JAKE MESAR v. BOUND BROOK BOARD OF EDUCATION
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2953-16T2
JAKE MESAR,
Plaintiff-Appellant,
v.
BOUND BROOK BOARD OF EDUCATION,
a Public Entity of the State of
New Jersey, and JOHN SUK,
Defendants-Respondents,
and
BOUND BROOK SCHOOL DISTRICT,
Defendant.
___________________________________
Argued April 10, 2018 - Decided May 2, 2018
Before Judges Gilson and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Somerset County, Docket No.
L-0629-15.
Scott M. Sinins argued the cause for appellant
(Javerbaum Wurgaft Hicks Kahn Wikstrom &
Sinins, PC, attorneys; Eric G. Kahn, of
counsel; Annabelle M. Steinhacker, on the
briefs).
William S. Bloom argued the cause for
respondents (Methfessel & Werbel, attorneys;
Edward L. Thornton and Steven A. Unterburger,
on the brief).
PER CURIAM
Plaintiff Jake Mesar appeals from a February 17, 2017 order
granting summary judgment in favor of defendants Bound Brook Board
of Education and John Suk.1 We affirm in part and reverse in part.
Plaintiff injured his ankle sliding into third base during a
junior varsity (JV) baseball game. Suk was the JV baseball coach
for Bound Brook High School (Bound Brook) and was also acting as
the third base coach during the game in which plaintiff was
injured.
The slide causing plaintiff's injury occurred in the second
inning of the game. Plaintiff, a freshman at Bound Brook, took
his at bat with runners on second and third base. With Bound
Brook ahead by a score of six to zero, plaintiff hit a long drive
to left-centerfield. Plaintiff made it safely past first and
second base while the opposing team's outfielder retrieved the
ball. Plaintiff continued rounding toward third base. The
opposing team's outfielder sought to throw plaintiff out at third
1
Defendant Bound Brook School District is not a legal entity
subject to suit.
2 A-2953-16T2
base. Suk, believing there was going to be a "bang-bang"2 play at
third base, instructed plaintiff to slide. During the slide into
third base, plaintiff's cleat "dug into the dirt and the force of
the slide caused him to roll over his right ankle." Plaintiff's
ankle injury required surgery.
Plaintiff filed suit alleging defendants "negligently" and
"carelessly" supervised the JV baseball game. Following
discovery, defendants moved for summary judgment, arguing Suk did
not breach the heightened recklessness standard articulated in
Crawn v. Campo,
136 N.J. 494 (1994). Defendants contended there
were no genuine issues of material fact proffered by plaintiff
that could support a finding that Suk breached his duty of care
under the recklessness standard. Plaintiff opposed the motion,
arguing the applicable standard of care was negligence, not
recklessness. Plaintiff also argued that even if recklessness was
the proper standard of care, Suk's conduct was reckless.
The motion judge determined that recklessness was the
applicable standard under the factual circumstances, and plaintiff
failed to plead recklessness. Because plaintiff failed to plead
2
A "bang-bang" play is "an attempted tag or force play at a base
when the runner and the ball arrive simultaneously. The events
occur in quick succession, making it difficult for the umpire . . .
to determine whether the runner is safe or out." The Dickson
Baseball Dictionary 55 (3d ed. 2009).
3 A-2953-16T2
recklessness, the motion judge granted defendants' motion and
dismissed the complaint without analyzing whether defendants'
conduct met the recklessness standard.
On appeal, plaintiff argues the motion judge erred in
dismissing his complaint for failure to state a claim. Plaintiff
contends the applicable standard of care in this case is
negligence; however, even if recklessness is the proper standard
of care, plaintiff claims he satisfied New Jersey's liberal notice-
pleading requirements and his complaint asserted a claim against
defendants for recklessness. Plaintiff also argues that a jury
must resolve whether the standard of care in this matter is
negligence or recklessness.
We review a grant of summary judgment de novo, applying the
same standard as the trial court. Templo Fuente De Vida Corp. v.
Nat'l Union Fire Ins. Co. of Pittsburgh,
224 N.J. 189, 199 (2016).
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 law." Ibid. (quoting R.
4:46-2(c)). The court considers the evidence "in the light most
favorable to the non-moving party" and determines whether it would
be "sufficient to permit a rational factfinder to resolve the
4 A-2953-16T2
alleged disputed issue in favor of the non-moving party." Brill
v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 540 (1995). In
such reviews, the "trial court's interpretation of the law and the
legal consequences that flow from established facts are not
entitled to any special deference." Estate of Hanges v. Metro.
Prop. & Cas. Ins. Co.,
202 N.J. 369, 382 (2010) (quoting Manalapan
Realty, LP v. Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995)).
A request for dismissal based on failure to state a claim
"may be made in any pleading permitted or ordered, or by motion
for summary judgment or at the trial on the merits." R. 4:6-7.
When considering a Rule 4:6-2(e) motion to dismiss a complaint for
failure to state a claim upon which relief can be granted, a trial
court must determine "whether a cause of action is 'suggested' by
the facts." Printing Mart-Morristown v. Sharp Elec. Corp.,
116 N.J. 739, 746 (1989). The court must "search[] the complaint in
depth and with liberality to ascertain whether the fundament of a
cause of action may be gleaned even from an obscure statement of
claim, opportunity being given to amend if necessary." Ibid.
(quoting Di Cristofaro v. Laurel Grove Mem'l Park,
43 N.J. Super.
244, 252 (App. Div. 1957)). We apply a de novo standard when
reviewing an order dismissing a complaint for failure to state a
claim. State ex rel. Campagna v. Post Integrations, Inc.,
451 N.J. Super. 276, 279 (App. Div. 2017).
5 A-2953-16T2
Our Supreme Court has determined that "the duty of care
applicable to participants in informal recreational sports is to
avoid the infliction of injury caused by reckless or intentional
conduct." Crawn,
136 N.J. at 497. In Crawn, the plaintiff, a
catcher in a pickup softball game, was injured when the defendant
slid into him at home plate. The Court recognized the recklessness
standard "is driven by the perception that the risk of injury is
a common and inherent aspect of informal sports activity." Id.
at 500. The Court then analyzed the public policy favoring
adoption of the heightened standard of recklessness for
recreational sports, including, specifically, "the promotion of
vigorous participation in athletic activities," and the avoidance
of "a flood of litigation." Id. at 501. The Court also considered
that "[p]hysical contact is an inherent or integral part of the
game in many sports." Id. at 504.
After undertaking a comprehensive review of the public policy
considerations and applying notions of fairness, the Court adopted
the recklessness standard for participants in recreational sports
activities. Id. at 508. The Court concluded
[t]he heightened recklessness standard
recognizes a commonsense distinction between
excessively harmful conduct and the more
routine rough-and-tumble of sports that should
occur freely on the playing fields and should
not be second-guessed in the courtroom.
6 A-2953-16T2
[Ibid.]
Four years after Crawn, we analyzed the standard of care for
a sports instructor. In Rosania v. Carmona,
308 N.J. Super. 365
(App. Div. 1998), the plaintiff, an adult participant and invitee
at a commercial martial arts academy, was undergoing a proficiency
test against his instructor. The instructor, who owned the
academy, kicked the plaintiff in the face, causing the plaintiff's
retina to detach. Id. at 369. The academy had rules against
certain contact, specifically contact to the head area. We held
that "instructors and coaches owe a duty of care to persons in
their charge not to increase the risks over and above those
inherent in the sport." Id. at 373. We concluded
if the jury found the risks inherent in the
karate match between [plaintiff] and his
instructor were materially increased beyond
those reasonably anticipated based upon the
published dojo rules, it should not have been
charged to consider defendants' fault under
the heightened Crawn standards, but under the
ordinary duty owed to business invitees,
including exercise of care commensurate with
the nature of risk, foreseeability of injury,
and fairness in the circumstances.
[Id. at 374].
We expressly stated we did not intend to alter or modify the
recklessness standard applicable to participants in recreational
sports set forth in Crawn. Id. at 373. Since Rosania, New Jersey
courts have consistently applied the Crawn recklessness standard
7 A-2953-16T2
to participants in recreational sports and activities. See, e.g.,
Schick v. Ferolito,
167 N.J. 7, 18-19 (2001) (applying the
recklessness standard to a golf injury); Dare v. Freefall
Adventures,
349 N.J. Super. 205, 213 (App. Div. 2002) (applying
the recklessness standard to a skydiving injury); Obert v. Baratta,
321 N.J. Super. 356, 358-60 (App. Div. 1999) (applying the
recklessness standard to a softball injury).
Plaintiff contends that the applicable standard of care
should be decided by a jury in accordance with Rosania. We reject
plaintiff's argument. In Rosania, we did not conclude that a jury
must decide the applicable standard of care in every sports injury
case. The question was whether the instructor in Rosania increased
the risks above those inherent in karate. Unlike in Rosania, here
plaintiff produced no evidence that could warrant a departure from
the recklessness standard. Based on Crawn, we find recklessness
is the proper standard of care applicable in this case and that
the question of the standard of care need not be determined by a
jury.
Having found recklessness to be the proper standard in this
case, we consider plaintiff's argument that the judge mistakenly
dismissed his claims for failure to state a cause of action.
According to plaintiff, defendants never argued that he failed to
plead a claim for recklessness, and the judge's dismissal of his
8 A-2953-16T2
complaint on that basis "deprived [p]laintiff of an opportunity
to defend his pleadings."
Plaintiff claims a similar sua sponte dismissal for failure
to state a cause of action was rejected by this court in Klier v.
Sordoni Skanska Const. Co.,
337 N.J. Super. 76 (App. Div. 2001).
In Klier, immediately prior to trial, the judge sua sponte
dismissed the plaintiff's case for failure to state a cause of
action. Id. at 81-82. We reversed, finding the plaintiff in
Klier was not provided with due process of law because he did not
have notice or the opportunity to be heard. Id. at 84. We
expressly rejected "a procedure whereby a judge sua sponte, without
notice to a party, resorts to a 'shortcut' for the purposes of
'good administration' and circumvents the basic requirements of
notice and opportunity to be heard." Id. at 84-85.
Plaintiff cites allegations in the complaint to support his
argument that the complaint's "language [was] broad and flexible
enough to include a standard of recklessness." The complaint
specifically alleges
[a]t all times material to the within cause
of action, and while the aforesaid baseball
game was being conducted, [d]efendants . . .
had a duty to properly, reasonably, and
carefully supervis[e] all students involved in
the sports program or recreational program
operated, managed, supervised, controlled or
sponsored by said [d]efendants and to provide
such students, including [p]laintiff, with
9 A-2953-16T2
reasonable instruction, control and
supervision so that said students could
participate in the aforedescribed baseball
game safely and without sustaining serious and
permanent injury.
The complaint also alleges
[d]uring the course of the aforedescribed
baseball game, [d]efendants . . . negligently
and carelessly instructed, directed or
otherwise caused [p]laintiff to slide
resulting in the personal and permanent
injuries hereinafter described.
Based on the allegations in plaintiff's complaint, defendants
moved for summary judgment, contending their conduct was not
reckless. Thus, we find defendants were on notice and fairly
apprised of plaintiff's allegation that their conduct was
reckless, and dismissal of the complaint for failure to plead
recklessness was mistaken.
The judge never analyzed whether plaintiff presented facts
in support of his claim that defendants' conduct was reckless.
Thus, we remand this matter to the judge to make that analysis.
In remanding the issue of whether plaintiff proffered sufficient
evidence of defendants' recklessness, we do not suggest the outcome
of the summary judgement motion.
Affirmed in part and reversed in part. We do not retain
jurisdiction.
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