NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3852-15T3
WILLIAM BLACK, as
Administrator Ad Prosequendum
for the heirs at law of THOMAS
HAMILTON BLACK and as
Administrator of the Estate
of THOMAS HAMILTON BLACK,
Plaintiff-Appellant,
v.
FRANK MELCHIORRE,
Defendant,
and
GOVERNOR LIVINGSTON REGIONAL HIGH
SCHOOL, SCOTT MCKINNEY and
MARYANN MCADAM,
Defendants-Respondents.
Argued January 23, 2018 – Decided June 11, 2018
Before Judges Reisner, Gilson and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Docket No. L-4293-
12.
Joseph L. Garrubbo argued the cause for
appellant (Garrubbo & Capece, PC, attorneys;
Joseph L. Garrubbo, on the brief).
Paul Daly argued the cause for respondents
(Hardin, Kundla, McKeon & Poletto, PA,
attorneys; Mark S. Kundla, of counsel; Paul
Daly and Jennifer Suh, on the brief).
PER CURIAM
Plaintiff William Black appeals from a February 3, 2016 order,
denying leave to amend his interrogatories to add additional fact
witnesses; a February 3, 2016 order granting summary judgment to
defendants Berkeley Heights Board of Education (Board),1 high
school principal Scott McKinney, and assistant principal Mary Ann
McAdam; and an April 7, 2016 order denying plaintiff's motion for
reconsideration.
Plaintiff claimed that his late son's high school failed to
properly investigate a teacher who was providing students,
including plaintiff's son, with drugs at the teacher's home.
Plaintiff contended that his son's death from a drug overdose –
which occurred approximately a year after the son's high school
graduation – was caused by the school's negligent conduct. The
trial court granted summary judgment in favor of the school
1
The complaint mistakenly named a high school in the school
district; however, the Board was the proper party defendant.
2 A-3852-15T3
defendants due to the lack of evidence that the school's negligence
was a proximate cause of the son's death.2
Plaintiff raises the following issues on this appeal:
I. THE COURT ERRED IN IMPOSING THE "SINS" OF
THE PLAINTIFF'S PREVIOUS ATTORNEY ON THE
BLAMELESS PLAINTIFF IN NOT ALLOWING THE LATE
AMENDMENT TO ANSWERS TO INTERROGATORIES IN
ORDER TO NAME FACT WITNESS[ES] BEAUMONT-BELT,
CAPONEGRO, BREANNE AND KATHLEEN BLACK AND
KENNETH BURKETT.
II. THE COURT ERRED IN MAKING A DETERMINATION
THAT THE TESTIMONY OF JOHN BEAUMONT-BELT AND
GREGORY CAPONEGRO RECOUNTING STATEMENTS MADE
TO THEM BY THE DECEDENT WOULD NOT BE
ADMISSIBLE WITHOUT CONDUCTING A HEARING UNDER
[] N.J.R.E. 104.
III. THE COURT ERRED IN GRANTING SUMMARY
JUDGMENT TO THE DEFENDANTS BY FAILING TO GIVE
THE PLAINTIFF THE BENEFIT OF ALL REASONABLE
INFERENCES WHICH COULD BE DRAWN FROM THE
AVAILABLE EVIDENCE AND BECAUSE THERE WERE
GENUINE ISSUES OF MATERIAL FACT WHICH REQUIRED
A JURY DETERMINATION.
Our review of a summary judgment order is de novo, using the
Brill3 standard, the same test employed by the trial court. See
Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of
Pittsburgh, 224 N.J. 189, 199 (2016). Accordingly, we determine
whether there are material facts in dispute and, if not, whether
2
Plaintiff reached a settlement with the teacher, defendant Frank
Melchiorre.
3
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
(1995).
3 A-3852-15T3
the undisputed facts, viewed most favorably to plaintiff would
nonetheless entitle defendants to judgment as a matter of law.
See Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 115 (2014).
We review a decision to extend discovery deadlines for abuse of
discretion. See Rivers v. LSC P'ship, 378 N.J. Super. 68, 80
(App. Div. 2005). We apply the same standard to a trial judge's
decision to grant or deny a reconsideration motion. See Cummings
v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996).
Because we agree with the trial court that there were no
material facts in dispute and the undisputed facts were
insufficient to establish proximate cause, we affirm the order
granting summary judgment. We find no abuse of the trial court's
discretion in denying plaintiff's untimely motion to amend the
interrogatories, and in denying plaintiff's reconsideration
motion. Accordingly, we affirm the remaining orders as well.
I
The following facts are drawn from the summary judgment
record, including defendants' statement of material facts and
plaintiff's responses. The record includes the son's testimony
at a deposition, taken in connection with unrelated litigation
concerning his brother's death.4 The son also gave sworn
4
The brother died in an alcohol-related car accident when the
son was fifteen.
4 A-3852-15T3
statements to the police, after the teacher was arrested.
According to the son's sworn testimony and statement to the police,
he had been using marijuana since 2008, when he was fifteen years
old. The son smoked marijuana at the teacher's apartment beginning
in December 2009, when he was sixteen. The son denied using any
other drug, or alcohol, at the teacher's home. He also denied
that the teacher supplied any of the students with anything but
marijuana and alcohol.
In January 2010, during a contentious disciplinary meeting
about his own son, a parent told school officials that a certain
teacher was smoking marijuana with students. There is no dispute
that the school safety police officer was present during this
meeting. A school official contacted the teacher, a well-regarded
science educator, who denied the allegation. The school took no
further action to investigate the claim.
However, the police conducted an extensive investigation of
the teacher, whom they suspected of using drugs with students.
The police were unable to find any evidence against him until
November 2010, when fortuitously, the teacher had an unexplained
absence from work and the school asked the police to visit his
house and check on his welfare. During that visit, the police
found marijuana and drug paraphernalia. The teacher was arrested,
and suspended from his teaching position. There is no evidence
5 A-3852-15T3
that the son went to the teacher's house or used marijuana with
him after the November 2010 arrest.
According to the son's deposition testimony, he stopped
smoking marijuana in March 2011. The son graduated from high
school in June 2011 and began attending college in Florida the
following fall. After his first year of college, the son came
home to his father's house in New Jersey.
On June 3, 2012, the son and two friends went to North
Plainfield and bought MDMA (also known as ecstasy or "molly").
On June 4, 2012, the son was found unconscious in his bedroom from
a drug overdose. He died in the hospital on June 6, 2012. The
police found assorted drug-related paraphernalia in his bedroom,
including packaging associated with heroin. The cause of death
was a morphine-related overdose.
In a lengthy oral opinion issued on February 3, 2016, Judge
Camille M. Kenny concluded that the school authorities had a duty
to investigate the allegations that the teacher was providing
drugs to students. She also reasoned that, viewing the evidence
in the light most favorable to plaintiff, a jury could find that
the school authorities breached that duty. However, the judge
found that the admissible evidence could not establish that the
son's use of marijuana at the teacher's home was a proximate cause
of the son's death from a morphine-related overdose, eighteen
6 A-3852-15T3
months after his last visit to the teacher's apartment. The judge
found that plaintiff's causation expert relied on witness
statements that the judge had already excluded as untimely. She
also noted that some of those witness statements contained
inadmissible hearsay.5
In addition, the judge reasoned that, in light of the
extensive and unsuccessful police investigation of the teacher,
there was no evidence that, if the Board had conducted its own
investigation, the Board "would have found enough [evidence] to
do something about it" before the teacher was arrested in November
2010.
II
After reviewing the summary judgment record de novo, we find
no basis to disturb Judge Kenny's well-reasoned decision granting
summary judgment. We affirm substantially for the reasons stated
in her opinion. The summary judgment evidence could not support
a finding that the son's use of marijuana at the teacher's home
was a proximate cause of his morphine-related overdose more than
a year later.
5
In those statements, the son's former college roommates, Mr.
Caponegro and Mr. Beaumont-Belt, said that while the son was in
college, he told them that cocaine and other hard drugs were
available at the teacher's home. In addition to being hearsay,
those statements contradicted the son's earlier sworn testimony
that he only saw alcohol and marijuana at the teacher's home.
7 A-3852-15T3
In addition, we agree that there was no evidence that the
school's failure to conduct a more complete investigation was a
proximate cause of the son's death. The teacher's activities were
not conducted on school premises or even in the same town as the
school, but rather at the teacher's apartment, located in another
town. The police conducted an extensive investigation of the
teacher. The police did not catch the teacher until they made a
community caretaking visit to his home in November 2010. There
is no evidence on which to conclude that, if school officials had
conducted a separate investigation, they would have discovered
evidence of the teacher's misconduct any sooner than the police
did.
Nor can we find any abuse of discretion in the judge's
decision to bar plaintiff's very belated attempt to amend his
interrogatories to add new fact witnesses. See Bender v. Adelson,
187 N.J. 411, 428-29 (2006); Rivers, 378 N.J. Super. at 80-81. As
plaintiff's counsel conceded at oral argument on the discovery
motion, plaintiff's case on causation had a significant gap: there
was no evidence linking the son's use of heroin and MDMA in June
2012 with his earlier visits to the teacher's home during high
school. Nor was there evidence of his continuing drug use between
March 2011 and June 2012.
8 A-3852-15T3
After at least seven discovery extensions, and only a few
weeks before the scheduled trial date, plaintiff sought to plug
that gap by naming additional fact witnesses. Judge Kenny denied
the motion, noting that there were no extraordinary circumstances
warranting relief from the most recent discovery deadline, which
had long since expired, and granting relief would prejudice the
defendants. She reasoned that plaintiff should have known about
the proposed witnesses, who were his son's friends and family
members, and his attorney could have included their names in
discovery much earlier. We find no error in that reasoning, and
no abuse of discretion in the judge's decision.
In denying plaintiff's reconsideration motion, the judge also
noted that some of the proposed witness statements were hearsay.
We agree. Portions of the statements — which recounted alleged
comments by the son about seeing heroin at the teacher's apartment
– constituted hearsay, because plaintiff intended to offer the
son's remarks for their truth. See N.J.R.E. 801(c); N.J.R.E. 802.
The hearsay was also untrustworthy, and therefore not admissible
as the statement of a decedent under N.J.R.E. 804(b)(6), because
9 A-3852-15T3
the remarks contradicted the son's earlier sworn testimony about
what happened at the teacher's home.6
Affirmed.
6
In light of our disposition of this appeal, we need not address
defendants' arguments premised on the Drug Dealer Liability Act,
N.J.S.A. 2C:35B-1 to -17.
10 A-3852-15T3