Appeals Court Rejects Tort Claim from Referee Who Required Wrestler to Cut His Air

Mar 10, 2023

A New Jersey state appeals court has rejected the appeal of a wrestling referee, Alan Maloney, who alleged that a group of defendants “breached the duty of care owed to him,” after the referee required a wrestler to cut his hair, on the spot, if he wanted to wrestle his opponent.

The December 19, 2018 incident, which attracted national headlines, led Maloney to experience “serious and severe injuries and damages and public disgrace, humiliation . . . so pervasive that he received calls, emails, letters and the like, threatening his life.”

For background purposes, Maloney went to the Buena High School (BHS) locker room just before a wrestling match between BHS and Oakcrest High School to inspect the student-athlete wrestlers to confirm their compliance with the prevailing rules. Maloney informed the wrestler, A.J., that, in accordance with the National Federation of State High School Association’s (NFHS) wrestling rules, he had to wear a head gear with a hair cover due to his dreadlock hairstyle. When A.J. later appeared to wrestle, Maloney told him his hair cover was non-compliant because it was not attached to his head gear’s ear guards. Standing firm in his position, Maloney dismissed the request by BHS wrestling coach, George T. Maxwell, to ignore the violation because A.J. wrestled days earlier wearing the purported non-compliant hair cover. To avoid forfeiting his match, A.J. decided to have BHS’s trainer cut his braided hair in the public’s view. A.J., with his freshly cropped hair, was permitted to wrestle.

A day after the match, a local sports reporter posted on social media that “a referee wouldn’t allow A.J.” to wrestle with a “cover over his dreadlocks” and included a video of A.J.’s impromptu haircut. The post went viral, which resulted in the incident being “manipulated and misconstrued as a national race issue,” according to Maloney. As a result, Maloney was subsequently suspended from refereeing wrestling matches by Larry White, Executive Director of New Jersey State Interscholastic Athletic Association (NJSIAA). This disciplinary action was later upheld.

Maloney sued Maxwell; David Albertson, BHS Athletic Director; and the Buena Regional School District Board of Education (collectively defendants). He alleged Board employees, Maxwell and Albertson, despite being fully aware of the rules requiring A.J. to wear a compliant head gear, breached the duty of care owed to him in facilitating A.J.’s rule violation.

The trial court dismissed the claim, finding the defendants possessed immunity under the New Jersey Tort Claim Act (TCA), N.J.S.A 59:1-1 to 12-3; specifically, N.J.S.A. 59:3-5, which “provides absolute immunity to a public employee who causes injury ‘by his adoption of or failure to adopt any law or by his failure to enforce any law.'” The judge also held Maloney’s negligence allegations failed to set forth a duty defendants owed to him. The judge stressed the defendants did not post the incident on social media, Maloney was the “ultimate enforcer” of the rules which A.J. was required to follow, and the defendants never asserted Maloney was “racially motivated or . . . incorrect[ly] enforce[d] . . . the rules.”

Maloney then moved to file an amended complaint, which the court also denied. He then appealed that ruling, not the underlying decision about the merits of the claim.

The appeals court affirmed the lower court’s decision, finding that Maloney did not set forth “a viable tort action.

“The motion judge had a sound basis to deny Maloney’s motion for leave to file a second amended complaint,” the court wrote. “To establish defendants’ tort liability, Maloney’s pleading had to set forth facts establishing defendants owed him ‘a legal duty, the duty was breached, the breach proximately caused a foreseeable injury, and he suffered damages.’ Franco v. Fairleigh Dickinson Univ., 467 N.J. Super. 8, 24 (App. Div. 2021) (citing Townsend v. Pierre, 221 N.J. 36, 51 (2015)).” As with the first amended complaint, the appeals court stated, Maloney failed to establish a negligence cause of action against defendants for several reasons.

“Maloney is incorrect in alleging defendants owed him a duty of care to insure that A.J. complied with the rules of competition. Whether a party owes a duty to another party is not a question for the fact finder, but for the court. See Robinson v. Vivirito, 217 N.J. 199, 208 (2014).” In addition, the court noted that Maloney cited no law to support his position that defendants owed him a duty. Furthermore, there were no new facts alleged in Maloney’s second amended complaint which established defendants owed him a duty of care. “Granted, under certain situations, defendants may owe a duty to their student-athletes to insure they comply with the governing rules. But here, Maloney, as the referee, had the ultimate authority to prevent A.J. from competing if he determined A.J.’s head gear was non-compliant.” Whether correctly or incorrectly, he chose to exercise that power.

Finally, the court concluded “Maloney’s assertions do not establish defendants’ actions or inactions were the proximate cause of his foreseeable injury — public humiliation. ‘Ordinarily, the issue of proximate cause should be determined by the factfinder.’ Fleuhr v. City of Cape May, 159 N.J. 532, 543 (1999). The allegations here, though, are an exception. There is no assertion that A.J. was advised or directed by defendants to cut his hair to avoid forfeiting his wrestling match. Indeed, the pleading asserts ‘A.J. declared that he would cut his hair because he was not going to forfeit the match.’ Moreover, Maloney pleads a reporter made the social media post regarding A.J.’s decision to cut his hair. There is no allegation that defendants were in some way complicit in the reporter’s social media post regarding the incident. Based on the facts alleged, Maloney’s injury was not foreseeable.” Therefore, Maloney’s appeal was swiftly rejected by the court.

Alan Maloney v. George T. Maxwell et al.; Super. Ct. of New Jersey, App. Div.; DOCKET NO. A-3691-20, 2023 N.J. Super. Unpub. LEXIS 165 *; 10/24/22

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