CORA KERTON, v. HUDSON COUNTY,
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2753-18T1
CORA KERTON, on behalf of
J.R., a minor,
Plaintiff-Appellant,
v.
HUDSON COUNTY, HUDSON
COUNTY BOARD OF EDUCATION
FOR SCHOOLS OF TECHNOLOGY,
SUPERINTENDENT FRANK
GARGIULO, and PRINCIPAL
BARBARA MENDOLLA,
Defendants-Respondents.
_________________________________
Argued telephonically April 21, 2020 –
Decided May 20, 2020
Before Judges Yannotti, Currier and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-3406-17.
Luretha M. Stribling argued the cause for appellant.
John R. Dineen argued the cause for respondent Hudson
County (Netchert, Dineen & Hillmann, attorneys;
Esther Bodek, of counsel and on the brief).
Roshan D. Shah argued the cause for respondents
Hudson County Schools of Technology, Frank
Gargiulo and Barbara Mendolla (Scarinci &
Hollenbeck, LLC, attorneys; Roshan D. Shah, of
counsel and on the brief; Kevin M. Foltmer and Brent
M. Davis, on the brief).
PER CURIAM
Plaintiff appeals from orders entered by the trial court on February 15,
2019, which granted motions for summary judgment by defendants County of
Hudson (County), the Board of Education for the Hudson County Schools of
Technology (HCST), Frank Gargiulo, and Barbara Mendolla. We affirm.
I.
In August 2017, plaintiff filed a complaint on behalf of her daughter, J.R.,
who was a minor at the times relevant to the claims asserted.1 Plaintiff alleged
that on October 8, 2014, J.R. sustained an injury to her foot while participating
as a student in a gym class at County Prep, a high school in the HCST's district.
She claimed defendants were negligent in the management and scheduling of
1
We use initials to identify J.R. because the claims arose when she was a minor.
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gym classes at the school and that such negligence was a proximate cause of
J.R.'s injury.
The record shows that in the fall of 2014, J.R. was a sophomore at County
Prep. At that time, Gargiulo was Superintendent of the HCST and Mendolla
was Principal of County Prep. Hudson County provides funds for the HCST,
but it does not hire, fire, or supervise teachers in the HCST. Moreover, the
County does not own the HCST's school buildings.
Mendolla was responsible for creating the school's master calendar. At
County Prep, there are nine scheduled class periods during the school day, each
approximately forty minutes. The County Prep building has one gymnasium,
which is shaped like a rectangle. A fitness room is located at the rear of the
gymnasium, which includes treadmills and free weights. The gym teachers have
an office located on one side of the gymnasium.
In 2014, two gym classes and one fitness class typically used the
gymnasium during a single class period. Each class consisted of between twenty
to twenty-four students, and one teacher would be assigned to each class.
According to HCST, the gymnasium's maximum capacity is 135 students.
Each gym teacher ordinarily provided instruction to that teacher's class
for an assigned activity. However, at certain times in 2014, all three classes
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were brought together for joint instruction, which sometimes included running
exercises. Such joint instruction occurred at least once a week. In the fall of
2014, J.R.'s schedule at County Prep included a second-period physical
education class with teacher Doreen Bryant. A gym class, taught by a "Mr.
Downs," and a fitness class, taught by Peter Ohanyan, also were assigned to the
gymnasium for that period.
On October 8, 2014, students in all three classes performed certain
stretching exercises separately. The three classes then were brought together
for other exercises. A teacher instructed the students to begin interval running,
which required that they transition from walking to running and back to walking
at the sound of a whistle.
J.R. stated that she had transitioned from walking to running for about
thirty seconds when she approached students who were still walking. She
attempted to go around them when she fell. J.R. claimed certain students were
using cell phones at the time.
Ohanyan and Downs were present in the gym when J.R. fell. Ohanyan
testified that in 2014, students were permitted to use cell phones during running
exercises "to create a little bit more motivation." He stated, however, that at the
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time, the school did not have a policy prohibiting students from using
cellphones.
At her deposition, J.R. testified that when she fell, Bryant was either in
the gym teacher's office or seated outside of the office. J.R. said she did not see
Bryant enter the office after Bryant led the students in her class in the stretching
exercises. After J.R. fell, Ohanyan helped her into a chair. She was placed in a
wheelchair and taken to the nurse's office. Plaintiff came to the school and
transported J.R. to a hospital where x-rays were taken.
J.R. began treatment with Dr. Thomas J. Azzolini. He opined that when
J.R. fell, she suffered a "displaced fracture of the fifth metatarsal base" of her
right foot and an "avulsion fracture to the tip of the fibular malleolus" in her
right ankle. On October 21, 2014, J.R. had surgery to repair the fracture of her
foot and stabilize the ankle. Thereafter, J.R. received physical therapy and
periodically returned to Dr. Azzolini for checkups. In July 2016, J.R. underwent
another surgical procedure and a screw that had been used to repair the fracture
was removed.
In August 2018, when she was deposed, J.R. was a sophomore in college.
By that time, Dr. Azzolini had cleared her to return to any activity in which she
chose to participate. J.R. testified that the injuries did not cause her to miss
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work or prevent her from participating in any activities. She also testified that
she would occasionally work a five-hour shift, on her feet at a restaurant, without
taking a break.
J.R. was asked to identify the activities she has difficulty engaging in since
the accident. She stated that she has trouble wearing "three-inch-and-above"
high-heeled shoes for extended periods of time, which she used to do about six
times a year before the accident. J.R. also stated that she now walks with a limp,
which she described as a "waddle."
In December 2018, the HCST, Gargiulo, and Mendolla (the HCST
defendants) filed a motion for summary judgment. They argued that plaintiff
failed to establish that at the time J.R. fell, the County Prep gymnasium
constituted a dangerous condition of public property under the Tort Claims Act
(TCA), N.J.S.A. 59:1-1 to 12-3. They also argued that: J.R.'s injuries did not
meet the threshold for recovery under the TCA; plaintiff did not show that the
HCST defendants breached any duty of care; and plaintiff failed to establish any
basis for liability on the part of Gargiulo or Mendolla.
Thereafter, the County filed a cross-motion for summary judgment. The
County argued that it could not be liable for J.R.'s injuries because it merely
provides funding for the HCST and does not employ or supervise the HCST's
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teachers. The County further argued that plaintiff's negligence claim failed
because she could not establish a standard of care for the teachers at County
Prep without expert testimony. Plaintiff opposed the motions.
The judge heard oral argument and placed his decision on the record. The
judge noted that plaintiff was not asserting a claim that the County Prep
gymnasium constituted a dangerous condition of public property. Rather,
plaintiff was asserting claims based on the alleged negligence of defendants.
The judge determined that the negligence claims failed as a matter of law
because plaintiff did not establish the standard of care owed by a "teacher who
is supervising a large gym class in the middle of the day[.]"
The judge stated that proving such a standard would require the "expertise
of someone who has experience training in education . . . and [in] supervising
children in class." The judge also found that the common knowledge doctrine
did not relieve plaintiff of the obligation to present expert testimony. The judge
stated that the doctrine did not apply because determining the duty owed by a
person teaching a high school gym class is "beyond the ken of an ordinary jury."
The judge did not decide whether J.R.'s injuries met the threshold for
recovery under the TCA. The judge emphasized that plaintiff's failure to present
expert testimony on the standard of care applicable to her negligence claims was
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"the only reason why [he was] going to grant [summary judgment]."
Accordingly, the judge entered orders granting summary judgment in favor of
defendants. This appeal followed.
II.
On appeal, plaintiff argues that the motion judge erred by failing to apply
the correct standard for summary judgment motions. She contends the judge
erroneously weighed and evaluated the evidence, which is a task that should be
performed by the trier of fact. She also argues that the judge erred by finding
that she required expert testimony to establish the standard of care for her
negligence claims and by refusing to apply the common knowledge doctrine. In
addition, plaintiff argues the judge exhibited bias during the oral arguments on
the summary judgment motions.
When reviewing an order granting summary judgment, we apply the same
standard that the trial court applies when ruling on the motion. Globe Motor
Co. v. Igdalev, 225 N.J. 469, 479 (2016) (quoting Bhagat v. Bhagat, 217 N.J.
22, 38 (2014)). The court should grant summary judgment when the evidence
before the court on the motion "show[s] 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." R. 4:46-2(c).
A-2753-18T1
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"An issue of fact is genuine only if, considering the burden of persuasion
at trial, the evidence submitted by the parties on the motion, together with all
legitimate inferences therefrom favoring the non-moving party, would require
submission of the issue to the trier of fact." Ibid. The trial court should not
hesitate to grant summary judgment "when the evidence 'is so one-sided that one
party must prevail as a matter of law.'" Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 540 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).
To succeed in a negligence action, a plaintiff must prove that: (1) the
defendant owes the plaintiff a duty of care, (2) the defendant breached that duty,
(3) the breach was the proximate cause of the plaintiff's injury, and (4) the
plaintiff suffered actual damages. Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 400 (2009) (quoting Polzo v. Cty. of Essex, 196 N.J. 569, 584 (2008)).
If a plaintiff fails to establish any of the above elements, the defendant is entitled
to judgment as a matter of law. Davis v. Brickman Landscaping, LTD., 219 N.J.
395, 414 (2014).
Here, the material facts are not in dispute. As noted previously, in October
2014, J.R. was a student at County Prep and she was injured while participating
in certain exercises during gym class. She claims defendants were negligent
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because the school scheduled three classes for gym at the same time; failed to
ensure that all three teachers remained with their students during gym class; and
permitted students to listen to electronic devices while performing exercise s.
The motion judge determined that in order to prevail on these claims,
plaintiff was required to present expert testimony establishing the applicable
standard of care. Plaintiff argues, however, that expert testimony was not
required in this case. We disagree.
It is well established that teachers and school administrators in New Jersey
have a duty to supervise children in their facilities. Jerkins v. Anderson, 191 N.J. 285, 296 (2007); see also L.E. v. Plainfield Public School District, 456 N.J.
Super. 336, 346 (App. Div. 2018) (listing examples of cases imposing a duty of
supervisory care on school officials). Therefore, teachers and other school
officials have a general duty to exercise "that degree of care which a person of
ordinary prudence, charged with comparable duties, would exercise under the
same circumstances." Caltavuturo v. City of Passaic, 124 N.J. Super. 361, 366
(App. Div. 1973).
However, if "the jury is not competent to supply the standard by which to
measure the defendant's conduct, . . . the plaintiff must instead establish the
requisite standard of care and defendant's deviation from that standard by
A-2753-18T1
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presenting reliable expert testimony on the subject . . ." Davis, 219 N.J. at 407
(internal quotations omitted). Expert testimony is required when the matter to
be dealt with is "so esoteric that jurors of common judgment and experience
cannot form a valid judgment as to whether the conduct of the [defendant] was
reasonable." Ibid. (citing Butler v. Acme Mkts., Inc., 89 N.J. 270, 283 (1982)).
Without expert testimony, the jury would have to speculate as to the applicable
standard of care. Ibid. (citing Torres v. Schripps, Inc., 342 N.J. Super. 419, 430
(App. Div. 2001)).
Therefore, a plaintiff must present expert testimony to establish the
applicable standard of care where the subject matter to be addressed is beyond
the ken of the average juror. See Hopkins v. Fox & Lazo Realtors, 132 N.J. 426,
444 (1993) (functions and responsibilities of real-estate brokers); Giantonnio v.
Taccard, 291 N.J. Super. 31, 43 (App. Div. 1996) (precautions required for the
safe conduct of a funeral procession); Fantini v. Alexander, 172 N.J. Super. 105,
108-10 (App. Div. 1980) (standards of conduct for those teaching karate).
Here, the motion judge correctly decided that the average juror does not
have the required understanding of the manner in which school administrators
schedule classes, whether students in gym class should be permitted to use
electronic devices while exercising, and the level of teacher supervision required
A-2753-18T1
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when three gym classes have class in a gymnasium at the same time. The judge
correctly determined that these subject matters are "so esoteric that jurors of
common judgment and experience cannot form a valid judgment." Scully v.
Fitzgerald, 179 N.J. 114, 127 (2004) (quoting Butler, 89 N.J. at 283). As the
judge noted, expert testimony on these matters is required from a person who
has experience and training in education and the supervision of students.
Plaintiff argues, however, that the common knowledge standard relieves
her of any obligation to present expert testimony to establish the standard s of
care for her negligence claims. The doctrine applies in "exceptional
circumstances" when the common knowledge of jurors "is sufficient to enable
them, using ordinary understanding and experience, to determine a defendant's
negligence without the benefit of the specialized knowledge of experts."
Cowley v. Virtua Health Sys., N.J. , (2020) (slip op. at 16) (quoting
Hubbard v. Reed, 168 N.J. 387, 394 (2001)).
Here, the motion judge correctly determined that the scheduling of
classes, the use of electronic devices by students while exercising in gym class,
and the proper level of supervision by teachers are not matters in which jurors
of ordinary intelligence can resolve plaintiff's negligence claims. Although
teachers and school administrators have a general duty to exercise reasonable
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care for their students, an expert with experience and training in education and
the supervision of students is required to establish the standard of care for the
specific claims asserted in this case.
In support of her arguments on appeal, plaintiff cites Jerkins, 191 N.J. at
285. In that case, a school dismissed a nine-year-old student on an early-
dismissal day. Id. at 290. The student's family members claimed that they did
not know early dismissal was scheduled that day. Id. at 291. The student walked
off school grounds without an adult and he was stuck by a car a few blocks away.
Id. at 290.
The Court held that in New Jersey, the schools have a duty of reasonable
care for supervising the safety of students at dismissal. Ibid. The Court stated
that schools must exercise reasonable care in supervising students , commencing
when the students begin to arrive at the school and continuing from that point
on. Id. at 299 (quoting Titus v. Lindberg, 49 N.J. 66, 74-75 (1967)).
We are convinced plaintiff's reliance upon Jerkins is misplaced. Jerkins
addressed the standard of care that applies to the dismissal of students. In this
case, plaintiff has raised specific claims regarding the scheduling of classes, the
use of electronic devices by students, and the number of teachers required to
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supervise three classes in a gymnasium. The standards of care that apply to
these specific claims must be established by expert testimony.
Plaintiff also contends the judge exhibited bias during the arguments on
defendants' summary judgment motions. Plaintiff asserts that during the
proceedings, the judge repeatedly interrupted her attorney, thereby showing a
bias against plaintiff and favoritism towards defendants. The record does not,
however, support this contention.
The transcript of the argument indicates that at times, the judge interrupted
plaintiff's attorney during her argument, but the judge also interrupted the
arguments by defendants' attorneys. Indeed, at one point, the judge told counsel
for the HCST defendants that since he had cut off plaintiff's counsel during her
argument, he would "cut [him] off too." We therefore reject plaintiff's
contention that the judge exhibited bias during the proceedings.
Plaintiff further argues that: the judge failed to apply the correct summary
judgment standard, weighed and evaluated the evidence which is the role of the
trier of fact, failed to cite case law in support of his decision, and did not set
forth a legal basis for the grant of summary judgment. We have thoroughly
considered these arguments and conclude that they lack sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
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III.
Plaintiff also contends the motion judge erred by failing to consider the
serious nature of J.R.'s injuries. She maintains J.R.'s injuries meet the threshold
under the TCA for a permanent loss of bodily function in N.J.S.A. 59:9-2. The
judge did not, however, decide whether plaintiff's injuries met the statutory
threshold for recovery. The judge granted summary judgment to defendants
because plaintiff did not present expert testimony to establish the standard of
care for her negligence claims. Therefore, we need not address plaintiff's
contention that J.R.'s injuries meet the threshold for recovery under the TCA.
In addition, plaintiff contends the judge erred by finding the County had
no liability in this matter. Plaintiff argues that because the County provides
substantial funding to the HCST it is financially responsible for the alleged
negligence on the part of the HCST defendants.
We note that at oral argument, the judge agreed the County had no
potential liability in this case. The judge commented that the County "gets out
separately" but he would not "put that in the order" because it was "on the
record." The judge also stated that if plaintiff's claims were ever reinstated, the
HCST would be the only defendant.
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In any event, as we have explained, the judge granted summary judgment
to the County and the HCST defendants because plaintiff did not present expert
testimony to support her negligence claims. We affirm the orders granting
summary judgment on that basis and that basis alone. Therefore, we need not
address plaintiff's contention that the County is potentially liable for the alleged
negligence of the HCST defendants.
Furthermore, on appeal, the HCST defendants argue that plaintiff failed
to establish a basis for liability under N.J.S.A. 59:4-2, which applies to claims
based on the dangerous condition of public property. At oral argument, the
judge noted that plaintiff was not pursuing a claim based on an alleged
dangerous condition of public property. Because we have decided that the judge
correctly granted summary judgment in favor of defendants on other grounds,
we need not consider this argument.
Affirmed.
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