MARTIN POWELL, JR. v. LANCE COOK

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NOT FOR PUBLICATION WITHOUT THE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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