Schick v. Ferolito

VERNIERO, J.,

concurring in part, dissenting in part.

I concur in that part of the Court’s opinion adopting the recklessness standard in recreational sporting contexts, including golf. The Court’s analysis in that regard is persuasive. I respectfully dissent, however, from the majority’s determination that there are disputed material facts warranting a trial in this ease. Only the most egregious acts of golfers should give rise to liability in this setting. Because that standard has not been satisfied here, *23I would reverse the judgment of the Appellate Division and reinstate the trial court’s summary disposition in favor of defendant.

I.

The Court correctly holds that defendant’s conduct should be measured against a recklessness standard. I part company from my colleagues because existing case law supports a finding that defendant’s conduct was not so egregious as to violate the heightened standard of care described by the majority. Unlike the majority, I find no issues for the jury.

Implicit in the recklessness standard is a requirement that a defendant’s conduct be egregious. In Obert v. Baratta, 321 N.J.Super. 356, 358, 729 A.2d 50 (App.Div.1999), the plaintiff was injured when she and the defendant, a fellow outfielder in an informal softball game, collided as they both tried to catch a fly ball. The trial court granted summary judgment in favor of the defendant. Id. at 357, 729 A.2d 50. The Appellate Division affirmed. Id. at 359, 729 A.2d 50. The panel explained that the defendant’s attempt to catch the fly ball constituted no more than ordinary negligence and did not violate the heightened recklessness standard. Ibid.

Importantly, the Appellate Division reasoned that the defendant’s conduct “was not the kind of egregiously reckless conduct that merits a departure from the strong public policy encouraging vigorous participation in the ‘rough-and-tumble of sports’ activity freely, without fear of being ‘second-guessed in courtrooms.’ ” Id. at 360, 729 A.2d 50 (quoting Crawn v. Campo, 136 N.J. 494, 508, 643 A.2d 600 (1994)) (emphasis added).

Decisions involving golf from other jurisdictions support a finding that defendant here was not reckless as a matter of law. In Gray v. Giroux, 49 Mass.App.Ct. 436, 730 N.E.2d 338, 339, review denied, 432 Mass. 1106, — N.E.2d-(2000), the plaintiff and her husband were playing golf with the defendant and his wife. At the “dogleg” ninth hole (a dogleg is a hole in which the fairway *24bends in one direction), the plaintiffs husband hit his shot into the woods to the left of the fairway. Ibid. The plaintiff stood on the left side of the fairway near the woods, approximately thirty-five to fifty yards in front of the defendant. Id. at 339-40. The defendant took his next shot without warning the plaintiff, and the ball struck the plaintiff in the head. Id. at 340. The trial court granted summary judgment in favor of the defendant. Id. at 339.

The appellate court held that the recklessness standard of conduct was appropriate, and affirmed the lower court’s summary disposition. Id. at 340-41. The court explained that because the hole was a dogleg to the right, and the plaintiff and the defendant were standing on the left side of the fairway, the defendant was not aiming his shot toward the plaintiff; rather, the defendant was trying to hit his ball onto the green to his right. Id. at 341. Accordingly, the court found that the plaintiff was not in the intended line of flight of the defendant’s shot. Ibid. The court ruled that “[i]n these circumstances, the fact that the defendant’s shot did not follow its intended path does not amount to wilful, wanton, or reckless conduct.” Ibid.

Similarly, other courts have found that a golfer is not reckless simply because he or she “shanks” a shot that happens to hit a fellow golfer. In Monk v. Phillips, 983 S.W.2d 323, 323-24 (Tex.App.1998), the plaintiffs (husband and wife), the defendant, and another golfer were playing as a foursome. At the second hole, the defendant’s first ball traveled into the trees to the right of the fairway. Id. at 324. The defendant took a second tee shot, which landed in the rough to the right of the fairway near his first shot. Ibid.

The defendant proceeded to his second ball and decided to play that shot. Ibid. As the defendant was standing near his ball, one of the plaintiffs and the fourth member of the group passed in front of the defendant and went to the defendant’s right to search for the defendant’s first ball. Ibid. As he was about to hit, the defendant heard someone say, “ ‘look out, he’s fixing to hit[,]’ ” but no one asked the defendant to stop. Ibid. Although the defen*25dant ‘Vas aiming to shoot the ball straight,” the ball traveled at a ninety-degree angle to his right, striking one of the plaintiffs in the eye. Id. at 325.

The trial court granted the defendant’s motion for summary judgment. Id. at 323. AfSrming the lower court, the appellate court noted that although the defendant’s “conduct may qualify as incompetence or unskillfulness, we find as a matter of law that it does not rise to the level of recklessness. Shanking the ball is a foreseeable and not uncommon occurrence in the game of golf that all golf players must accept.” Id. at 325.

Hathaway v. Tascosa Country Club, Inc., 846 S.W.2d 614 (Tex.App.1993), is also instructive. There, the defendant was practicing his golf stroke on the course’s driving range. Id. at 615. The defendant was hitting balls from the left side of the range because his shots tended to “slice” to the right. Ibid. The plaintiff was playing the course and driving his cart at the ninth hole, which ran parallel to the left of the driving range. Ibid. The defendant hit a ball off the heel of his club, “hooking” the ball to his left, and the ball struck the plaintiff in the eye. Ibid. The trial court granted summary judgment for the defendant. Ibid.

The appellate court ruled that the recklessness standard applied to golf. Id. at 616. In finding that the defendant was not reckless as a matter of law, the court explained that “[a]s those persons who play golf well know, ‘shanking the ball is a foreseeable and not uncommon occurrence____ The same is true of hooking, slicing, pushing, or pulling a golf shot.’ ” Ibid. (citation omitted). Moreover, the court noted, “[b]ecause of the great likelihood of these unintended and offline shots, it can indeed be said that the risk of being inadvertently hit by a ball struck by another competitor is built into the game of golf.” Ibid.

Another case upholding summary disposition in a golf setting is Thompson v. McNeill, 53 Ohio St.3d 102, 559 N.E.2d 705 (1990). In that case, the defendant hit her ball from the fairway into a water hazard. After the plaintiff went to search for the errant ball, the defendant hit another ball. The parties disputed whether *26that second shot was unannounced. The plaintiff remained to the defendant’s right at the water hazard at a distance estimated as twelve to fifteen yards from the defendant. The defendant “shanked” the second shot, and the ball struck the plaintiff in the right eye, causing her severe injury. Id. at 706.

The Supreme Court of Ohio found that the defendant was not reckless as a matter of law and affirmed the trial court’s grant of summary judgment. Id. at 709. The court stated:

[W]e hold that summary judgment for [the defendant] was appropriate— We would stress that “[i]t is well known that not every shot played by a golfer goes to the point whei’e 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.”
[The plaintiff) was off to [the defendant’s] right at such a sharp angle that she was not in the intended path of [the defendant’s] ball. There was no recklessness here and certainly no intentional misconduct. The rules of golf require that one call out “fore” when a shot goes awry, but in this instance the ball was traveling so rapidly that such a warning would have availed nothing.
[Ibid. (citation omitted).]

The above cases, all decided on motions for summary judgment, illustrate the stringent manner in which the recklessness standard should be applied in recreational sport eases, especially golf. In one of those eases, Thompson v. McNeill, the parties disputed whether the defendant warned the plaintiff that she (the defendant) was about to take a second shot. In another case, Gray v. Giroux, the shot that caused injury was taken without warning to the plaintiff. In each instance, the court granted summary judgment in favor of the defendant.

When a golfer steps onto the golf course, he or she knows that other golfers are likely to “slice,” “hook,” or “shank” shots. The likelihood of such wayward shots is an inherent part of the game. Courts from other jurisdictions have recognized that reality, correctly choosing not to expose golfers to liability for their erroneous or incompetent swings under factual situations similar to the present case.

*27II.

In Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520, 529, 666 A.2d 146 (1995), this Court emphasized that “a non-moving party cannot defeat a motion for summary judgment merely by pointing to any fact in dispute.” Moreover, the Court stressed that “where the party opposing summary judgment points only to disputed issues of fact that are ‘of an insubstantial nature,’ the proper disposition is summary judgment.” Ibid. (citations omitted). In my view, the disputed facts cited by the majority are not material and, therefore, they cannot form the basis of overturning the trial court’s disposition.

Unlike the majority, I believe that this case turns on only two facts: first, that defendant was at the tee for the purpose of hitting the ball straight toward the green; and second, that at the time of defendant’s shot, plaintiff was positioned forty-five degrees to the left of the tee box. Those facts are undisputed in the record. Significantly, as plaintiff himself admitted at his deposition, defendant did not intend to hit plaintiff with the ball:

Q. Do you think that [defendant] intended to hit you with his golf ball?
A. No.
Q. Do you think that this was anything more than an accident?
A. No.

By that acknowledgment, plaintiff buttresses the inescapable conclusion to be drawn from this record, namely, that plaintiff stood outside the intended line of flight of defendant’s shot. That being the case, the fact that defendant may have taken an unannounced “mulligan” is not material or relevant to the Court’s disposition. Defendant’s “line of fire” reference was explained by defendant to mean, “[ejverybody’s in the line of fire when you hit a golf ball. You play golf.” Viewed in that context, defendant’s reference does no more than support the notion that the risk of injury is a foreseeable, albeit unfortunate, aspect of all sporting games. Together, the parties’ respective comments render the mulligan issue immaterial in my view.

*28In the same vein, we need not decide whether a mulligan is a recognized part of golf. If required to reach that question, however, I would conclude that because golfers -widely understand what is meant by a mulligan, this Court may take judicial notice of that term. See Wright v. Spinks, 722 N.E.2d 1278, 1279 (Ind.Ct.App.2000) (taking judicial notice of meaning of mulligan). In so doing, I would find as a matter of law that the practice of taking a second shot off the tee is a foreseeable aspect of the game. See Mel Narol, Sports Torts: Standard on the Line, New Jersey Lawyer: The Weekly Newspaper, Nov. 20, 2000 at 7 (“With respect to whether hitting a mulligan is ‘part of the game’ of golf, the mere fact it is a long-time common occurrence in recreational golf, and even has a proper name attached to the shot, might be viewed as strong evidence that golfers recognize this as part of the game.”).

It bears repeating that in Thompson v. McNeill, supra, 559 N.E.2d at 706, the parties disputed whether the defendant, after “shanking” her shot, warned or announced to the plaintiff that she (the defendant) was about to take an additional shot. Notwithstanding that dispute, the Supreme Court of Ohio upheld the trial court’s summary disposition in favor of the defendant. The high court concluded that “[the defendant’s additional swing] was not a prohibited or reckless shot. [The defendant] did not recklessly expose [the plaintiff] to more danger than any golfer faces in participating in a game of golf.” Id. at 709.

Interestingly, the Ohio Supreme Court also observed that the defendant would not be liable for the plaintiff’s injury even under a negligence standard because the plaintiffs “position relative to [the defendant] placed [the plaintiff] outside the zone of danger.” Id. at 709 n. 2. Although that observation was not necessary for the court’s holding, it indicates the extent of the willingness of some jurisdictions to shield amateur athletes from costly and onerous litigation.

As noted, the parties in this ease do not dispute that plaintiff was located at a forty-five degree angle from the tee at the time of *29defendant’s swing. Generally, golfers intend to hit straight shots off the tee, not shots that “hook” or “slice” the ball either to the left or right. John Allan May, The Complete Book of Golf 54-55 (Gallery Books 1991). Someone in plaintiffs position, located at an acute angle from the tee on a straight-away hole, is not in the intended path of a fellow golfer’s tee shot. Plaintiff conceded as much when he stated at his deposition that he did not believe that defendant intended to hit him with the ball.

Thus, I do not share the majority’s conclusion that the dispute concerning whether defendant warned or waved to plaintiff is material for purposes of summary judgment. A golfer is not required to warn other golfers of an impending shot if those other golfers are not within the shot’s intended line of flight. See Carrigan v. Roussell, 177 N.J.Super. 272, 278-79, 426 A.2d 517 (App.Div.1981). (Although Carrigan was decided on the basis of the now-inapplicable negligence standard, the court’s statement that a golfer is not required to warn other golfers positioned outside the “ambit of danger” remains instructive.) Because I find that plaintiff was not in the intended path of defendant’s shot, I would conclude that defendant owed no special duty to plaintiff.

III.

I would also rely on policy grounds to reinstate the grant of summary judgment. “[Ijnformal 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.” Crawn, supra, 136 N.J. at 503, 643 A.2d 600. Anyone who steps onto a golf course, baseball diamond, tennis or basketball court, hockey rink, or soccer or football field must accept the risks inherent in those games.

Parties to a sports-related suit will nearly always be able to highlight some disputed facts. For example, in a typical soccer game, there are eleven players from each team on the field, as well as a referee. On the sidelines, there are usually several *30coaches for each team, additional team members who are substitutes, and numerous spectators. In a fast-moving game like soccer, an incident on the field that causes injury could be viewed by any number of individuals and from any number of perspectives and vantage points. In that setting, disputed facts are bound to exist. Unless the recklessness standard is applied strictly by the courts, costly and protracted litigation may become the norm.

As this Court declared in Crawn, supra, 136 N.J. at 508, 643 A.2d 600, “[t]he 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.” Using Crawn as my guide, I would conclude that defendant’s inability to hit a straight shot off the tee was not the type of excessively harmful or egregious conduct that justifies submitting this case to the jury. I fear that the majority’s contrary conclusion may undermine the effectiveness of the recklessness standard as a deterrent to sports-related litigation.

A California appeals court recently articulated a similar concern related specifically to golf. The court stated:

Holding participants liable for missed hits would only encourage lawsuits and deter players from enjoying the sport. Golf offers many healthful advantages to both the golfer and the community. The physical exercise in the fresh air with the smell of the pines ... renews the spirit and refreshes the body. The sport offers an opportunity for recreation with friends and the chance to meet other citizens with like interests____Social policy dictates that the law should not discourage participation in such an activity whose benefits to the individual player and to the community at large are so great.
[Dilger v. Moyles, 54 Cal.App.4th 1452, 63 Cal.Rptr.2d 591, 593 (1997).]

In sum, the judiciary should refrain from interposing any set of rules that would discourage the spirited pursuit of sporting games, unless those rules are clearly necessary to protect the public interest. Unfortunately, injuries do occur on the playing field, even in a non-contact sport like golf. On balance, the public is best served by having players assume the risks of those injuries absent egregious conduct on the part of their fellow participants. By my reading of the record, defendant’s only “offense” is that he *31hit an errant ball. He intended no injury to plaintiff. Accordingly, the public is not harmed by sustaining the grant of summary judgment in favor of the amateur athlete in this ease.

IV.

This Court has observed that punitive damages may be imposed when a plaintiff is able to prove that a defendant acted recklessly. Smith v. Whitaker, 160 N.J. 221, 242, 734 A.2d 243 (1999) (citing N.J.S.A. 2A:15-5.10). The Court has previously explained:

Mere negligence, no matter how gross, will not suffice as a basis for punitive damages. Rather, plaintiff must prove by clear and convincing evidence a “deliberate act or omission with knowledge of a high degree of probability of harm and reckless indifference to the consequences.” “The defendant, however, does not have to recognize that his conduct is ‘extremely dangerous,’ but a reasonable person must know or should know that the actions are sufficiently dangerous.”
[Ibid. (citations omitted).]

Here, the Court’s disposition exposes this and similarly-situated defendants to the possibility of punitive damages. That possibility reinforces my view that the unintended consequence of the majority’s holding is that it may foster more sports-related lawsuits and potentially punish well-intended athletes engaged in a variety of sports. Although it erred in applying the negligence standard, the Appellate Division below correctly concluded that “[ujnder plaintiffs version of the facts, defendant’s conduct cannot be considered “wantonly reckless’ so punitive damages are not awardable.” I would rely on that conclusion as additional support to dismiss plaintiffs complaint as a matter of law.

V.

For the reasons stated, the Court should reverse the judgment of the Appellate Division and reinstate the trial court’s grant of summary judgment.

For affirmance as modified and remandment — -Chief Justice PORITZ and Justices STEIN, COLEMAN, LONG, LaVECCHIA and ZAZZALI — 6.

*32Concurring in part/Dissenting in part — Justice VERNIERO— 1.