A New Jersey state appeals court has affirmed a lower court’s grant of summary judgment in a personal injury case, finding that when a student swung his hockey stick in a floor hockey game and injured another student that his conduct was not “reckless or intentional.”
The incident in question occurred on April 11, 2005 during a physical education class at Toms River Regional High School East in New Jersey. Plaintiff Tatiana Saracino and other students were directed by defendant Ron DeVito, an employee of defendant Toms River Regional Schools Board of Education, to participate in a game of “floor hockey.”
“Although the students were given hockey sticks and a ball,” noted the court, “they were not given any safety equipment, such as face masks, helmets or padding. The parties agree, however, that the students understood that hockey sticks were not supposed to be swung above the player’s waist in floor hockey.”
During the game, defendant Michael Arabitg struck Saracino in the nose with his hockey stick during a “face-off.” The court reviewed wide-ranging testimony of what exactly happened, none of which suggested that Arabitg had intentionally tried to hurt the plaintiff.
Saracino filed a complaint in January of 2007. Following discovery, the defendants moved for summary judgment. The trial court granted the motion relying on the criteria set forth in Crawn v. Campo, 136 N.J. 494, 643 A.2d 600, which “indicated that when you participate either in recreational sports or in an organized sport scenario the standard is one of recklessness and/or intentional conduct. Even assuming that someone could establish that the defendant committed a violation by a high sticking, that doesn’t rise to the level of recklessness nor does it rise to the level of intentional conduct. And no one in this particular case has testified that the actions of this particular defendant were intentional. Therefore, I find as a matter of law that the standard had not been met, and the motion is granted.”
An appeal followed.
“Saracino argues that Crawn is not applicable to her claim against Arabitg because they were not participating in a voluntary sports activity, as were the parties in Crawn, but were in fact required to participate in the physical education class under circumstances in which their failure to do so would result in a lower grade,” wrote the panel. “While we agree that Crawn arose in the context of voluntary participation in sports and that the voluntariness of that participation was a factor in the Court’s decision, we conclude that the two public policies that underlie the Supreme Court’s imposition of the heightened standard of care in Crawn apply in broader contexts, including the one before us. Those policies are ‘the promotion of vigorous participation in athletic activities’ and the avoidance of ‘a flood of litigation.’ Crawn, supra, 136 N.J. at 501.”
The appeals court also leaned heavily on Schick v. Ferolito, 167 N.J. 7, 12-13, 767 A.2d 962 (2001), which considered Crawn and wrote that that court “considered the nature of a sports participant’s duty to avoid inflicting physical injury on another player. In that case, a catcher suffered an injury when a base runner slid into home plate during an informal softball game. Our holding in Crawn was stated broadly. ‘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. 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. 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.
“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. 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.”
The appeals court thus reasoned that the trial court acted appropriately in granting Arabitg’s motion for summary judgment.
Turning to Saracino’s contention that the court erred in granting summary judgment to the board and its employee, the panel noted that “the issue here is whether there were sufficient facts in the record to create a jury question as to whether Saracino’s injuries satisfied the threshold for non-economic damages in N.J.S.A. 59:9-2(d), which provides:
‘No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $ 3,600.00.’”
After a lengthy exploration of the facts, the appeals court agreed with the lower court “that there are insufficient facts in the record to satisfy the N.J.S.A. 59:9-2(d) threshold for recovery of non-economic damages.”
Tatiana Saracino v. Toms River Regional et al.; Super. Ct. N.J., App. Div.; DOCKET NO. A-0957-08T2, 2009 N.J. Super. Unpub. LEXIS 2623; 10/20/09
Attorneys of Record: (for appellant) John Robertelli argued the cause (Rivkin Radler, LLP, attorneys; Mr. Robertelli, of counsel and on the brief; Robert E. Spitzer, on the brief). (for respondents) Jared J. Monaco argued the cause, and Ron DeVito (Gilmore & Monahan, P.A., attorneys; Mr. Monaco, on the brief). Mark G. Esposito argued the cause for respondent, Michael Arabitg (Amy F. Loperfido & Associates, attorneys; Mr. Esposito, on the brief).