Opinion
DOCKET NO. A-1798-13T3
01-09-2015
SILVANA CORCORAN, as Parent and Natural Guardian of B.J. and SILVANA CORCORAN, Individually, Plaintiffs-Appellants, v. HIGH POINT REGIONAL SCHOOL DISTRICT, HIGH POINT REGIONAL HIGH SCHOOL, and H.U., Defendants-Respondents.
Jon C. Dupée, Jr., argued the cause for appellants (Dupée & Monroe, P.C., attorneys; Mr. Dupée, on the brief.) Cherylee O. Melcher argued the cause for respondents High Point Regional High School and School District (Hill Wallack L.L.P., attorneys; Ms. Melcher, of counsel and on the brief.) Murray A. Klayman argued the cause for respondent H.U.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Haas. On appeal from Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-789-11. Jon C. Dupée, Jr., argued the cause for appellants (Dupée & Monroe, P.C., attorneys; Mr. Dupée, on the brief.) Cherylee O. Melcher argued the cause for respondents High Point Regional High School and School District (Hill Wallack L.L.P., attorneys; Ms. Melcher, of counsel and on the brief.) Murray A. Klayman argued the cause for respondent H.U. PER CURIAM
Plaintiff Silvana Corcoran individually and on behalf of her daughter, B.J., appeals from the November 8, 2013 orders excluding plaintiffs' expert's opinion as a net opinion and granting summary judgment to defendants High Point Regional School District, High Point Regional High School (HPRHS), John Does #1 through #4 (together the School defendants) and H.U. After reviewing the record in light of the contentions advanced on appeal, we affirm.
I
On October 27, 2009, a rainy day, B.J. and defendant H.U. were engaged in junior varsity field hockey practice in the HPRHS gymnasium. Towards the end of practice, the team was engaged in a "rapid fire" drill which B.J. described as an exercise in which players form lines in a half-circle and take shots on goal in quick succession. After a player took her shot, she would line up behind another player and wait in line to shoot again. At one point, B.J. was lined up approximately four feet behind H.U. As H.U. took a shot on goal, the back end of her stick hit B.J.'s left eye. B.J. was taken by ambulance to Morristown Memorial Hospital where she had emergency surgery on the injured eye. B.J. later had additional surgery in an attempt to reattach her retina. Despite these efforts, B.J. suffered total and permanent loss of vision in her left eye.
B.J. testified at deposition that she did not recall ever wearing protective eyewear or goggles when playing field hockey. She recalled seeing only two teams wear eye protection during her years playing field hockey. The field hockey coaches explained that in 2009, use of eyewear was not mandated, although players were given the option to wear goggles. B.J.'s mother stated in an affidavit, however, that she was not aware of the option to provide her daughter with eye protection. It is undisputed that, at the time of the accident, protective eyewear was not required by any rule, regulation or national field hockey handbook. High school field hockey regulations began mandating use of protective eyewear in 2011.
Finding plaintiffs' expert, Leonard K. Lucenko, Ph.D., to have rendered an inadmissible net opinion, the motion judge found that plaintiffs presented no evidence that H.U. acted recklessly, nor did plaintiffs present evidence that the School defendants were negligent in failing to mandate the use of eye goggles in 2009. He thus granted summary judgment to defendants.
II
Summary judgment is appropriate where there are no genuine issues of material fact. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995). A reviewing court must decide 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.'" Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013) (quoting Brill, supra, 142 N.J. at 540). If a court does not so find, it "should not hesitate to grant summary judgment." Brill, supra, 142 N.J. at 540. Credibility findings are not germane for judicial determination on summary judgment, instead those issues should be placed before a jury. Ibid.
We use the same standard when reviewing an appeal from summary judgment. W.J.A. v. D.A., 210 N.J. 229, 237 (2012). While the trial court's legal conclusions are owed no deference, Nicholas v. Mynster, 213 N.J. 463, 478 (2013), the court should affirm the judgment below if it finds that the trial court's conclusions of law were correct. Henry v. New Jersey Dept. of Human Servs., 204 N.J. 320, 330 (2010).
III
The parties agree that plaintiff must demonstrate evidence of H.U.'s recklessness to prevail against her summary judgment motion. In Crawn v. Campo, 136 N.J. 494, 500 (1994), our Supreme Court determined that the standard of care in voluntary sports activity injuries must exceed mere negligence because of the inherent risk of injury in sports, which cannot be eliminated through the exercise of reasonable care. Our Supreme Court focused on the relationship between the participants and the nature of the risk involved, emphasizing aspects of recreational activities such as inherent and expected physical contact and the high level of emotional intensity, both acceptable when participating in those sports. Id. at 504. Two important public policies were identified: 1) promoting vigorous participation in recreational sports, and 2) "avoid[ing] a flood of litigation." Id. at 501.
Participants retain a duty to participate in a reasonable manner, with regard for other players, and also in a way that fits with the common expectations of acceptable conduct for the activity. Id. at 501, 507. Thus, "liability arising out of mutual, informal, recreational sports activity should not be based on a standard of ordinary negligence but on the heightened standard of recklessness or intent to harm." Id. at 503.
Since Crawn, the recklessness standard of care has been applied to sporting environments that span team competitions, one-on-one competitions, and individualized sporting endeavors. See, e.g., Obert v. Baratta, 321 N.J. Super. 356 (App. Div. 1999) (applying the recklessness standard where a softball player sued a teammate for injuries sustained as a result of the teammate's pursuit of a fly ball during an informal intra-office game); Calhanas v. South Amboy Roller Rink, 292 N.J. Super. 513 (App. Div. 1996) (applying the recklessness standard where a roller skater suffered a broken leg from a collision with another skater). Later, application of that standard was extended to sports that do not involve physical contact. Schick v. Ferolito, 167 N.J. 7, 18 (2001) (applying recklessness standard to the game of golf, finding "no persuasive reason to apply an artificial distinction between 'contact' and 'noncontact' sports").
"[A]n actor acts recklessly when he or she intentionally commits an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences." Schick, supra, 167 N.J. at 19 (citing Prosser & Keeton on the Law of Torts, § 34 at 212 (5th Ed. 1984)). H.U. took a shot on goal during practice while B.J. was approximately four feet behind her. Summary judgment as to H.U. was proper as a matter of law as she did not act recklessly, even though she may have executed the shot improperly.
After summary judgment was granted and while this case was pending before us, we decided C.J.R. v. G.A., ___ N.J. Super. ___ (App. Div. 2014) (slip op. at 6), where an eleven-year-old lacrosse player apparently intentionally hit the plaintiff player with either his helmet or his stick, breaking the plaintiff's arm. We announced a new approach to liability, stating:
We provided counsel an opportunity to respond in writing to this recent decision and have reviewed their submissions.
[W]hen, as here, a minor injures another minor in a sporting activity, we adopt a "double-layered" approach. The two layers of that analysis are as follows: (1) whether the opposing player's injurious conduct would be actionable if it were committed by an adult, evaluating whether there is sufficient proof of the defendant player's intent to inflict bodily injury or recklessness; and, if so, (2) whether it would be reasonable in the particular youth sports setting to expect a minor of the same age and characteristics as the defendant to refrain from the injurious physical contact.
[Id. at 18.]
Defendant H.U. did not argue to the motion judge that she should be held to a lesser standard because of her youth, nor did the parties address whether it would be reasonable to expect a sixteen-year-old girl practicing field hockey inside "to refrain from the injurious physical contact."
It is not necessary to consider such a standard here. Plaintiff did not allege that H.U. intentionally struck B.J. H.U. was not in a position to see precisely how close B.J. was standing behind her, nor was there any evidence of animosity between the two players, who were on the same team, in a practice session.
IV
The plaintiff claims on appeal that a question of fact exists as to whether the School defendants were reckless or negligent in failing to provide protective eyewear for B.J. and failing to inform the parents about the availability of protective goggles. In support of that argument, plaintiff argues that her expert, Lucenko, did not render a net opinion.
Lucenko is an adjunct professor at Montclair State University with a doctorate in "Recreation, Health and Physical Education" from the University of Utah. He opined that, although "the wearing of goggles in field hockey did not become mandatory until 2011-2012[,]" the School defendants "deviated from standards of care and practice" by failing "to assure that the student athletes had all of the required and available protective equipment, including protective eye devices." Lucenko's opinion is based on his expertise alone, without reference to any applicable legal standard, regulation, practice or procedure.
Plaintiff acknowledges that in 2009, when this accident occurred, the benefit of wearing goggles when playing field hockey was hotly debated. Plaintiff's counsel attached an article to his certification explaining both positions regarding mandatory use of protective goggles. The article explained the view of those opposed: that eye injuries in field hockey were rare, and protective eyewear caused collisions involving the head due to the vision restrictions caused by the goggles.
N.J.R.E. 703 sets forth the criteria for determining whether an expert report may be admitted into evidence and requires that the expert's conclusions be founded on "facts or data" and that those facts be "reasonably relied upon by [other] experts in the particular field. . . ." "An expert is required to give the 'why and wherefore' of his or her opinion, not just a mere conclusion or speculation." Riley v. Keenan, 406 N.J. Super. 281, 295 (App. Div.), certif. denied, 200 N.J. 207 (2009). It is well settled that an expert's bare conclusion not based on any facts or data is inadmissible as a "net opinion." Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008); see also. Pomerantz Paper v. New Comty. Corp., 207 N.J. 344, 372 (2011). The net opinion rule is succinctly defined as "a prohibition against speculative testimony." Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div.), certif. denied, 154 N.J. 607 (1997).
Without citation to facts or data, Lucenko opined that in his professional opinion, failure to mandate goggles, even though not required in 2009, "reflects a cavalier attitude toward the health and safety of the young student athletes[.]" He explained: "Had the coaches encouraged the players to purchase the eye protective devices, [B.J.]'s injury could have been prevented. . . ." He concluded: "In my professional opinion, the failure to take this action was negligent and palpably unreasonable under the circumstances." Plaintiff claims that this opinion was based on the expert's "professional knowledge" and that he was "far from the only expert in interscholastic sports back in 2009 [who] was of the opinion that high school girls should be wearing eye protection when playing field hockey." The report, however, is nothing more than a bare conclusion, devoid of any supporting scientific facts or data. The opinion simply decrees that plaintiff should have worn goggles and that defendants were negligent. This is precisely the type of unsupported conclusion prohibited by N.J.R.E. 703 and the well-established body of net opinion precedent. The judge properly held this report inadmissible.
V
Plaintiff claims that a question of fact exists as to whether the School defendants acted negligently or recklessly by failing to provide the field hockey team with protective eyewear in spite of an undisputed lack of rules or regulations mandating goggles for players. While plaintiff points the court to a debate in the field hockey community at the time of plaintiff's injury as to use of eyewear, she concedes that no such requirement existed in 2009. Plaintiff asks the court to employ a negligence standard when analyzing the HPRHS's failure to mandate protective eyewear.
Plaintiff does not argue on appeal any specific ways in which the coaches negligently supervised the team during practice.
To support this position, plaintiff relies on transcript excerpts from B.J., H.U. and their field hockey coaches. Plaintiff points out that the coaches did not actively recruit players to wear goggles, although the coaches stated that they would encourage their use if a player felt more comfortable wearing them. Plaintiff also includes H.U.'s deposition testimony that corroborates a coach's testimony that players were offered an opportunity to wear eye protection in the beginning of the season. Use of goggles, however, was not customary as both H.U. and B.J. recalled only two teams that wore goggles during their time playing the sport. Despite the absence of any regulation in 2009 mandating eye protection, as well as corroborated testimony that eye protection was offered to the students, plaintiff nevertheless claims that the decision on wearing goggles should not have been left to the players. Plaintiff argues that a reasonable jury could conclude that that it was negligent or even reckless for HPRHS to "willfully abdicate its responsibility to provide proper and safe athletic equipment such as eye protection and leave it up to the individual girls to decide if they wanted to wear goggles."
Plaintiff relies on this court's holding in Sutphen v. Benthian, 165 N.J. Super. 79 (App. Div. 1979). In Sutphen, we held it was error to grant summary judgment where evidence permitted a finding that a physical education teacher required a visually impaired student to play indoor hockey without adequate protective eyewear in an enclosed area too small for the number of participants. Id. at 81. The plaintiff was injured when a floor hockey puck struck his eye, which resulted in the removal of that eye. Id. at 80-81. The plaintiff, a minor, sued the school district under a theory of negligence, in part because the playing area was too small and because the school failed to provide the plaintiff with proper protective eye equipment. Id. at 81. It was undisputed that school authorities were aware that the plaintiff had a sight deficiency but did not provide him with goggles, although goggles were available upon request. Ibid.
This court reversed summary judgment granted in the school's favor because the evidence in the record failed to answer several questions, including: "[w]hether participation in this activity required the wearing of protective equipment[;]"[w]hether defendants were negligent in leaving to the infant plaintiff the decision to wear or not wear a face mask or safety glasses[;]" whether supervision was adequate; and whether defendants, knowing that plaintiff had defective vision in his right eye, were negligent in allowing the child "to participate in a potentially dangerous activity without protective equipment." Id. at 82.
As in Sutphen, plaintiff argues a question of fact exists as to whether field hockey requires use of protective eye equipment; whether the coaches' supervision was adequate; whether defendants were negligent in permitting minors to decide to wear protection; and whether defendants gave H.U. adequate prior instruction on the dangers of field hockey. Sutphen, however, is not controlling because the evidence presented here is not comparable to the evidence that precluded summary judgment in Sutphen. Plaintiff demonstrated no basis for a reasonable inference that it was customary or required that field hockey players must wear goggles. In fact, plaintiff's own testimony that she only saw two teams wear any protective eyewear further supports this contention. Unlike Sutphen, plaintiff did not have a documented visual impairment that increased her risk of injury.
It is without doubt that the School defendants owed plaintiff a duty of reasonable care. Our Supreme Court explained long ago that "[t]he duty of school personnel to exercise reasonable supervisory care for the safety of students entrusted to them, and their accountability for injuries resulting from failure to discharge that duty, are well-recognized . . . ." Titus v. Lindberq, 49 N.J. 66, 73 (1967). HPRHS assumed responsibility for the well-being of the field hockey players. Plaintiff's proofs, however, do not raise a genuine issue of material fact about whether the School defendants failed to provide adequate safety gear at the time of the accident in 2009. It is undisputed that HPRHS and its coaches complied with the then-existing standards and also informed students of the option to wear goggles if they desired.
Because plaintiff did not provide sufficient proof of the School defendants' negligence, it is not necessary for us to determine whether recklessness or negligence applies to an allegation that a school failed to provide safety equipment.
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Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION