SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-1409-96T3
NICHOLAS ROSANIA,
Plaintiff-Appellant,
v.
MARVIN CARMONA, individually and
t/a NORTH JERSEY MARTIAL ARTS
ACADEMY, INC., a New Jersey
Corporation,
Defendant-Respondent.
___________________________________________________________________
Argued October 27, 1997 - Decided February 13,
1998
Before Judges Havey, Landau and Newman.
On appeal from Superior Court of New Jersey,
Law Division, Morris County.
John D. Murray argued the cause for appellant.
Steven A. Tritsch argued the cause for
respondent (Feinberg & Tritsch, attorneys; Mr.
Tritsch, on the brief).
The opinion of the Court was delivered by
LANDAU, J.A.D.
Plaintiff Nicholas Rosania brought a Law Division action against defendants Marvin Carmona and his business corporation, North Jersey Martial Arts Academy, Inc. (NJMAA), seeking damages for a retinal detachment suffered during a karate proficiency test match in 1992 with the instructor, Carmona. Rosania alleged he was
kicked violently in the face in violation of defendants' own
written rule that prohibited targeting the head and any contact,
even with a legal target area.
During the jury trial, Carmona denied making any contact
during the match. He also disputed the applicability of a rule
prohibiting targets above or below the front middle part of the
body. The jury found on special interrogatory that Carmona did
kick Rosania in the "eye" [sic]. However, it was not asked to
determine whether Rosania had been informed of any change in the
permissible target rules or whether such deviation from the
published dojo (karate school) rules was a matter of common
knowledge and acceptance. Charged that liability would only arise
if the kick that caused Rosania's injury was reckless or
intentional, the jury found no cause for action, and the case was
dismissed. A new trial motion was denied.
Rosania appeals, urging that: (1) it was error to charge the
jury that plaintiff had to prove defendants' actions were reckless
rather than negligent; (2) the verdict of no recklessness was
contrary to the weight of the evidence; and, (3) his motion for a
new trial should have been granted.
Assuming that it was correct to apply a legal duty standard of
reckless or intentional conduct under the facts of this case, our
review of the record discloses that Rosania's second and third
arguments are otherwise without merit. R. 2:11-3(e)(1)(E). The
appeal hinges, therefore, upon an evaluation of the existence and
nature of the duty owed by defendants to Rosania under the
particular circumstances and nature of relationships in this sports
injury action. Was the jury properly charged under the heightened
recklessness standard enunciated in Crawn v. Campo,
136 N.J. 494
(1994)See footnote 1, or should it have been told to consider the case under a
less demanding standard of fault?
We hold that in this commercial setting, the jury should have
been charged that defendants owed a duty to patrons of the dojo not
to increase the risks inherent in the sport of karate under the
rules a reasonable student would have expected to be in effect at
that dojo. If it found that targeting of the head was not
permitted, or even that a change in the written rule was not
unambiguously communicated to Rosania, the jury should have been
charged that the correct scope of duty owed by the expert
instructor and the academy was one of due care commensurate with:
(1) the foreseeability by instructor of the high degree of hazard
and likelihood of injury if an illegally targeted kick to the head
made contact and, (2) the student's reasonable reliance upon the
published dojo targeting rules. Only upon a jury finding, grounded
in the record, that Rosania was made aware that the head was a
permissible target, would the more stringent reckless or
intentional conduct standard have been appropriate in this case.
Accordingly, we reverse and remand.
Rosania enrolled at NJMAA in 1991. About 45 years old, he had earlier been skilled for approximately twenty years in different martial arts traditions, but had to begin anew to learn no-contact karate as practiced at NJMAA. He testified that he relied upon the printed dojo rules dated January 1992, which are reproduced in Appendix A hereto. The rules state that they are "mandatory and must be followed at all times." They require use of safety equipment including groin cup and head gear, and provide:
4. Legal target areas, with full control, no contact, are as follows: abdomen (stomach) area only.
5. ILLEGAL target areas: below the belt
(groin, knees and shin), back area
(kidneys), and to the head.
6. A Black Belt will always instruct class.
In order to be enrolled, Rosania read and signed a
registration form which provided:
I understand that all classes undertaken
are at my own risk. I also understand the
physical and athletic nature of the activities
involved in the Art of Karate and the
possibility of incurring injuries therein. I
will not hold the School Directors Marvin
Carmona and Debbie Carmona or anyone else
connected to the school responsible for such
injuries.
Rosania engaged in a sparring match with Carmona on April 18, 1992 as a test for promotion to green belt status (one to three levels above novice). According to Rosania, who was wearing protective head gear, Carmona kicked him "very hard very suddenly right across the face" resulting in a bloody nose and temporary
loss of vision in one eye. Whether Rosania was in fact kicked in
the face as he indicated and whether he bled were both vigorously
disputed.
Shortly after the incident, Rosania sought medical assistance,
initially telling doctors he was hit by a soccer ball. He was
referred to an eye specialist for repair of a detached retina.
Carmona denied that the incident occurred, but also testified
as to the applicable dojo rules, "I wouldn't particularly call it
a no-blow-to-the-head rule. The face is a legal target area. You
can go to the head. However, no contact or light contact is
permissible." Another karate instructor called as an expert by
defendants testified similarly as to a general understanding,
irrespective of rules.
Deposition testimony of Carmona was read to the jury in which
he gave this answer to a question as to what parts of the body are
permissible targets: "[The] frontal part of the body would be a
permissible target." He described the front part of the body as
"the chest, the abdomen," ruling out anything below the abdomen as
a permissible target. Respecting the frontal part of the face,
Carmona answered the question, "Is it a permissible target?," as
follows: "Not to hit. But as a target area that would be
considered a point." However on examination during trial, Carmona
testified:
Q Could you tell the jury which one is
it? Is the face a permissible target or is it
as it says in the rules an illegal target?
Which one is it?
A I would say that in my opinion that as
long as there is no contact to the frontal
part of the face that it can be a target area
without any contact.
Q Was it a target area when you gave
Mr. Rosania his test ....
A No.
Q .... on April 18, 1992?
A Say no.
Q Why? You just told the jury it was
a target area.
A This is a testing environment. Mr.
Rosania spars quite a few people and, you
know, it's during testing all of your
technique is going towards the midsection,
period.
Q Mr. Carmona, do you understand my
question, sir?
A Could you repeat it?
Q My question was very simple. During
the test on April 18, 1992, when you sparred
with the plaintiff, was his face a target area
that you considered a legal target area?
A No.
Q It was not?
A No.
Rosania acknowledged on cross examination that there were also
some "secondary" rules in effect. Those have not been included in
the record provided by the parties.
Viewed in the best possible light for defendants, we believe
that there was at least an ambiguity as to defendants' rules
respecting permissible target areas and as to the rules governing
the sparring incident in question. Accepting the rule reproduced
in Appendix A, which was promulgated shortly before the incident,
the only legal target was the "abdomen (stomach) area," "with full
control, no contact," and it was "ILLEGAL" even to target areas
below the belt, the back (kidneys) or the head. Rosania said he
relied on the published rule and that his reason for enrolling in
NJMAA was a desire to learn the safer form of martial art it
taught.
On Rosania's motion for a new trial, the trial judge held that
our decision in Fantini v. Alexander,
172 N.J. Super. 105 (App.
Div. 1980) required that only the generally recognized standards of
karate practice, rather than NJMAA's own rules, should be
considered in formulating the applicable standard of duty owed by
defendants to Rosania. The judge also placed heavy reliance upon
Rosania's execution of the release acknowledging the dangers
inherent in karate, and upon the protective equipment that
demonstrated awareness of the possibility of contact. Based upon
these factors, and upon a perceived need to avoid a "flood" of
litigation, he deemed applicable the recklessness standard adopted
in Crawn.
We believe that the trial judge erred in applying Fantini to the facts of this case, thereby making irrelevant the dojo's rules, a critical factor in ascertaining the degree of risk to which Rosania had reason to believe he would be exposed. It is true that in Fantini we held that the practice in a given karate school did
not establish a basis for expert testimony as to the generally
recognized standard in the profession. Fantini, supra, 172 N.J.
Super. at 111. However, the existence of a "generally recognized
standard" may be preempted in a commercial dojo setting by the
promulgation of written rules which vary materially from the
general rules. A customer, unless unambiguously informed that the
general rules are in effect, should reasonably be entitled to
assume that his instructor deems himself bound by the rules of the
dojo rather than by the generalized rules. We believe that this
principle is not altered by the fact that a release acknowledging
risks of the sport has been executed, or that an awareness of risk
is demonstrated by wearing equipment protective of non-target
areas.
Barring consideration of NJMAA's house rules was pivotal in
this case. Having rejected the customer/student's ability to rely
on the rule of the dojo rather than a "generally recognized
standard," Rosania was charged by the court with being "fully aware
of the particular risk". The extent of that "particular risk"
would be materially altered in this case if Rosania, already
familiar with forms of karate involving greater risks, enrolled at
NJMAA with the expectation that matches, especially with one's
instructor, were to be conducted under the highly limited targeting
and contact restrictions of that dojo. Implicit in such reliance
would be the expectation that a black belt instructor, required to
remain in control, and prohibited from targeting areas other than
the abdomen and from making any contact, does not present a risk
for delivering a violent kick to the face.
It is under this basis for reasonable risk expectation that
the appropriate standard of duty owed by defendants to Rosania
should have been assessed. As noted above, by his reliance on the
"generalized standard" rather than the rules of the dojo, the trial
judge concluded that Rosania was fully aware of the particular
risks, and so resolved the duty issue by applying Crawn's reckless
or intentional standard rather than the conventional negligence
standard for liability.
The issue of whether defendants owed a legal duty to Rosania and the scope of that duty is a matter of law. Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 502 (1997)(citation omitted). In Snyder v. American Ass'n of Blood Banks, 144 N.J. 269 (1996), the Supreme Court summarized the nature of the inquiry:
The determination of the existence of a duty ultimately is a question of fairness and policy. Crawn v. Campo, 136 N.J. 494, 501, 643 A.2d 600 (1994); Dunphy v. Gregor, 136 N.J. 99, 108, 642 A.2d 372 (1994); Kelly v. Gwinnell, 96 N.J. 538, 544, 476 A.2d 1219 (1984); Goldberg v. Housing Auth., 38 N.J. 578, 583, 186 A.2d 291 (1962). An important, although not dispositive consideration, is the foreseeability of injury to others from the defendant's conduct. Carter Lincoln-Mercury v. EMAR Group, 135 N.J. 182, 194, 638 A.2d 1288 (1994). Also important are the nature of the risk posed by the defendant's conduct, the relationship of the parties, and the impact on the public of the imposition of a duty of care. Dunphy, supra, 136 N.J. at 108, 642 A.2d 372.
[Id. at 292.]
Significantly, the Supreme Court also included in these policy
considerations the degree to which the defendant had, by
promulgation of rules, invited persons and entities with which it
dealt to rely on the rules and standards it set. Snyder, supra,
144 N.J. at 293-94. The present situation is analogous. We do not
presume to modify or alter in any way the heightened recklessness
standard adopted in Crawn for determining liability between amateur
participants in informal competitive sports. Indeed, we recognize,
as did the trial judge, that some courts have gone further,
applying the heightened recklessness standard even to many
instructor-student situations because of a strong social policy to
facilitate free and aggressive participation in athletic
activities. E.g., Morgan v. State,
685 N.E.2d 202, 207 (N.Y.
1997); Vendura v. Fasano,
653 N.Y.S.2d 144 (App. Div. 1997);
Bushnell v. Japanese-American Religious and Cultural Center,
50 Cal. Rptr.2d 671 (Ct. App. 1996); Regents of the Univ. of Cal. v.
Superior Court, 48 Cal. Rptr.2d 922, 925 (Ct. App. 1996).
However, a more case-specific theme dominates the cases. In
Benitez v. New York City Board of Education,
541 N.E.2d 29 (N.Y.
1989), it was held that responsible parties must exercise ordinary
reasonable care to protect student athletes from "unassumed,
concealed or unreasonably increased risks". Id. at 331 (emphasis
added). Instructors and coaches owe a duty of care to persons in
their charge not to increase the risks over and above those
inherent in the sport. See Knight v. Jewett,
834 P.2d 696, 707-08
(Cal. 1992); Galardi v. Seahorse Riding Club,
20 Cal. Rptr.2d 270,
273 (Ct. App. 1993); Machowski v. Gallant,
651 N.Y.S.2d 832 (App.
Div. 1996).
In Crawn, the Supreme Court took notice that sometimes, as
between equally situated participants in competitive contact
sports, "practices that technically violate safety rules become
part of the accepted behavior of a sport." Crawn, supra, 136 N.J.
at 506 (quoting Daniel E. Lazaroff, Torts & Sports: Participant
Liability to Co-Participants for Injuries Sustained During
Competition, 7 U. Miami Ent. & Sports L. Rev. 191, 223 (1990).
Nonetheless, as recognized by the New York Court of Appeals,
"[r]elieving an owner or operator of a sporting venue from
liability for inherent risks of engaging in a sport is justified
when a consenting participant is aware of the risks; has an
appreciation of the nature of the risks; and voluntarily assumes
the risks . . . ." Morgan, supra, 685 N.E.
2d at 207 . It is a
different story when the operator or instructor increases the risks
above those inherent in the activity by failing to communicate a
material change in the rules of engagement in a manner clearly
understood by a reasonable student.
Utilizing a case-specific analysis appropriate to the present
facts, and informed by the policy considerations enunciated in
Snyder, supra, 144 N.J. at 292-94, we think it evident that if the
jury found the risks inherent in the karate match between Rosania
and his instructor were materially increased beyond those
reasonably anticipated based upon the published dojo rules, it
should not have been charged to consider defendant's fault under
the heightened Crawn standards, but under the ordinary duty owed to
business invitees, including exercise of care commensurate with the
nature of the risk, foreseeability of injury, and fairness in the
circumstances. See Kuzmicz v. Ivy Hill Park Apartments, Inc.,
147 N.J. 510, 515 (1997). It does not unduly inhibit pursuit of the
karate sport, nor does it invite frivolous litigation, to require
instructors in a commercial setting to communicate unambiguously
the applicable rules of engagement and for them to avoid
negligently violating the rules so communicated.
Reversed and remanded for a new trial.
Footnote: 1In Crawn, the catcher in an informal softball game was injured in a collision with a base runner. The Supreme Court held 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." Id. at 508.