On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-171-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 16, 2009
Before Judges Payne and Waugh.
Plaintiff Tatiana Saracino appeals the dismissal on summary judgment of her personal injury action arising out of an injury sustained during a physical education class at Toms River Regional High School East (Toms River East). We affirm.
We glean the following facts and procedural history from the documents and deposition transcripts contained in the record.
On April 11, 2005, Saracino was a student at Toms River East. During a physical education class, the students were directed by defendant Ron DeVito, an employee of defendant Toms River Regional Schools Board of Education (Board), to participate in a game of "floor hockey." Although the students were given hockey sticks and a ball,*fn1 they were not given any safety equipment, such as face masks, helmets or padding. The parties agree, however, that the students understood that hockey sticks were not supposed to be swung above the player's waist in "floor hockey."
According to Saracino, defendant Michael Arabitg, a fellow student at Toms River East, struck her in the nose with his hockey stick during a "face-off." She described how she and Arabitg "tapped" their blades together three times "as is customary" with face-offs, after which Arabitg "violently swung his hockey stick, missed the [ball] and struck [her] nose, face and mouth" with the blade of his hockey stick. According to Saracino, Arabitg's hockey stick was "well above his waist and close to the height of his shoulder as the blade came forward and struck [her] in the face." Saracino, who is approximately four feet and eleven inches tall, was "bent over enough" that her stick could touch the floor, but she testified at her deposition that she was not "hunched over."
Arabitg's description of the incident was quite different. He related that at some point after play began, he was in possession of the ball and had the blade of his stick near the floor.
Q: At any time did you -- when the accident happened, the blade was on the ground?
Q: And when the accident happened did you swing the stick at all or anything?
A: No, sir. I had no clear shot at the goal. So I was looking to pass it. And as I went to go pass it to one of the teammates, that's when the incident occurred. I looked back. I didn't know what happened. And I was -- when I turned around, all I saw was, like, her holding her nose.
Q: Was Tatiana in back of you or in front of you?
Arabitg did not see what part of his hockey stick struck Saracino.
Another Toms River East student, Angela Lepore, described the event as follows:
Well, the boys were getting really into the game. And [Arabitg] had swung back, like, hard and fast, but, to hit the ball. And when he did it, [Saracino] was behind him. And he accidentally hit her in the face when he swung back.
Lapore also said that Saracino was "just walking around with her stick" and responded "[n]ot really" when asked whether Saracino was "paying attention."
Jaime LaTorre, another student, witnessed the incident while sitting on the bleachers. According to LaTorre, Arabitg did not face off with Saracino. After he faced off with another student, Arabitg had the ball and was heading toward the goal.
Saracino was in front of him and to the side, but not playing aggressively or going after the ball. LaTorre described Arabitg as swinging to hit the ball, but missing it and hitting Saracino on the upswing. She said that Arabitg swung his stick up "past his head," apparently at the end of the swing. She later stated that the stick was "shoulder" high. She believed that Arabitg was attempting to hit the ball into the goal.
According to Saracino, DeVito left the area before the game began. Both Arabitg and LaTorre testified at their depositions that he was present when the game was taking place, although LaTorre asserted that he was not watching the play when the incident actually took place. DeVito described the event as follows:
I remember vividly being in the middle of the floor with my whistle and I remember this young man, Michael Arabitg, taking that ball and dribbling it and keeping the blade on top of that ball, as vividly as I saw it then, I see it now as I did then. He had that bottom, he had that blade on that ball. No time did that stick leave the floor. And as he's dribbling the ball and making crossover moves, you know, he's moving the ball around pretty good, Ms. Saracino, who I was encouraging to play a little bit more, put a little bit more effort in, was just kind of standing like this with the stick in front of her like this (indicating). And I remember, you know, with all the kids, not just her, if they weren't, if they weren't moving as much, c'mon, you know, c'mon, get into it. C'mon, you know, move around a little bit, don't just stand there. And I'm doing it in a positive way.
And I remember a few minutes later, she saw this young man, Michael, making a move, Michael put on a little juke move going left and right, and what I remember seeing was as it happened was she went with him moving left and she moved over and then he came back because he saw that there was an opening going that way, so he pushed the ball, again with the stick on the ball. And as he came back to the right, she actually walked right into the end of the stick. I don't know how else to say it. She basically just moved over thinking he was going to go here, just moved over like this (indicating), again not being really focused on what she was doing, and the head of the stick, here's the stick, he's got the blade on the ground, the stick is, you know, about five feet high, a little bit higher, she walks, she moves over and as he's going like this to swing the ball over, her nose goes right into the end of the stick (indicating).
And, you know, she's grabbing her nose, there was no have violent swing, there was no elbowing, it was just swinging it over. . . .
Q: The handle of the stick?
A: The handle itself. So the blade never came off the ground. It wasn't even a question of a high stick. The blade was on the ground the whole time as he's pushing his ball and she sees him moving left and again she's not paying attention, and that happens in class, I mean, you know, they're kids. But she moves over and I'm making a move over towards her, she moves over, you know, over there and he's moving over now crossing the thing over and she basically kind of stepped right into the stick with her nose.
Saracino was taken to the school nurse and then to Community Medical Center in Toms River, where she was treated and released. On April 15, 2005, she was seen by Dr. Frank J. Scaccia, who is board certified in otolaryngology as well as facial plastic and reconstructive surgery. In his October 2007 report, Scaccia related the following initial findings:
Tatianna Saracino [was] first presented to me on [April 15, 2005] with complaints of a possible nasal fracture that occurred as a result of being struck in the face with a hockey stick four days earlier. She was seen in the emergency room at Community Hospital at the time of the injury and underwent x-rays of her nose which reportedly demonstrated no evidence of fracture. When she eventually presented to my office, she did complain that her nose was sore and swollen and she was having increased problems with breathing and nasal congestion on the left side. She does relate a prior history of nasal obstruction and sinusitis, however, she feels that her nasal congestion had been ...