The opinion of the court was delivered by: Justice LaVecchia
ON CERTIFICATION TO Appellate Division, Superior Court
Chief Justice Poritz PRESIDING
On certification to the Superior Court, Appellate Division, whose opinion is reported at 327 N.J. Super. 530 (2000).
On July 27, 1994, two pairs of golfers reached the tenth hole of East Orange Golf Course and agreed there to play the rest of the course as a foursome. Plaintiff Jeffrey Schick and his father, Wolfgang Schick, played the ensuing holes with defendant John Ferolito and Tom Ganella. At the tee-box on the sixteenth hole, a par four straightaway approximately 300 yards in length, an errant ball hit off the tee by defendant struck plaintiff in the right eye causing personal injuries. According to plaintiff, defendant hit an unannounced and unexpected second tee shot, or "mulligan," after all members of the foursome had teed off. Defendant moved for summary judgment, claiming that the heightened standard of care established by Crawn v. Campo, 136 N.J. 494 (1994), should apply to participants in the game of golf. That duty of care is "to avoid the infliction of injury caused by reckless or intentional conduct." Id. at 497.
The trial court agreed that a recklessness standard applied and dismissed the action. The Appellate Division reversed, holding that the case was distinguishable from Crawn and that the negligence standard of care was applicable. Schick v. Ferolito, 327 N.J. Super. 530 (App. Div. 2000). The panel reasoned that the recklessness standard was appropriate in "rough and tumble" sports, where "?anticipated risks . . . are an inherent or integral part of the game.'" Id. at 533-34 (quoting Crawn, supra, 186 N.J. at 504). As for golf, the court stated that the heightened standard would be appropriate only for anticipated risks of the game, such as errant or shanked balls, but not for unanticipated risks, such as an "unexpected Mulligan" as occurred here. Id. at 534. Because Crawn may have left open the question of whether the recklessness standard should apply generally to conduct in recreational sporting contexts, including golf, we granted certification. 164 N.J. 191 (2000).
The facts presented through deposition testimony were disputed in several critical aspects. For purposes of our review, we give plaintiff the benefit of all reasonable inferences. Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523 (1995).
According to plaintiff, he and his father met defendant and Ganella at the tenth tee and the four decided to play as a group, which would speed up play. It was dusk, and there were nine holes remaining to play. They played without incident until the sixteenth hole. There, plaintiff and his father teed off first. He and his father then left the tee-box area, returned to their golf cart, placed their clubs in their golf bags, and proceeded to sit down in the cart. Plaintiff described his cart as located ahead of the tee-box area at a forty-five-degree angle to the left.
Seated in the driver's position, plaintiff looked back over his right shoulder toward the teeing area and observed defendant about to strike a ball off the tee. Plaintiff claims that defendant and Ganella already had hit their tee shots and that defendant was hitting an unannounced second drive off the tee. Plaintiff stated that defendant's first ball had sliced, or angled sharply, off to the right, toward a series of trees situated along the right side of the fairway, but in an area where no out-of-bounds markers were located. Thus, while it might have presented a poor location for his next shot, defendant's first ball was still "in-play."
Although he saw defendant in a tee-off stance, plaintiff said he did not have time to move out of the way. He had only a few seconds to think about what was happening when defendant commenced his swing and hit his second tee shot. The ball struck plaintiff in the right eye socket, rendering him temporarily unconscious.
Defendant gives a different version of what transpired. He did not recall if it was his first or second shot off the tee. Defendant claims that he and plaintiff made eye contact before defendant teed off and that he gave a hand warning, described as a "wave," to plaintiff to move aside. According to defendant, plaintiff's cart was approximately thirty feet ahead, at a forty- five-degree angle, of where he was taking his stance to drive the ball onto the fairway. Defendant states he was trying to hit the ball straight down the middle of the fairway, and plaintiff similarly testified that defendant was not trying to hit in plaintiff's direction. Nevertheless, defendant explained that he waved plaintiff to move aside because defendant believed plaintiff "was in the line of fire."
Ganella's deposition testimony indicated that he did not recall defendant taking a tee shot other than the one that struck plaintiff. Ganella could not even recall if he had teed off on the sixteenth hole, suggesting that plaintiff and his father returned to their cart before the two other men had hit their drives. He stated that on previous holes plaintiff and his father had been returning to their cart before all members of the foursome had teed off. Ganella perceived the timing of the events differently than plaintiff. Specifically, Ganella described a span of approximately one to two minutes between the time defendant motioned to plaintiff that he was about to hit and the time defendant actually struck the ball.
In Crawn, the Court considered the nature of a sports participant's duty to avoid inflicting physical injury on another player. Crawn, supra, 136 N.J. at 497. In that case, a catcher suffered an injury when a base runner slid into home plate during an informal softball game. Id. at 498. Our holding in Crawn was stated broadly. "[T]he 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. Id. at 501. 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. Id. at 502.
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. Id. at 506. 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. [Id. at 508.]
The Court's holding in Crawn placed New Jersey among the majority of jurisdictions that apply the recklessness standard of care to determine the duty that recreational players owe to one another. See, e.g., Knight v. Jewett, 834 P.2d 696 (Cal. 1992) (applying recklessness standard to injury in touch football); Picou v. Hartford Ins. Co., 558 So.2d 787 (La. Ct. App. 1990) (holding recklessness applies to injuries sustained in informal softball game); Ritchie-Gamester v. City of Berkely, 597 N.W.2d 517 (Mich. 1999) (applying recklessness standard to ice skating collision); Dotzler v. Tuttle, 449 N.W.2d 774 (Neb. 1990) (applying recklessness to pick-up basketball game); Connell v. Payne, 814 S.W.2d 486 (Tex. App. 1991) (applying recklessness standard to injury in polo match); see also 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) (finding that recklessness standard of care is the "modern trend").
Since Crawn, the recklessness standard of care has been applied in New Jersey to sporting environments that span team competitions, one-on-one competitions, and individualized sporting endeavors. See, e.g., Obert v. Baratta, 321 N.J. Super. 356 (App. Div. 1999) (applying recklessness standard when softball player sued teammate for injuries sustained as result of teammate's pursuit of fly ball during informal intra-office game); Rosania v. Carmona, 308 N.J. Super. 365 (App. Div.) (applying reckless standard where karate student brought action against martial arts academy and instructor, seeking damages for retinal detachment suffered during karate proficiency test match with instructor), certif. denied, 154 N.J. 609 (1998); Calhanas v. South Amboy Roller Rink, 292 N.J. Super. 513 (App. Div. 1996) (applying recklessness standard where roller skater suffered broken leg from collision with another skater). In this matter, the trial court concluded that the heightened standard of recklessness or intentional conduct should apply also to participants in the game of golf.
Several other jurisdictions have applied the heightened standard of care in the context of the game of golf. The Ohio Supreme Court was the first court to so extend the reckless disregard or intentional conduct standard to a "non-contact sport." Thompson v. McNeill, 559 N.E.2d 705 (Ohio 1990). In Thompson, the defendant inadvertently shanked a golf ball in the direction of the plaintiff, who was playing in her foursome. Id. at 709. Despite the defendant's alleged effort to yell "fore," the plaintiff was struck by the ball and was injured. The court held that the danger of such an occurrence was an inherent part of the game and granted summary judgment for defendant. Ibid. In analyzing the facts under a reckless or intentional conduct standard of care, the court noted that the plaintiff was off to the defendant's right at such a sharp angle that she was not within the intended flight of defendant's ball. Ibid. Also, the defendant's shot was taken in accordance with the rules of golf; it was not a prohibited shot exposing the plaintiff to more danger than that which any golfer faces when participating in a round of golf. Ibid. The court stated:
Shanking the ball is a foreseeable and not uncommon occurrence in the game of golf. The same is true of hooking, slicing, pushing, or pulling a golf shot. We would stress that "[i]t is well known that not every shot played by a golfer goes to the point where he intends it to go. If such were the case, every player would be perfect and the whole pleasure of the sport would be lost. It is common knowledge, at least among players, that many bad shots must result although every stroke is delivered with the best possible intention and without any negligence whatsoever." [Ibid. (quoting Benjamin v. Nernberg, 102 Pa. Super. 471, 475-76 (1931)).]
California also applies the recklessness standard of care to golf. In Dilger v. Moyles, 63 Cal. Rptr.2d 591 (Cal. Ct. App. 1997), the California Court of Appeals held that a participant in golf owes no duty to co-participants unless he or she intentionally injures another player or engages in reckless conduct that is totally outside the range of the ordinary activity involved in the sport. The court reasoned that participants assume those risks of injury inherent in the sport. Id. at 593. Even a rule violation, in and of itself, is not sufficient to meet that heightened standard, as the court stated:
[E]ven 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 by deterring participants from vigorously engaging in activity that falls close to, but on the permissible side of, a prescribed rule. [Ibid. (quoting Knight, supra, 834 P.2d at 696).]
The court reasoned that a lower standard of care could deter people from participating in golf and cause them to forego the benefits of the sport, such as exercise and socialization. Ibid.
Similarly, the Texas courts apply the recklessness standard to golf. See Allen v. Donath, 875 S.W.2d 438, 440 (Tex. App. 1994) (applying reckless or intentional conduct standard in evaluating conduct of golfer whose second tee shot caused injury to co-participant); Hathaway v. Tascosa Country Club, Inc., 846 S.W.2d 614, 616 (Tex. App. 1993) (applying recklessness and intentional standard rather than ordinary negligence to cause of action arising out of injury resulting when golfer's ball struck another golfer). The facts in Allen are notably similar to this case. The defendant was the first of a threesome to tee off on the third hole. Allen, supra, 875 S.W.2d at 439. As the defendant teed off from the furthest back blue, or "professional," tee-box area, the two other golfers watched from a golf cart situated near a white tee-box marker further forward, approximately fifteen to twenty feet ahead of defendant. Ibid. After watching the defendant hit his tee shot, the plaintiff and the other player turned away from the defendant and moved to the back of their cart. The plaintiff then heard a club hit a ball, turned toward the defendant, and was struck in the left temple. Ibid. Whether the defendant warned of his second shot was a disputed fact. Ibid. The case proceeded to trial.
The jury was instructed that the defendant was under a duty not to act recklessly or to intend to cause injury. The plaintiff's objection to the heightened charge was overruled, and the jury returned a verdict for defendant. Ibid. On appeal, the plaintiff contended that the recklessness standard should apply only to errant or shanked balls, not to second unannounced shots, because the latter are not foreseeable in the game of golf. Id. at 440. The court disagreed and found that the jury was instructed properly concerning the recklessness standard. Implicit in the court's ruling was that the jury was free to find that the defendant acted recklessly when considering whether he hit a second unannounced tee shot in violation of the game's custom when the plaintiff was standing unprotected forward of the defendant's tee-box location. Ibid.
Many legal commentators have written to support the use of the recklessness standard in the context of all sporting activities. See Brendon D. Miller, Hoke v. Cullinan: Recklessness as the Standard for Recreational Sports Injuries, 23 Ky. L.J., 409, 434 (1996) (supporting Kentucky Supreme Court's decision to apply recklessness standard to all sports activities; and stating that that decision allows participants in recreational sporting activities to perform with utmost intensity without apprehension that any wrong move could spawn liability, quelling competitive juices and enjoyment along the way); Mel Narol, Sports Participation with Limited Litigation: The Emerging Reckless Disregard Standard, 1 Seton Hall J. Sport L. 29 (1991) (concluding reckless disregard standard is correct approach for courts to take in deciding when and in what manner to become involved in sports injury litigation); Frank J. Deangelis, Note, Duty of Care Applicable to Participants in Informal Recreational Sports to Avoid the Infliction of Injury Caused by Reckless or Intentional Conduct, 5 Seton Hall J. Sport L. 509 (1995) (concluding that correct standard, as adopted by majority of courts, is recklessness). Two articles specifically have called on courts to apply the recklessness standard to golf. See Melissa Cohen, Note, Co-Participants in Recreational Activities Owe Each Other a Duty not to Act Recklessly, 10 Seton Hall J. Sport. L. 187 (2000); Karen M. Viera, Comment, ?Fore!' May Just be Par for the Course, 4 Seton Hall J. Sport L. 181 (1994). Those authors argue that even if golf is considered a non-contact sport, it entails inherent risks that pose a potential for danger. Different standards applied to different sports would lead to confusion among potential litigants. Cohen, supra, 10 Seton Hall J. Sport L. at 202.
The policies of promotion of vigorous participation in recreational sports and the avoidance of a flood of litigation over sports accidents are furthered by the application of the heightened standard of care to all recreational sports. We perceive no persuasive reason to apply an artificial distinction between "contact" and "non-contact" sports. In fact, only a minority of courts do so. See LaVine v. Clear Creek Skiing Corp., 557 F.2d 730 (10th Cir. 1977) (applying negligence standard in skiing context); Gray v. Houlton, 671 P.2d 443 (Colo. Ct. App. 1983) (applying negligence standard to skiing accident); Novak v. Virene, 586 N.E.2d 578 (Ill. App. Ct. 1991) (applying negligence standard in skiing context); Duke's GMC, Inc. v. Erskine, 447 N.E.2d 1118 (Id. Ct. App. 1983) (applying negligence standard in golf context). We find that distinction contrary to the common sense notion that risk of injury is a "common and inherent aspect" of athletic effort generally. Crawn, supra, 136 N.J. at 500. The risk arises in myriad forms and for many reasons. It may arise from the physical nature of the athletic endeavor creating the possibility, or likelihood, of direct physical contact with another player or with a ball thrown or hit among players. Risk of injury also is as real when it arises from an instrumentality used in a game, such as a golf club a golfer swings or the small hard ball the club propels at a very high rate of speed. Even for an experienced golfer of some proficiency, the course a golf ball takes is often unpredictable through no conscious fault of the golfer. The Ohio Supreme Court acknowledged in Thompson that recreational sports entail a range of duties and risks of harm:
[T]he contact-non-contact distinction does not sufficiently take into account that we are dealing with a spectrum of duties and risks rather than an either-or distinction. Is golf a contact sport? Obviously a golfer accepts the risks of coming in contact with wayward golf shots on the links, so golf is more dangerous than table tennis, for ...