(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).
Argued March 28, 1994 -- Decided July 21, 1994
HANDLER, J., writing for a unanimous Court.
Michael Crawn was playing catcher in a pickup softball game and was injured when John Campo,
attempting to score from second base, either slid or ran into Crawn at home plate. Crawn suffered a torn
knee ligament. Crawn sued Campo, alleging that Campo was liable because his conduct had been either
negligent, reckless or intentional resulting in Crawn's injuries. Prior to trial, Crawn voluntarily dismissed the
count alleging intentional conduct.
The matter proceeded to trial on the issue of liability only. The trial court determined that the
applicable standard governing players engaged in informal sporting activity is to avoid injurious conduct that
is reckless or intentional. At the conclusion of trial, the jury returned a verdict for Crawn, finding that
Campo's conduct had been reckless and that Crawn had not assumed the risk of that reckless conduct.
Campo filed a motion for a new trial. Although the trial court denied Campo's claim that Crawn should
have been required to present expert testimony on the rules and conduct of the game, the court granted the
new-trial motion on other evidentiary grounds.
The Appellate Division reversed the trial court on the proper standard of care, concluding that the
appropriate standard of care is to avoid conduct that would constitute ordinary negligence under the
circumstances. The Appellate Division found that the justifications for the heightened recklessness standard
do not outweigh New Jersey's well-established reliance on the ordinary negligence standard and the State's
aversion to tort immunities. The Appellate Division affirmed the trial court's grant of a new trial as well as
its decision that expert testimony was not required.
Campo moved before the Supreme Court for leave to appeal the Appellate Division's decision on
the standard-of-care issue and the need for expert testimony. Crawn filed a motion for leave to cross-appeal
the Appellate Division's affirmance of the grant of a new trial. The Supreme Court granted both motions.
HELD: The duty of care applicable to participants in informal recreational sports is to avoid the infliction
of injury caused by reckless or intentional conduct.
1. A majority of jurisdictions have concluded that in sports activity, to constitute a tort, conduct must
exceed the level of ordinary negligence and that, therefore, the appropriate duty players owe to one another
is not to engage in conduct that is reckless or intentional. That standard is preferred because of the
perception that the risk of injury is a common and inherent aspect of informal sports. Moreover, the
imposition of a recklessness standard is primarily justified by two policy reasons: the promotion of vigorous
participation in athletic activities and the avoidance of increased litigation. (pp. 5-9)
2. In Dunphy v. McGregor, this Court recently stated that the imposition of a duty comes at the conclusion of a complex analysis that considers the relationship of the parties, the nature of the risk, (its foreseeability and severity), and the impact the imposition of a duty would have on public policy. Recognition of a duty of care rests on considerations of public policy and notions of fairness. That same analysis informs the Court's determination in this case. Therefore, liability arising out of mutual, informal, recreational sports activities should not be based on a standard of ordinary negligence but, instead, should be based on the heightened standard of recklessness or intent to harm. Considerations of public policy and
fairness as evidenced, at least indirectly, by legislative policy support such limited or partial immunity. (pp.
9-15)
3. Because sports conduct is highly subjective from game to game, it cannot be reliably equated with
the conduct of an average person under like circumstances. As such, a legal duty of care based on the
standard of what, objectively, an average reasonable person would do under the circumstances is illusory, and
could not be consistently applied. On the other hand, the heightened recklessness standard recognizes the
common sense distinction between excessively harmful conduct and the more routine "rough-and-tumble" of
sports that should occur freely on the playing field and should not be second-guessed by the courts. (pp. 15-18)
4. Expert testimony to establish the applicable standard of care governing a softball game is not
required. However, the opinion of an expert can be admitted into evidence if it pertains to a subject that is
beyond the understanding of the average person of ordinary experience, education and knowledge.
(pp. 18-20)
5. The Appellate Division fairly could have concluded that the trial court did not abuse its discretion in
granting the motion for a new trial because of its finding that its earlier rulings had been in error and
cumulatively had created undue prejudice. Therefore, there is no basis to disturb the determinations of the
lower courts in respect of the grant of the motion for a new trial. (pp. 20-23)
Judgment of the Appellate Division is MODIFIED and, as modified, is AFFIRMED.
JUSTICES POLLOCK, O'HERN, GARIBALDI and STEIN join in JUSTICE HANDLER'S opinion.
CHIEF JUSTICE WILENTZ and JUSTICE CLIFFORD did not participate.
SUPREME COURT OF NEW JERSEY
A-138/
139 September Term 1993
MICHAEL CRAWN,
Plaintiff-Respondent
and Cross-Appellant,
v.
JOHN CAMPO,
Defendant-Appellant
and Cross-Respondent.
Argued March 28, 1994 -- Decided July 21, 1994
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at
266 N.J. Super. 599 (1993).
James M. DeMarzo argued the cause for
appellant and cross-respondent (O'Donnell,
McCord, Helfrich & Bangiola, attorneys).
Albert E. Fershing argued the cause for
respondent and cross-appellant (Shurkin &
Fershing, attorneys).
Michael J. Cernigliaro submitted a brief on
behalf of amicus curiae, New Jersey Defense
Association (Campbell, Foley, Lee, Murphy &
Cernigliaro, attorneys).
The opinion of the Court was delivered by
HANDLER, J.
Plaintiff was playing catcher in a pickup softball game and was injured when defendant, attempting to score from second base, either slid or ran into him at home plate. Plaintiff sued to
recover for his personal injuries. The critical issue in this
action turns on the nature of a player's duty to avoid inflicting
physical injury on another player.
The issue is directly posed by the competing perspectives of
the lower courts. The Law Division determined that the
applicable standard governing players engaged in informal sports
activity is to avoid injurious conduct that is reckless or
intentional.
257 N.J. Super. 374 (1992). By contrast, the
Appellate Division concluded that the appropriate standard of
care is to avoid conduct that would constitute negligence under
the circumstances.
266 N.J. Super. 599 (1992).
We conclude that the trial court was correct. We now hold
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.
The game took place on May 1, 1988. The players consisted of a group that regularly participated each week, as well as other persons, either friends or bystanders, who joined the game. The composition of the two teams changed from week to week.
The teams were not associated with any league and the games were played without independent umpires or referees. The parties agree that the game was played under the general rules of softball. They disagree, however, whether the group had a rule prohibiting sliding.
Plaintiff's witnesses testified that the group played with a
no-slide rule. They were uncertain about when the players first
agreed to the rule, but they were certain that by the time the
group began playing its weekly game, everyone understood that
sliding was prohibited. In fact, whenever a player did slide,
the other team invoked the rule.
Plaintiff's witnesses were equivocal about the exact scope
of the no-slide rule. Whether the rule was a general no-slide
rule or one that merely prohibited runners from purposely running
into infielders in order to break up a tag or double play is not
clear. Plaintiff's witnesses did agree that the purpose of the
rule was to prevent injury. In sharp contrast, defendant's
witnesses, including defendant himself, insisted that no rule
governed sliding at all.
Defendant was a runner on first base. The batter hit a
ground ball to the shortstop, who flipped the ball to the second
baseman to get the force-out on defendant. Defendant slid into
second base, taking the legs out from beneath the second baseman.
Plaintiff's witnesses testified that after that play, the other
players reminded defendant that sliding was prohibited.
Defendant, according to those witnesses, acknowledged the rule
and indicated his willingness to abide by it. Defendant,
however, disputed that version of events, testifying that his
slide into second base did not result in any warning about
sliding.
With defendant now on second, the next batter hit a ball to
right field. As the outfielder relayed the ball to the first
baseman, defendant rounded third and headed for home. Plaintiff,
the catcher, testified that he was standing on the first-base
side of home plate, with his left foot touching the right side of
the plate. His body was turned toward first ready to receive the
relay throw from the first baseman. As defendant approached the
plate, he lowered his body and barrelled into plaintiff's left
side. Plaintiff reeled backwards and defendant ended up on top
of plaintiff's lower leg. Plaintiff heard a pop in his leg and
then felt severe pain. Because he was off to the first-base side
of the plate, plaintiff claims that defendant had ample room to
run past him and touch home plate without making contact. He
argues that defendant's motive in deliberately running into him
was to dislodge the ball from plaintiff's glove to avoid the out.
Defendant, however, testified that when he approached home plate,
plaintiff was straddling the plate with a foot on either side.
Defendant believed that the only way to reach home plate and to
avoid a tag was to slide. He slid feet first into plaintiff's
left leg. Although plaintiff later tried to resume play, his
left leg collapsed under him when he attempted to run. He was
taken from the field to a hospital, where it was determined that
he had suffered a torn knee ligament, which required surgery.
Plaintiff brought this action seeking recovery for his
personal injuries. In three separate counts of his complaint, he
alleged that defendant was liable because his conduct had been
either negligent, reckless, or intentional. Prior to trial,
plaintiff voluntarily dismissed the count alleging intentional
conduct. The matter proceeded to trial on the issue of liability
only. The jury returned a verdict for plaintiff, finding that
defendant's conduct had been reckless and that plaintiff had not
assumed the risk of reckless conduct. Defendant brought a motion
for a new trial. Although the trial court denied defendant's
claim that plaintiff should have been required to present expert
testimony on the rules and conduct of the game, it granted
defendant's motion on other evidentiary grounds.
Following an appeal and cross-appeal, the Appellate Division
affirmed the trial court's grant of a new trial, as well as its
decision that expert testimony was not required.
266 N.J. Super. 599. However, it reversed the trial court on the proper standard
required to establish liability for injuries sustained in
informal athletic competition. It ruled that the proper standard
was reasonableness under the circumstances.
Defendant filed a motion to the Court for leave to appeal
the Appellate Division decision on the standard-of-care issue and
the need for expert testimony. Plaintiff filed a motion for
leave to cross appeal on the affirmance of the grant of a new
trial. We granted those motions.
134 N.J. 557 (1993).
The majority of jurisdictions that have considered the issue of a person's duty to exercise care to avoid injury when engaged
in a sports activity have concluded that to constitute a tort,
conduct must exceed the level of ordinary negligence. Most
courts have determined that the appropriate duty players owe to
one another is not to engage in conduct that is reckless or
intentional. See 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) (stating that "[]the emerging legal standard requires
either recklessness or specific intent to injure by defendant,"
and that "[m]ost modern courts raise the threshold for tort
liability and require proof of reckless behavior.") Mel Narol,
Sports Participation with Limited Litigation: The Emerging
Reckless Disregard Standard, 1 Seton Hall J. Sport L. 29, 29-30
(1991) ("A trend has emerged. Courts and legislatures have
espoused the view that torts which might be actionable in other
arenas if negligence is shown, should . . . be actionable in the
sports arena [only] if the aggrieved person demonstrates gross
negligence or reckless disregard by the defendant.") In Nabozny
v. Barnhill,
334 N.E.2d 258 (Ill. App. Ct. 1975), a soccer goalie
in a league for high-school-aged participants, was kicked in the
head in the non-contact penalty area. The court concluded that
"a player is liable for injury in a tort action if his conduct is
such that it is either deliberate, wilful or with a reckless
disregard for the safety of the other player so as to cause
injury to that player." Id. at 261.
The preference for a standard of care that exceeds negligent conduct is driven by the perception that the risk of injury is a common and inherent aspect of informal sports activity. In Knight v. Jewett, 834 P.2d 696 (Cal. 1992), for example, a player was injured in a game of touch football. The court observed that "the nature of a sport is highly relevant in defining the duty of care owed by the particular defendant . . . In some situations, . . . the careless conduct of others is treated as an 'inherent risk' of a sport." Id. at 708. It concluded that "a participant in an active sport breaches a legal duty of care to other participants . . . only if the participant intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport." Id. at 711. Similarly, in Marchetti v. Kalish, 559 N.E.2d 699 (Ohio 1990), the court held that participants in recreational or sports activities assume the ordinary risks of those activities and cannot recover for any injury unless it can be shown that the other participant's actions were either reckless or intentional. See also Gauvin v. Clark, 537 N.E.2d 94 (Mass. 1989) (applying reckless disregard of safety standard to injury arising in college hockey game); Ross v. Clouser, 637 S.W.2d 11, 14 (Mo. 1982) (applying recklessness standard to injuries arising from church picnic softball game); Dotzler v. Tuttle, 449 N.W.2d 774 (Neb. 1990) (applying wilful-or-reckless disregard-of-safety standard to injury arising in a pickup basketball game); Kabella v. Bouschelle, 672 P.2d 290, 294 (N.M.
Ct. App. 1983) (disallowing claim for negligence for injury in
recreational football game); Connel v. Payne,
814 S.W.2d 486
(Tex. Ct. App. 1991) (applying reckless standard to injury in
professional football game). Sometimes courts express the
standard of care ambiguously. In Picou v. Hartford Insurance
Co.,
558 So.2d 787, 790 (La. Ct. App. 1990), involving a
collision between players in a softball game, the court concluded
that "participants have the duty to play the game in a reasonable
manner, refraining from acts which are unexpected, unforeseeable,
or which evidence reckless disregard for other players."
(Emphasis added.) Cf. Lestina v. West Bend Mut. Ins. Co.,
501 N.W.2d 28 (Wis. 1993) (adopting standard of negligence under the
circumstances for sports torts).
The imposition of a recklessness standard is primarily
justified by two policy reasons. One is the promotion of
vigorous participation in athletic activities. See, e.g.,
Nabozny, supra, 334 N.E.
2d at 260 (stating that law should not
"place unreasonable burdens on the free and vigorous
participation in sports by our youth"); Ross, supra, 637 S.W.
2d
at 11; Kabella, supra, 672 P.
2d at 284; Marchetti, supra, 559
N.E.
2d at 703. The other reason is to avoid a flood of
litigation. See, e.g., Marchetti, supra, 559 N.E.
2d at 702
(asserting that failing to apply recklessness standard would
"open the floodgates to a myriad of lawsuits involving the
backyard games of children").
In this case, the Appellate Division noted the trend in
other jurisdictions to impose the higher recklessness or intent-to-harm standard. 266 N.J. Super. at 602-04. It concluded,
however, that the justifications for the heightened standard -
promoting vigorous participation in sports and preventing a flood
of litigation -- did not outweigh New Jersey's well-established
reliance on the ordinary negligence standard and its consequent
aversion to tort immunities. Id. at 609-11. It held that the
standard for determining liability in informal athletic or sports
cases was ordinary negligence, that is, reasonableness under the
circumstances. Id. at 609-12.
Anytime a court raises the standard of care that defines the
legal duty that is owed for the safety of others, it implicitly
immunizes a part of the conduct that otherwise would be
considered tortious and actionable. As the Appellate Division
here noted, New Jersey tolerates immunities only for important
reasons of public policy and in relatively exceptional
situations, and therefore strongly endorses a standard of care
based on ordinary negligence. 266 N.J. Super. at 607-12. In
that context the Appellate Division referred to Mahoney v. Carus
Chemical Co.,
102 N.J. 564 (1986), which preserved the immunity
of property owners and others from liability based on negligence
for injuries sustained by police or firefighting personnel in the
course of their duties; and Foldi v. Jeffries,
93 N.J. 533
(1983), which accorded parents immunity from liability for
injuries resulting from negligent parenting. The Appellate
Division explained that the policy considerations that favor and
encourage sports activities are not as important as those
implicated in the partial immunities of the "firemen's" rule and
of parent-child relationships and, consequently, do not warrant
an immunity.
The Appellate Division also examined the abolition of
interspousal tort immunity in Merenoff v. Merenoff,
76 N.J. 535
(1978), to demonstrate that immunities are strongly disfavored
even when a possibility exists of encouraging baseless litigation
that can arise because of the difficulty in determining whether
the underlying conduct is wrongful. Drawing support from Peoples
Express Airlines, Inc. v. Consolidated Rail Corp.,
100 N.J. 246
(1985), the Appellate Division was satisfied that a general
negligence standard "sedulously applied" could winnow out non-meritorious claims and was flexible enough to take into account
the risks inherent in sports participation and to ascertain the
reasonableness of a defendant's conduct involving "simple
[athletic] carelessness." 266 N.J. Super. at 607-09, 612.
We recently stated in Dunphy v. Gregor , __ N.J. __, __
(1994) (slip op. at 12), that "[t]he imposition of a duty is the
conclusion of a rather complex analysis that considers the
relationship of the parties, the nature of the risk -- that is,
its foreseeability and severity -- and the impact the imposition
of a duty would have on public policy." Recognition of a duty of
care, ultimately, rests on considerations of public policy and on
notions of fairness. E.g., Carey v. Lovett,
132 N.J. 44 (1993);
Hopkins v. Fox & Lazo,
132 N.J. 426 (1993); Kelly v. Gwinnell,
96 N.J. 538, 544 (1984). That multi-faceted analysis, focusing
on personal relationships, the nature of risks, and
considerations of public policy and fairness, is one that must
inform our determination of this case. Based on that analysis,
we conclude that liability arising out of mutual, informal,
recreational sports activity should not be based on a standard of
ordinary negligence but on the heightened standard of
recklessness or intent to harm.
We concur substantially in the Appellate Division's
determination that considerations of public policy and notions of
fairness do not impel a protection of sports activity in the form
of a broad tort immunity. Concededly, informal 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. That
societal interest, however, does not itself demand that wrongful
conduct by the participants in such activity that foreseeably
results in injury to others should be totally removed from the
law of torts. That kind of sweeping immunity, we are satisfied,
is not justified.
The more perplexing inquiry is whether informal recreational
sports activity, given its societal importance, should be
accorded a partial immunity that effectively exempts from
liability conduct that is simply negligent, unreasonable, or
careless, and sanctions liability only for behavior that is more
egregious. Arguably, considerations of public policy and
fairness as evidenced, at least indirectly, by legislative
policy, support such a limited or partial immunity. See, e.g.,
N.J.S.A. 2A:62A-6 (setting forth tort immunity for volunteer
athletic coaches for injuries to participants except when conduct
is wilful, wanton, or grossly negligent); N.J.S.A. 2A:62A-6.1
(providing immunity for those accredited for sports officiating
except when conduct is wilful, wanton, or grossly negligent).
Those partial statutory immunities are reflective of public
policy and may serve as a guide to the evolution of related
common law immunities. See Buckley v. Estate of Pirolo,
101 N.J. 68, 82 (1985) (O'Hern, J., concurring); Renz v. Penn Cent. Corp.,
87 N.J. 437, 456 (1981).
The concerns that focus on the relationship among
participants and the nature of the risks that surround informal
sports activity are equally germane to defining the appropriate
duty of care. Participation in recreational sports activities
has unique aspects that separate such sports from other common
activities. In many recreational sports, softball included, some
amount of physical contact is expected. Physical contact is an
inherent or integral part of the game in many sports. See
Gauvin, supra, 537 N.E.
2d at 96 ("Players, when they engage in
sport, agree to undergo some physical contacts which could amount
to assault and battery absent the players' consent.") The degree
of physical contact allowed varies from sport to sport and even
from one group of players to another. In addition, the
physicality of sports is accompanied by a high level of emotional
intensity. Ross, supra, 637 S.W.
2d at 14 (noting "proper fervor"
of competition); see Lazaroff, supra, 7 U. Miami Ent. & Sports L.
Rev. at 195 (noting difficulty of distinguishing "between
negligence and recklessness in the context of a game where
players are encouraged to play with reckless abandon"); Lestina,
supra, 501 N.W.
2d at 35 (Wilcox, J., dissenting) (noting that
although defendant's conduct "clearly violated a rule of the
game," conduct occurred in "heat of the game" and should not
subject defendant to negligence liability).
Our analysis is further complicated by the wide variation in
expectations regarding the physical contact and emotional
intensity that are appropriate from sport to sport and from game
to game. See Hanson v. Kynast,
526 N.E.2d 327, 333 (Ohio Ct.
App. 1987) (Milligan, P.J., concurring) ("[F]oreseeability [of
conduct] is dependent upon such factors as the nature of the
sports involved, the rules and regulations which govern the
sport, the customs and practices which are generally accepted and
which have evolved with the development of the sport, and the
facts and circumstances of the particular case.").
The court in Nabozny expressed the view that sports are
governed by two types of rules. One type aims to increase the
quality of the game and the other type is designed primarily to
protect participants from serious injury. The court determined
that when a recognized set of rules governs the competition,
every player is charged with a legal duty to refrain from conduct
proscribed by a safety rule. Thus, in setting forth the standard
for liability, the court stated that "a player is . . . charged
with a legal duty to every other player on the field to refrain
from conduct proscribed by a safety rule." 334 N.E.
2d at 260-61.
See Kabella, supra, 672 P.
2d at 292 (basing imposition of
recklessness standard on implied-consent theory but noting that
participation in contact sports does not constitute consent to
contact prohibited by safety rules).
Nevertheless, other courts and commentators have
acknowledged that violations of rules, even of rules imposed for
safety reasons, are often a "part of the game." See Knight,
supra, 834 P.
2d at 710 ("The cases [imposing a recklessness
standard] have recognized that, in . . . a [contact] sport, even
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 . . . .");
Turcotte v. Fell,
502 N.E.2d 964 (N.Y. 1986) ("If the risks of
the activity are fully comprehended or perfectly obvious,
plaintiff has consented to them and defendant has performed its
duty."); Oswald v. Township High School Dist.,
406 N.E.2d 157,
160 (Ill. App. Ct. 1980) (justifying imposition of recklessness
standard because "rule infractions, deliberate or unintentional,
are virtually inevitable in contact games"); Lazaroff, supra, 7
U. Miami Ent. & Sports L. Rev. at 223 ("At some point, practices
that technically violate safety rules become part of the accepted
behavior of a sport.").
Despite those factors, which both typify and complicate
informal recreational sports activity, the Appellate Division
felt that a standard of care based on negligence would suffice as
a basis for liability. It believed that courts could adequately
evaluate sports conduct and make clear to juries that "[a] co-participant who creates only risks that are 'normal' or
'ordinary' to the sport acts as a 'reasonable [person] of
ordinary prudence under the circumstances.'" 266 N.J. Super. at
607 (quoting Ambrose v. Cyphers,
29 N.J. 138, 144 (1959)).See footnote 1
The problem with the court's analysis lies in the
extraordinary difficulty in judging conduct that is based on
limitless variables with respect to how the same game is played
among different groups of people. The relationship among sports
participants is derived from a consensual arrangement that
involves both articulated and unarticulated rules, obvious and
obscure conventions, and clear and not-so-clear expectations.
Some rules are broken, yet their transgression is tolerated.
Certain practices are customary yet others are followed
inconsistently. Some conventions are well understood, others are
not always known or appreciated by all participants. Each
player's expectations are often subjective, and may not be shared
or experienced by others in the same way.
The reasonableness of conduct that occurrs within a
consensual relationship can be fairly evaluated only by reference
to the nature of the consent and mutual understanding of the
persons in the relationship and to the common expectations that
serve to identify what conduct is acceptable among those persons.
Both Merenoff and Foldi become instructive in that light. Those
cases indicate that if acceptable conduct cannot be recognized
except by looking to the highly subjective understandings between
persons in a special relationship, the standard of general
reasonableness is not truly workable. That is because conduct
that is highly subjective cannot be reliably equated with the
conduct of an average person under like circumstances.
Realistically, complete agreement among the eighteen or
twenty persons engaged in playing a softball game covering the
limitless kinds of physical contact that can occur in the course
of the game can rarely, if ever, be found. That consideration
indicates that 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. Accordingly,
we hold that the duty of care in establishing liability arising
from informal sports activity should be based on a standard that
requires, under the circumstances, conduct that is reckless or
intentional.
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.
Defendant contends that expert testimony is essential to establish the standard of care that applies to the players in a softball game. We agree with the trial court's and Appellate Division's conclusions that expert testimony to establish the applicable standard of care governing a softball game is not required.
With few exceptions,
there is no general rule or policy requiring expert testimony as to the standard of care. . . . The test of need of expert testimony is whether the matter to be dealt with is so esoteric that jurors of common judgment and experience cannot form a valid judgment as to whether the conduct of the party was reasonable.
[Butler v. Acme Markets, Inc.,
89 N.J. 270, 283 (1982) (citations
omitted).]
A duly-qualified expert may be presented to a jury "if it
will genuinely assist the jury in comprehending the evidence and
determining issues of fact." State v. Odom,
116 N.J. 65, 70
(1989). The admissibility of expert testimony turns not on
whether the subject matter is common or
uncommon or whether many persons or few have
knowledge of the matter, but [on] whether the
witnesses offered as experts have peculiar
knowledge or experience not common to the
world which renders their opinions founded on
such knowledge or experience an aid to the
court or jury in determining the questions at
issue.
[Rempfer v. Deerfield Packing
Corp.,
4 N.J. 135, 141-42 (1950).]
Thus, the opinion of an expert can be admitted in evidence
if it pertains to a subject that is "beyond the understanding of
the average person of ordinary experience, education, and
knowledge." Odom, supra, 116 N.J. at 71.
Some sports-injury cases from other jurisdictions appear to
have allowed the introduction of expert testimony. See, e.g.,
Nabozny, supra, 334 N.E.
2d at 260; Picou, supra, 558 So.
2d at
791. Those cases, however, involved games played in organized
leagues with umpires or referees, and coaches; also the games
were governed by a set of specific rules or conventions of which
an expert had knowledge that was not generally shared by the
average person or even fully understood by all the participants.
Further, nothing in those cases indicated that such expert
evidence was essential and mandated; rather, it was merely
permitted.
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. Thus, even though the
witness might have comprehensive general knowledge of the game of
softball, that would not constitute the requisite "peculiar
knowledge" relating to a specific game, and would therefore not
constitute the kind of knowledge that would "aid . . . the court
or jury in determining" the standard of care governing the
playing of that game. Rempfer, supra, 4 N.J. at 142.
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. As
observed by the court in Dotzler, supra, 449 N.W.
2d at 779-80,
even though a self-proclaimed expert claimed to have played
15,000 to 20,000 games of various styles of basketball, "the
witness' understanding of how he normally played pickup
basketball was not relevant to whatever rules the participants on
this day were following." Although the idiosyncracies of a
specific softball game render it resistant to the analysis of
general experts, the widespread familiarity with softball ensures
that the rules and conventions of a particular game, as expressed
and explained by its participants, will be comprehensible to
jurors of average experience and intelligence.
The trial court granted defendant's motion for a new trial, basing its decision on the combined effect of three factors: the denial of defendant's use of a prior inconsistent statement by one of plaintiff's witnesses; the refusal to require plaintiff to turn over to defendant for use in cross-examination statements signed by three of plaintiff's witnesses that had been prepared
for an earlier arbitration proceeding; and improper comments by
plaintiff's attorney regarding plaintiff's loss of wages and
unpaid medical bills resulting from the injury. The court
determined that those factors had resulted "in a manifest denial
of justice." The Appellate Division, finding support in the
record for trial court's determination, upheld it decision to
grant a new trial. 266 N.J. Super. at 601.
Defendant attempted at trial to use a prior inconsistent
statement of one of plaintiff's witnesses. The court determined
that the defense could not use the statement because defendant
had violated Rule 4:17-7 by failing to amend its interrogatories
to reflect its possession of that statement. See Westphal v.
Guarino,
163 N.J. Super. 139, 145 (App. Div.) (noting that
exclusion of evidence is proper sanction for violation of Rule
4:17-7), aff'd o.b.,
78 N.J. 308 (1978).
Defendant also sought to use certain prior statements of
several of plaintiff's witnesses. The statements of the
witnesses were identical, consisting of a brief description of
plaintiff's view of the critical events. The court ruled that
defendant could not use those statements on cross-examination.
Finally, because plaintiff's cause of action was bifurcated
into liability and damages phases, an issue arose at the
liability trial regarding the extent to which plaintiff's counsel
could comment on the severity of plaintiff's injury. In his
opening statement plaintiff's counsel referred to the severity
and economic consequences of plaintiff's injury. Defendant moved
for a mistrial, but the court denied his motion.
The trial court's initial rulings to preclude the use of the
prior statements and to find the improper comments of plaintiff's
counsel insufficiently harmful to warrant a new trial were
properly within the scope of the court's discretion. The trial
court, however, in considering the motion for a new trial
determined that his initial rulings were in error and
cumulatively were sufficiently prejudicial to result in a denial
of justice.
The trial court in expressing its determination to grant a
new trial applied the correct standard, viz: "The trial judge
shall grant the motion [for a new trial] if, having given due
regard to the opportunity of the jury to pass upon the
credibility of the witnesses, it clearly and convincingly appears
that there was a miscarriage of justice under the law." R. 4:49-1(a). This Court has characterized the standard for authorizing
a new trial as one that requires a determination that the jury's
verdict is "contrary to the weight of the evidence or clearly the
product of mistake, passion, prejudice or partiality." Lanzet v.
Greenberg,
126 N.J. 168, 175 (1991).
The Appellate Division could fairly conclude that the trial
court did not abuse its discretion on consideration of the motion
for a new trial by finding that its earlier rulings had been in
error and cumulatively had created undue prejudice. The initial
rulings were made at different times during the course of the
trial. The court reasonably reevaluated those rulings in the
context of a completed trial in determining that the earlier
rulings, although within its discretionary authority, were
ultimately shown to be erroneous. The pivotal consideration
concerns the evidentiary impact of the court's rulings on the
critical issue of witness credibility. The trial court was in
the best position to assess fully the credibility of the
witnesses in relation to the evidence adduced at trial.
Deference should be accorded to the trial court's conclusion
concerning the prejudice attributable to the defense's inability
to use the prior statements of witnesses for purposes of cross-examination, as well to counsel's comments, and the extent to
which that prejudice contributed to an unjust result.
We thus find no basis to disturb the determinations of the
lower courts with respect to the grant of a new trial.
The judgment of the Appellate Division is modified and, as modified, is affirmed.
Justices Pollock, O'Hern, Garibaldi, and Stein join in this opinion. Chief Justice Wilentz and Justice Clifford did not participate.
Footnote: 1 The Appellate Division, following the lead of the
Wisconsin Supreme Court in Lestina, supra, 501 N.W.
2d at 33,
listed factors that could be considered in determining whether
conduct was reasonable, namely,
what sport was involved; whether it was a
professional game or an amateur contest; . .
. whether the sport was conducted pursuant to
a recognized set of rules, an informal set of
rules, or no rules at all; whether the
injurious conduct violated a rule of the
contest and, if so, whether the rule was
designed for the participants' safety; what
was the ultimate purpose of the game and what
were the customary methods of winning it;
what were the ages, physical characteristics
and skills of the participants; what
knowledge of the rules and customs of the
game the participants possessed; what degree
of competitiveness the activity involved; and
what relationship the participants' conduct
bore to the ultimate purpose of the contest.