Opinion
DOCKET NO. A-4767-14T1
07-06-2016
G.C., a minor, by and through his guardians ad litem, N.C. and G.C.; and N.C. and G.C., individually, Plaintiffs-Appellants, v. NEW JERSEY YOUTH SOCCER; MORRIS COUNTY YOUTH SOCCER ASSOCIATION; ROXBURY SOCCER CLUB; MOUNT OLIVE SOCCER CLUB; FRED PHILLIPS; CARL HALTER; MARC CICALESE; PETER CRAWFORD; HENRY POLLISON; STUART MARCUS; WILLIAM SPIES; T.U., by and through his guardians ad litem, K.R. and J.U.; K.R. an individual; J.U., an individual; PHILADELPHIA INSURANCE COMPANIES, an insurance company, Defendants-Respondents.
Nicole M. Lombardi argued the cause for appellants (Lombardi & Lombardi, P.A., attorneys; Ms. Lombardi, on the brief). Aldo Russo argued the cause for respondentS T.U. and K.R. (Lamb Kretzer, LLC, attorneys; Robert D. Kretzer, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Currier. On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2503-13. Nicole M. Lombardi argued the cause for appellants (Lombardi & Lombardi, P.A., attorneys; Ms. Lombardi, on the brief). Aldo Russo argued the cause for respondentS T.U. and K.R. (Lamb Kretzer, LLC, attorneys; Robert D. Kretzer, on the brief). PER CURIAM
During the last two minutes of a close soccer match, twelve-year-old G.C. was dribbling the ball to take a shot at the goal when he was kicked in the leg by thirteen-year-old T.U., causing a knee injury. In this appeal, we address whether plaintiffs presented sufficient proof of T.U.'s recklessness to withstand the granting of summary judgment. We conclude they did not, and therefore affirm.
We use initials to refer to the minor parties for purposes of confidentiality.
G.C.'s parents brought this action individually and on behalf of their son, asserting negligence, and reckless and intentional conduct on the part of all defendants. Following the close of discovery, all defendants moved for and were granted summary judgment. Plaintiffs only appeal the order rendered to T.U.
We refer to G.C. and his parents collectively as plaintiffs. --------
Plaintiffs argue now, as they did to the motion judge, that T.U.'s conduct was reckless and therefore actionable under the principles set forth in C.J.R. v. G.A., 438 N.J. Super. 387 (App. Div. 2014).
In C.J.R., a minor lacrosse player sought to hold an eleven-year-old opposing player liable for injuries sustained when the plaintiff was struck in the arm with the opposing player's lacrosse stick. Id. at 389. We set out a "double-layered approach" to apply in the circumstances of a minor injuring another minor in a sporting activity. Id. at 400. The analysis to be applied is:
(1) whether the opposing player's injurious conduct would be actionable if it were committed by an adult, evaluating whether there is sufficient proof of the defendant player's intent to inflict bodily injury or recklessness; and, if so, (2) whether it would be reasonable in the particular youth sports setting to expect a minor of the same age and characteristics as the defendant to refrain from the injurious physical contact.Using that analysis, we concluded that a jury could not find the minor player's conduct in C.J.R. to be reckless and the grant of summary judgment was proper. Id. at 401-02.
[Ibid.]
Plaintiffs seek to distinguish this case from C.J.R. with the following evidence: T.U. was issued a yellow card for "unsporting behavior for a reckless trip" after the play; T.U. was an experienced thirteen-year-old player; and plaintiffs proffered a liability expert who opined that T.U.'s conduct "was intentional and/or reckless in nature and constituted serious foul play." Plaintiffs contend there was sufficient evidence to allow a jury to determine that the conduct of T.U. was reckless in nature and the motion judge erred in finding to the contrary.
In applying the C.J.R. analysis, the motion judge considered each argument asserted by plaintiffs and concluded they had not met their burden on the first prong. She found that "[n]either the referee nor any other witness . . . indicated that [T.U.]'s act, that is swiping for the ball, was intentional or that he proceeded in disregard of a high and excessive degree of danger." She stated further:
There's no testimony to suggest the defendant intended to kick or . . . strike plaintiff rather than the ball, nor is there any testimony suggesting that [T.U.] kicked or tripped plaintiff long after the shot had been taken. Therefore, plaintiff cannot establish the requisite degree of recklessness to prove his case.
We review a grant of summary judgment under the same standard as the motion judge. Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 41 (2012) (citing Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010)). We must determine whether there are any genuine issues of material fact when the evidence is viewed in the light most favorable to the non-moving party. Id. at 38, 41. "The inquiry is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)). "[T]he legal conclusions undergirding the summary judgment motion itself [are reviewed] on a plenary de novo basis." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 385 (2010).
We see no reason to disturb the motion judge's conclusion. "Reckless conduct is an extreme departure from ordinary care, in a situation in which a high degree of danger is apparent." Schick v. Ferolito, 167 N.J. 7, 19 (2001) (citation omitted); see also Crawn v. Campo, 136 N.J. 494, 508 (1994) (holding a heightened standard of reckless or intentional conduct is required to establish tort liability in the arena of recreational sports). There was no evidence to support the contention that T.U.'s conduct rose to the required level of recklessness. G.C. was dribbling the ball toward the goal to take a shot; T.U. was trying to catch up with him and take the ball away. There was excitement as the game was close and time was running out. The referee testified that T.U. "made a move for the ball, but [he] didn't have control of himself as he did and managed to catch [the plaintiff] after the shot went off." He explained that he issued the yellow card because T.U. contacted G.C. "in a manner that [didn't] conform with normal level of play." He further stated that T.U. was trying to swipe the ball away.
Injuries are a part and parcel of minors playing in physical sports. In the circumstances present here, we find the judge did not err in concluding T.U.'s conduct did not rise to the required level of recklessness. We affirm, therefore, substantially for the reasons expressed by the judge in her well-reasoned oral opinion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION