MARTIN POWELL, JR. v. LANCE COOK
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4555-08T1 MARTIN POWELL, JR. AND KECIA NELSON, Plaintiffs-Appellants, v. LANCE COOK, SHANNON CARR, Defendants, and GLASSBORO BOARD OF EDUCATION, GLASSBORO HIGH SCHOOL, GLASSBORO PUBLIC SCHOOL DISTRICT, Defendants-Respondents. ________________________________________________________________ March 25, 2010 Argued March 1, 2010 - Decided Before Judges Lisa and R. B. Coleman. On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1472-06. Keith J. Gentes argued the cause for appellants (Garber Law, attorneys; Joel Wayne Garber, on the brief). James R. Birchmeier argued the cause for respondents (Powell, Birchmeier & Powell, attorneys; Mr. Birchmeier, on the brief). PER CURIAM Plaintiff, Martin Powell, appeals1 from a summary judgment dismissing his personal injury complaint against the Glassboro Board of Education, Glassboro High School, and Glassboro Public School District (collectively referred to as the "B.O.E."). Plaintiff, a student at Glassboro High School, argues that the motion record contained sufficient evidence that the B.O.E. was on notice of a threat to harm plaintiff upon his dismissal from school to withstand summary judgment. We agree with plaintiff and reverse. Plaintiff was a seventeen-year-old student at Glassboro High School night school. This program is for students who had deficiencies, such as disciplinary problems or excessive tardiness, in regular day school. Plaintiff was in the night school program because of his tardiness. There were fifteen students in the program. The night school session ran from 3:30 to 7:00 p.m. On September 16, 2004, plaintiff was attending the night school program. About one-and-one-half hours before dismissal time, plaintiff was in math class. The teacher, Dan Beaver, was sitting at a desk in the back of the room, apparently grading 1 Although we will refer throughout this opinion to Martin Powell as "plaintiff," his mother, Kecia Nelson, is also a plaintiff, seeking recovery for her son's medical and other associated expenses, and she is also an appellant. A-4555-08T1 2 papers. This was a "non-teaching" portion of the class. Plaintiff and other students were engaged in conversation. Plaintiff and another student, Amber Cook, got into a heated argument. On two occasions during the course of the argument, Amber Cook made threats against plaintiff, to the following effect: "Shut the fuck up, Martin, before I get my cousin to beat you the fuck up." According to plaintiff's deposition testimony, which is unrefuted in this respect, Amber Cook was in the night school program due to disciplinary and behavioral problems, and she had a reputation for fighting. After making the threats, Amber Cook stormed out of the classroom and never returned to school that evening. Students were not permitted to leave without authorization before dismissal time. During all of this time, Mr. Beaver did not say or do anything. Plaintiff did not report the threats to Mr. Beaver or anyone else that evening. Beatrice Simmons, the school security guard, was present that evening. No one reported the threats to her. At dismissal time, as plaintiff walked out of the school building, he was greeted by Amber Cook and her cousin, Shannon Carr. Also present was Amber Cook's brother, Lance Cook. Amber made good on her threats to plaintiff. She had gone to get her cousin. They came back to the school and waited for plaintiff, A-4555-08T1 3 so they could assault him. Amber and Shannon tackled plaintiff. Lance joined in the fray. Plaintiff was injured as a result of the assault. Lance Cook and Shannon Carr, who were not students at Glassboro High School, were charged respectively with assault and a disorderly persons municipal ordinance violation for assaulting plaintiff. They pled guilty to the charges. Plaintiff sued Lance Cook, Shannon Carr and the B.O.E. for his injuries. The two individual defendants defaulted, and defaults were entered against them. The B.O.E. then moved for summary judgment. It acknowledged a duty to exercise reasonable supervisory care for the safety of its students at dismissal time. See Jerkins v. Anderson, 191 N.J. 285, 298-99 (2007). However, it contended that because plaintiff admittedly did not notify Mr. Beaver, Beatrice Simmons, or any other school personnel of the threats made against him, the B.O.E. was not on notice of the threats. Therefore, the B.O.E. argued that it did not breach its duty of care by not taking particular measures to fulfill its duty of care to plaintiff at the time of dismissal. The limited issue before the court on the summary judgment motion, as framed by both parties, was whether any school official was on notice that plaintiff had been threatened. A-4555-08T1 4 The judge agreed with the B.O.E. that the there was no notice and the B.O.E. was entitled to summary judgment. The judge summed it up this way: In this case, I am satisfied that the school did not have notice; that the plaintiff, a 17 year old, should have told the teachers about the threats if he felt they were serious threats. The fact that a teacher was in the classroom during a time when the students are telling stories to each other and engaging in communication does not mean that the teacher is on notice that there is assaultive or threatening behavior going on, so that I would find under the circumstances presented that the school did meet its duty, and that there is no issue of material fact sufficient to warrant a trial. I would enter summary judgment in favor of the -- in favor of the moving defendants. One of the attorneys then noted that "the case is still alive" because final judgments had not been entered against the defaulting defendants. The judge acknowledged that a proof hearing was necessary in order to bring the case to a final conclusion in the trial court. Before addressing the summary judgment issue, we address Appeals as of right may be the finality of the order before us. taken only from final orders, which requires that all issues as to all parties have been resolved at the trial level. See R. 2:2-3(a). As far as we can tell from the record, no proof hearing was ever held and no final judgment was ever entered A-4555-08T1 5 against the defaulting individual defendants. At oral argument, counsel were not able to say otherwise. On that basis, we could See, e.g., Janicky v. dismiss the appeal as interlocutory. Point Bay Fuel, Inc., 396 N.J. Super. 545, 551-52 (App. Div. 2007). However, in the interest of preventing further delay in the processing of this case, and in light of our conclusion that the summary judgment in favor of the B.O.E. should be reversed, we grant leave to appeal as within time. Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of R. 4:46-2(c). In determining whether a genuine issue of law." material fact exists, a judge must determine 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. . . . If there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact for purposes of Rule 4:46-2." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 A-4555-08T1 6 (1995). Thus, "when the evidence 'is so one-sided that one party must prevail as a matter of law,' . . . the trial court Ibid. (quoting should not hesitate to grant summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)). On appellate review, we apply the same standard and determine de novo whether, applying the Brill standard, summary judgment was properly granted. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). In his deposition testimony, plaintiff stated that the verbal altercation with Amber Cook lasted "[a] good five to seven minutes." He said she made the threats in a loud and angry voice before she stormed out of the classroom. When asked whether he knew if the teacher was in a position to overhear the argument and threats, plaintiff answered affirmatively. This unrefuted testimony supports a reasonable inference that Mr. Beaver heard the threats. He was certainly in a position to see one of his students storm out of the classroom after a lengthy heated argument with another student. It is reasonable to infer that he saw her leave. It is also reasonable to infer that a teacher, who is required to be in control of his or her classroom, should be aware when a student A-4555-08T1 7 has left without authorization and not returned. According to the school handbook, teachers who hear threats by one student against another are required to inform the resident administrator. Apparently Mr. Beaver did not inform anyone. Discovery has not been completed and the record has not been fully developed. However, based upon the motion record at standard, this stage of the proceedings, applying the Brill there was sufficient evidence to allow the notice issue to be presented to a jury. Accordingly, summary judgment was improperly granted to the B.O.E. Reversed and remanded for further proceedings. A-4555-08T1 8
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