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Defense Digest

The New Jersey Supreme Court Weakens the Duty of Care Standard Applied to Coaches and Instructors

Defense Digest, Vol. 28, No. 12, December 2022

December 1, 2022

Key Points:

  • High school coach’s alleged acts and omissions governed by simple negligence standard rather than the heightened standard of recklessness usually applied in recreational sports settings.
  • New Jersey Supreme Court reasoned that alleged tortious conduct by coach pertained only to her decision-making as a coach, not to coach’s active involvement in the sport.

In 2015, plaintiff Morgan Dennehy was a high-school senior and a member of her school’s field hockey team. Before a practice was scheduled to start, Morgan’s coach, defendant Dezarae Fillmyer, instructed the team to begin warming up in an area where the high school’s boy soccer team was also practicing. As plaintiff was lining up to take a practice shot, an errant soccer ball struck the base of her skull, causing injuries which gave rise to a lawsuit.

The New Jersey Supreme Court recently held in Dennehy v. East Windsor Regional Board of Edu., 2022 WL 14668556 (N.J. 2022), that the high school coach’s alleged acts and omissions were governed by a simple negligence standard rather than the heightened standard of recklessness that is usually applied in other recreational sports settings. Usually in the context of recreational sports, a plaintiff must prove that a defendant acted with recklessness (a higher standard of care) to be held liable for a plaintiff’s injuries. See generally Crawn v. Campo, 643 A.2d 600(N.J. 1994); and Schick v. Ferolito, 767 A.2d 962 (N.J. 2001). The Supreme Court in Dennehy limited its application of Crawn and Schick because Dennehy alleged tortious conduct by the coach pertained only to her decision-making as a coach, not to the coach’s active involvement in the sport.

The plaintiff asserted that she sustained injuries through the defendant’s alleged failure to supervise, prevent potential and foreseeable dangerous conditions, and post suitable warnings. The defendant argued that the plaintiff was required to show that the defendants’ acts or omissions rose at least to the degree of recklessness (instead of simple negligence), as described in Crawn and Schick. Furthermore, the defendants argued Crawn’s recklessness standard should be extended to apply to the acts and omissions of instructors and coaches, like herself, regardless of the circumstances.

In rejecting the defendants’ arguments, the Supreme Court reasoned that case law instructing courts to apply a heightened standard of care only applied in cases where the coach or instructor actively participated in the sporting activity when the injury occurred. For example, the higher standard of care was applied when a karate instructor injured a student by kicking them during a sparring match. Unlike that situation, Coach Fillmyer was not wielding a field hockey stick or otherwise actively engaged in the preliminary practice with her players when the plaintiff’s injury occurred. In other words, Coach Fillmyer was not “participating” in the sport within the meaning of Crawn and Schick. As the Supreme Court put it, “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 courts will not immunize a teacher’s negligence by imposing a higher standard of care.”

There are multiple key takeaways from this case that insurers should be aware of. First, Crawn and Schick remain good law. In other words, a heightened standard of care still applies to instructors and coaches who may injure a player or student while participating in the sport. Second, coaches and instructors who oversee an activity need to be more cautious in their decision making. They need to make sure that their priority is the safety of students.

Furthermore, the court did not address the potential defenses the defendants might have under the Torts Claim Act and whether a written waiver would protect coaches and instructors from liability. In fact, if a waiver had been in place, the case could have been decided differently. As such, it would be a good idea for coaches and instructors to make their students fill out waivers before beginning practice. Only time will tell how future courts interpret this decision and apply it to other settings. 

Firm Highlights

Thought Leadership

WCJ Improperly Refused to Conduct C&R Hearing and Erroneously Required Settlement of All Pending Petitions

In this case, the claimant sustained injuries in the course and scope of her employment as a registered nurse. The employer acknowledged the injury by a Notice of Compensation Payable (NCP).  Subsequently, a Workers’ Compensation Judge (WCJ) expanded the description of injury. The employer then filed a Termination Petition, alleging the claimant was fully recovered from the injuries. Providers filed Utilization Review (UR) Petitions, challenging UR determinations finding their chiropractic treatment to be not reasonable and necessary. A settlement of the claim was eventually reached, and the employer filed a Petition to Seek Approval of a Compromise and Release (C&R) Agreement. The C&R outlined that the agreement fully resolved all future workers’ compensation claims except for the termination and UR Petitions. Briefs were filed and one day later, the WCJ issued an Interlocutory Order which stated if instructions were not followed regarding filing of a C&R, a settlement hearing date would not be given. The employer complied with the order, and filed the C&R. Subsequently, the WCJ notified the parties that the C&R must resolve all issues in the petitions, or would not be entertained. A settlement hearing was never held, and the WCJ then issued a decision, granting the Termination Petition and dismissing the UR Petitions. The WCJ also said that the Petition for Approval of a C&R was dismissed without prejudice, as the issues in the Termination and UR Petitions went to a decision. The claimant appealed to the Workers’ Compensation Appeal Board (Board). The Board granted the claimant’s appeal, finding that the WCJ violated the requirement of Section 449 that an expedited hearing be held when a Petition for Approval of a C&R is filed.  The Board further held that it was legally incorrect for the WCJ to insist that the C&R resolve all issues raised by the pending Petitions. The Board remanded the case to a new WCJ, and Employer appealed to the Commonwealth Court. The court affirmed the Board and held that the WCJ erred, as a matter of law, by refusing to hold an expedited hearing within 30 days, once the Petition for Approval of a C&R was filed.  The court noted that the language of Section 449(b) is mandatory, and a settlement hearing is not discretionary or dependent on a party’s separate request for a stay, or whether the record has been closed. The court further rejected Employer’s argument that the case should not be remanded to a new WCJ for a new decision on the termination and and UR Petitions, as the Board passed no judgment on whether the C&R Agreement resolved the termination and UR Petitions, and left it for the WCJ to decide in connection with the Petition for Approval of a C&R.

Thought Leadership

Commonwealth Court Reaffirms the Constitutionality of Act 111's IRE Provisions

In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.

Thought Leadership

Appellate Division Reversed Trial Judge's Orders Granting a Plaintiff's Section 40 Summary Judgement Motion

In Haskins v. Casey, et al., the plaintiff Dane Haskins worked for defendant Ekornes, Inc. (Ekornes) as a material handler. In June 2021, he filed a workers’ compensation claim petition for benefits due to a left shoulder injury in December 2020. He then resolved his workers’ compensation claim in November 2022 under an Order Approving Settlement. In January 2023, he filed a lawsuit against Ekornes and later amended to add additional claims and name other defendants, including the Ekornes president, chief financial officer, and director of human resources. In May 2025, a second amended complaint alleged that after he filed the workers compensation claim, Ekornes placed him on leave under the Family and Medical Leave Act (FMLA), denied his request for a work accommodation, and ultimately terminated him from employment in December 2021. He pleaded several causes of action asserting violations of the New Jersey Law Against Discrimination (LAD) as well as fraudulent concealment and wrongful discharge. The plaintiff then moved for partial summary judgment, seeking an order enforcing Section 40 of the Workers’ Compensation Act (WCA) as well as summary judgment on his FMLA claims. The defendants opposed the motions and cross-moved for summary judgment on the FMLA claims. After arguments, the court entered an order in December 2025, denying the FMLA motion and cross motion and granting the plaintiff’s Section 40 motion. In the order, the court permitted the plaintiff to pursue compensatory damages at trial in connection with the bodily injury claim. The court also allowed the plaintiff to present evidence of any workers’ compensation benefits to support his claim. The court then denied the defendant's subsequent reconsideration motion in February 2026. The defendants that appealed the Section 40 aspect of the orders. In reviewing the appeal de novo, the Appellate Division rejected the plaintiff's argument that the work-related injury arose out of his discrimination claims under the LAD. The plaintiff argued that he should be able to pursue a personal injury claim as a part of his LAD claim, noting that the employer’s compensation carrier would be able to assert a lien against any recovery against his LAD claims. In distinguishing between the Richter vs. Oakland Board of Education, 246 N.J. 507 (2021) case, in which the Court found that any recovery would be subject to a Section 40 lien as the allegation was that the defendants failed to accommodate her pre-existing diabetic condition, which resulted in bodily injury. In this case, the Appellate Division indicated that there was no bodily injury caused by Ekornes’ failure to accommodate a pre-existing disability. Rather, the shoulder injury was a result of a workers compensation claim, for which he received appropriate benefits previously. The Appellate Division noted that if the plaintiff was successful in proving his LAD claims, he would be entitled to damages caused by the discriminatory discriminatory conduct such as lost wages and emotional distress damages and that there will be no Section 40 lien. In addition, the Appellate Division disagreed that the petitioner could present evidence about and seek damages for his shoulder injury at trial. Although the petitioner argued that a defendant who retaliated against an employee for filing a workers’ compensation claim should not benefit from the exclusivity provision of the WCA, the Appellate Division noted that the Legislature did not include this type of scenario in the statue nor did any of the case law recognize this type of claim as a remedy. As such, the Appellate Division reversed the December 2025 order granting the the plaintiff’s Section 40 summary judgment motion as well as the February 2026 reconsideration motion order. The Appellate Division noted that they did not intend to limit the plaintiff in his pursuit of his other claims on under the LAD, FMLA, and workers’ compensation retaliation causes of action.