by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)
My children’s school has a nice tradition for the fifth grade students. Towards the end of the year, the fifth graders play a basketball game against a group of teachers and parents. It is a fun event. I have played in it twice, once against my daughter and once against my oldest son. In each game, I was called for a foul. In each game, best as I can recall, I was the only person called for a foul. (Not to sound too much like Draymond Green, but neither call was warranted. My kids flopped.) But with this history in mind, I read C.H. v. Rahway Board of Education with some interest.
In C.H., plaintiff was an eighth grader and a member of her school’s basketball team. At the end of the school year, she was part of a team of students that played a team of teachers and school personnel. The game was an annual fundraising event, and participation was voluntary. There was at least one referee officiating the game, and five teachers who did not play in the game also attended to help supervise.
During the game, while going up for a rebound, plaintiff came into contact with a teacher, landed awkwardly, and was injured. Plaintiff testified that she and the teacher were close to the basket vying for the rebound. The teacher was between her and the basket with his back to her. When the shot was taken, the teacher jumped up and backwards (towards plaintiff), while plaintiff jumped up and forward (towards the rim, and the teacher). Their upper bodies collided. Plaintiff fell and injured her knee.
Plaintiff sued the teacher involved in the incident, the school, and the town board of education. After discovery, the trial court granted defendants’ summary judgment motion and dismissed plaintiff’s lawsuit. Plaintiff appealed.
On appeal, plaintiff alleged that defendants owed her a “duty of supervisory care, which they breached,” and that there were fact issues about whether the teacher acted recklessly during the game. The Appellate Division rejected both arguments and affirmed the trial court’s decision.
The Appellate Division held that schools have a duty to supervise the children in their care. That duty requires schools to protect students from “foreseeable dangers that arise from the careless acts or intentional transgressions of others.” The duty can be breached by a school’s actions or, in some circumstances, its inaction.
In C.H., the Appellate Division held that none of the defendants breached this duty. The game was officiated by a referee and five extra teachers were there to help as well. While plaintiff testified that the teachers were playing a bit “aggressively,” there was no evidence that the game was played in a reckless or “out-of-control manner before plaintiff was injured.” Plaintiff herself described it as a “typical basketball game [where] the referee was not calling many fouls.” Therefore, defendants did not breach their duty to supervise plaintiff.
The teacher involved in the game also did not breach the duty owed by participants in “informal recreational sports,” which is “to avoid infliction of injury caused by reckless or intentional conduct.” In other words, one participant in informal, recreational sports cannot sue another participant for negligence. The New Jersey Supreme Court previously explained the reasons for this heightened standard:
This 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 inherent in sports and more often than not assumed to be “part of the game.”
Applying this standard in C.H., the Appellate Division held that the teacher did not act intentionally or recklessly. Rather, his actions were “normal activity that occurs when players attempt to make rebounds during a basketball game.” (I cringed a bit at the “make rebounds” phrasing.)
Finally, the Appellate Division refused to hold the teacher to a higher standard than a normal participant in informal recreational sports simply because he was a teacher. On this, the Appellate Division held: “There are no facts in the record to demonstrate that [the teacher] 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 [him] than any other participant in a recreational sporting activity.”
Pete's Take 