On appeal from the Superior Court of New Jersey, Law Division, Sussex County.
Matthews, Kole and Milmed.
Plaintiffs appeal from a summary judgment entered against them dismissing their complaint in this personal injury action.
The essential facts are not in dispute. On March 4, 1975 the infant plaintiff, Thomas Sutphen, then a tenth grade student at the Loundsberry Hollow Middle School in the Vernon Township school system, was struck in the right eye
by a flying hockey puck causing a retinal detachment and eventual removal of the eye. At the time, he was engaged in a game of floor hockey in the school gym, an activity in which he was required to participate as a member of a physical education class. He sued defendants Robert Benthian, the physical education instructor at the time, and the township board of education, seeking damages for the injuries which he sustained. The thrust of his claim is that his injuries resulted from defendants' negligence in requiring him to participate in the hockey game, with an excess number of players on each team, in a playing area that was too small for the purpose and without providing him with, and requiring him to use, proper protective equipment during the contest. Plaintiff William Sutphen, the infant's father, sued per quod.
It is undisputed that the school authorities were aware from the time the infant plaintiff was registered for kindergarten that he had a sight deficiency in his right eye. His mother had supplied the information that when he was about two years old he was "injured by * * * a stick." It is also undisputed that at the time of the accident the school gym "was split in half by a wooden partition," and the "playing area" for the hockey game "was thirty yards long and maybe fifteen yards wide"; that the school did not provide the players with protective equipment "for the facial areas and the eyes," and that while safety glasses were available if requested by a student, the infant plaintiff made no such request.
Defendants moved for summary judgment, contending that (1) they are immune from liability under the applicable provisions of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. , and (2) in the circumstances, neither defendant owed any legal duty to the infant plaintiff. After hearing argument on the motion the trial judge commented:
After reviewing all of the authorities cited by counsel, hearing arguments on the matter, it appears to me that the present suit falls squarely within the immunity of a public entity for the exercise of discretion as set forth in N.J.S.A. 59:2-3. Accordingly,
I feel obliged to grant the motion for summary judgment, both as to the defendant, Board of Education, and the individual defendant, Benthian.
The judgment under review was thereupon entered and this appeal followed.
We reverse. The trial judge erred in holding defendants immune from suit by reason of "the exercise of discretion as set forth in N.J.S.A. 59:2-3." The conduct complained of by plaintiffs is clearly not the type of high-level policy decision contemplated by that section of the Tort Claims Act. See Costa v. Josey , 160 N.J. Super. 1, 10-11 (App. Div. 1978), certif. granted 78 N.J. 335 (1978). Similarly, N.J.S.A. 59:3-2, the ...