SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared
by the Office of the Clerk for the convenience of the reader. It has been
neither reviewed nor approved by the Supreme Court. Please note that, in the
interests of brevity, portions of any opinion may not have been summarized).
Schick v.
Ferolito (A-108-99)
Argued November 27, 2000 -- Decided March 12, 2001
LaVECCHIA, J., writing for a majority of the Court.
The issue raised in this appeal is whether a
heightened standard of care applies to participants in the game of golf. Under
such a standard, participants would be liable for reckless or intentional
conduct, and not mere negligence.
On July 27, 1994, two pairs of golfers reached the
tenth hole of East Orange Golf Course and agreed to play the rest of the course
as a foursome. Plaintiff, Jeffrey Schick and his father played the ensuing
holes with defendant, John Ferolito, and Tom Ganella. At the sixteenth hole, an
errant ball hit off the tee by defendant struck plaintiff in the right eye
causing personal injuries. According to plaintiff, defendant hit an unannounced
and unexpected second tee shot, or “mulligan,” after all members of the
foursome had teed off. Defendant moved for summary judgment, claiming that the
heightened standard of care established by Crawn v. Campo, 136
N.J. 494 (1994) should apply to participants in the game of golf. Defendant
further claimed that applying the Crawn standard (participants in
recreational sports have a duty to avoid the infliction of injury caused by
reckless or intentional conduct), he could not be held liable for plaintiff's
injuries.
The trial court agreed that a recklessness standard
applied and dismissed the action. The Appellate Division reversed, holding that
the case was distinguishable from Crawn and that the negligence standard
of care should apply. 327
N.J. Super. 530 (2000). The panel reasoned that the recklessness standard
was appropriate in “rough and tumble” sports, where anticipated risks are an
inherent or integral part of the game. As for golf, the court stated that the
heightened standard would be appropriate only for anticipated risks of the
game, such as errant or shanked balls, but not for unanticipated risks, such as
an “unexpected Mulligan,” as occurred here.
The Supreme Court granted certification.
HELD: The recklessness or intentional conduct standard of care
applies generally to conduct in recreational sporting contexts, including golf.
Notwithstanding that holding, this matter must proceed to trial to permit a
jury to resolve the disputed facts that encompass allegations of reckless
conduct by defendant.
1. The facts presented through deposition testimony were disputed in several
critical aspects. According to plaintiff, he and his father had teed off first
on the sixteenth hole and returned to their golf cart, located ahead of the
tee-box area at a forty-five degree angle to the left. Plaintiff claimed that
he looked back to the tee after defendant and Ganella had already hit their tee
shots, and observed defendant about to strike another ball. Plaintiff stated
that he had only a few seconds to think about what was happening when defendant
commenced his swing and hit a second tee shot. The ball struck plaintiff in the
right eye socket, rendering him temporarily unconscious. Defendant's and
Ganella's versions were different. Defendant was unable to recall whether it
was a first or second tee shot that hit plaintiff. Defendant and Ganella both
stated that defendant had motioned to plaintiff to move aside prior to striking
the ball. Nevertheless, defendant did explain that he waved plaintiff to move
aside because he believed plaintiff was “in the line of fire.” (Pp. 3-5)
2. In Crawn, a catcher in an informal softball game suffered an
injury when a base runner slid into home plate. 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. Two important
considerations supported the decision to apply a standard of care that exceeded
negligence: the promotion of vigorous participation in athletic activities, and
the avoidance of a flood of litigation generated by participation in
recreational games and sports. A majority of jurisdictions apply the
recklessness standard of care to determine the duty that recreational players
owe to one another. Several jurisdictions have applied this heightened standard
of care specifically in the context of the game of golf. The Court perceives no
persuasive reason to distinguish between contact and noncontact sports. Risk of
injury is a common and inherent aspect of athletic effort generally. It may
arise from the physical nature of the athletic endeavor, creating the
possibility or likelihood of direct physical contact with another player or
with a ball. The risk of injury is just as real when it arises from an
instrumentality used in a game, such as a swinging golf club or the small, hard
ball the club propels at a very high rate of speed. Even for an experienced
golfer, the course a golf ball takes is often unpredictable through no
conscious fault of the golfer. (Pp. 5-16)
3. The question presented here is whether plaintiff's case can survive a
summary judgment motion under a recklessness standard. Recklessness, unlike
negligence, requires a conscious choice of a course of action, with knowledge
or a reason to know that it will create a serious danger to others. Although
negligence also involves an act with knowledge that it creates a risk of danger
to others, recklessness requires a substantially higher risk. The Court finds
that this case presents a question of recklessness that is properly for a jury
to determine. The facts are in conflict, but they are open to an interpretation
that defendant hit a second shot off the tee without telling the others that he
was about to do so - even while perceiving plaintiff to be in the “line of
fire.” That scenario presents a set of facts that a jury could find constitutes
reckless conduct. Thus, even analyzed under a recklessness standard of care,
plaintiff's case survives defendant's motion for summary judgment and should
proceed to trial. (Pp. 16-21)
Judgment of the Appellate Division is AFFIRMED
as MODIFIED, and the matter is REMANDED to the Law Division for
trial.
JUSTICE VERNIERO concurs with the
majority's adoption of the recklessness standard in recreational sporting
contexts, including golf; he dissents, however, from the majority's
determination that a jury could find defendant's conduct sufficiently egregious
to satisfy the recklessness standard.
CHIEF JUSTICE PORITZ and JUSTICES STEIN,
COLEMAN, LONG and ZAZZALI join in JUSTICE LaVECCHIA's opinion. JUSTICE VERNIERO
has filed a separate opinion concurring in part, and dissenting in part.
SUPREME COURT OF NEW
JERSEY
A- 108 September Term
1999
JEFFREY SCHICK,
Plaintiff-Respondent,
V.
JOHN FEROLITO,
Defendant-Appellant.
________________________
Argued November 27, 2000 -- Decided
March 12, 2001
On certification to the
Superior Court, Appellate Division, whose opinion is reported at 327
N.J. Super. 530 (2000).
James M. DeMarzo argued
the cause for appellant (O'Donnell, McCord, Helfrich & DeMarzo,
attorneys).
Richard M. Chisholm
argued the cause for respondent.
The opinion of the Court was delivered by
LaVECCHIA, J.
On July 27, 1994, two pairs of golfers reached the
tenth hole of East Orange Golf Course and agreed there to play the rest of the
course as a foursome. Plaintiff Jeffrey Schick and his father, Wolfgang Schick,
played the ensuing holes with defendant John Ferolito and Tom Ganella. At the tee-box
on the sixteenth hole, a par four straightaway approximately 300 yards in
length, an errant ball hit off the tee by defendant struck plaintiff in the
right eye causing personal injuries. According to plaintiff, defendant hit an
unannounced and unexpected second tee shot, or “mulligan,” after all members of
the foursome had teed off. Defendant moved for summary judgment, claiming that
the heightened standard of care established by Crawn v. Campo, 136
N.J. 494 (1994), should apply to participants in the game of golf. That
duty of care is “to avoid the infliction of injury caused by reckless or
intentional conduct.” Id. at 497.
The trial court agreed that a recklessness standard
applied and dismissed the action. The Appellate Division reversed, holding that
the case was distinguishable from Crawn and that the negligence standard
of care was applicable. Schick v. Ferolito, 327
N.J. Super. 530 (App. Div. 2000). The panel reasoned that the recklessness
standard was appropriate in “rough and tumble” sports, where “'anticipated
risks . . . are an inherent or integral part of the game.'” Id. at
533-34 (quoting Crawn, supra, 186 N.J. at 504). As for
golf, the court stated that the heightened standard would be appropriate only
for anticipated risks of the game, such as errant or shanked balls, but not for
unanticipated risks, such as an “unexpected Mulligan” as occurred here. Id.
at 534. Because Crawn may have left open the question of whether the
recklessness standard should apply generally to conduct in recreational
sporting contexts, including golf, we granted certification. 164
N.J. 191 (2000).
I.
The facts presented through deposition testimony were
disputed in several critical aspects. For purposes of our review, we give
plaintiff the benefit of all reasonable inferences. Brill v. Guardian Life
Ins. Co., 142
N.J. 520, 523 (1995).
According to plaintiff, he and his father met defendant
and Ganella at the tenth tee and the four decided to play as a group, which
would speed up play. It was dusk, and there were nine holes remaining to play.
They played without incident until the sixteenth hole. There, plaintiff and his
father teed off first. He and his father then left the tee-box area, returned
to their golf cart, placed their clubs in their golf bags, and proceeded to sit
down in the cart. Plaintiff described his cart as located ahead of the tee-box
area at a forty-five-degree angle to the left.
Seated in the driver's position, plaintiff looked back
over his right shoulder toward the teeing area and observed defendant about to
strike a ball off the tee. Plaintiff claims that defendant and Ganella already
had hit their tee shots and that defendant was hitting an unannounced second
drive off the tee. Plaintiff stated that defendant's first ball had sliced, or
angled sharply, off to the right, toward a series of trees situated along the
right side of the fairway, but in an area where no out-of-bounds markers were
located. Thus, while it might have presented a poor location for his next shot,
defendant's first ball was still “in-play.”
Although he saw defendant in a tee-off stance,
plaintiff said he did not have time to move out of the way. He had only a few
seconds to think about what was happening when defendant commenced his swing
and hit his second tee shot. The ball struck plaintiff in the right eye socket,
rendering him temporarily unconscious.
Defendant gives a different version of what transpired.
He did not recall if it was his first or second shot off the tee. Defendant
claims that he and plaintiff made eye contact before defendant teed off and
that he gave a hand warning, described as a “wave,” to plaintiff to move aside.
According to defendant, plaintiff's cart was approximately thirty feet ahead,
at a forty- five-degree angle, of where he was taking his stance to drive the
ball onto the fairway. Defendant states he was trying to hit the ball straight
down the middle of the fairway, and plaintiff similarly testified that
defendant was not trying to hit in plaintiff's direction. Nevertheless,
defendant explained that he waved plaintiff to move aside because defendant
believed plaintiff “was in the line of fire.”
Ganella's deposition testimony indicated that he did
not recall defendant taking a tee shot other than the one that struck
plaintiff. Ganella could not even recall if he had teed off on the sixteenth
hole, suggesting that plaintiff and his father returned to their cart before
the two other men had hit their drives. He stated that on previous holes
plaintiff and his father had been returning to their cart before all members of
the foursome had teed off. Ganella perceived the timing of the events
differently than plaintiff. Specifically, Ganella described a span of
approximately one to two minutes between the time defendant motioned to
plaintiff that he was about to hit and the time defendant actually struck the
ball.
II.
In Crawn, the Court considered the nature of a
sports participant's duty to avoid inflicting physical injury on another
player. Crawn, supra, 136 N.J. at 497. In that case, a
catcher suffered an injury when a base runner slid into home plate during an
informal softball game. Id. at 498. Our holding in Crawn was
stated broadly. “[T]he 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. Two important considerations supported
the decision to apply a standard of care that exceeded negligence: the
promotion of vigorous participation in athletic activities, and the avoidance
of a flood of litigation generated by participation in recreational games and
sports. Id. at 501. The Court determined that those policies outweighed
concerns that raising the standard of care implicitly immunized conduct that
otherwise would be considered tortious and actionable. Id. at 502.
In applying the recklessness standard, the Court sought
to avoid the complexities inherent in applying a negligence standard to conduct
in recreational sports. Id. at 507-08. The Court reasoned that in that
context, “a legal duty of care based on the standard of what, objectively, an
average reasonable person would do under the circumstances is illusory, and is
not susceptible to sound and consistent application on a case-by-case basis.” Ibid.
Ascertaining whether a participant acted so as to create a risk of harm that
was not a normal or ordinary part of the game is a difficult task. Id.
at 506. The Court explained further:
Our conclusion that a
recklessness standard is the appropriate one to apply in the sports context is
founded on more than a concern for a court's ability to discern adequately what
constitutes reasonable conduct under the highly varied circumstances of
informal sports activity. The heightened standard will more likely result in
affixing liability for conduct that is clearly unreasonable and unacceptable
from the perspective of those engaged in the sport yet leaving free from the
supervision of the law the risk-laden conduct that is inherent in sports and
more often than not assumed to be “part of the game.”
One might well conclude that
something is terribly wrong with a society in which the most commonly-accepted
aspects of play_-a traditional source of a community's conviviality and
cohesion_-spurs litigation. The heightened recklessness standard recognizes a
commonsense distinction between excessively harmful conduct and the more
routine rough-and-tumble of sports that should occur freely on the playing
fields and should not be second-guessed in courtrooms.
[Id. at 508.]
The Court's holding in Crawn placed New
Jersey among the majority of jurisdictions that apply the recklessness standard
of care to determine the duty that recreational players owe to one another. See,
e.g., Knight v. Jewett, 834
P.2d 696 (Cal. 1992) (applying recklessness standard to injury in touch
football); Picou v. Hartford Ins. Co., 558
So.2d 787 (La. Ct. App. 1990) (holding recklessness applies to injuries
sustained in informal softball game); Ritchie-Gamester v. City of Berkely,
597
N.W.2d 517 (Mich. 1999) (applying recklessness standard to ice skating
collision); Dotzler v. Tuttle, 449
N.W.2d 774 (Neb. 1990) (applying recklessness to pick-up basketball game); Connell
v. Payne, 814
S.W.2d 486 (Tex. App. 1991) (applying recklessness standard to injury in
polo match); see also Daniel E. Lazaroff, Torts & Sports:
Participant Liability to Co-Participants for Injuries Sustained During
Competition, 7 U. Miami Ent. & Sports L. Rev. 191, 195, 198
(1990) (finding that recklessness standard of care is the “modern trend”).
Since Crawn, the recklessness standard of care
has been applied in New Jersey to sporting environments that span team
competitions, one-on-one competitions, and individualized sporting endeavors. See,
e.g., Obert v. Baratta, 321
N.J. Super. 356 (App. Div. 1999) (applying recklessness standard when
softball player sued teammate for injuries sustained as result of teammate's
pursuit of fly ball during informal intra-office game); Rosania v. Carmona,
308
N.J. Super. 365 (App. Div.) (applying reckless standard where karate
student brought action against martial arts academy and instructor, seeking
damages for retinal detachment suffered during karate proficiency test match
with instructor), certif. denied, 154
N.J. 609 (1998); Calhanas v. South Amboy Roller Rink, 292
N.J. Super. 513 (App. Div. 1996) (applying recklessness standard where
roller skater suffered broken leg from collision with another skater). In this
matter, the trial court concluded that the heightened standard of recklessness
or intentional conduct should apply also to participants in the game of golf.
Several other jurisdictions have applied the heightened
standard of care in the context of the game of golf. The Ohio Supreme Court was
the first court to so extend the reckless disregard or intentional conduct
standard to a “noncontact sport.” Thompson v. McNeill, 559
N.E.2d 705 (Ohio 1990). In Thompson, the defendant inadvertently
shanked a golf ball in the direction of the plaintiff, who was playing in her
foursome. Id. at 709. Despite the defendant's alleged effort to yell
“fore,” the plaintiff was struck by the ball and was injured. The court held
that the danger of such an occurrence was an inherent part of the game and
granted summary judgment for defendant. Ibid. In analyzing the facts
under a reckless or intentional conduct standard of care, the court noted that
the plaintiff was off to the defendant's right at such a sharp angle that she
was not within the intended flight of defendant's ball. Ibid. Also, the
defendant's shot was taken in accordance with the rules of golf; it was not a
prohibited shot exposing the plaintiff to more danger than that which any
golfer faces when participating in a round of golf. Ibid. The court
stated:
Shanking the ball is a
foreseeable and not uncommon occurrence in the game of golf. The same is true
of hooking, slicing, pushing, or pulling a golf shot. We would stress that
“[i]t is well known that not every shot played by a golfer goes to the point
where he intends it to go. If such were the case, every player would be perfect
and the whole pleasure of the sport would be lost. It is common knowledge, at
least among players, that many bad shots must result although every stroke is
delivered with the best possible intention and without any negligence
whatsoever.”
[Ibid. (quoting Benjamin
v. Nernberg, 102
Pa. Super. 471, 475-76 (1931)).]
California also applies the recklessness standard of
care to golf. In Dilger v. Moyles, 63
Cal. Rptr.2d 591 (Cal. Ct. App. 1997), the California Court of Appeals held
that a participant in golf owes no duty to co-participants unless he or she
intentionally injures another player or engages in reckless conduct that is
totally outside the range of the ordinary activity involved in the sport. The
court reasoned that participants assume those risks of injury inherent in the
sport. Id. at 593. Even a rule violation, in and of itself, is not
sufficient to meet that heightened standard, as the court stated:
[E]ven when a participant's
conduct violates a rule of the game and may subject the violator to internal
sanctions prescribed by the sport itself, imposition of legal liability
for such conduct might well alter fundamentally the nature of the sport by
deterring participants from vigorously engaging in activity that falls close
to, but on the permissible side of, a prescribed rule.
[Ibid. (quoting Knight,
supra, 834 P. 2d at 696).]
The court reasoned that a lower standard of care could deter people from
participating in golf and cause them to forego the benefits of the sport, such
as exercise and socialization. Ibid.
Similarly, the Texas courts apply the recklessness
standard to golf. See Allen v. Donath, 875
S.W.2d 438, 440 (Tex. App. 1994) (applying reckless or intentional conduct
standard in evaluating conduct of golfer whose second tee shot caused injury to
co-participant); Hathaway v. Tascosa Country Club, Inc., 846
S.W.2d 614, 616 (Tex. App. 1993) (applying recklessness and intentional
standard rather than ordinary negligence to cause of action arising out of
injury resulting when golfer's ball struck another golfer). The facts in Allen
are notably similar to this case. The defendant was the first of a threesome to
tee off on the third hole. Allen, supra, 875 S.W. 2d at
439. As the defendant teed off from the furthest back blue, or “professional,”
tee-box area, the two other golfers watched from a golf cart situated near a
white tee-box marker further forward, approximately fifteen to twenty feet
ahead of defendant. Ibid. After watching the defendant hit his tee shot,
the plaintiff and the other player turned away from the defendant and moved to
the back of their cart. The plaintiff then heard a club hit a ball, turned
toward the defendant, and was struck in the left temple. Ibid. Whether
the defendant warned of his second shot was a disputed fact. Ibid. The
case proceeded to trial.
The jury was instructed that the defendant was under a
duty not to act recklessly or to intend to cause injury. The plaintiff's
objection to the heightened charge was overruled, and the jury returned a
verdict for defendant. Ibid. On appeal, the plaintiff contended that the
recklessness standard should apply only to errant or shanked balls, not to
second unannounced shots, because the latter are not foreseeable in the game of
golf. Id. at 440. The court disagreed and found that the jury was
instructed properly concerning the recklessness standard. Implicit in the
court's ruling was that the jury was free to find that the defendant acted recklessly
when considering whether he hit a second unannounced tee shot in violation of
the game's custom when the plaintiff was standing unprotected forward of the
defendant's tee-box location. Ibid.
Many legal commentators have written to support the use
of the recklessness standard in the context of all sporting activities. See
Brendon D. Miller, Hoke v. Cullinan: Recklessness as the Standard for
Recreational Sports Injuries, 23 Ky. L.J., 409, 434 (1996)
(supporting Kentucky Supreme Court's decision to apply recklessness standard to
all sports activities; and stating that that decision allows participants in
recreational sporting activities to perform with utmost intensity without
apprehension that any wrong move could spawn liability, quelling competitive
juices and enjoyment along the way); Mel Narol, Sports Participation with
Limited Litigation: The Emerging Reckless Disregard Standard, 1 Seton
Hall J. Sport L. 29 (1991) (concluding reckless disregard standard is
correct approach for courts to take in deciding when and in what manner to
become involved in sports injury litigation); Frank J. Deangelis, Note, Duty
of Care Applicable to Participants in Informal Recreational Sports to Avoid the
Infliction of Injury Caused by Reckless or Intentional Conduct, 5 Seton
Hall J. Sport L. 509 (1995) (concluding that correct standard, as
adopted by majority of courts, is recklessness). Two articles specifically have
called on courts to apply the recklessness standard to golf. See Melissa
Cohen, Note, Co-Participants in Recreational Activities Owe Each Other a
Duty not to Act Recklessly, 10 Seton Hall J. Sport. L. 187 (2000);
Karen M. Viera, Comment, 'Fore!' May Just be Par for the Course, 4 Seton
Hall J. Sport L. 181 (1994). Those authors argue that even if golf is
considered a noncontact sport, it entails inherent risks that pose a potential
for danger. Different standards applied to different sports would lead to
confusion among potential litigants. Cohen, supra, 10 Seton Hall J.
Sport L. at 202.
The 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. We perceive no persuasive reason to apply an
artificial distinction between “contact” and “noncontact” sports. In fact, only
a minority of courts do so. See LaVine v. Clear Creek Skiing Corp.,
557
F.2d 730 (10th Cir. 1977) (applying negligence standard in skiing context);
Gray v. Houlton, 671
P.2d 443 (Colo. Ct. App. 1983) (applying negligence standard to skiing accident);
Novak v. Virene, 586
N.E.2d 578 (Ill. App. Ct. 1991) (applying negligence standard in skiing
context); Duke's GMC, Inc. v. Erskine, 447
N.E.2d 1118 (Id. Ct. App. 1983) (applying negligence standard in golf
context). We find that distinction contrary to the common sense notion that
risk of injury is a “common and inherent aspect” of athletic effort generally. Crawn,
supra, 136 N.J. at 500. The risk arises in myriad forms and for
many reasons. It may arise from the physical nature of the athletic endeavor
creating the possibility, or likelihood, of direct physical contact with
another player or with a ball thrown or hit among players. 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 or the small hard ball the club propels at a very
high rate of speed. Even for an experienced golfer of some proficiency, the
course a golf ball takes is often unpredictable through no conscious fault of
the golfer. The Ohio Supreme Court acknowledged in Thompson that
recreational sports entail a range of duties and risks of harm:
[T]he contact-non-contact
distinction does not sufficiently take into account that we are dealing with a
spectrum of duties and risks rather than an either-or distinction. Is golf a
contact sport? Obviously a golfer accepts the risks of coming in contact with
wayward golf shots on the links, so golf is more dangerous than table tennis,
for instance, but certainly not as dangerous as kickboxing.
[Thompson, supra,
559 N.E. 2d at 709.]
The 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. The recklessness or
intentional conduct standard of care articulated in Crawn was not meant
to be applied in a crabbed fashion. That standard represented the enunciation
of a more modern approach to our common law in actions for personal injuries
that generally occur during recreational sporting activities. It is the
pertinent standard for assessing the duty of one sports participant to another
concerning conduct on golf courses and tennis courts, as well as conduct on
basketball courts and ice rinks.
III.
Application of a recklessness or intentional conduct
standard to a cause of action involving a golfing injury should not convert a
golf course into a free-fire zone. But application of a recklessness standard
in a golf setting will affect the analysis of the probability of harm and the
defendant's indifference to that harm. The question presented here is whether
plaintiff's case can survive a summary judgment motion under a recklessness
standard. Prosser & Keeton have stated that an actor acts recklessly when
he or she intentionally commits an act of an unreasonable character in
disregard of a known or obvious risk that was so great as to make it highly
probable that harm would follow, and which thus is usually accompanied by a
conscious indifference to the consequences. Prosser & Keeton on the Law
of Torts, § 34 at 212 (5th Ed. 1984). The standard is objective
and may be proven by showing that a defendant “proceeded in disregard of a high
and excessive degree of danger either known to him [or her] or apparent to a
reasonable person in his [or her] position.” Id. at 214. Reckless
conduct is an extreme departure from ordinary care, in a situation in which a
high degree of danger is apparent. Ibid. Reckless behavior must be more
than any “mere mistake resulting from inexperience, excitement or confusion,
and more than mere thoughtlessness or inadvertence, or simple inattention . . .
.” Ibid.
The Restatement (Second) of Torts articulates the
standard as follows, contrasting negligence and recklessness:
The actor's conduct is in
reckless disregard of the safety of another if he does an act or intentionally
fails to do an act which it is his duty to the other to do, knowing or having
reason to know of facts which would lead a reasonable man to realize, not only
that his conduct creates an unreasonable risk of physical harm to another, but
also that such risk is substantially greater than that which is necessary to
make his conduct negligent.
[Restatement
(Second) of Torts § 500 at 587 (1965).]
Recklessness, unlike negligence, requires a conscious choice of a course of
action, with knowledge or a reason to know that it will create serious danger
to others. Negligence may consist of an intentional act done with knowledge
that it creates a risk of danger to others, but recklessness requires a
substantially higher risk. The quantum of risk is the important factor. Ibid.
Application of that standard to this matter requires an
analysis of whether a finding of recklessness would be open to the jury. If so,
summary judgment rightfully was denied defendant and the matter should proceed
to trial. As was the case in Allen, we find that this case presents a
question of recklessness that is properly for a jury to determine.
The facts are in conflict, but they are open to an
interpretation that defendant did hit a second shot off the tee without telling
the others in his playing group that he was about to do so. That version of the
facts explains the so-called “mulligan” reference by the Appellate Division.
Defendant's conduct in that respect is certainly relevant, but of itself is not
determinative of the quality of his act. Although the formal rules of golf do
not recognize the term “mulligan,” informal custom may permit that familiar
“do-over.” And the formal rules of the game allow for the taking of a second,
or “provisional shot,” if certain conditions are met. United States Golf Ass'n,
The Rules of Golf Rule 27.2. Provisional Ball, at 73-74 (2000- 01). The
rules prescribe a strict form of notice to one's playing partners of intent to
take a provisional shot. Id. at 73. Decisions on the Rules of Golf
prescribe that the player must inform his opponent or fellow player that he
intends to play a provisional ball and he must mention the words “provisional ball.”
United States Golf Ass'n, Decisions on the Rules of Golf 27-2a/1, at 458
(2000-01). The following statements have been ruled not to satisfy the
requirement of announcing a provisional ball: “That might be lost, I am going
to re-load.” “I'd better hit another one.” “That might be out of here.” Id.
at 459. As a practical matter, technical compliance with the rules at times may
be lax on the course, but that should not compel a determination of
recklessness. It is but one factor in the totality of circumstances to be
examined in the context of a defendant's motion for summary judgment under a
recklessness standard of care in a recreational sports context.
What does bear emphasis in this matter is defendant's
own testimony that he perceived plaintiff to be in the “line of fire” and that
he waved plaintiff off in an effort to induce plaintiff to move from his
location. Plaintiff did not move, or defendant did not wait for him to move,
and defendant hit anyway. That scenario presents a set of facts that a jury
could find constitutes reckless conduct because it may reflect a conscious
choice of a course of action with knowledge or reason to know that the action
will create serious danger to others.
The dissent emphasizes the need for stringent application
of the recklessness standard of care in a golf setting, or in the context of
other recreational sports, in order to isolate truly “egregious” conduct on the
part of fellow sports participants (slip op. at 14). On that we do not
disagree. But, in this instance the dissent narrowly focuses only on the nature
of defendant's shot when applying that standard. That approach does not
appreciate the totality of defendant's conduct leading up to the striking of
that errant shot. This case is not one reconciled on a motion for summary
judgment under a recklessness standard of care on the simple basis of an
unannounced “mulligan” or on the sole basis that defendant hit a “shanked”
shot. Rather, a jury must assess a combination of alleged events in which
defendant, believing plaintiff to be located “in his line of fire” thirty feet
ahead of the tee-box where defendant stood and to the left at an angle of
forty-five degrees, motioned plaintiff to move away from his present location,
and knowing that plaintiff had not moved, proceeded to hit the tee shot anyway.
True, it was an errant tee shot, but that does not excuse defendant's conduct
because it does not fully address the question of whether the totality of
defendant's action passes muster under a recklessness standard of care.
We conclude that plaintiff's case, even analyzed under
a recklessness standard of care, survives defendant's motion for summary
judgment and should proceed to trial. The facts here more persuasively present
a jury question concerning recklessness than did the facts in Allen, supra,
875
S.W.2d 438. There, the defendant had not testified in deposition that he
perceived the plaintiff to be in his “line of fire” and that he had motioned to
or warned the plaintiff to move away from that danger.
In conclusion, we hold that the recklessness or
intentional conduct standard of care applies generally to conduct in
recreational sporting contexts, including golf. Notwithstanding that holding,
this matter must proceed to trial. Properly instructed on the heightened
standard of care, a jury must resolve the disputed facts that encompass
allegations of reckless conduct by defendant.
IV.
The judgment of the Appellate Division is affirmed, as
modified. The matter is remanded to the Law Division for trial.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, LONG
and ZAZZALI join in JUSTICE LaVECCHIA's opinion. JUSTICE VERNIERO filed a
separate opinion concurring in part and dissenting in part.
SUPREME COURT OF NEW JERSEY
A- 108 September Term 1999
JEFFREY SCHICK,
Plaintiff-Respondent,
V.
JOHN FEROLITO,
Defendant-Appellant.
________________________
VERNIERO, J., concurring in part, dissenting in part.
I concur in that part of the Court's opinion adopting
the recklessness standard in recreational sporting contexts, including golf.
The Court's analysis in that regard is persuasive. I respectfully dissent,
however, from the majority's determination that there are disputed material
facts warranting a trial in this case. Only the most egregious acts of golfers
should give rise to liability in this setting. Because that standard has not
been satisfied here, I would reverse the judgment of the Appellate Division and
reinstate the trial court's summary disposition in favor of
defendant.
I.
The Court correctly holds that
defendant's conduct should be measured against a recklessness standard. I part
company from my colleagues because existing case law supports a finding that
defendant's conduct was not so egregious as to violate the heightened standard
of care described by the majority. Unlike the majority, I find no issues for
the jury.
Implicit in the recklessness standard is a requirement
that a defendant's conduct be egregious. In Obert v. Baratta, 321
N.J. Super. 356, 358 (App. Div. 1999), the plaintiff was injured when she
and the defendant, a fellow outfielder in an informal softball game, collided
as they both tried to catch a fly ball. The trial court granted summary
judgment in favor of the defendant. Id. at 357. The Appellate Division
affirmed. Id. at 359. The panel explained that the defendant's attempt
to catch the fly ball constituted no more than ordinary negligence and did not
violate the heightened recklessness standard. Ibid.
Importantly, the Appellate Division reasoned that the
defendant's conduct “was not the kind of egregiously reckless conduct
that merits a departure from the strong public policy encouraging vigorous
participation in the 'rough-and-tumble of sports' activity freely, without fear
of being 'second-guessed in courtrooms.'” Id. at 360 (quoting Crawn
v. Campo, 136
N.J. 494, 508 (1994)) (emphasis added).
Decisions involving golf from other
jurisdictions support a finding that defendant here was not reckless as a
matter of law. In Gray v. Giroux, 730
N.E.2d 338, 339 (Mass. App. Ct.), review denied, ___ N.E.2d
___ (Mass. 2000), the plaintiff and her husband were playing golf with the
defendant and his wife. At the “dogleg” ninth hole (a dogleg is a hole in which
the fairway bends in one direction), the plaintiff's husband hit his shot into
the woods to the left of the fairway. Ibid. The plaintiff stood on the
left side of the fairway near the woods, approximately thirty-five to fifty
yards in front of the defendant. Id. at 339-40. The defendant took his
next shot without warning the plaintiff, and the ball struck the plaintiff in
the head. Id. at 340. The trial court granted summary judgment in favor
of the defendant. Id. at 339.
The appellate court held that the recklessness standard
of conduct was appropriate, and affirmed the lower court's summary disposition.
Id. at 340-41. The court explained that because the hole was a dogleg to
the right, and the plaintiff and the defendant were standing on the left side
of the fairway, the defendant was not aiming his shot toward the plaintiff;
rather, the defendant was trying to hit his ball onto the green to his right. Id.
at 341. Accordingly, the court found that the plaintiff was not in the intended
line of flight of the defendant's shot. Ibid. The court ruled that “[i]n
these circumstances, the fact that the defendant's shot did not follow its
intended path does not amount to wilful, wanton, or reckless conduct.” Ibid.
Similarly, other courts have found that a golfer is not
reckless simply because he or she “shanks” a shot that happens to hit a fellow
golfer. In Monk v. Phillips, 983
S.W.2d 323, 323-24 (Tex. App. 1998), the plaintiffs (husband and wife), the
defendant, and another golfer were playing as a foursome. At the second hole,
the defendant's first ball traveled into the trees to the right of the fairway.
Id. at 324. The defendant took a second tee shot, which landed in the
rough to the right of the fairway near his first shot. Ibid.
The defendant proceeded to his second ball and decided
to play that shot. Ibid. As the defendant was standing near his ball,
one of the plaintiffs and the fourth member of the group passed in front of the
defendant and went to the defendant's right to search for the defendant's first
ball. Ibid. As he was about to hit, the defendant heard someone say,
“'look out, he's fixing to hit[,]'” but no one asked the defendant to stop. Ibid.
Although the defendant “was aiming to shoot the ball straight,” the ball
traveled at a ninety-degree angle to his right, striking one of the plaintiffs
in the eye. Id. at 325.
The
trial court granted the defendant's motion for summary judgment. Id. at
323. Affirming the lower court, the appellate court noted that although the
defendant's “conduct may qualify as incompetence or unskillfulness, we find as
a matter of law that it does not rise to the level of recklessness. Shanking
the ball is a foreseeable and not uncommon occurrence in the game of golf that
all golf players must accept.” Id. at 325.
Hathaway v. Tascosa Country Club, Inc., 846
S.W.2d 614 (Tex. App. 1993), is also instructive. There, the defendant was
practicing his golf stroke on the course's driving range. Id. at 615.
The defendant was hitting balls from the left side of the range because his
shots tended to “slice” to the right. Ibid. The plaintiff was playing
the course and driving his cart at the ninth hole, which ran parallel to the
left of the driving range. Ibid. The defendant hit a ball off the heel
of his club, “hooking” the ball to his left, and the ball struck the plaintiff
in the eye. Ibid. The trial court granted summary judgment for the
defendant. Ibid.
The appellate court ruled that the recklessness
standard applied to golf. Id. at 616. In finding that the defendant was
not reckless as a matter of law, the court explained that “[a]s those persons
who play golf well know, 'shanking the ball is a foreseeable and not uncommon
occurrence. . . . The same is true of hooking, slicing, pushing, or pulling a
golf shot.'” Ibid. (citation omitted). Moreover, the court noted,
“[b]ecause of the great likelihood of these unintended and offline shots, it
can indeed be said that the risk of being inadvertently hit by a ball struck by
another competitor is built into the game of golf.” Ibid.
Another case upholding summary disposition in a golf
setting is Thompson v. McNeill, 559
N.E.2d 705 (Ohio 1990). In that case, the defendant hit her ball from the
fairway into a water hazard. After the plaintiff went to search for the errant
ball, the defendant hit another ball. The parties disputed whether that second
shot was unannounced. The plaintiff remained to the defendant's right at the
water hazard at a distance estimated as twelve to fifteen yards from the
defendant. The defendant “shanked” the second shot, and the ball struck the
plaintiff in the right eye, causing her severe injury. Id. at 706.
The Supreme Court of Ohio found that the defendant was
not reckless as a matter of law and affirmed the trial court's grant of summary
judgment. Id. at 709. The court stated:
[W]e hold that summary judgment
for [the defendant] was appropriate. . . . We would stress that “[i]t is well
known that not every shot played by a golfer goes to the point where he intends
it to go. If such were the case, every player would be perfect and the whole pleasure
of the sport would be lost. It is common knowledge, at least among players,
that many bad shots must result although every stroke is delivered with the
best possible intention and without any negligence whatsoever.”
[The plaintiff] was off to [the
defendant's] right at such a sharp angle that she was not in the intended path
of [the defendant's] ball. There was no recklessness here and certainly no
intentional misconduct. The rules of golf require that one call out “fore” when
a shot goes awry, but in this instance the ball was traveling so rapidly that
such a warning would have availed nothing.
[Ibid.
(citation omitted).]
The above cases, all decided on motions for summary
judgment, illustrate the stringent manner in which the recklessness standard
should be applied in recreational sport cases, especially golf. In one of those
cases, Thompson v. McNeill, the parties disputed whether the defendant
warned the plaintiff that she (the defendant) was about to take a second shot.
In another case, Gray v. Giroux, the shot that caused injury was taken
without warning to the plaintiff. In each instance, the court granted summary
judgment in favor of the defendant.
When a golfer steps onto the golf course, he or she
knows that other golfers are likely to “slice,” “hook,” or “shank” shots. The
likelihood of such wayward shots is an inherent part of the game. Courts from
other jurisdictions have recognized that reality, correctly choosing not to
expose golfers to liability for their erroneous or incompetent swings under
factual situations similar to the present case.
II.
In Brill v. Guardian Life
Insurance Co. of America, 142
N.J. 520, 529 (1995), this Court emphasized that “a non-moving party cannot
defeat a motion for summary judgment merely by pointing to any fact in
dispute.” Moreover, the Court stressed that “where the party opposing summary
judgment points only to disputed issues of fact that are 'of an insubstantial
nature,' the proper disposition is summary judgment.” Ibid. (citations
omitted). In my view, the disputed facts cited by the majority are not material
and, therefore, they cannot form the basis of overturning the trial court's disposition.
Unlike the majority, I believe that this case turns on
only two facts: first, that defendant was at the tee for the purpose of hitting
the ball straight toward the green; and second, that at the time of defendant's
shot, plaintiff was positioned forty- five degrees to the left of the tee box.
Those facts are undisputed in the record. Significantly, as plaintiff himself
admitted at his deposition, defendant did not intend to hit plaintiff with the
ball:
Q. Do you think that
[defendant] intended to hit you with his golf ball?
A. No.
Q. Do you think that this was
anything more than an accident?
A. No.
By that acknowledgment, plaintiff buttresses the
inescapable conclusion to be drawn from this record, namely, that plaintiff
stood outside the intended line of flight of defendant's shot. That being the
case, the fact that defendant may have taken an unannounced “mulligan” is not
material or relevant to the Court's disposition. Defendant's “line of fire”
reference was explained by defendant to mean, “[e]verybody's in the line of
fire when you hit a golf ball. You play golf.” Viewed in that context,
defendant's reference does no more than support the notion that the risk of injury
is a foreseeable, albeit unfortunate, aspect of all sporting games. Together,
the parties' respective comments render the mulligan issue immaterial in my
view.
In the same vein, we need not decide whether a mulligan
is a recognized part of golf. If required to reach that question, however, I
would conclude that because golfers widely understand what is meant by a
mulligan, this Court may take judicial notice of that term. See Wright v.
Spinks, 722
N.E.2d 1278, 1279 (Ind. Ct. App. 2000) (taking judicial notice of meaning
of mulligan). In so doing, I would find as a matter of law that the practice of
taking a second shot off the tee is a foreseeable aspect of the game. See
Mel Narol, Sports Torts: Standard on the Line, New Jersey Lawyer: The
Weekly Newspaper, Nov. 20, 2000 at 7 (“With respect to whether hitting a
mulligan is 'part of the game' of golf, the mere fact it is a long-time common
occurrence in recreational golf, and even has a proper name attached to the
shot, might be viewed as strong evidence that golfers recognize this as part of
the game.”).
It bears repeating that in Thompson v. McNeill, supra,
559 N.E. 2d at 706, the parties disputed whether the defendant, after
“shanking” her shot, warned or announced to the plaintiff that she (the
defendant) was about to take an additional shot. Notwithstanding that dispute,
the Supreme Court of Ohio upheld the trial court's summary disposition in favor
of the defendant. The high court concluded that “[the defendant's additional
swing] was not a prohibited or reckless shot. [The defendant] did not
recklessly expose [the plaintiff] to more danger than any golfer faces in
participating in a game of golf.” Id. at 709.
Interestingly, the Ohio Supreme Court also observed
that the defendant would not be liable for the plaintiff's injury even under a
negligence standard because the plaintiff's “position relative to [the
defendant] placed [the plaintiff] outside the zone of danger.” Id. at
709 n.2. Although that observation was not necessary for the court's holding,
it indicates the extent of the willingness of some jurisdictions to shield
amateur athletes from costly and onerous litigation.
As noted, the parties in this case do not dispute that
plaintiff was located at a forty-five degree angle from the tee at the time of
defendant's swing. Generally, golfers intend to hit straight shots off the tee,
not shots that “hook” or “slice” the ball either to the left or right. John
Allan May, The Complete Book of Golf 54-55 (Gallery Books 1991). Someone
in plaintiff's position, located at an acute angle from the tee on a
straight-away hole, is not in the intended path of a fellow golfer's tee shot.
Plaintiff conceded as much when he stated at his deposition that he did not
believe that defendant intended to hit him with the ball.
Thus, I do not share the majority's conclusion that the
dispute concerning whether defendant warned or waved to plaintiff is material
for purposes of summary judgment. A golfer is not required to warn other
golfers of an impending shot if those other golfers are not within the shot's
intended line of flight. See Carrigan v. Roussell, 177
N.J. Super. 272, 278-79 (App. Div. 1981). (Although Carrigan was
decided on the basis of the now- inapplicable negligence standard, the court's
statement that a golfer is not required to warn other golfers positioned
outside the “ambit of danger” remains instructive.) Because I find that
plaintiff was not in the intended path of defendant's shot, I would conclude
that defendant owed no special duty to plaintiff.
III.
I would also rely on policy grounds
to reinstate the grant of summary judgment. “[I]nformal athletic and
recreational sports activities are quite important, as evidenced by their
universal popularity in all walks and in all stages of life. To that extent a
societal interest is served by encouraging the vigorous participation in sports
activity.” Crawn, supra, 136 N.J. at 503. Anyone who steps
onto a golf course, baseball diamond, tennis or basketball court, hockey rink,
or soccer or football field must accept the risks inherent in those games.
Parties to a sports-related suit will nearly always be
able to highlight some disputed facts. For example, in a typical soccer
game, there are eleven players from each team on the field, as well as a
referee. On the sidelines, there are usually several coaches for each team,
additional team members who are substitutes, and numerous spectators. In a
fast-moving game like soccer, an incident on the field that causes injury could
be viewed by any number of individuals and from any number of perspectives and
vantage points. In that setting, disputed facts are bound to exist. Unless the
recklessness standard is applied strictly by the courts, costly and protracted
litigation may become the norm.
As this Court declared in Crawn, supra,
136 N.J. at 508, “[t]he heightened recklessness standard recognizes a
commonsense distinction between excessively harmful conduct and the more
routine rough-and-tumble of sports that should occur freely on the playing
fields and should not be second-guessed in courtrooms.” Using Crawn as
my guide, I would conclude that defendant's inability to hit a straight shot
off the tee was not the type of excessively harmful or egregious conduct that
justifies submitting this case to the jury. I fear that the majority's contrary
conclusion may undermine the effectiveness of the recklessness standard as a
deterrent to sports-related litigation.
A California appeals court recently articulated a
similar concern related specifically to golf. The court stated:
Holding participants liable for
missed hits would only encourage lawsuits and deter players from enjoying the
sport. Golf offers many healthful advantages to both the golfer and the
community. The physical exercise in the fresh air with the smell of the pines .
. . renews the spirit and refreshes the body. The sport offers an opportunity
for recreation with friends and the chance to meet other citizens with like
interests. . . . Social policy dictates that the law should not discourage
participation in such an activity whose benefits to the individual player and
to the community at large are so great.
[Dilger v. Moyles, 63
Cal. Rptr.2d 591, 593
(Ct. App. 1997).]
In sum, the judiciary should refrain from
interposing any set of rules that would discourage the spirited pursuit of
sporting games, unless those rules are clearly necessary to protect the public
interest. Unfortunately, injuries do occur on the playing field, even in a
non-contact sport like golf. On balance, the public is best served by having
players assume the risks of those injuries absent egregious conduct on the part
of their fellow participants. By my reading of the record, defendant's only
“offense” is that he hit an errant ball. He intended no injury to plaintiff.
Accordingly, the public is not harmed by sustaining the grant of summary
judgment in favor of the amateur athlete in this case.
IV.
This Court has observed that punitive damages may be imposed
when a plaintiff is able to prove that a defendant acted recklessly. Smith
v. Whitaker, 160
N.J. 221, 242 (1999) (citing N.J.S.A. 2A:15-5.10). The Court has previously
explained:
Mere negligence, no matter how
gross, will not suffice as a basis for punitive damages. Rather, plaintiff must
prove by clear and convincing evidence a “deliberate act or omission with
knowledge of a high degree of probability of harm and reckless indifference to
the consequences.” “The defendant, however, does not have to recognize that his
conduct is 'extremely dangerous,' but a reasonable person must know or should
know that the actions are sufficiently dangerous.”
[Ibid. (citations
omitted).]
Here, the Court's disposition exposes this and
similarly- situated defendants to the possibility of punitive damages. That
possibility reinforces my view that the unintended consequence of the
majority's holding is that it may foster more sports-related lawsuits and
potentially punish well-intended athletes engaged in a variety of sports.
Although it erred in applying the negligence standard, the Appellate Division
below correctly concluded that “[u]nder plaintiff's version of the facts,
defendant's conduct cannot be considered 'wantonly reckless' so punitive
damages are not awardable.” I would rely on that conclusion as additional
support to dismiss plaintiff's complaint as a matter of law.
V.
For the reasons stated, the Court should reverse the
judgment of the Appellate Division and reinstate the trial court's grant of
summary judgment.
SUPREME COURT OF NEW
JERSEY
NO. A-108
SEPTEMBER TERM 1999
ON APPEAL FROM
ON CERTIFICATION TO
Appellate Division,
Superior Court
JEFFREY SCHICK,
Plaintiff-Respondent,
v.
JOHN FEROLITO,
Defendant-Appellant.
DECIDED March 12, 2001 Chief Justice Poritz
PRESIDING
OPINION BY
Justice LaVecchia
CONCURRING/DISSENTING OPINION BY Justice Verniero DISSENTING OPINION BY