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Rosania v. Carmona

February 13, 1998

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

On appeal from Superior Court of New Jersey, Law Division, Morris County.

Before Judges Havey, Landau and Newman.

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" . 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) *fn1, 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.

FACTS

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 ...


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