A New Jersey state appeals court has affirmed a trial court’s ruling that dismissed the claim of a mother and her student athlete daughter, B.J., who sued the school district and others after the daughter suffered an injury that left her blind in one eye during a field hockey practice.
In so ruling, the court found that the incident was an accident and that the report submitted by the plaintiffs’ expert was inadmissible.
The incident leading to the lawsuit occurred on October 27, 2009, the minor plaintiff was participating in a junior varsity field hockey practice in the High Point Regional High School 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 another student (H.U.), who would be named as an individual defendant. 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 a 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.
The trial court found that the plaintiffs’ expert rendered “an inadmissible net opinion” and that the plaintiffs “presented no evidence that H.U. acted recklessly, nor did the plaintiffs present evidence that the individual school defendants were negligent in failing to mandate the use of eye goggles in 2009.” Based on those finding, the court granted summary judgment to the defendants.
The plaintiffs appealed.
“The parties agree that the plaintiff must demonstrate evidence of H.U.’s recklessness to prevail against her summary judgment motion,” noted the appeals court. “In Crawn v. Campo, 136 N.J. 494, 500, 643 A.2d 600 (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.”
In the instant case, B.J. and her mother did not allege that H.U. “intentionally struck B.J.” In fact, “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.”
Next the court turned to whether the school district and the high school 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.”
The expert, an adjunct professor at Montclair State University with a doctorate in “Recreation, Health and Physical Education” from the University of Utah, 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.”
The appeals court noted that the expert’s opinion and report “is based on his expertise alone, without reference to any applicable legal standard, regulation, practice or procedure.”
The report, wrote the appeals court, “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.”
In affirming the ruling, it added that “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 so desired.”
Silvana Corcoran et al. v. High Point Regional School District et al.; Super. Ct. N.J., App. Div.; DOCKET NO. A-1798-13T3, 2015 N.J. Super. Unpub. LEXIS 44; 1/9/15
Attorneys of Record: (for appellants) Jon C. Dupée, Jr., argued the cause (Dupée & Monroe, P.C., attorneys; Mr. Dupée, on the brief). (for respondents) Cherylee O. Melcher argued the cause High Point Regional High School and School District (Hill Wallack L.L.P., attorneys; Ms. Melcher, of counsel and on the brief.).
