TYLER BENNETT, DONNA et al. v. BOARD OF EDUCATION, FREEHOLD REGIONAL HIGH SCHOOL DISTRICT, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3240-04T23240-04T2

TYLER BENNETT, DONNA and

BRUCE BENNETT, individually,

Plaintiffs-Appellants,

v.

BOARD OF EDUCATION, FREEHOLD REGIONAL

HIGH SCHOOL DISTRICT; JAMES WASSER,

as Superintendent of Schools and

individually; COLTS NECK HIGH SCHOOL,

R. WAYNE MCCHESNEY as Principal

and individually; PATRICIA HORVATH,

President of the Board of Education,

Manalapan and individually; MARLENE

CARUSO as Vice President, Board of

Education, Freehold Township and

individually; DIANE CAPIELLO as

Englishtown Representative and

individually; BUNNY HAMMER as

Freehold Borough Representative and

individually; TERRY KRAFT as Howell

Representative and individually;

RON LAWSON as Howell Representative

and individually; COLIN MILLER as

Farmingdale Representative and

individually; DR. STEVE MISHKIN

as Marlboro Representative and

individually; ARLENE RADMAN as

Colts Neck representative and

individually; DR. DAWN FERGUSON

as Vice Principal and individually;

RICHARD KANE as Director of Extra-

Curricular Activities and

individually; MRS. DEENA CLARK

as a teacher and individually;

MR. AL SINCLAIR, as Yearbook Advisor

and individually; ALL BOARD OF

EDUCATION MEMBERS as Board Members

and individually; JOSTENS

PUBLISHING COMPANY; BARBARA

MILLER; ADAM RYBARCZYK; DOUG

HANEL; CHRIS QUON; KEVIN PRICHARD;

JOSH YEH; MARISSA HASSEN;

JACK WITKOWSKI and NICOLE DEMMERT,

Defendants-Respondents.

_____________________________________

 

Argued May 23, 2006 - Decided June 23, 2006

Before Judges Coburn, Collester and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County,

L-4700-03.

Steven L. Kessel argued the cause for appellants (Drazin & Warshaw, attorneys; Mr. Kessel, on the brief).

George P. Helfrich, Jr., argued the cause for respondents Board of Education, Freehold Regional High School District, James Wasser, R. Wayne McChesney, Patricia Horvath, Marlene Caruso, Diane Capiello, Bunny Hammer, Terry Kraft, Ron Lawson, Colin Miller, Steven Mishkin, Arlene Radman, Dawn Forgerson, Richard Kane, Deena Clark, and Al Sinclair (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Mr. Helfrich, Jr., of counsel and on the brief).

Frank Cofone, Jr., argued the cause for respondent Adam Rybarczyk (D'Amico & Cofone, attorneys; Mr. Cofone, Jr., and Marc P. Caswell, on the brief).

James J. Long (Briggs & Morgan) of the Minnesota Bar, admitted pro hac vice, argued the cause for respondents Jostens, Inc., and Barbara Miller (Budd Larner and Mr. Long attorneys; Peter John Frazza and Mr. Long, on the brief).

Michael Della Rovere argued the cause for respondent Marissa Hassen (O'Toole & Couch, attorneys; Mr. Della Rovere, of counsel and on the brief).

Kenneth A. Seltzer argued the cause for respondent Jack Witkowski (Stephen E. Gertler, attorney; Stephen G. Purcell, on the brief).

Gregory T. Foote argued the cause for respondent Nicole Demmert (Britt, Riehl & Spudic, attorneys; Mr. Foote, on the brief).

Judith A. Heim attorney for respondent Kevin Prichard (Miriam R. Acosta, on the brief).

Schwartz Simon Edelstein Celso & Kessler, general counsel for respondent Freehold Regional High School, join in the brief submitted by Marshall, Dennehey, Warner, Coleman & Goggin.

PER CURIAM

Plaintiff, formerly a high school basketball player, filed this lawsuit because his high school's year book published an embarrassing picture of him playing basketball. Apparently as a result of his decision not to wear an athletic supporter under his basketball shorts, his genitals were partially visible in one of the pictures taken at a basketball game. That picture, along with several unobjectionable photos of plaintiff taken at the game, was included in the high school yearbook. He sued the Board of Education, several teachers and administrators, fellow students who had worked on the yearbook, and the company that printed the yearbook. In oral opinions issued on November 12, 2004 and January 21, 2005, Judge Gilroy granted summary judgment in favor of the defendants.

On this appeal, plaintiff raises the following issues:

POINT I: A FACT QUESTION EXISTS AS TO WHETHER THE EDUCATION DEFENDANTS SO ABDICATED ON THEIR RESPONSIBILITIES THAT THEY ACTED WITH ACTUAL MALICE OR ENGAGED IN WILLFUL MISCONDUCT THAT IS OUTSIDE OF THE IMMUNITY AFFORDED BY THE TORT CLAIMS ACT.

POINT II: JOSTENS AND THE STUDENTS BREACHED THEIR DUTY TO USE DUE CARE THAT THEY OWED TO THE PLAINTIFF.

POINT III: INFLICTION OF EMOTIONAL DISTRESS USES AN OBJECTIVE STANDARD TO DETERMINE WHETHER THE SEVERITY OF THE DISTRESS IS ACTIONABLE AND THE COURT BELOW ERRED IN FINDING AS A MATTER OF LAW THAT THE PLAINTIFF HAD NOT SUFFERED SEVERE DISTRESS.

POINT IV: JOSTENS AND THE STUDENT DEFENDANTS CAN BE HELD LIABLE FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS BECAUSE THEY NEGLIGENTLY BREACHED THEIR DUTY TOWARDS THE PLAINTIFF AND THE RESULTING EMOTIONAL DISTRESS WAS FORESEEABLE.

POINT V: THE PUBLICATION OF A PHOTOGRAPH OF THE GENITALIA OF SOMEONE WHO DID NOT CONSENT TO THAT PUBLICATION IS AN INVASION OF THAT PERSON'S PRIVACY, EVEN IF THAT PERSON WAS IN A PUBLIC AREA WHEN THE PHOTOGRAPH WAS TAKEN, IF THE PUBLICATION WAS INTENTIONAL AND THE INVASION OF PRIVACY UNREASONABLE.

POINT VI: THE DEFENDANTS' ACTION OF PUBLISHING THE PHOTOGRAPH WAS "KNOWING" WITHIN THE MEANING OF N.J.S.A. 2A:30B-1 ET. SEQ.

Having reviewed the record, we conclude that these arguments are all without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons stated in Judge Gilroy's cogent opinions. We add the following comments.

With respect to the teachers and other Board of Education defendants, plaintiff concedes he cannot meet the Tort Claims Act threshold for medical bills and objective evidence of permanent injury. N.J.S.A. 59:9-2(d). He contends that he can avoid the threshold because those defendants committed willful misconduct or acted with actual malice. N.J.S.A. 59:2-10. We reject this contention. Even viewed in the light most favorable to plaintiff, at most some of the Education defendants may have been negligent in failing to act more quickly to impound published copies of the yearbook once they discovered that it contained an objectionable photograph. There is no evidence whatever of willful misconduct or actual malice.

We likewise reject plaintiff's contention that he suffered sufficient injury to support a claim for negligent or intentional infliction of emotional distress. Plaintiff admits he received no psychological counseling and suffered only embarrassment and annoyance. See Buckley v. Trenton Sav. Fund Soc'y, 111 N.J. 355, 366-69 (l988); Decker v. Princeton Packet, Inc. 116 N.J. 418, 431 (1989). While he skipped the last few days of school after the yearbook was distributed, he returned to school the next year and continued playing basketball. There is no evidence that the publisher, Jostens, had a duty to edit the yearbook for content. And there is no evidence that any of the individual defendants were involved in the decision to include the objectionable photograph in the yearbook.

Affirmed.

 

The correct spelling of Dr. Ferguson's name is unclear from the record.

(continued)

(continued)

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A-3240-04T2

June 23, 2006