Crawn v. Campo

• Citation: 630 A.2d 368,266 N.J.Super. 599
• Parties: Michael CRAWN, Plaintiff-Appellant and Cross-Respondent, v. John CAMPO, Defendant-Respondent and Cross-Appellant.
• Decision Date: 30 July 1993
• Court: New Jersey Superior Court — Appellate Division

Page 599

266 N.J.Super. 599

630 A.2d 368

Michael CRAWN, Plaintiff-Appellant and Cross-Respondent, v. John CAMPO, Defendant-Respondent and Cross-Appellant.

Superior Court of New Jersey Appellate Division.

Argued March 31, 1993.

Decided July 30, 1993.

Albert E. Fershing, West Orange, for Michael Crawn (Shurkin & Fershing, attorneys).

James M. DeMarzo, Morristown, for John Campo (O'Donnell, McCord, Helfrich & Bangiola, attorneys).

Before Judges GAULKIN, STERN and BROCHIN.

The opinion of the court was delivered by

GAULKIN, P.J.A.D.

Plaintiff Michael Crawn, playing catcher in a pick-up softball game, was injured in a collision at home plate with defendant John Campo, an opposing baserunner. Crawn brought this action for damages, alleging that Campo (1) "negligently ran into" him, (2) "violently slid into home plate ... in violation of the rules and regulations of the game" and (3) ran into him "willfully and maliciously and with intent to harm." The allegation of intentional harm was withdrawn and, following a liability-only trial, the jury found that Campo acted "in reckless disregard of the safety of [Crawn]." The trial judge granted a new trial, R. 4:49-1(a), and, in a separate order, directed that at the retrial "the standard of care to be proven by the plaintiff [again] must be ... reckless conduct rather than ... simple negligence." By leave granted, R. 2:2-4, Crawn appeals from both of those orders; Campo cross-appeals from the denial of his motion to dismiss the action because of Crawn's failure to present expert testimony.

I

We affirm the new trial order. The trial judge was correct in concluding that Campo's attorney was wrongly precluded from confronting witness Patruno with his prior inconsistent statement and that Crawn's attorney improperly referred to the injuries Crawn suffered. Our review of the record satisfies us that those errors could well have affected the jury's determinations. We accordingly defer to the trial judge's decision to order the new trial. See Lanzet v. Greenberg, 126 N.J. 168, 175, 594 A.2d 1309 (1991).

We reject as clearly without merit Campo's cross-appeal contention that Crawn's cause of action should have been dismissed because of his failure to present expert testimony. R. 2:11-3(e)(1)(E). See Butler v. Acme Markets, Inc., 89 N.J. 270, 283-84, 445 A.2d 1141 (1982).

II

The Law Division judge held that, as between players "in a sporting event such as a softball game,"

only those injuries caused by intentional conduct or by acting in reckless disregard of the safety of others will give rise to a cause of action. Liability will not be found to exist where ordinary negligence caused the injuries.

[Crawn v. Campo, 257 N.J.Super. 374, 377, 608 A.2d 465 (Law Div.1992).]

That ruling is the underpinning of the order directing that at the new trial Crawn must prove "reckless conduct rather than ... simple negligence." We reverse, for we are persuaded that ordinary negligence is the appropriate standard to be applied.

The issue has not previously been addressed in New Jersey. ¹ The trial judge relied on "the great weight of case authority in the various states," which he read as requiring proof of reckless or intentional conduct in sports-injury cases. ² Ibid. Other courts have similarly described the case law. See, e.g., Gauvin v. Clark, 404 Mass. 450, 537 N.E.2d 94, 97 (1989) ("[t]he majority of jurisdictions which have considered this issue have concluded that personal injury cases arising out of an athletic event must be predicated on reckless disregard of safety"); Marchetti v. Kalish, 53 Ohio St.3d 95, 97, 559 N.E.2d 699, 701 ("courts generally allow a cause of action for injuries sustained in recreational or sports activities only under reckless or intentional tort theories"), reh'g denied, 54 Ohio St.3d 716, 562 N.E.2d 163 (1990). Indeed, the only case unequivocally adopting ordinary negligence as the sports-activity standard of care is the recent 4-3 decision of the Wisconsin Supreme Court in Lestina v. West Bend Mut. Ins. Co., 176 Wis.2d 901, 501 N.W.2d 28 (1993). In our view, the rationale of the cases expressing the majority rule is at odds with relevant New Jersey precedent and policy.

III

The early sports-injury cases permitted recovery upon a showing of ordinary negligence. See, e.g., Polk v. Trinity Universal Ins. Co., 115 So.2d 399 (La.Ct.App.1959) (10-year old defendant liable for negligent failure to make proper observation of nearby children before swinging a bat); Carey v. Toles, 7 Mich.App. 195, 151 N.W.2d 396 (1967) (new trial ordered to determine negligence and contributory negligence where plaintiff was struck by bat in a pick-up softball game); Niemczyk v. Burleson, 538 S.W.2d 737 (Mo.Ct.App.1976) (sustaining a complaint alleging that plaintiff, a base runner in a softball game, negligently collided with plaintiff in the base path). The requirement of a showing of reckless or intentional misconduct appears to have been first expressed in Nabozny v. Barnhill, 31 Ill.App.3d 212, 334 N.E.2d 258 (1975). The court there justified its ruling as necessary "to control a new field of personal injury litigation" and to assure that "the law ... not place unreasonable burdens on the free and vigorous participation in sports by our youth." Id., 334 N.E.2d at 260. Other courts have stated the same reasoning and result. In Ross v Clouser, 637 S.W.2d 11 (Mo.1982), for example, the Missouri Supreme Court relied on Nabozny in overruling Niemczyk, supra:

Fear of civil liability stemming from negligent acts occurring in an athletic event could curtail the proper fervor with which the game should be played and discourage individual participation, yet it must be recognized that reasonable controls should exist to protect the players and the game. Balancing the seemingly opposite interests, we conclude that a player's reckless disregard for the safety of his fellow participants cannot be tolerated. If a plaintiff pleads and proves such recklessness, he may seek relief for the injuries incurred in an athletic competition.

[Id. at 14.]

See also Marchetti, supra, 559 N.E.2d at 703 ("our goal is to strike a balance between encouraging vigorous and free participation in recreational or sports activities, while ensuring the safety of the players"); Gauvin, supra, 537 N.E.2d at 96 ("courts are wary of imposing wide tort liability on sports participants, lest the law chill the vigor of athletic competition"); Kabella v. Bouschelle, 100 N.M. 461, 672 P.2d 290, 294 (1983) ("[v]igorous and active participation in sporting events should not be chilled by the threat of litigation"). But see Lestina, supra, 501 N.W.2d at 32 ("[w]e do not agree that the application of the negligence standard would have this effect [of discouraging participation in sports-related activities]").

The cases also commonly offer "assumption of risk" to justify denying recovery for negligently caused sports injuries. Kabella, supra, is representative:

Voluntary participation in [an athletic contest] constitutes an implied consent to normal risks attendant to bodily contact permitted by the rules of the sport.

[672 P.2d at 292.]

See also, e.g., Marchetti, supra, 559 N.E.2d at 703-04 ("where individuals engage in recreational or sports activities, they assume the ordinary risks of the activity"); Connell v. Payne, 814 S.W.2d 486, 488-89 (Tex.Ct.App.1991) ("[a] participant in a competitive contact sport expressly consents to and assumes the risk of the dangerous activity by voluntarily participating in the sport"); Overall v. Kadella, 138 Mich.App. 351, 361 N.W.2d 352, 355 (1984) ("[p]articipation in a game involves a manifestation of consent to those bodily contacts which are permitted by the rules of the game").

Under that analysis, reckless or intentional misconduct is actionable because it is "totally outside the range of the ordinary activity involved in the sport." Knight v. Jewett, 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 17, 834 P.2d 696, 711 (1992); see also Turcotte v. Fell, 68 N.Y.2d 432, 510 N.Y.S.2d 49, 502 N.E.2d 964, 970 (1986) (sports participant does not "consent" to "flagrant infractions unrelated to the normal method of playing the game and done without any competitive purpose"). But only a few courts have examined the proposition that a participant in a sporting contest "assumes the risk" of another participant's negligence. In so doing, they have demonstrated how the notion of assumption of risk "bedevils the law." Tiller v. Atlantic Coast Line R.R. Co., 318 U.S. 54, 68, 63 S.Ct. 444, 452, 87 L.Ed. 610, 618 (1943) (Frankfurter, J., concurring). As pointed out by Justice Mosk, concurring and dissenting in Knight, supra, discussion of assumption of risk invites analysis of such "esoteric terms" and "abstruse distinctions" as primary assumption of risk, secondary assumption of risk, reasonable implied assumption of risk, unreasonable implied assumption of risk, implied secondary reasonable assumption of risk and implied secondary unreasonable assumption of risk. 834 P.2d at 712-13; see also Turcotte, supra, 502 N.E.2d at 967-70 (discussing express assumption of risk, primary assumption of risk, secondary assumption of risk, consent and waiver); Kuehner v. Green, 436 So.2d 78, 79-81 (Fla.1983) (discussing express assumption of risk, waiver, voluntary consent, actual consent and subjective appreciation of risk). The results of those explorations have been equivocal: Knight and Turcotte found as a matter of law that a sports participant assumes the risk of negligent injury at the hands of a co-participant, while Kuehner concluded that the jury should determine whether the participant "actually consented" to confront the danger.

IV

"Assumption of risk" is not a sound basis for incorporating a sports-injury immunity in New Jersey law. The concept of assumption of risk was essentially written out of our jurisprudence by Meistrich v. Casino Arena Attractions, Inc., 31 N.J. 44, 155 A.2d 90...