On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-0067-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 19, 2011 - Decided Before Judges Carchman and Messano.
Plaintiff Elissa Rose Maybloom appeals from the grant of summary judgment to defendants Jackson Township Board of Education and Jackson Township Memorial High School (collectively, defendants). Plaintiff raises the following points on appeal:
POINT I: PRINCIPLES OF ORDINARY NEGLIGENCE SHOULD APPLY WHEN A SCHOOL'S NEGLIGENT SUPERVISION OF A CHILD IS A CAUSE OF THAT CHILD BECOMING INJURED FROM A DANGEROUS CONDITION OF SCHOOL PROPERTY POINT II: THE MOTION JUDGE ERRONEOUSLY DETERMINED AS A MATTER OF LAW THAT RESPONDENTS DID NOT MAINTAIN A DANGEROUS CONDITION OF PROPERTY AND DID NOT ACT IN A PALPABLY UNREASONABLE MANNER PURSUANT TO N.J.S.A. 59:4-2 We have considered these arguments in light of the motion record and applicable legal standards. We affirm.
When reviewing a grant of summary judgment, we employ the same standards used by the motion judge. Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). We first determine whether the moving party has demonstrated there were no genuine disputes as to material facts. Ibid.
[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to 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 factfinder 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).]
We then decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co., supra, 387 N.J. Super. at 231. We owe no deference to the motion judge's conclusions on issues of law. Ibid. (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
I.We glean the following facts from the motion record.
On September 27, 2004, plaintiff, a sophomore at Jackson Memorial High School, was in gym class. She was playing co-ed flag football on an outdoor grass field known as field #4, normally used by the girls' field hockey team. Plaintiff had never played football before that day and had never been on field #4. Prior to the game, plaintiff's teacher, Scott Goodale, had the class participate in drills, which plaintiff described in her deposition as demonstrating "how to catch a football, like a way not to hurt yourself, things like that." Plaintiff further testified that no one in the class complained to Goodale about the condition of the field.
Although the field hockey team had conducted practice on field #4, plaintiff testified that no games had yet been played on the field in the new school year. On the first play of the game, plaintiff ran to catch a pass when "[her] foot got caught in one of the divots, and [her] knee twisted and [she] fell."
Plaintiff limped back to the locker room and went to the nurses' station where her knee was treated with ice. Later that day, plaintiff saw "Dr. Grossman," was diagnosed with tears of her meniscus and underwent multiple surgeries as a result.
Plaintiff accompanied her stepfather to field #4 a few days later to take photographs. She identified them at her deposition and some are part of the appellate record. Plaintiff identified a photo of the particular divot that caused her injury revealing it was approximately two inches deep. Other photos of the field, it is alleged, demonstrate that it was "riddled" with divots, though we cannot independently reach that conclusion.*fn1
Nine athletic fields were adjacent to the high school and gym classes utilized five of these fields for their activities. Jessie M. Hart, who was defendants' "lead groundsman" since 2001, testified at deposition that field #4 was used for the field hockey team, which had practiced on the field four or five times since August. Hart testified that field #4 was "the most level field that we have," and specifically used by the field hockey team for safety reasons because "you don't want the ball to bounce." Field #4 was redone between 2001 and 2003 by an outside contractor who "turned [the field] in, leveled and reseeded" it. Field #4 was "off limits" for a year thereafter to permit "the root system to develop." All the sport fields were cut by Hart on a weekly basis.
Hart acknowledged that field hockey play resulted in worn areas around the "goal mouth," and "ruts" or "divots" caused by the players' sticks. Hart also testified that the fields "were checked daily" and that he would conduct inspections at each location. Hart explained that if he saw a divot, and "the grass was still in place[,] . . . [he] would fold the grass back and a mix of dirt and grass seed would be added, and if the grass was gone, it would just be the mix of dirt and grass seed."
Goodale testified in deposition that in preparation for gym classes, he and other members of the physical education staff "would set the field up every morning . . . [and] check the field." They would "make sure there was no objects on it that would affect play" such as "broken bottles[,]" "chairs[,]" or "bleachers in line of play . . . ." Goodale acknowledged, however, that he did not specifically check the field for divots. But, Goodale also testified that field #4 "was the nicest field we'[d] ever seen by far," and that he never noticed any divots on it prior to plaintiff's accident.
Plaintiff retained an expert, Leonard Lucenko, Ph.D., a "[p]hysical [e]ducation [s]afety [c]onsultant," board certified by the American College of Forensic Examiners and a member of the American Society of Safety Engineers. Lucenko opined that defendants deviated "from reasonable and prudent standards of care and practice . . . in the conduct of [plaintiff's class]." He identified eight specific failures, which we quote in their entirety:
1. Failed to adequately monitor the safety of the environment for the conduct of the physical education class.
2. Failed to follow the published standard curriculum and teaching flag football skills using the progression from the fundamental, to the game related, to the game ...