Jaworski v. Kiernan

Decision Date17 June 1997
Docket NumberNo. SC,SC
Citation696 A.2d 332,241 Conn. 399
PartiesCynthia A. JAWORSKI v. Harry KIERNAN. 15562.
CourtConnecticut Supreme Court

Michael E. Riley, with whom were Michael J. O'Sullivan, Hartford, and Joseph Busher, Wethersfield, for appellant (defendant).

David W. Cooney, with whom, on the brief, was Kathryn Calibey, Hartford, for appellee (plaintiff).

Before CALLAHAN, C.J., and BORDEN, BERDON, KATZ and McDONALD, JJ.

CALLAHAN, Chief Justice.

The sole issue in this appeal is what duty of care the defendant, Harry Kiernan, owed the plaintiff, Cynthia A. Jaworski, while both were participating on opposing teams in an adult coed soccer game sponsored by the recreation department of the town of South Windsor. We conclude that the defendant owed the plaintiff a duty of care to refrain from reckless or intentional conduct. Because the jury determined that the defendant's conduct, which caused the plaintiff's injuries, was negligent only, and not reckless or intentional, we reverse the judgment of the trial court.

The jury reasonably could have found the following facts. The South Windsor recreation department sponsors an outdoor adult coed soccer league. On May 16, 1993, during a game, the defendant made contact with the plaintiff while she was shielding the soccer ball from the opposition so that the goalie on her team could retrieve the ball. As a result of this incident, the plaintiff suffered an injury to her left anterior cruciate ligament, which caused a 15 percent permanent partial disability of her left knee.

The plaintiff brought this action against the defendant in two counts. In the first count, she alleged that the defendant failed to exercise due care and that his conduct was negligent and careless in that he "hit" and "tripped" her from behind and that he challenged a female player, both in violation of league rules. 1 The plaintiff further alleged that the defendant's negligent conduct caused her injury. In the second count, the plaintiff alleged that the defendant's conduct was wanton and reckless, citing the same violations of league rules, and claiming that his conduct caused identical harm. The defendant moved to strike the plaintiff's negligence count, claiming that a participant in an athletic contest is, as a matter of law, not liable to a coparticipant for injuries sustained as a result of simple negligence during the playing of the game. The defendant's motion was denied. 2 The defendant then filed a special defense to the plaintiff's action, alleging that the plaintiff's own conduct was negligent, and that the plaintiff's negligence exceeded his alleged negligence. The jury returned a verdict for the plaintiff on the first count of her complaint, the negligence count, and found no comparative negligence attributable to the plaintiff. The jury found for the defendant on the second count of the plaintiff's complaint wherein she had alleged reckless conduct. The jury awarded the plaintiff damages in the amount of $20,910.33, the exact amount of her medical bills.

Both parties filed posttrial motions with respect to the verdict. The defendant moved to set aside the verdict and for judgment notwithstanding the verdict as to the negligence count, claiming, again, that an "action for personal injuries sustained in an athletic competition must be predicated on recklessness and not mere negligence." The plaintiff also moved to set aside the verdict as to the negligence count, claiming that the verdict was "inadequate as a matter of law due to the jury's failure to award noneconomic damages." The plaintiff therefore moved the court to order an additur. The court denied the defendant's motion to set aside the verdict and for judgment notwithstanding the verdict. The court, however, granted the plaintiff's motion for an additur and conditionally granted her motion to set aside the verdict. The court ruled that if the defendant did not file a $45,000 additur with the clerk or if the plaintiff did not accept such an additur, the motion to set aside the verdict would be granted, and a new trial on the first count as to both liability and damages would be ordered. See Fazio v. Brown, 209 Conn. 450, 455-58, 551 A.2d 1227 (1988). If, however, the additur was filed and accepted, judgment would enter in the sum of $65,910.33. 3 The defendant did not file an additur. Consequently, the verdict as to the first count was set aside, and a new trial was ordered as to that count.

The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). 4 Because we conclude that participants in a team athletic contest owe a duty to refrain only from reckless or intentional conduct toward other participants, we reverse in part the judgment and remand the case with direction to strike the first count of the plaintiff's complaint.

The plaintiff, in support of the trial court's conclusion that negligence is the proper standard of care to apply to team athletic competition, argues that the theory of negligence is flexible enough to fix a person's standard of care for any set of circumstances. 5 In addition, the plaintiff cites Walsh v. Machlin, 128 Conn. 412, 23 A.2d 156 (1941), wherein the plaintiff was injured when struck by a golf ball, for the proposition that we have already determined that negligence is the appropriate standard to apply to conduct that occurs during an athletic contest. In particular, the plaintiff points to our statement in Walsh that "[i]t is undisputed that the duty to the plaintiff which rested upon the defendant while playing this game was the usual one of reasonable care under the circumstances." Id., at 414, 23 A.2d 156. The plaintiff also argues that the assumption of risk principles upon which a reckless conduct standard of care is based--i.e., that plaintiffs have assumed the risk of negligent conduct, but not of reckless or intentional conduct, by their participation in the athletic contest--(1) are incompatible with Connecticut law, and 2) have been replaced by General Statutes § 52-572h, 6 and therefore, the reckless conduct standard is inappropriate. Last, the plaintiff makes a public policy argument, stating that "society has an obligation not to tolerate behavior which is unreasonable, especially when it involves the violation of [athletic] safety rules."

The defendant, on the other hand, summarizes cases from foreign jurisdictions, the vast majority of which has adopted an intentional or reckless conduct standard of care for athletic contests. He also presents two public policy arguments, which he contends support that conclusion: (1) promoting vigorous competition and participation; and (2) avoiding a flood of litigation. Finally, the defendant challenges the plaintiff's contention that the theory of assumption of risk was completely abolished by the enactment of § 52-572h. 7

We first note that the determination of whether a duty exists between individuals is a question of law. Petriello v. Kalman, 215 Conn. 377, 382, 576 A.2d 474 (1990); Shore v. Stonington, 187 Conn. 147, 151, 444 A.2d 1379 (1982). Only if a duty is found to exist does the trier of fact go on to determine whether the defendant has violated that duty. Petriello v. Kalman, supra, at 382-83, 576 A.2d 474. When "the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record. Practice Book § 4061; United Illuminating Co. v. Groppo, 220 Conn. 749, 752, 601 A.2d 1005 (1992)...." (Citations omitted; internal quotation marks omitted.) SLI International Corp. v. Crystal, 236 Conn. 156, 163, 671 A.2d 813 (1996).

"Duty is a 'legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual.' 2 D. Pope, Connecticut Actions and Remedies, Tort Law (1993) § 25:05, p. 25-7. Although it has been said that 'no universal test for [duty] ever has been formulated'; W. Prosser & W. Keeton, [Torts (5th Ed.1984) ] § 53, p. 358; our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. 'The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised.... By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?'... Frankovitch v. Burton, 185 Conn. 14, 20-21, 440 A.2d 254 (1981); Noebel v. Housing Authority, 146 Conn. 197, 200-201, 148 A.2d 766 (1959); Orlo v. Connecticut Co., 128 Conn. 231, 237, 21 A.2d 402 (1941)....

"A simple conclusion that the harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally 'foreseeable,' yet for pragmatic reasons, no recovery is allowed. See, e.g., Maloney v. Conroy, 208 Conn. 392, 400-401, 545 A.2d 1059 (1988) (looking beyond foreseeability, this court imposed limitations on the right of a bystander to recover for emotional distress that allegedly resulted from medical malpractice of doctors in their treatment of the plaintiff's ... mother). A further inquiry must be made, for we recognize 'that "duty" is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is...

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