Morgan Dennehy v. East Windsor Regional Board of Education (086350) (Mercer County and Statewide)

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office
of the Clerk for the convenience of the reader. It has been neither reviewed nor
approved by the Court and may not summarize all portions of the opinion.

Morgan Dennehy v. East Windsor Regional Board of Education
(A-36-21) (086350)

Argued September 13, 2022 -- Decided October 26, 2022

FISHER, P.J.A.D. (temporarily assigned), writing for a unanimous Court.

In this appeal, the Court considers the standard of care that should apply to a
coach’s decision to allow a high school field hockey team to practice in an area
adjacent to an ongoing soccer practice.

On September 9, 2015, defendant Dezarae Fillmyer, who coached the
Hightstown High School girls’ field hockey team, instructed players to warm up in
an area adjacent to the school’s turf field, where the boys’ soccer team was
practicing. Plaintiff Morgan Dennehy, a member of the field hockey team, was
struck at the base of her skull by an errant soccer ball, allegedly causing the injuries
of which she complains in this lawsuit against Fillmyer, the school, and others.

The trial court granted summary judgment in favor of defendants, holding that
plaintiff was required to show defendants’ acts or omissions rose at least to the
degree of recklessness described in Crawn v. Campo, 136 N.J. 494, 507-08 (1994),
and Schick v. Ferolito, 167 N.J. 7, 18-20 (2001). The Appellate Division reversed,
holding that a simple negligence standard applied. 469 N.J. Super. 357, 365 (App.
Div. 2021). The Court granted certification. 249 N.J. 550 (2022).

HELD: The coach’s acts and omissions alleged here are governed by a simple
negligence standard rather than the heightened standard of recklessness the Court
applied when one participant injures another during a recreational activity.

1. In Crawn, the Court considered what a plaintiff-catcher was required to show to
prove the liability of the defendant-runner, who collided with the plaintiff; the Court
concluded “that the duty of care applicable to participants in informal recreational
sports is to avoid the infliction of injury caused by reckless or intentional conduct.”
136 N.J. at 497-98 (emphasis added). Later, in Schick, the Court held that “the
heightened standard of care for causes of action for personal injuries occurring in
recreational sports should not depend on which sport is involved and whether it is
commonly perceived as a ‘contact’ or ‘noncontact’ sport.” 167 N.J. at 18-19. The

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Court reaffirmed that the heightened standard constituted “the pertinent standard”
-- regardless of the athletic endeavor -- when “assessing the duty of one sports
participant to another.” Id. at 19 (emphasis added). (pp. 4-6)

2. Unlike those cases and later cases in which the heightened standard has been
applied, Fillmyer was not actively participating in the recreational activity at issue;
short of that, there is no basis upon which a factfinder could conclude Fillmyer was
participating within the meaning of Crawn and Schick. Even if Fillmyer was
actively participating in the practice when plaintiff was injured, it is clear from the
record that plaintiff was not injured by any activity associated with field hockey.
Plaintiff was struck by a soccer ball that came from another field. That undisputed
fact further demonstrates that plaintiff’s claim is based only on Fillmyer’s
supervisory role in selecting the timing and location of the team’s informal practice.
The policies that generated the Court’s decisions in Crawn and Schick do not
support the application of a recklessness standard here. The essence of plaintiff’s
theory of liability -- that Fillmyer chose the wrong place and an unpropitious time to
commence practice -- is no different than the decisions that might be made by a
biology teacher taking a class out to study marine life at the beach. In these and
other similar settings, parents have the right to expect that teachers and coaches will
exercise reasonable care when in charge of their children. (pp. 6-9)

AFFIRMED and REMANDED to the trial court for further proceedings.

CHIEF JUSTICE RABNER; JUSTICES PATTERSON, SOLOMON, PIERRE-
LOUIS, and FASCIALE; and JUDGE SABATINO (temporarily assigned) join
in JUDGE FISHER’s opinion.

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 SUPREME COURT OF NEW JERSEY
A-36 September Term 2021
086350

Morgan Dennehy,

Plaintiff-Respondent,

v.

East Windsor Regional
Board of Education,
Hightstown High School,
James W. Peto, Todd M.
Peto, and Dezarae Fillmyer,

Defendants-Appellants.

On certification to the Superior Court,
Appellate Division, whose opinion is reported at
469 N.J. Super. 357 (App. Div. 2021).

Argued Decided
September 13, 2022 October 26, 2022

Timothy P. Beck argued the cause for appellants
(DiFrancesco, Bateman, Kunzman, Davis, Lehrer &
Flaum, attorneys; Timothy P. Beck, on the briefs).

Brian A. Heyesey argued the cause for respondent
(Szaferman, Lakind, Blumstein & Blader, attorneys;
Brian A. Heyesey, of counsel and on the brief).

Kayla Elizabeth Rowe argued the cause for amicus curiae
New Jersey Civil Justice Institute (New Jersey Civil

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 Justice Institute, attorneys; Kayla Elizabeth Rowe, of
counsel and on the brief).

Justin Lee Klein argued the cause for amicus curiae New
Jersey Association for Justice (Law Office of Justin Lee
Klein, attorneys; Justin Lee Klein, of counsel and on the
brief).

JUDGE FISHER (temporarily assigned) delivered the opinion of the Court.

In this appeal, we consider the standard of care that should apply to a

coach’s decision to allow a high school field hockey team to practice in an area

adjacent to an ongoing soccer practice. We conclude that the coach’s acts and

omissions alleged here are governed by a simple negligence standard rather

than the heightened standard of recklessness we applied in Crawn v. Campo,

136 N.J. 494 (1994), and Schick v. Ferolito, 167 N.J. 7 (2001), when one

participant injures another during a recreational activity.

In 2015, plaintiff Morgan Dennehy was a seventeen-year-old high school

senior and a member of Hightstown High School’s girls’ field hockey team

coached by defendant Dezarae Fillmyer. The school’s athletic director had

arranged afterschool sports practices so that the field hockey team’s practice

on September 9, 2015, would begin when the boys’ soccer team’s use of the

turf field ended at 3:45 p.m. At 3:00 p.m., Fillmyer instructed the offensive

players on her field hockey team to begin warming up in “the D-zone,” an area

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between the “continuous athletic field[s]” and the turf field. A few years

earlier, a twenty-foot-high ball stopper net had been installed at the ends of the

turf field to prevent “ball interference” in other areas. While the offensive

players on the field hockey team were warming up, at least two soccer balls

from the soccer practice “landed within the . . . D-zone near [the] field hockey

players.”

Because she was a goalie, plaintiff had not been participating in the

informal activities in the D-zone. She asked if she could take a shot on goal

and Fillmyer gave her approval. As plaintiff was taking a shot, another errant

soccer ball cleared the ball stopper and struck the base of plaintiff’s skull,

allegedly causing the injuries of which she complains in this lawsuit.

Plaintiff filed this suit against Fillmyer, the board of education, the

school, its athletic director, and others. Plaintiff asserted that she sustained

injuries through defendants’ alleged failures to supervise; prevent potential and

foreseeable dangerous conditions; provide appropriate safeguards; and post

suitable warnings of potentially dangerous conditions. After the completion of

discovery, defendants moved for summary judgment. In opposing summary

judgment, plaintiff argued defendants owed her a duty of reasonable

supervisory care. Agreeing with defendants, the trial judge held that plaintiff

was required to show defendants’ acts or omissions rose at least to the degree

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of recklessness described in Crawn, 136 N.J. at 507-08, and Schick, 167 N.J. at

18-20. Applying that heightened standard, the trial judge determined that the

allegations could not support a claim of intentional or reckless conduct.

Plaintiff appealed, challenging only the judge’s determination that a

recklessness standard applied to Fillmyer’s alleged acts and omissions. In a

published opinion, the Appellate Division reversed, finding the Crawn

recklessness standard was inapplicable because Fillmyer “was not a co-

participant” and holding that a simple negligence standard applied because

plaintiff’s claim was that Fillmyer failed to properly “supervise and oversee

the participants of the sport” assigned to her for instruction. Dennehy v. E.

Windsor Reg’l Bd. of Educ., 469 N.J. Super. 357, 365 (App. Div. 2021).

We granted certification, 249 N.J. 550 (2022), and now reject Fillmyer’s

contention that she was entitled to the application of a recklessness standard in

these circumstances, a position supported by the New Jersey Civil Justice

Institute as amicus curiae. We instead agree with plaintiff’s argument, which

the New Jersey Association for Justice similarly urges, that her claims should

be governed by a simple negligence standard.

In Crawn, we considered what a plaintiff-catcher -- injured during a

regularly scheduled but informal softball game -- was required to show to

prove the liability of the defendant-runner, who collided with the plaintiff

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while attempting to score. 136 N.J. at 497-98. In rejecting application of

either a simple negligence standard on the one hand or complete immunity on

the other, we recognized two policy reasons -- “the promotion of vigorous

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

id. at 501 -- and concluded “that the duty of care applicable to participants in

informal recreational sports is to avoid the infliction of injury caused by

reckless or intentional conduct,” id. at 497 (emphasis added). That standard,

we noted, was “driven by the perception that the risk of injury is a common

and inherent aspect of informal sports activity.” Id. at 500.

Later, in Schick, perceiving that “Crawn may have left open the question

of whether the recklessness standard should apply generally to conduct in

recreational sporting contexts, including golf,” 167 N.J. at 10-11, we

considered whether Crawn’s recklessness standard should apply to a

defendant-golfer whose “unannounced and unexpected . . . ‘mulligan’” struck

another golfer. Id. at 10. Reiterating our concern in Crawn -- that “a legal

duty of care based on the standard of what, objectively, an average reasonable

person would do under the circumstances is illusory, and is not susceptible to

sound and consistent application on a case-by-case basis,” id. at 13 (quoting

Crawn, 136 N.J. at 507-08) -- we held that “the heightened standard of care for

causes of action for personal injuries occurring in recreational sports should

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not depend on which sport is involved and whether it is commonly perceived

as a ‘contact’ or ‘noncontact’ sport.” Id. at 18-19. We reaffirmed that the

heightened standard “represented the enunciation of a more modern approach

to our common law in actions for personal injuries that generally occur during

recreational sporting activities” and constituted “the pertinent standard” --

regardless of the athletic endeavor -- when “assessing the duty of one sports

participant to another.” Id. at 19 (emphasis added).

In Schick, we recognized that the recklessness standard applied to more

than just those sporting and recreational activities involved there and in

Crawn, and we more recently applied the recklessness standard to a collision

between a skier and a snowboarder. See Angland v. Mountain Creek Resort,

Inc., 213 N.J. 573, 590 (2013). The Appellate Division has found the

heightened standard applicable to a claim based on an injury occurring during

a lacrosse game, C.J.R. v. G.A., 438 N.J. Super. 387, 398 (App. Div. 2014), as

well as injuries resulting from collisions between skydivers, Dare v. Freefall

Adventures, Inc., 349 N.J. Super. 205, 214 (App. Div. 2002), and between

roller skaters, Calhanas v. S. Amboy Roller Rink, 292 N.J. Super. 513, 523

(App. Div. 1996).

But, unlike all those cases, Fillmyer was not actively participating in the

recreational activity at issue. Plaintiff alleges tortious conduct by Fillmyer

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only as to her choice of the location of the impromptu workout prior to the

scheduled practice and her failure to supervise her players as they waited their

turn on the turf field. Fillmyer argues that Crawn’s recklessness standard

should be extended to apply to the acts and omissions of instructors and

coaches like herself regardless of the circumstances.

With the exception of Rosania v. Carmona, 308 N.J. Super. 365 (App.

Div. 1998), which we will discuss in greater detail momentarily, our case law

has not focused on a coach or instructor actively participating in the sporting

activity when the injury occurred. Nor do we accept the invitation here to

opine broadly on the circumstances that may generate liability for coaches or

instructors or to ascertain when their acts or omissions should be assessed by a

standard other than simple negligence. We choose instead to define the

standard that applied to Fillmyer under the limits of the allegations presented

by plaintiff, and we leave for another time the fixing of appropriate standards

to govern the myriad ways in which the multi-faceted roles played by coaches

and instructors may cause an injury to a participant.

And so, it is appropriate to start our analysis by stating what is not

before us. This case, for example, does not present facts like those considered

by the Appellate Division in Rosania, where a karate instructor injured a

student by kicking him in the head during a sparring match. Id. at 369. The

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court there held that the heightened standard for co-participants would apply --

focusing on the instructor’s injury-causing conduct rather than his position or

title -- if it could be shown that kicking was permitted by the dojo’s rules and

made known to the plaintiff. Id. at 368.

We reject Fillmyer’s argument that she was “participating” in her team’s

informal pre-practice warmups in the same sense that the karate instructor in

Rosania was “participating” when he kicked his student. There is no

allegation that Fillmyer was wielding a field hockey stick or otherwise actively

engaged in the preliminary practice with her players when plaintiff’s injury

occurred; short of that, there is no basis upon which a factfinder could

conclude Fillmyer was participating within the meaning of Crawn and Schick.

Even if Fillmyer was actively participating in the practice when plaintiff

was injured, it is clear from the record that plaintiff was not injured by a batted

field hockey ball, an errant swing of a field hockey stick, or any other activity

associated with that sport. Plaintiff was struck by a soccer ball that came from

another field. That undisputed fact further demonstrates that plaintiff’s claim

is based only on Fillmyer’s supervisory role in selecting the timing and

location of the team’s informal practice.

In accepting the truth of plaintiff’s allegations -- because we are

reviewing a summary judgment, see Brill v. Guardian Life Ins. Co. of Am.,

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142 N.J. 520, 540 (1995) -- we conclude the policies that generated our

decisions in Crawn and Schick do not support the application of a recklessness

standard to Fillmyer’s choices of whether, where, and when plaintiff and her

teammates were to participate in drills prior to the practice scheduled by the

athletic director. The recognition of a simple negligence standard in these

circumstances does not place an unreasonable burden “on the free and

vigorous participation in sports by our youth,” Crawn, 136 N.J. at 501 (quoting

Nabozny v. Barnhill, 334 N.E.2d 258, 260 (Ill. App. Ct. 1975)), nor is it likely

to flood our courts with litigation. Indeed, the essence of plaintiff’s theory of

liability -- that Fillmyer chose the wrong place and an unpropitious time to

commence practice -- is no different than the decisions that might be made by

a biology teacher taking a class out to study marine life at the beach. In these

and other similar settings, parents have the right to expect that teachers and

coaches will exercise reasonable care when in charge of their children and that

courts will not immunize a teacher’s negligence 1 by imposing a higher

standard of care. 2

1
As we observed in Crawn, the imposition of a higher standard of care
essentially immunizes all conduct falling short of that standard. 136 N.J. at
502.
2
Whether or to what extent Fillmyer is entitled to any of the defenses and
immunities contained in the Tort Claims Act, N.J.S.A. 59:1-1 to :12-3, is not
before us. Nor does the fact that the Legislature immunized to some extent
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 Of course, our discussion of these issues should not be interpreted as an

expression or intimation of how a factfinder should decide whether Fillmyer

was negligent. We merely hold that Crawn’s recklessness standard does not

apply in these circumstances and, to that extent, we substantially agree with

the Appellate Division’s decision that reversed the entry of summary judgment

in Fillmyer’s favor.

The judgment of the Appellate Division is affirmed, and the matter is

remanded to the trial court for further proceedings.

CHIEF JUSTICE RABNER; JUSTICES PATTERSON, SOLOMON,
PIERRE-LOUIS, and FASCIALE; and JUDGE SABATINO (temporarily
assigned) join in JUDGE FISHER’s opinion.

some persons -- those who provide “services or assistance free of charge . . . as
an athletic coach, manager, or official,” N.J.S.A. 2A:62A-6(a), unless damage
was caused by that person’s “willful, wanton, or grossly negligent act of
commission or omission,” id. at -6(c)(1) -- have any particular bearing on our
decision. Those provisions do not apply to Fillmyer, who provided her
coaching services “as part of a public or private educational institution’s
athletic program.” Id. at -6(f).
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