JAMEL HARRIS et al. v. RED BANK REGIONAL HIGH SCHOOL, et al.

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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0276-04T5

JAMEL HARRIS and DORIS HARRIS,

Plaintiffs-Appellants,

v.

RED BANK REGIONAL HIGH SCHOOL,
RED BANK BOARD OF EDUCATION,
HOLMDEL HIGH SCHOOL, SHORE CONFERENCE
OF HIGH SCHOOLS, JAY DEMAREST, and
MARY FERGUSON,

Defendants-Respondents,

and

BOROUGH OF RED BANK, STATE OF NEW JERSEY,
and NEW JERSEY STATE INTERSCHOLASTIC ATHLETIC
ASSOCIATION,

Defendants.
__________________________________________

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October 17, 2005

Argued September 21, 2005 - Decided

Before Judges Stern and Grall.

On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, L-1770-0l.

Philip G. Auerbach argued the cause for
appellants (Auerbach & Ryan, attorneys;
Mr. Auerbach, on the brief).

Paul A. Tripodo argued the cause for
respondents Red Bank Board of Education
and Red Bank Regional High School (Morgan,
Melhuish, Monaghan, Arvidson, Abrutyn &
Lisowski, attorneys; Mr. Tripodo,
of counsel and on the brief).

Walter F. Kawalec, III, argued the cause
for respondents Holmdel High School and
Jay Demarest (Marshall, Dennehey, Warner,
Coleman & Goggin, attorneys; Mr. Kawalec,
and George P. Helfrich, Jr., on the brief).

Granville M. Magee argued the cause for
respondent Shore Conference of High Schools
(Magee and Magee, attorneys; Mr. Magee and
Granville D. Magee, on the brief).

Alan S. Goldberger argued the cause for
respondent Mary Ferguson (Goldberger &
Goldberger, attorneys; Mr. Goldberger,
on the brief).
 
PER CURIAM

Plaintiffs, Jamel Harris and his mother Doris Harris, appeal from a grant of summary judgment in favor of all defendants in this personal injury action. In their complaint plaintiffs alleged that as a result of defendants' negligence Jamel sustained injuries when he slipped on a wet track while participating in a spring track meet as a member of the defendant Red Bank Regional High School's team. The meet was sponsored by the defendant Shore Conference of High Schools and held on defendant Holmdel High School's track. Defendant Mary Ferguson was retained by the Shore Conference to serve as referee for the meet, and defendant Jay Demarest, Holmdel's athletic director, was the director of the meet. Plaintiffs seek damages for Jamel's injuries and for the expenses that his mother has and will incur for his care and treatment. Because we conclude that plaintiffs failed to raise a factual dispute that would entitle them to judgment if resolved in their favor, we affirm.
The facts based on a consideration of the evidence and reasonable inferences in the light most favorable to plaintiff are as follows. See R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523-24 (1995). Harris met his coach on the morning of the meet, May 20, 2000. It was raining. He asked: "Was the meet still going to be on because it was raining so hard?" When they arrived at the Holmdel High School track, it was drizzling.
According to the rules and guidelines of the National Federation of State High School Associations, the meet director, in this case Demarest, organizes the meet, but the referee of the meet, in this case Ferguson, has primary responsibility for the event upon his or her arrival at the meet. Under those rules, the referee has the discretion to cancel or postpone the contests "due to an emergency, such as hazardous weather conditions or power failure." The rules provide no further guidance on the question of weather conditions that warrant suspension of an outdoor track meet, and the President of the Shore Conference, who is the athletic director for Red Bank Regional High School, said that track and field events are normally held in the rain. Although Harris said that in his experience meets were generally cancelled when it rained, he admitted that earlier in the season he had run on the Holmdel track when it was wet and covered in puddles following a rainstorm.
When Ferguson arrived at the track and field she inspected all of the sites for the various events and found them to be in acceptable condition. She told each official responsible for an individual event to suspend the activity and find either her or Demarest if there was "any question of" anything "dangerous or inappropriate." The track at Holmdel High School is an "all weather" track, which has a bumpy surface that is "designed to drain almost instantaneously." The competitors wear shoes with spikes on the track's artificial surface.
Although there is no evidence that any athlete other than Harris was injured, prior to his event some had slipped or fallen. During warm-ups, Harris and another athlete were talking and commented to one another that more people were falling than usual. Before Harris' event, which was the third heat of the 110-meter hurdles, a runner in the women's hurdles race fell and a pole vaulter slipped. None of the participants in the first or second heat of the men's hurdling event fell. The father of one of the athletes, Taylor, did not allow his daughter to participate in her race; she had seen athletes slip during warm-ups. The Taylors said it was raining hard at the time of the third heat of the men's race. No coach, official, parent or athlete suggested a suspension due to weather or conditions at any time during the meet.
Descriptions of the moisture on the track varied -- no noticeable puddles, noticeable puddles, water running off the track. Harris saw puddles in his lane.
Harris fell at the first hurdle. His left calf hit it as he jumped and his right leg slipped when he landed on the other side. He tried to get up but fell a second time. His injury required knee surgery.
There was no evidence about the relationship between water on the surface of an all-weather track and falls or injuries.
During oral argument before this court, plaintiffs' attorney narrowed the issues on appeal by conceding that the trial court properly granted summary judgment to the Conference, Holmdel Board of Education and Demarest. These concessions were proper. See footnote 1
Thus, plaintiffs appeal only from the dismissal of their claims against Ferguson and the Red Bank Board of Education. They claim that the evidence on the motion presented a genuine factual issue as to the Red Bank Board's liability based upon the negligence of Harris' track coach and Ferguson's liability for her own gross negligence. We disagree.
Without doubt the Board owed Harris a duty of reasonable care. "The duty of school personnel to exercise reasonable supervisory care for the safety of students entrusted to them, and their accountability for injuries resulting from failure to discharge that duty, are well-recognized . . . ." Titus v. Lindberg, 49 N.J. 66, 73 (1967). In this case, the duty is based on the Board's having assumed responsibility for fielding and supervising a track team. See id. at 74; S.P. v. Collier High School, 319 N.J. Super. 452, 468 (App. Div. 1999).
Plaintiffs' proofs, however, do not raise a genuine dispute about whether Red Bank's coach failed to exercise reasonable care under the circumstances. In the context of supervising student sports, the question is whether under the circumstances, the sporting event "was an activity having 'more than the basic elements of risk, due to the nature of the game'" or the conditions under which it was played. Sutphen v. Benthian, 165 N.J. Super. 79, 82 (App. Div. 1979); see Crawn v. Campo, 136 N.J. 494, 508 (1994) (defining standard of care owed by participants in an informal sporting event with reference to conduct and risks "inherent in sports and . . . assumed to be 'part of the game.'"). In Sutphen this court held that it was error to grant summary judgment where the evidence permitted a finding that the physical education instructor required a visually impaired student to play indoor hockey without adequate protective gear in an enclosed area too small for the number of participants. 165 N.J. Super. at 81.
The evidence presented in this case is not comparable to the evidence that precluded a grant of summary judgment in Sutphen. There is no basis for a reasonable inference that conducting an outdoor hurdle race in the rain on an all-weather track deviates from any accepted standards for the sport or exposes the athletes to risks greater than or of a sort not inherent in the sport. An admission that track is run on wet surfaces and that falls are an inherent risk of the sport is implicit in Harris' statements: he said that there had been water on the track at a prior meet, and he said that more athletes were falling than "usual." The President of the Conference said that meets are held when it rains, and the established guidelines for the sport do not call for cancellation due to rain. Neither Harris' observation that meets are cancelled when it rains, which he did not relate to safety concerns, nor one parent's personal decision to take his daughter out of her race is sufficient to establish a recognized standard of care.
We agree with Judge Reisner's conclusion that more was required to submit to a jury the question whether Red Bank's coach, or any other official, breached a duty of care to Harris by allowing the meet to continue. While it may be that a weather condition like lightning poses a prospect of serious injury from electrical current that is unrelated to playing the sport and sufficiently apparent to permit an inference of less than reasonable care, the dangers posed by moisture on an all-weather running track are not similarly apparent. Injury from a fall while running and jumping is inherent in the sport of hurdling and the extent to which that risk is enhanced by moisture on an all-weather track is not a matter of common understanding. See Crawn, supra, 136 N.J. at 508 (discussing the minimal need for and utility of expert testimony about rules of an informal game); Underwood, supra, 295 N.J. Super. at 339 (considering evidence of industry standards for lighting on a race track). See footnote 2
The trial judge's grant of summary judgment in favor of Ferguson was equally appropriate. Ferguson is an accredited sport's official and as such is entitled to invoke the limited immunity afforded by N.J.S.A. 2A:62A-6.1, absent a "willful, wanton, or grossly negligent act" on her part. Ibid. As discussed above, the evidence was insufficient to raise a jury question on negligence based upon failure to cancel the meet. For that reason, it is unnecessary to consider whether there is a sufficient basis for a finding of liability under the heightened standard required to establish "gross negligence" or "wanton or willful misconduct." See Crawn, 136 N.J. at 504 (establishing "recklessness" as the standard for actionable deviations from the standard of care owed by participants in sporting events, after considering the "willful, wanton, or grossly negligent act" standard codified in N.J.S.A. 2A:62A-.1); Fielder v. Stonack, 141 N.J. 101, 124-25 (1995) (recognizing that, in the context of immunities under the Tort Claims Act, N.J.S.A. 59:1-1 to 59:14-4, standards such as "willful misconduct [are] not immutably defined but take[] [their] meaning from the context and purpose"). We see no error here.

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Affirmed.
Footnote: 1 As a non-profit corporation organized "exclusively" for the "educational purposes" of promoting sportsmanship of young athletes the Conference was entitled to invoke charitable immunity in this action for damages filed by a student participant in the Conference's events. N.J.S.A. 2A:53A-7; see Ryan v. Holy Trinity Evangelical Lutheran Church, 175 N.J. 333, 347 (2003) (quoting Pomeroy v. Little League Baseball of Collingswood, 142 N.J. Super. 471, 474 (App. Div. 1976)); Bieker v. Cmty. House of Moorestown, 169 N.J. 167, 177 (2001) (discussing little league, parks and community center); Roberts v. Timber Birch-Broadmore Athletic Ass'n, 371 N.J. Super. 189 (App. Div. 2004) (discussing soccer tournament). Because there was no evidence that the Holmdel Board of Education or Demarest had any responsibility for the decision to continue or cancel the meet for weather and no evidence that any defect in the track contributed to the fall, a grant of summary judgment in favor of those defendants was proper. See N.J.S.A. 59:4-2 (liability based on a dangerous condition on property requires evidence of a palpably unreasonable failure to correct a dangerous condition); Muhammad v. N.J. Transit, 176 N.J. 185, 199-200 (2003); see also Underwood v. Atlantic City Racing Ass'n, 295 N.J. Super. 335, 343 (App. Div. 1996) (distinguishing a lighting system that did not meet industry standards from muddy conditions on a horse racing track), certif. denied, 149 N.J. 140 (1997); McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305-10 (1970) (construction of a diving platform in water too shallow to permit diving without serious injury raised a question of "reckless indifference" sufficient "to constitute willful and wanton misconduct").
Footnote: 2 Plaintiffs have not cited and our research has not disclosed any published decision in which a court has approved submission of a claim of negligence to the jury based solely on a failure to postpone or cancel an outdoor athletic event due to rain or moisture on the playing surface. See, e.g., Patton v. United States of America Rugby Football Union, 851 A.2d 566 (Md. 2003) (claim based on failure to cancel adult game due to lightning disallowed on the basis of assumption of the risk); Lesser v. Camp Wildwood, 282 F. Supp. 2d 139 (S.D.N.Y. 2003) (where tree fell on camper during storm, action could proceed on a theory of negligent inspection of the tree prior to storm); Schiffman v. Spring, 609 N.Y.S.2d 482 (App. Div. 1994) (no breach of duty where officials allowed college soccer game on wet, muddy and slippery field); Fintzi v. New Jersey YMHA-YWHA Camps, 765 N.E.2d 288 (N.Y. 2001) (summary judgment granted to defendants on claim of negligent supervision based on holding relay race for ten-year old campers on wet grass); Salles v. City of Bossier City, 680 So. 2d 1333 (La. App. 1996) (claim of liability allowed was based on hidden steel shaft on the field, not on the tournament director's failure to cancel event in inclement weather).

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