NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0271-17T1

C.H., an infant by her Guardian

ad Litem, Brenda Cummings,

and BRENDA CUMMINGS,

individually,

Plaintiffs-Appellants,

v.

RAHWAY BOARD OF EDUCATION,

RAHWAY MIDDLE SCHOOL,

RAHWAY 7TH AND 8TH GRADE

ACADEMY, and GARRY MARTIN

Defendants-Respondents.

________________________________

Argued October 10, 2018 – Decided

Before Judges Yannotti, Gilson, and Natali.

On appeal from Superior Court of New Jersey, Law 

Division, Union County, Docket No. L-3701-15.

Juan C. Cervantes argued the cause for appellants 

(Forman & Cardonsky, attorneys; Juan C. Cervantes, 

on the briefs).

Howard M. Nirenberg argued the cause for respondents 

(Nirenberg & Varano, LLP, attorneys; Howard M. 

Nirenberg, of counsel; Sandra N. Varano, on the brief).

November 16, 2018

APPROVED FOR PUBLICATION

June 19, 2019

APPELLATE DIVISION
2

A-0271-17T1

The opinion of the court was delivered by

GILSON, J.A.D.

Plaintiff C.H. was injured while playing in a student-teacher fundraising 

basketball game. She appeals from an August 23, 2017 order granting summary 

judgment and dismissing her claims against defendants, who were her school, 

the school board, and a teacher. We affirm because the undisputed facts 

establish that defendants did not breach a duty of care to plaintiff.

I

We take the facts from the summary judgment record and view them in 

the light most favorable to plaintiff. In June 2013, plaintiff was fourteen years 

old, in eighth grade, and a member of her school basketball team.

On June 11, 2013, plaintiff participated in a basketball game in which a 

team of teachers played against a team of students. The game was an annual 

fundraising event, and student participation was voluntary. Approximately 

fifteen teachers and school safety officials and seventeen students participated 

in the game. The game was officiated by at least one referee. There were also 

five other teachers who did not play in the game, but attended to provide 

supervision.
3

A-0271-17T1

During the game, plaintiff went up for a rebound, and made contact with 

defendant Garry Martin, who was a teacher. Plaintiff landed awkwardly, fell, 

and injured her knee. At her deposition, plaintiff described how her injury 

occurred:

Everyone swarm[ed] in, but the teacher [came] running 

down, like, I guess, because he wanted to get the ball, 

and it was offensive rebound I was going for. And he 

went up, I went up. But he shoved me, like, to get me 

out of the way so that he could get the rebound. And 

when I came down I had to stop myself from falling. 

And I couldn't plant right.

Defense counsel questioned plaintiff further as to the details of the events that 

preceded her injury. Specifically, counsel asked and plaintiff answered:

[Counsel] [I]f I understood your testimony, when you 

went up, everybody close to the basket 

went up also?

[Plaintiff] Yes.

. . . .

[Counsel] So you are going up for the rebound, and 

contact is made?

[Plaintiff] Yes.

[Counsel] And do you know who made contact with 

you?

[Plaintiff] Mr. Martin.
4

A-0271-17T1

[Counsel] And where was Mr. Martin when he made 

contact with you?

[Plaintiff] On my left side.

. . . .

[Counsel] Mr. Martin is to your left. Is he even with 

you?

[Plaintiff] No. He's on an angle.

[Counsel] Is he on an angle in front of you or behind 

you?

[Plaintiff] Yes, in front of me.

[Counsel] So he's closer to the basket?

[Plaintiff] Yes.

. . . .

[Counsel] So as he’s in front of you to the left and he's 

going up for the rebound and you're going 

up for the rebound, what happens?

[Plaintiff] He shoves back to try to rip through.

[Counsel] When you say "he shoves back," does he 

push his body backwards to create more 

space between him and the rim?

[Plaintiff] Yes.

[Counsel] And he does that in order to be able to get 

a better angle - -
5

A-0271-17T1

[Plaintiff] Yes.

[Counsel] - - to get the ball?

[Plaintiff] Yes. 

[Counsel] And as he did that, you are, I assume, going 

for the ball so you are leaning forward?

[Plaintiff] Yes.

[Counsel] And jumping forward?

[Plaintiff] Yes.

[Counsel] And as you're leaning and jumping forward 

and he's pushing back to create some space, 

contact is made?

[Plaintiff] Yes.

. . . .

[Counsel] And what part of his body makes contact 

with what part of your body?

[Plaintiff] His upper body hits my upper body.

Plaintiff then testified that after her upper body and Martin's upper body 

collided, she could not stop herself from falling.

In October 2015, plaintiff, through her guardian ad litem, filed a complaint 

against Martin, her school, and the school board. Thereafter, she amended her 

complaint. In her amended complaint, plaintiff asserted claims for negligence 
6

A-0271-17T1

and intentional conduct and she and her guardian ad litem sought damages 

related to plaintiff's knee injury. The parties engaged in and completed 

discovery. Thereafter, defendants moved for summary judgment.

The trial court heard oral arguments and, on August 23, 2017, the court 

issued a written opinion and entered an order granting summary judgment to 

defendants. The court first determined that plaintiff had failed to present 

evidence that defendants had engaged in negligent supervision. In that regard, 

the court found that the game was officiated by a referee and there were 

approximately five teachers, who did not participate in the game, but who 

attended to provide supervision. The court went on to reason that there was no 

showing that plaintiff's injury, which occurred when the players jumped for a 

rebound, could have been prevented by further supervision.

The court next held that a participant in recreational sport activity cannot 

assert a claim of negligence against a co-participant who causes her injury. 

Instead, such a plaintiff must show that the co-participant engaged in reckless 

or intentional conduct that caused the injury. See Crawn v. Campo, 136 N.J. 

494, 497 (1994). Accepting plaintiff's description of the incident, the court 

found that there were no facts showing that Martin had acted recklessly or 

intentionally. Plaintiff now appeals.
7

A-0271-17T1

II

On appeal, plaintiff makes two arguments. First, she contends that Martin, 

as a teacher, and her school and the school board, as Martin's employers, owed 

her a duty of supervisory care, which they breached. Second, she argues that 

there was a material fact issue concerning whether Martin acted recklessly 

during the basketball game. We disagree. There are no facts showing 

defendants breached their duty to provide supervision to plaintiff as a student 

participating in a basketball game. Moreover, accepting plaintiff's description 

of the incident, the material undisputed facts do not show that Martin acted 

recklessly or intentionally.

We conduct a de novo review of an order granting summary judgment, 

and apply the same standard employed by the trial court. Davis v. Brickman 

Landscaping, Ltd., 219 N.J. 395, 405 (2014) (first citing Manahawkin 

Convalescent v. O'Neill, 217 N.J. 99, 115 (2014); then quoting Murray v. 

Plainfield Rescue Squad, 210 N.J. 581, 584 (2012)). Accordingly, we determine 

whether the moving party has demonstrated that there are no genuine disputes 

as to material facts and, if so, whether the facts, viewed in the light most 

favorable to the non-moving party, entitle the moving party to a judgment as a 

matter of law. Id. at 405-06 (first quoting R. 4:46-2(c); then quoting Brill v. 
8

A-0271-17T1

Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). When no issues of 

material fact exist, but a question of law remains, our review of that legal issue 

is plenary. Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of 

Pittsburgh, 224 N.J. 189, 199 (2016) (citing Manalapan Realty, L.P. v. Twp. 

Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

A. The School's Duty to Supervise

School officials have a duty to supervise the children in their care. See

e.g., Jerkins v. Anderson, 191 N.J. 285, 296 (2007) (stating that "[s]chool 

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'" (second alteration in original) (quoting 

Caltavuturo v. City of Passaic, 124 N.J. Super. 361, 366 (App. Div. 1973))). 

Accordingly, "[t]eachers must at times be present to oversee students on school 

playgrounds and in hallways, classrooms, lunchrooms and auditoriums." Kibler 

v. Roxbury Bd. of Educ., 392 N.J. Super. 45, 55 (App. Div. 2007). That duty 

may be violated by inactions, as well as actions. Titus v. Lindberg, 49 N.J. 66, 

74 (1967).

The supervisory duty extends to "foreseeable dangers . . . [that] arise from 

the careless acts or intentional transgressions of others." Frugis v. Bracigliano, 
9

A-0271-17T1

177 N.J. 250, 268 (2003). School officials must exercise "that degree of care 

which a person of ordinary prudence, charged with comparable duties, would 

exercise under the same circumstances." Caltavuturo, 124 N.J. Super. at 366

(citing Dailey v. L.A. Unified Sch. Dist., 470 P.2d 360, 363-64 (Cal. 1970)).

Here, there was no showing of a breach of the duty to supervise plaintiff. 

The basketball game was officiated by a referee. Moreover, additional 

supervision was provided by approximately five teachers who did not participate 

in the game. There were no facts showing that the game was being conducted 

in a reckless or out-of-control manner before plaintiff was injured. In that 

regard, plaintiff testified that she had only played for a few minutes in the first 

half of the game, and her injury occurred within five minutes of the start of the 

second half of the game. While plaintiff testified that the teachers were 

beginning to play "aggressively," she also acknowledged that the game was a 

typical basketball game and the referee was not calling many fouls.

Plaintiff was injured when she jumped for a rebound and came into contact 

with another player who happened to be a teacher. Those undisputed facts 

establish that plaintiff's injury did not result from a lack of supervision. Instead, 

the undisputed facts establish that plaintiff was injured while participating in a 

recreational sport activity.
10 A-0271-17T1

B. Injuries in Recreational Sports

"[T]he duty of care applicable to participants in informal recreational 

sports is to avoid the infliction of injury caused by reckless or intentional 

conduct." Schick v. Ferolito, 167 N.J. 7, 12 (2001) (alteration in original) 

(quoting Crawn, 136 N.J. at 497). Accordingly, a participant who causes injury 

to another participant in a recreational sporting activity cannot be found liable 

for simple negligence. Our Supreme Court has explained that two 

considerations support this heightened standard: "the promotion of vigorous 

participation in athletic activities, and the avoidance of a flood of litigation 

generated by participation in recreational games and sports." Id. at 12-13 (citing 

Crawn, 136 N.J. at 501). The Supreme Court has reasoned that a recklessness 

standard is more appropriate because a certain level of risk of harm is a normal 

part of a recreational game. Id. at 13 (citing Crawn, 136 N.J. at 506-08). In that 

regard, the Court has explained:

Our conclusion that a recklessness standard is the 

appropriate one to apply in the sports context is founded

on more than a concern for a court's ability to discern 

adequately what constitutes reasonable conduct under 

the highly varied circumstances of informal sports 

activity. The heightened standard will more likely 

result in affixing liability for conduct that is clearly 

unreasonable and unacceptable from the perspective of 

those engaged in the sport yet leaving free from the 

supervision of the law the risk-laden conduct that is 
11 A-0271-17T1

inherent in sports and more often than not assumed to 

be "part of the game."

[Crawn, 136 N.J. at 508.]

Here, plaintiff has conceded that Martin "was not intentionally trying to 

injure [her]." Indeed, the record contains no facts that would support a finding 

that Martin acted intentionally to injure plaintiff.

Consequently, the question here is whether plaintiff has presented facts 

showing that Martin acted recklessly when he jumped for a rebound. According 

to plaintiff's own testimony, Martin was on an angle in front of her. Martin then 

pushed his body backward to create more space between himself and the 

basketball rim while jumping for the ball. The contact occurred when plaintiff 

leaned and jumped forward to try to get the ball and her upper body came into 

contact with Martin's upper body. Such facts, even when viewed in the light 

most favorable to plaintiff, do not establish reckless conduct in a basketball 

game. Instead, those facts describe normal activity that occurs when players 

attempt to make rebounds during a basketball game.

Plaintiff did not describe any conduct by Martin that could be found to be 

excessively harmful conduct. Ibid. ("The 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 
12 A-0271-17T1

playing fields and should not be second-guessed in courtrooms."). Moreover, 

plaintiff's testimony provides no evidence that Martin disregarded a known or 

obvious risk that was so great as to make it highly probable that harm would 

follow. Indeed, there was no evidence that Martin was aware that plaintiff was 

angled behind him and was jumping forward as he was pushing backwards and 

jumping for the rebound.

To the extent that plaintiff argues that a negligence standard should apply 

because Martin was a teacher, we find no support for such a change in the law. 

Martin and plaintiff participated in the game as players. As already pointed out, 

the school provided appropriate supervision by a referee and other teachers. In 

her candid testimony, plaintiff described Martin's actions as the actions typical 

of any basketball player. There are no facts in the record to demonstrate that 

Martin used his position as a teacher to conduct himself differently than a normal 

player. Accordingly, there is no basis to impose a greater duty on Martin than 

any other participant in a recreational sporting activity.

Affirmed.