On appeal from Superior Court of New Jersey, Law Division, Hudson County.
Fritz, Polow and Joelson.
[179 NJSuper Page 461] Plaintiffs' proofs support the charge that the infant plaintiff was injured while "shooting baskets" with others on a public school basketball floor after school hours when this gym was made available to youth who wanted to enter into this activity. It is also clear that the only person present connected with either of defendants was one Mr. Frager (or Fraiser) who, the infant plaintiff tells us, was "[l]ike a recreation man [who] watches over us, make sure nothing happens in the gym." He
was one of two such men who were never there together. The testimony reveals he was there to keep out "[o]lder boys. So they won't mess with us," and to make certain "like at a certain time period so no other kids that supposed to not, not supposed to come in come in." He positioned himself at a desk "[a]t the door," where he remained sitting and where in fact he was at the time of the incident when he was reading a newspaper. He did not give out basketballs -- "You have to bring your own" --; he did not referee; he did not play; he did not even carry a whistle.
It was stipulated that this "was a Jersey City Recreation Department activity,"*fn1 and that the presence of the board of education resulted only from the fact that they agreed to "lease, rent or [permit the] use [of] the facility."
At the conclusion of plaintiff's case respecting liability, the trial judge granted defendants' motions for dismissal. He held the city was "immunized" by N.J.S.A. 59:2-7.*fn2 With respect to the Board of Education, he held they also came under the statutory umbrella. He also said that there was "no evidence of any duty on the part of the owner of the property to supervise, and the only reason that the Board of Education appears is because they own the building." Plaintiffs appeal from those determinations and from the denial of their subsequent motion for new trial directed only to the claim against the City of Jersey City.*fn3 We agree with the trial judge and affirm.
First as to the board of education: As the trial judge recognized, clearly there was simply no causative nexus between the board and this accident. The board's only connection in any respect was that it owned the building. No defect in the premises was suggested and no facts at all appear which might impose on the board any duty to supervise. Jackson v. Hankinson , 51 N.J. 230 (1968); Titus v. Lindberg , 49 N.J. 66 (1967), and Caltavuturo v. Passaic , 124 N.J. Super. 361 (App.Div.1973), certif. den. 63 N.J. 583 (1973), are all distinguishable in that each involved a student within the environment of the school day. Beyond that, the elements of control or supervision there apparent are absent here. Finally, in Caltavuturo the board was implicated on a derivative basis. We observe that Mr. Frager (or Fraiser) was not here joined as a defendant.
We are equally satisfied that the city was free from liability. Clearly, the city was immune from tort liability for the alleged failure to provide supervision. N.J.S.A. 59:2-7, 59:3-11; see Fahey v. Jersey City , 52 N.J. 103 (1968). While a potential for liability might have resulted had it undertaken supervision despite this immunity, see Costa v. Josey , 83 N.J. 49 (1980), the proofs do not support any inference of assumed supervision. As said by the trial judge, and clear from the testimony:
There is the evidence, I will agree that the infant used the word supervisor. But, his characterization isn't what makes the person whatever the person is. The only facts he gave were that the guy opened the door, closed the door. He never saw him do anything. He never saw him play basketball. He never saw him referee a game. They didn't furnish the basketball. They were furnished by the children themselves. . . . So, if the children came during certain hours the door was locked this man would not let -- they were supposed to be little children -- hours when the bigger kids were there when the little kids were
supposed to be there and the bigger kids were there he was supposed to keep the bigger kids out. There is no evidence which the jury could find supervision was undertaken.
The mere presence of an employee at the scene does not imply supervision without something more. In the presence of statutory immunity or the absence of a duty otherwise imposed, there must be some conduct, no matter how minute, evidencing an intention to supervise by way of monitoring, entering into or becoming a part of the activity itself from which the injury sprang. Liability for negligent supervision will not be imposed simply because there was an incidental undertaking at the same place only tangentially related to the recreational activity. The proofs here cannot reasonably be said to demonstrate that the employee was anything more than someone in the nature of a ticket taker. The element or elements in addition to his presence necessary to support liability simply do not appear. As the trial judge succinctly and correctly said, "All that happened here is that the City of Jersey City had made a space available for use." Law v. Newark Bd. of Ed. , 175 N.J. Super. 26 (App.Div.1980), which is similar in many respects to the matter before us, involved a situation in which the board of education not only supplied the facilities, but ...