By Peter J. Gallagher, of Porzio Bromberg & Newman PC
Continuing with a recent theme of people getting injured playing sports and then suing the people who allegedly injured them, we now have Greaves v. Inline Skating Club of America, LLC. In Greaves, plaintiff was the goalie on a soccer team. He was injured during a formal, league-sponsored game with referees (this will be important later on). The Appellate Division described the underlying events as follows:
[Plaintiff] was severely injured while playing soccer as goalie for “Kiss the Baby” team. At the time, plaintiff was in the process of picking up the ball inside the goalie box. He had the ball for approximate[ly] [five] to [ten] seconds when he was tackled/kicked and/or pushed to the ground in a violent manner by . . . a player on the opposing soccer team. Plaintiff struck his head on the hard surface losing brief [sic] consciousness. At the same time and place, the game was being refereed by [the referee] who was working as an agent and/or employee of [defendant].
Plaintiff sued the player who made contact with him, the referee, and the facility that ran the league. Plaintiff never served the player or the referee with the summons and complaint, however, so they were dismissed and the lawsuit proceeded against the facility alone. Plaintiff alleged that the facility was “responsible for maintaining a safe facility and failed to supervise and provide security at the facility.” Stated differently, plaintiff alleged that the referee’s failure to officiate the game properly caused his injuries.
Plaintiff never produced an expert report during the discovery period. After receiving an adverse decision from an arbitrator during mandatory, pre-trial arbitration, plaintiff moved for trial de novo and served a liability expert report. Defendant objected, forcing plaintiff to move to reopen discovery so that he could amend his discovery responses to identify his expert and serve the expert report. The motion was denied. Defendant then moved for summary judgment, which was also denied because the trial court held there were issues of fact regarding the role of the referee and whether defendant breached any duty it may have had to plaintiff.
One week before the scheduled trial date, defendant again moved to dismiss the complaint, this time via a motion in limine, arguing that plaintiff could not prove its case without an expert to establish the standard of care owed by defendant. This time, the trial court granted the motion. In doing so, it emphasized the different standards applicable to injuries occurring during pick-up games as opposed to injuries occurring during formal, league-sanctioned games. Specifically, the trial court distinguished plaintiff’s case from the New Jersey Supreme Court’s decision in Crawn v. Campo. In that case, one player in an informal, pick-up softball game sued another player after the other player slid into him at home plate, causing injuries. Because the players set the rules for the pick-up game, the Supreme Court held that plaintiff “did not need a liability expert’s testimony on the general rules of the sport to establish that the defendant was negligent.” The Supreme Court further held:
In an informal game, the players themselves determine the particular rules and conventions that apply to their game. A witness, although otherwise qualified as an expert by virtue of specialized education, training, or experience to testify on the rules that generally govern a sport, would not thereby be qualified as an expert on a specific game . . . Experience gained from observing or participating in recreational athletics does not translate into the specialized expertise on the rules and conventions that govern a specific informal game and that constitute the basis for the duty of care that the participants in such a game owe to one another.
By contrast, a formal, league-sponsored game is played, not pursuant to ad hoc rules made up by the players, but pursuant to “the rules that generally govern a sport.” Expert testimony on those general rules is necessary to establish the standard of care against which a league’s or a referee’s actions could be judged. Because plaintiff did not timely identify an expert or produce an expert report, he could not establish the standard of care to which defendant would be held, and therefore, obviously, could not prove that defendant breached that standard of care.
Plaintiff appealed, but the Appellate Division affirmed the trial court. It held that the need for an expert witness in a tort action “depends on ‘whether the matter to be dealt with is so esoteric that jurors of common judgment and experience cannot form a valid judgment” without an expert. The purpose of expert testimony is to “assist the trier of fact to understand evidence or to determine a fact in issue.” Applying this standard, the Appellate Division rejected plaintiff’s argument that “a layperson’s common knowledge would have been sufficient to permit a jury to find that defendant . . . breached its duty of care to its soccer players.” Like the trial court, the Appellate Division distinguished between an informal, pick-up game and a formal, league-sponsored game. In a pick-up game, “a liability expert is not needed because the expert’s knowledge of the general rules governing the sport would do nothing to explain what should have occurred in a game in which those rules were not applied” (emphasis added). By contrast, a formal game, with referees, involves issues beyond the knowledge and experience of the average jury. To make this point, the Appellate Division cited to a Connecticut Supreme Court decision, involving a player injured during a softball game. In that case, the player sued the umpire and the Connecticut Supreme Court held that expert testimony was required to explain the role of umpires to the jury:
An umpire obtains, through formal training and experience, a familiarity with the rules of the sport, a technical expertise in their application, and an understanding of the likely consequences of officiating decisions. As a result, the umpire possesses knowledge of the standard of care to which an umpire reasonably may be held, and of what constitutes a violation of the standard, that is beyond the experience and ken of the ordinary fact finder. Moreover, the fact finder’s lack[] of expertise is exacerbated by the highly discretionary nature of the umpire’s task. Thus, the fact finder must determine, not just whether in hindsight the umpire erred, but also whether the umpire’s error constituted an abuse of his broad discretion. In such cases in which the fact finder’s decision requires specialized knowledge, expert testimony is necessary.
The same is true of soccer referees, who “have a familiarity with the rules of the sport, a technical expertise in their application, and understanding og the likely consequences of officiating decisions which ordinary jurors lack.” Plaintiff’s claim rested on a “supposed error in officiating by the referee, and an alleged failure by defendant to properly select and supervise the referee who made the error.” These issues are beyond the knowledge and experience of the average juror, therefore expert testimony was necessary. Because plaintiff did not timely identify an expert or serve an expert report, his claims were properly dismissed.
