intended to say the coach had advised the

players to wear the safety equipment even when warming up a

pitcher off the field, there remains the issue of the coach's

supervision, one of the allegations in the complaint.    If
                                9
                                                           A-4578-15T2
plaintiff knew she was required to but failed to wear the

equipment when warming up the pitcher off-field, the question

remains whether the coach was grossly negligent for failing to

properly supervise her.

    The coach claims plaintiff had not been chosen to be the

catcher for the upcoming game that day and the player she warmed

up had not been designated the pitcher, but this factual claim

is also disputed.   Moreover, the coach's responsibility for the

players, whether they are on or off the field during a practice

and a game, remains a factual question to be resolved. Of

course, plaintiff's comparative negligence is a factor, but only

the fact finder can determine if plaintiff's comparative

negligence so far exceeded the coach's alleged gross negligence

so as to absolve the coach of all liability.

    The trial court also found that, as a matter of law, none

of "the proofs adduced . . . remotely established that any

reasonable fact finder could . . . find [the coach was grossly

negligent]."

    In Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344

(2016), our Supreme Court explicitly adopted the definition of

"gross negligence" contained in the New Jersey Civil Model Jury

Charge: "Gross negligence . . . is more than ordinary

negligence, but less than willful or intentional misconduct,"
                               10
                                                           A-4578-15T2
Model Jury Charge (Civil) 5.12.       Id. at 364.       The difference

between negligence and gross negligence "is a matter of degree."

Id. at 366.    "[G]ross negligence is an indifference to another

by failing to exercise even scant care or by thoughtless

disregard of the consequences that may follow from an act or

omission."    Id. at 364-365.

    Here, according to the coach, the players were required to

wear the subject safety equipment when they served as a catcher.

Viewing the evidence in the light most favorable to plaintiff, a

rational     fact   finder   could    conclude    the     coach's    conduct

constituted    gross   negligence    if   the    coach,    as   plaintiff's

supervisor, failed to ensure plaintiff was wearing a safety mask

at the time she was warming up the pitcher.                 Therefore, the

trial court erred when it determined that, as a matter of law,

the coach was not grossly negligent.

    Reversed.




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