Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark
My son or daughter play sports and school and were injured pretty badly when another student ran into him or her. Am I able to sue the school district for her sports related or athletic injury? This is a very interesting case and has to deal with all children and kids involved in school sports, intramural sports, travel sports, and in-house sports for all townships.
Have you been injured during a school sporting event? Have you been injured in a travel soccer team, how did that injury happened? Are you able to sue the school district? Can you sue the sports travel Association? Who is responsible for your sons or daughters injuries in the intra-school activities?
This case examines who is responsible for sports related injuries to a minor caused by his friend at a golf practice driving range. The injured plaintiff was near the swinging box when his friend did not look behind him or to the left or right and struck him in the face with the club causing significant injury. The parents brought suit against the golf driving range for the injury suffered.
What is the legal liability standard? Is it general negligence or is it a heightened “gross”negligence standard that the plaintiff must prove in these cases? The court ruled that:
(1) the heightened standard of intentional or reckless conduct applies and
(2) the conduct of O’Neill did not rise to the level of recklessness.
The Appellate Division in this case turn to the seminal case of Crawn v. Campo, 136 N.J. 494 (1994) which outlines the gross negligence standard injured parties in all school and intramural type injuries must prove. In that case the Court considered the extent of a sports participant’s duty to avoid inflicting physical injury on another player. Crawn, 136 N.J. at 496-97.
In Crawn, the plaintiff was participating in an informal softball game in the position of catcher. Id. at 498. He sustained an injury when a base runner slid into home plate. Id. at 498-99. The Court held that “the duty of care applicable to participants in informal recreational sports is to avoid the infliction of injury caused by reckless or intentional conduct.” Id. at 497. In reaching the conclusion that a co-participant had no liability in the absence of reckless or intentional conduct, the Court relied on two policy considerations that supported that standard of care. Id. at 501. First, the benefit to be derived from promoting vigorous participation in athletic activities, and second, the need to avoid the “flood of litigation” that would be generated by participation in recreational sports if the standard were to be set at ordinary common law negligence. Ibid. The Court determined that those two policies outweighed the harm of immunizing conduct that would otherwise expose the responsible party to liability. Crawn, 136 N.J. at 502. In determining that the recklessness standard should apply, rather than the common law standard of ordinary negligence, the Court observed that the “rough-and-tumble of sports” between two equally situated participants “should not be second-guessed in courtrooms.” Id. at 508. In subsequent decisions that applied Crawn, the reckless conduct standard was applied in circumstances where one player collided with, or somehow directly injured another player, in the course of the sporting activity. See Schick v. Ferolito, 167 N.J. 7, 11, 22 (2001) (applying the recklessness standard when a golfer hit an unannounced and unexpected second tee shot, or “mulligan,” after all members of the foursome had already teed off); Obert v. Baratta, 321 N.J. Super. 356, 358-60 (App. Div. 1999) (applying the recklessness standard when a softball player sued his teammate for injuries sustained when the two collided while in pursuit of a fly ball during an informal intra-office game); Rosania v. Carmona, 308 N.J. Super. 365, 367-68 (App. Div. 1998) (applying the recklessness standard where a karate student brought an action against a martial arts academy and instructor); Calhanas v. S. Amboy Roller Rink, 292 N.J. Super. 513, 522-23 (App. Div. 1996) (applying the recklessness standard where a roller skater suffered a broken leg from collision with another skater). We are informed in our decision relative to the standard of care to be employed by Schick, where the Court held that “[T]he recklessness or intentional conduct standard of care applies generally to conduct in recreational sporting contexts, including golf.” 167 N.J. at 22. As Justice LaVecchia noted, “[t]he applicability of the heightened standard of care for causes of action for personal injuries occurring in recreational sports should not depend on which sport is involved and whether it is commonly perceived as a ‘contact’ or ‘noncontact’ sport.” Id. at 18-19. Schick emphasized that “[t]he policies of promotion of vigorous participation in recreational sports and the avoidance of a flood of litigation over sports accidents are furthered by the application of the heightened standard of care to all recreational sports.” Id. at 18. As the Court further noted, the risk of injury in golf “arises in myriad forms and for many reasons.” Ibid. “Risk of injury also is as real when it arises from an instrumentality used in a game, such as a golf club a golfer swings. . . .” Ibid.
In other words, the plaintiff has to show that the conduct of the other student athlete was so beyond the normal play activity to constitute gross negligence. What does this mean? More importantly, this evidentiary burden is a question for a jury to decide. The conduct must t involve a willful or wanton disregard for the safety of other participants. Plaintiff must prove the other athlete knew or should have known had a substantial likelihood of causing significant bodily injury.
In this case the plaintiff produced an expert report that the judge rejected. The Appellate Division found the judge should not be the one making decisions of facts or evidence and as a result the summary judgment dismissing the golf range was overturned. However, the plaintiff was still required to prove gross negligence for this “passive “ non-contact sport injury as opposed to contact sport injuries from football, basketball, wrestling and other more aggressive type of events. The Appellate Division also rejected the plaintiff’s call that a lower standard of general negligence be applied to minors. The appellate panel found that whether it’s passive or active contact sports, regardless of age, the gross negligence standard should apply to all these cases
The important aspect of this decision is the need for a thorough investigation of the facts a complete investigation of the circumstances surrounding the injury and the parties. As a party bringing this type of law suit, you will need to create questions of fact which could open the door to the gross negligence questions of fact, unsuccessfully beating back a summary judgment motion. Please call Hark and Hark to discuss these significant issues regarding your sons’ or daughters’ injuries. We will undertake the necessary investigation to help assist you determine if you have a claim and a cause of action for your sons’ and daughters’ serious injuries.
Jeffrey S. Hark, Esq.