Opinion
DOCKET NO. A-5108-13T1
06-29-2016
TAMELA MCKINNEY, individually and as Guardian ad litem of DEMETRIUS MCKINNEY, an incompetent, Plaintiff-Appellant, v. JOOLY MATHEW, KOSHY PHILIP, and CITY OF NEWARK, Defendants, and NEWARK PUBLIC SCHOOLS, Defendant-Respondent.
Kozyra & Hartz, LLC, attorneys for appellant (Raj Gadhok, of counsel; Jason S. Haller, on the briefs). Purcell, Mulcahy, Hawkins, Flanagan & Lawless, LLC, attorneys for respondent (Michael J. McCaffrey, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Espinosa and Rothstadt. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-467-12. Kozyra & Hartz, LLC, attorneys for appellant (Raj Gadhok, of counsel; Jason S. Haller, on the briefs). Purcell, Mulcahy, Hawkins, Flanagan & Lawless, LLC, attorneys for respondent (Michael J. McCaffrey, on the brief). PER CURIAM
Plaintiff Tamela McKinney brought this lawsuit as guardian ad litem of her son, Demetrius McKinney, a seventeen-year-old high school senior who was seriously injured when he attempted to run across South Orange Avenue in front of West Side High School (West Side) in Newark before school and was struck by a car. Because plaintiff alleged claims of negligence and strict liability against defendant Newark Public Schools, his claims were subject to the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to -12-3. The trial judge granted a motion for a directed verdict, R. 4:40-1, and dismissed plaintiff's complaint with prejudice, finding plaintiff's proofs failed to: (1) establish that defendant owed a duty of care to him, and (2) satisfy the TCA's statutory threshold for recovery. Plaintiff appeals from orders that granted the directed verdict and denied his motion for a new trial. For the reasons that follow, we affirm.
The claims against Jooly Mathew, the driver, and Koshy Philip, the owner of the vehicle, were settled. Summary judgment was granted to the City of Newark. Those defendants are not parties to this appeal.
Demetrius will be referred to as plaintiff and Tamela will be referred to as plaintiff's mother.
I.
In his complaint, plaintiff alleged defendant was "aware or should have been aware that an "unreasonably dangerous condition [existed] at the intersection [of] South Orange Avenue and South 14th Street." He further alleged that:
Despite the fact that there were hundreds of minor students walking to school and crossing the intersection of South Orange Avenue and South 14th Street to the front entrance of the school, there were no crossing guards, law enforcement officers, or other forms of assistance available to assist students [or] direct traffic at the time Plaintiff Demetrius McKinney was struck as a pedestrian.Plaintiff asserted that, as a result of defendant's tortious conduct, he suffered permanent physical disabilities, pain and suffering.
Plaintiff was adjudged legally incapacitated and did not testify at trial. He presented the testimony of: Derrick Davis, West Side's interim principal at the time of the accident; Anthony Baskerville, the acting senior guard at the school; Abdul Muhammad, a special police officer (or school resource officer) at West Side on the day of the accident; his mother; and Dr. Ross Zbar, a plastic surgeon.
The evidence relevant to our analysis can be summarized as follows:
There is a traffic light and crosswalk at the corner of South Orange Avenue and 14th Street. Surveillance video footage from the day of the accident showed that, at approximately 7:50 a.m., plaintiff ran across South Orange Avenue in the middle of the block, approximately fifty feet from the crosswalk.
The school maintains surveillance cameras trained on the school and the property in front of it for security purposes, such as to identify anyone who breaks into the building.
There are no crossing guards employed by the Newark public schools. All crossing guards are employed and assigned by the Newark Police Department. Although the school may request a crossing guard, the placement of a crossing guard is entirely within the discretion of the Newark Police Department.
First period at West Side begins at 8:20 a.m., but some students arrive earlier to attend "zero period" or to eat breakfast between 7:15 a.m. and 7:30 a.m. Once inside the building, students pass through metal detectors while supervised by administrators, security guards and sometimes on-duty teachers.
In 2010, there were fourteen security officers working at West Side. Baskerville testified his "job responsibilities were to make sure the guards under [him] arrived on time and [were] properly dressed and at their assigned posts." School personnel are not stationed outside of the school in the mornings. It was the job of the security officers to check the kids in at the entrance; they "don't do the outside."
Davis testified that no employees are responsible for supervising students outside the school during their arrival. The special officer outside is there to make sure there are no altercations. He does not direct traffic in front of the school unless there are emergency vehicles or gunshots in the area. Because the special officer is employed by the Newark Police Department, he can be called away at any time.
Davis testified that there are crossing guards at K-8 schools but no crossing guards at any of the thirteen high schools in Newark. Davis, who had extensive experience in K-8 schools, stated that crossing guards are always positioned at a crosswalk and not in the middle of the block by any school. By the time they reach high school, students have been repeatedly instructed about crossing the street at crosswalks and are resistant to further efforts to control their behavior regarding this safety issue. Davis never instructed an employee to ensure students used the crosswalks or observed a school employee assist children across the road. He never saw a crossing guard in front of West Side and never requested one.
Muhammad was not present at the time of the accident but testified regarding his responsibilities and experience as a special resource officer at West Side. His responsibility was to patrol the school grounds when the students were coming and leaving, but it was not his responsibility to "control" the students. He was not assigned to any particular post on a day-to-day basis; he was "free to roam the school as [he] please[d]" to make sure there were no guns, drugs or domestic violence in the school. He drove a marked patrol car to school and parked by the intersection of South Orange Avenue and 14th Street but never turned the flashing lights on while students were crossing the street. He only directed traffic on South Orange Avenue when there were fire drills and the faculty and students left the school building en masse.
Muhammad corroborated Davis's testimony regarding the resistance of high school students to admonitions about safety. He observed students crossing outside the crosswalk "[e]very day," and told the students not to do it but they would just "look at [him] and laugh and keep moving."
In granting the motion for a directed verdict, the trial judge found that defendant enjoyed immunity, and found specific deficiencies in the proofs presented by plaintiff, stating, plaintiff "failed to produce expert testimony to prove - prove a duty was owed to the plaintiff under these circumstances" and "failed to prove that the defendant failed to meet the requirements of any ministerial act or that the Newark Public Schools negligently performed a ministerial duty and that negligence was the proximate cause of plaintiff's injury." As to the TCA's statutory threshold for pain and suffering damages, the judge held plaintiff failed to proffer: evidence that his medical expenses satisfied the statutory threshold; evidence of his pain and suffering; or evidence of permanent injury, permanent loss of a body function, permanent disfigurement, or dismemberment.
Plaintiff subsequently filed a motion for reconsideration and for a new trial, which was denied by the trial court.
II.
On appeal, plaintiff challenges the trial court's failure to grant reconsideration of its directed verdict and its denial of his motion for new trial on a number of grounds. Plaintiff argues the directed verdict was premature because he had not yet submitted his medical records into evidence. Plaintiff also contends the trial court erred in granting defendant's motion for directed verdict because the court erroneously found: there was no evidence that plaintiff's past or future medical expenses exceeded $3600; plaintiff had no permanent disfigurement; no evidence of pain and suffering; expert testimony was necessary to establish the standard of care; defendant did not owe plaintiff a duty of supervision as a matter of law; defendant was immune from liability under the TCA; and plaintiff failed to proffer evidence that defendant's failure to supervise proximately caused plaintiff's injuries.
He also challenges evidentiary rulings that barred: plaintiff's mother from testifying as to his pain and suffering, history of being bullied on buses, fear of children his own age and the effect of his injuries on his social life; plaintiff from presenting his medical history to the jury, including his seizure disorder and list of medications; admission of the personal injury protection (PIP) ledger as evidence of plaintiff's medical expenses and deeming plaintiff's mother incompetent to testify to said expenses; and submission of the incident report written following plaintiff's accident. Plaintiff further argues the court erred in denying his motion in limine to instruct the jury as to plaintiff's reason for not testifying, and granting defendant's motion to bar any testimony as to plaintiff's special needs status, including references to his age, experience, judgment, intelligence, cognitive impairment, or the presence of other special needs students at West Side.
The trial judge granted defendant's motion in limine to bar all testimony regarding plaintiff's "cognitive disabilities or diminished mental state or special education classification" because plaintiff did not intend to present expert testimony regarding his special needs status. --------
Because we conclude plaintiff's complaint was properly dismissed on other grounds, we need not address the arguments that the directed verdict was premature and that the motion for reconsideration was wrongfully denied. We also need not consider plaintiff's challenges to the trial judge's evidentiary rulings except to observe that none of these rulings restricted plaintiff's ability to present evidence that would have supported the contention that defendant had a duty of care to plaintiff that was breached under the circumstances here.
III.
The standard for deciding a motion for involuntary dismissal under Rule 4:37-2(b) applies to a motion for judgment at trial. R. 4:40-1. We apply the same standard of review as the trial court in considering a motion for judgment pursuant to Rule 4:40-1. Frugis v. Bracigliano, 177 N.J. 250, 269 (2003). A motion for judgment shall be granted if, after presenting its proofs, plaintiff "has shown no right to relief," R. 4:37-2(b); see R. 4:40-1, and "no rational jury could conclude from the evidence that an essential element of the plaintiff's case is present." Perez v. Professionally Green, LLC, 215 N.J. 388, 404 (2013) (quoting Pron v. Carlton Pools, Inc., 373 N.J. Super. 103, 111 (App. Div. 2004)). The motion must be denied "if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor." R. 4:37-2(b); see R. 4:40-1.
In this case, the correctness of the order granting a directed judgment turns on whether there was sufficient proof to impose liability on defendant under the TCA.
The TCA provides general immunity for all governmental bodies except in circumstances where the Legislature has specifically provided for liability. See N.J.S.A. 59:1-2 and 59:2-1; see also Polzo v. Cnty. of Essex, 209 N.J. 51, 65 (2012) ("[A] public entity is 'immune from tort liability unless there is a specific statutory provision' that makes it answerable for a negligent act or omission.'" (quoting Kahrar v. Borough of Wallington, 171 N.J. 3, 10 (2002))); Parsons v. Mullica Twp. Bd. of Educ, 440 N.J. Super. 79, 85 (App. Div. 2015).
Plaintiff's allegations require a legal determination that defendant should be held liable under N.J.S.A. 59:2-2, which "imposes vicarious liability on a public entity for the acts or omissions of a public employee acting within the scope of his authority." Robinson v. Vivirito, 217 N.J. 199, 207 (2014). However, "[a] public entity is not liable for an injury resulting from an act or omission of a public employee where the public employee is not liable." N.J.S.A. 59:2-2(b) (emphasis added).
On appeal, plaintiff asserts defendant owed plaintiff a duty of supervision and breached that duty by failing to supervise plaintiff while he was crossing the street before he entered school property. The questions of whether such a duty existed here and "the scope of that duty are generally questions of law for the court to decide," Robinson, supra, 217 N.J. at 208, and are reviewed de novo. Kaye v. Rosefielde, 223 N.J. 218, 229 (2015).
"School officials have a general duty 'to exercise reasonable supervisory care for the safety of students entrusted to them, and [are accountable] for injuries resulting from failure to discharge that duty.'" Jerkins v. Anderson, 191 N.J. 285, 296 (2007) (alteration in original) (emphasis added) (quoting Caltavuturo v. Passaic, 124 N.J. Super. 361, 366 (App. Div.), certif. denied, 63 N.J. 583 (1973)).
In Jerkins, the Court considered whether school officials had a duty to provide such supervision to a third-grade student who left school grounds without an adult after an early dismissal and was seriously injured when struck by a car several hours later. Id. at 289-90. The Court concluded that school officials' general duty to exercise reasonable care for the children entrusted to them extended up to and through the dismissal process. Id. at 298-99. The scope of the duty was "defined by a standard of reasonableness." Id. at 301. However, the Court cautioned that the duty of care had practical limits:
Our holding should not be interpreted to suggest that schools are guarantors of students' safety with respect to all activities during or after dismissal. A school district's responsibility has temporal and physical limits, and its obligation to act reasonably does not diminish the responsibilities [of others].
[Id. at 306 (emphasis added).]
In this case, plaintiff seeks to expand both the "temporal and physical limits" of the school officials' responsibility by imposing a duty to supervise the conduct of a high school student before he arrives on school property and before he is entrusted to the care of the school. Under the circumstances of this case, we determine that the school officials owed no duty to supervise a student who crossed the street a significant distance from a crosswalk and traffic light before the start of the school day.
To determine whether a duty of care exists, "the court must first consider the foreseeability of harm to a potential plaintiff, and then analyze whether accepted fairness and policy considerations support the imposition of a duty." Id. at 294 (citations omitted).
The danger attendant to crossing the street outside the crosswalk was readily acknowledged here. Students were instructed on that danger from an early age. It was also undisputed that, despite that training, high school students regularly exposed themselves to such danger. Therefore, although there was no history of prior incidents in which students were struck by cars while crossing the street, the risk of injury suffered here was foreseeable.
We then turn to the four factors that must be identified, weighed and balanced in determining whether a duty exists: "the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution." Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572 (1996) (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993)). We "must examine all of the attendant circumstances in light of those and other relevant considerations and . . . engage in a fact-based and principled analysis." Jerkins, supra, 191 N.J. at 296; see Hopkins, supra, 132 N.J. at 439.
It is instructive to review some of the Court's observations regarding these factors in Jerkins:
First, with respect to the relationship of the parties, parents entrust their children to the care of schools . . . .
The relationship between the school, children, and parents encompasses the school's responsibility to ensure the safety of the children in its charge. It logically flows from that relationship . . . that school officials must reasonably supervise children
throughout the school day . . . . through dismissal.
[Jerkins, supra, 191 N.J. at 296 (emphasis added).]
In addressing the nature of the attendant risk, the Court took particular note of the potential dangers posed to younger children at dismissal by virtue of their impulsivity and inability "to understand and appreciate the perils that may threaten [their] safe being," characteristics that make "supervision so vital." Id. at 296-97 (citations omitted).
As for the third factor, "the defendant's opportunity and ability to exercise care," the Court observed,
[S]chool officials are already required to exercise reasonable care in supervising students during the school day. Consistent with that school-day duty of care, educators generally have both the opportunity and the ability to supervise the actual process of dismissal. Schools are thus well-suited, and well-equipped, to fulfill that oversight responsibility during dismissal.
[Id. at 297 (emphasis added) (citations omitted).]
Addressing the fourth factor, the Court noted the strong public interest in ensuring "the safety and welfare of the public school students . . . while attending sessions of the public schools." Ibid. (emphasis added) (quoting N.J.S.A. 18A:17-42). Although the "concern for the protection of children is not limited to those hours that school is in session," there are "reasonable limits" to the public interest. Id. at 297-98 (citation omitted); see also Ross v. Moore, 221 N.J. Super. 1, 4-6 (App. Div. 1987) (concluding a school district was not liable for injuries sustained by an adult night student, who was struck by a car as she crossed a road from a shopping center parking lot to reach the school in which she was enrolled because the school district had no duty to provide students safe passage from a lot it did not control).
Mindful that the ultimate question is whether the imposition of a duty comports with accepted fairness and policy considerations, the Court observed, "[w]hen the defendant's actions are relatively easily corrected and the harm sought to be prevented is serious, it is fair to impose a duty." Jerkins, supra, 191 N.J. at 298 (alteration in original) (citation omitted); see also Hopkins, supra, 132 N.J. at 447 (stating that "[n]egligence has often been defined as the failure to take precautions that cost less than the damage wrought"). The Court concluded that "because the risk to children is significant, and because the additional burden on the school to supervise dismissal is minimal, the weighing of those considerations favors a duty of care for educators to reasonably supervise children during the dismissal process." Jerkins, supra, 191 N.J. at 298; see also Titus v. Lindberg, 49 N.J. 66, 71, 74-75 (1967) (holding a school principal, who failed to supervise children from several local schools who congregated on school property prior to the commencement of the school day, had breached his duty of supervision); Caltavuturo, supra, 124 N.J. Super. at 363, 366-67 (holding the duty to supervise extended to a twelve-year old student who injured himself on a jagged edge of a hole cut in a chain-link fence on public property adjacent to the school property during a lunchtime dismissal).
Despite plaintiff's urging, we do not find the Court's analysis in Jerkins to require a similar conclusion here. Our review is informed in large part by the differences in significant facts. First, the child in Jerkins, supra, 191 N.J. at 289, was nine-years-old as opposed to the high school student injured here. Second, in Jerkins, the child had been safely entrusted to the school's care and was injured after the school dismissed him without taking appropriate precautions for his safe return to his parents' care. Id. at 289-90. Here, plaintiff was one of hundreds of students who converge upon the school by foot, bus and other means from various routes over an extended period of time, all before the students are entrusted to the school's care.
Turning to the first of the "fairness and policy considerations," the relationship of the parties encompasses a transfer of care for children from their parents to the school. The core responsibility to supervise students flows from the school's stewardship for students' safety "throughout the school day." The rationale for finding that responsibility does not end with the dismissal of students does not apply with equal force to the imposition of that responsibility before they arrive at school.
The nature of the attendant risk here is that a student who fails to conform to accepted safety measures by using a crosswalk at an intersection where traffic is controlled by a traffic signal will be injured. Although plaintiff attempted to present reasons why he would disregard these safety measures, he was clearly of an age when he had been informed of the risk associated with disregarding them.
In our view, the factor that weighs most heavily against the imposition of a duty here is the third factor, "the defendant's opportunity and ability to exercise care." Plaintiff crossed the street in the middle of the block. Therefore, even if a crossing guard had been posted at the crosswalk, he would not have fallen within the crossing guard's supervision. It follows that the duty plaintiff would have defendant assume is to provide crossing guards, not just at the crosswalk, but posted at other places along the street. As Davis testified, the crossing guards in K-8 schools are posted at the crosswalk and never in such locations. In addition, as Davis testified, crossing guards are employed by the Newark Police Department and it is that department that makes decisions regarding the staffing and posting of crossing guards. The fact that defendant exercises no control over the posting of crossing guards militates against the imposition of a duty here. Even if defendant had the wherewithal and authority to provide a crossing guard at the location where plaintiff crossed the street, such a practice would not afford greater protection for students as it would encourage them to cross the street away from the crosswalk. Finally, both Davis and Muhammad testified regarding the futility of attempting to direct resistant teenagers to use the crosswalk.
While there is, of course, a strong public interest in protecting children, the duty sought to be imposed here exceeds the reasonable limits for such a duty. This is not a scenario in which the defendant can eliminate the harm "relatively easily." The burden that would be imposed on the school to provide a crossing guard at a location that arguably could have protected plaintiff would be very substantial, if attainable, far beyond the scope of "reasonable supervision." And, it must be said, it is unlikely such a measure would actually result in greater safety for the students.
After considering all the relevant factors, we conclude that these considerations support the conclusion that defendant did not have a duty to supervise plaintiff as he crossed the street in the middle of the block on his way to school.
Plaintiff also argues that, even in the absence of a duty of supervision, defendant's employees, namely Davis and Muhammed, assumed a duty to supervise students crossing South Orange Avenue because: (1) "a Special Police Officer hired by the school, parked his car on the very road where [plaintiff] was hit by a car," (emphasis in original); (2) Davis testified he had the "authority to supervise all security personnel"; and (3) Davis also testified he had the authority to "discipline students for walking outside the crosswalk who were on school property or 'leaving' school property." "In the absence of a preexisting legal duty, if a party undertakes to act and does so in an unreasonable manner, that conduct will be actionable." Velazquez v. Jiminez, 172 N.J. 240, 262-63 (2002); see also Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 327 (App. Div.), certif. denied, 146 N.J. 569 (1996). The facts relied upon by plaintiff, cherry-picked from the testimony, fail to support plaintiff's premise that any school official or employee assumed the duty to ensure the safe passage of students mid-block before they arrived at school.
In sum, we conclude that defendant neither had nor assumed a duty of supervision under the circumstances here and that defendant is immune from liability under the TCA. See N.J.S.A. 59:2-2(b).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION