On appeal from the Superior Court, Law Division, Morris County, whose opinion is reported at 257 N.J. Super. 374 (1992).
Gaulkin, Stern and Brochin. The opinion of the court was delivered by Gaulkin, P.J.A.D.
Plaintiff Michael Crawn, playing catcher in a pick-up softball game, was injured in a collision at home plate with defendant John Campo, an opposing baserunner. Crawn brought this action for damages, alleging that Campo (1) "negligently ran into" him, (2) "violently slid into home plate . . . in violation of the rules and regulations of the game" and (3) ran into him "willfully and maliciously and with intent to harm." The allegation of intentional harm was withdrawn and, following a liability-only trial, the jury found that Campo acted "in reckless disregard of the safety of [Crawn]." The trial Judge granted a new trial, R. 4:49-1(a), and, in a separate order, directed that at the retrial "the standard of care to be proven by the plaintiff [again] must be . . . reckless conduct rather than . . . simple negligence." By leave granted, R. 2:2-4, Crawn appeals from both of those orders; Campo cross-appeals from the denial of his motion to dismiss the action because of Crawn's failure to present expert testimony.
We affirm the new trial order. The trial Judge was correct in concluding that Campo's attorney was wrongly precluded from confronting witness Patruno with his prior inconsistent statement and that Crawn's attorney improperly referred to the injuries Crawn suffered. Our review of the record satisfies us that those errors could well have affected the jury's determinations. We accordingly defer to the trial Judge's decision to order the new trial. See Lanzet v. Greenberg, 126 N.J. 168, 175, 594 A.2d 1309 (1991).
We reject as clearly without merit Campo's cross-appeal contention that Crawn's cause of action should have been dismissed
because of his failure to present expert testimony. R. 2:11-3(e)(1)(E). See Butler v. Acme Markets, Inc., 89 N.J. 270, 283-284, 445 A.2d 1141 (1982).
The Law Division Judge held that, as between players "in a sporting event such as a softball game,"
only those injuries caused by intentional conduct or by acting in reckless disregard of the safety of others will give rise to a cause of action. Liability will not be found to exist where ordinary negligence caused the injuries.
That ruling is the underpinning of the order directing that at the new trial Crawn must prove "reckless conduct rather than . . . simple negligence." We reverse, for we are persuaded that ordinary negligence is the appropriate standard to be applied.
The issue has not previously been addressed in New Jersey.*fn1 The trial Judge relied on "the great weight of case authority in the various states," which he read as requiring proof of reckless or intentional conduct in sports-injury cases.*fn2 Ibid. Other courts
have similarly described the case law. See, e.g., Gauvin v. Clark, 404 Mass. 450, 537 N.E. 2d 94, 97 (1989) ("[t]he majority of jurisdictions which have considered this issue have concluded that personal injury cases arising out of an athletic event must be predicated on reckless disregard of safety"); Marchetti v. Kalish, 53 Ohio St. 3d 95, 97, 559 N.E. 2d 699, 701 ("courts generally allow a cause of action for injuries sustained in recreational or sports activities only under reckless or intentional tort theories"), reh'g denied, 54 Ohio St. 3d 716, 562 N.E. 2d 163 (1990). Indeed, the only case unequivocally adopting ordinary negligence as the sports-activity standard of care is the recent 4-3 decision of the Wisconsin Supreme Court in Lestina v. West Bend Mut. Ins. Co., 176 Wis. 2d 901, 501 N.W. 2d 28 (1993). In our view, the rationale of the cases expressing the majority rule is at odds with relevant New Jersey precedent and policy.
The early sports-injury cases permitted recovery upon a showing of ordinary negligence. See, e.g., Polk v. Trinity Universal Ins. Co., 115 So. 2d 399 (La.Ct.App.1959) (10-year old defendant liable for negligent failure to make proper observation of nearby children before swinging a bat); Carey v. Toles, 7 Mich.App. 195, 151 N.W. 2d 396 (1967) (new trial ordered to determine negligence and contributory negligence where plaintiff was struck by bat in a pick-up softball game); Niemczyk v. Burleson, 538 S.W. 2d 737 (Mo.Ct.App.1976) (sustaining a complaint alleging that plaintiff, a base runner in a softball game, negligently collided with plaintiff in the base path). The requirement of a showing of reckless or intentional misconduct appears to have been first expressed in Nabozny v. Barnhill, 31 Ill.App. 3d 212, 334 N.E. 2d 258 (1975). The court there justified its ruling as necessary "to control a new field of personal injury litigation" and to assure that "the law . . . not place unreasonable burdens on the free and vigorous participation in sports by our youth." Id., 334 N.E. 2d at 260. Other courts have stated the same reasoning and result. In Ross v.
Clouser, 637 S.W. 2d 11 (Mo.1982), for example, the Missouri Supreme Court relied on Nabozny in overruling Niemczyk, supra:
Fear of civil liability stemming from negligent acts occurring in an athletic event could curtail the proper fervor with which the game should be played and discourage individual participation, yet it must be recognized that reasonable controls should exist to protect the players and the game. Balancing the seemingly opposite interests, we conclude that a player's reckless disregard for the safety of his fellow participants cannot be tolerated. If a ...