Opinion
FSTCV166028534S
11-22-2016
Thomas Intrieri v. Julianna Mileto
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE (No. 103)
Hon. Charles T. Lee, J.
Before the court is the defendant's motion to strike the plaintiff's complaint. As more fully set forth below, the motion to strike is granted.
On May 11, 2016, the plaintiff, Thomas Intrieri, filed a single-count complaint against the defendant, Julianna Mileto, sounding in negligence arising out of an incident that took place at a softball game. In his complaint, the plaintiff alleges that while he was acting as a substitute or assistant coach for the defendant's team, he was injured when the defendant, who was at bat, swung and released the bat into the plaintiff's face. Accordingly, the plaintiff has brought suit for damages.
On July 12, 2016, the defendant filed the present motion to strike the plaintiff's complaint in its entirety on the ground that the plaintiff has failed to allege a legally sufficient claim of negligence. According to the defendant, pursuant to Connecticut law, in order to recover for injuries sustained by a participant in a sporting event, a plaintiff must allege that a defendant acted wilfully or recklessly. In other words, the defendant argues that the only duty that she owed the plaintiff was a duty to refrain from reckless and intentional conduct and that a simple allegation of negligence will not suffice.
On August 4, 2016, the plaintiff filed his objection to the defendant's motion to strike, in which he contends that he has alleged a legally sufficient negligence cause of action because, at the time when he was injured, he was acting as a coach, not a participant. According to the plaintiff, the standard of care that applies to a player is different than that which applies to a coach. In any event, the plaintiff's argument continues, " girls' softball" is not a traditional contact sport, and, therefore, the willful or reckless standard of care does not apply.
On September 30, 2016, the defendant replied to the plaintiff's objection. In her reply, the defendant alleges that the plaintiff was in fact a participant in the softball event, which should be considered a contact sport. The plaintiff voluntarily took an active role in the game and, as such, assumed a greater risk than a mere spectator of the game would take. The court heard oral argument on October 3, 2016.
DISCUSSION
" [A] motion to strike challenges the legal sufficiency of a pleading . . ." (Internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013). " The issue of whether the defendant owed the plaintiff a duty of care is an appropriate one for a motion to strike because the question embodies a matter of law to be decided by the court." Bennett v. Connecticut Hospice, Inc., 56 Conn.App. 134, 137, 741 A.2d 349 (1999), cert. denied, 252 Conn. 938, 747 A.2d 2 (2000).
The court has been unable to find any appellate authority in Connecticut regarding the issue of what duty of care a softball player owes a softball coach, nor have the parties advanced any. Courts that have considered similar issues base their decisions on two distinctions. First, courts distinguish between contact team sports and noncontact sports. For example, soccer, football, basketball, and hockey are contact sports; skiing is not. See Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 702, 849 A.2d 813 (2004). Second, courts distinguish between injured players, who are participants, and others, who are not participants. See, e.g., Hotak v. Seno, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-00-0072461-S (June 12, 2001, Arnold, J.) (29 Conn.L.Rptr. 609, ) (considering whether player who was not actively engaged in game was participant); see also Avenoso v. Mangan, Superior Court, judicial district of Hartford, Docket No. CV-05-4009152 (February 14, 2006, Tanzer, J.) (40 Conn.L.Rptr. 637, ) (differentiating between adults who coach young children, adults who play a sport, and children who play a sport). Therefore, the standard of care owed from a softball player to a softball coach depends on whether: (1) softball is a contact team sport, and (2) a coach is considered a participant.
Is Softball a Contact Team Sport?
In Jaworski v. Kiernan, 241 Conn. 399, 696 A.2d 332 (1997), the Supreme Court considered " what duty of care the defendant . . . owed the plaintiff . . . while both were participating on opposing teams in an adult coed soccer game . . ." Id., 400. The court stated: " [T]he normal expectations of participants in contact team sports counsel the adoption of a reckless or intentional conduct duty of care standard for those participants." Id., 408. In coming to this holding, the Supreme Court cited four factors to be considered in determining the extent of the legal duty to be imposed upon a defendant: " (1) the normal expectations of the participants in the sport in which the plaintiff and the defendant were engaged; (2) the public policy encouraging vigorous participation in recreational sporting activities while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions." Id., 407. The court continued: " If simple negligence were adopted as the standard of care, every punter with whom contact is made, every midfielder high sticked, every basketball player fouled, every batter struck by a pitch, and every hockey player tripped would have the ingredients for a lawsuit if injury resulted." (Emphasis added.) Id., 409-10. This higher standard of care only applies " to . . . those injuries occurring during team athletic contests involving contact as part of the game." Id., 412. In coming to its conclusion, the Jaworski court, in part, relied on a New Jersey case, Crawn v. Campo, 136 N.J. 494, 643 A.2d 600 (1994). Jaworski v. Kiernan, supra, 411.
In Crawn, " the '[p]laintiff was playing catcher in a pickup softball game and was injured when [the] defendant, attempting to score from second base, either slid or ran into him at home plate.' In rejecting the negligence standard, the court concluded: '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.'" Jaworski v. Kiernan, supra, 241 Conn. 411.
Similarly, in Vaillancourt v. Latifi, 81 Conn.App. 541, 840 A.2d 1209 (2004), the Appellate Court applied Jaworski 's higher standard of care to softball. In Vaillancourt, " the plaintiff commenced an action for injuries he allegedly sustained while he was playing softball in a league organized by the YMCA." Id., 543. The court stated: " Although Jaworski concerned soccer players, it is equally foreseeable to us that injuries will occur to competitors in a game of softball." (Footnote omitted.) Id., 548. Based on Jaworski, Crawn, and Vaillancourt, this court concludes that softball is a contact sport and participants in softball games are held to the higher standard of care. See also Morrissey v. Kampf, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-13-6013597 (March 31, 2015, Stevens, J.) [60 Conn.L.Rptr. 65, ] (holding that higher standard of care from Jaworski applied to participants in a softball game); D'Amico v. Tomkalski, Superior Court, judicial district of Waterbury, Docket No. CV-98-0147377-S (November 30, 2001, Doherty, J.) (31 Conn.L.Rptr. 72, ) (same).
Is a Coach A Participant?
Although no Connecticut appellate authority has been located discussing whether anyone other than an active player can be considered a participant, the Superior Court has addressed this issue three times. First, in Hotak v. Seno, supra, 29 Conn.L.Rptr. 609,, the Superior Court considered whether a plaintiff, who was injured when he was struck in the head by a baseball bat while playing baseball in a school gym class, was a participant in the game, even though he was not on the playing field when he was injured and was not actively engaged in the game. Id. " In applying the Supreme Court's four prong test [from Jaworski, the court determined] that the plaintiff was a member of the gym class and a participant in the baseball game. He was a member, thus, of one of the baseball teams. The teams were engaged in a contact sport promoting vigorous athletic competition. While the plaintiff's team was at bat and the plaintiff may not have actually been on the playing field, he was a participant in the game. The game was being held as part of a school physical education class which encouraged vigorous recreational activity in sports, under the supervision of school personnel. It is unfortunate that the plaintiff was struck by the plaintiff's bat. Getting hit by the ball, or, as in this case, getting hit by an errant bat, is an inadvertent rules violation from which an injury may result." Id., 610, . Accordingly, the court concluded that " [p]roof of mere negligence [was] insufficient to create liability in the . . . matter." Id., 611, .
Second, in Hendry v. Fratus, Superior Court, judicial district of New London, Docket No. 558176 (August 23, 2002, Hurley, J.T.R.) (32 Conn.L.Rptr. 733, ), the plaintiff baseball player was injured by a ball thrown by the defendant coach during practice. Id. Holding that a negligence standard applied, the court stated: " The present case may be distinguishable from Jaworski because it is alleged that the minor participant who was injured was engaged in practice, not in a competitive game and the injury was not the result of an act by another minor participant, but rather from his adult coach who failed to properly instruct." Id., 734, .
Finally, in Avenoso v. Mangan, supra, 40 Conn.L.Rptr. 637,, the plaintiff youth soccer player was injured when the defendant, his coach, tripped and fell on top of him during soccer practice. Id. The court " conclud[ed] that the rationale of Jaworski [did] not extend to the circumstances of the [case before it]. Specifically, the normal expectations of the parties [were] significantly different than the expectations of the adult soccer players in Jaworski . . . In the present case . . . the normal expectation of young children and their parents is that adult coaches will conduct themselves in such a way as to avoid injury to the children. Certainly, the coaches would not be expected to feel a sense of competition with the children on the team, nor would they be expected to engage in the sort of physical contact with young children that would ordinarily occur in competitive play between adults. While the court in Jaworski noted that a player's normal objective in a competitive sports competition is to beat the other team . . . an adult coaching young children in practice certainly would not be expected to have any such desire vis-a-vis young children to beat them at the sport. In short, the normal expectations of those involved, in the coaching of young children, including the children and their parents, are more consistent with a standard of care that would requires coaches to avoid acting negligently." (Citation omitted.) Id., 640, .
Although factually similar in some ways to the present case, the previously discussed Superior Court decisions do not provide this court with dispositive guidance. In Hotak, the court determined that a player on the sidelines was a participant; in the present case, the court must determine whether a coach is a participant. In Hendry and Avenoso, the injured party was a coach, not a player, who was injured by the inadvertence of a player.
ANALYSIS
In the absence of guidance from these Superior Court decisions, this court believes that the proper analysis requires an application of the four Jaworksi factors. As discussed previously in this opinion, the Supreme Court, in Jaworski v. Kiernan, supra, 241 Conn. 399, considered the following four factors in determining the extent of the legal duty to be imposed upon a defendant: " (1) the normal expectations of the participants in the sport in which the plaintiff and the defendant were engaged; (2) the public policy encouraging vigorous participation in recreational sporting activities while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions." Id., 407.
As to the normal expectations of the participants, the Jaworski court explained: " In athletic competitions, the object obviously is to win. In games, particularly those played by teams and involving some degree of physical contact, it is reasonable to assume that the competitive spirit of the participants will result in some rules violations and injuries. That is why there are penalty boxes, foul shots, free kicks, and yellow cards. Indeed, the specific rules applicable to this game demonstrate that rules violations were expected in the normal course of the game . . . Some injuries may result from such violations, but such violations are nonetheless an accepted part of any competition. Simply put, when competitive sports are played, we expect a participant's main objective is to be a winner, and we expect that the players will pursue that objective enthusiastically. We also anticipate that players in their enthusiasm will commit inadvertent rules violations from which injuries may result. The normal expectations of participants in contact team sports include the potential for injuries resulting from conduct that violates the rules of the sport." Id., 408. In the present case, the defendant was a member of a softball team and was participating in a softball game. The plaintiff was acting as a substitute or assistant coach of the defendant's team. The plaintiff was injured when the defendant, who was at bat, swung and released the bat. As the softball event was a softball game, the object was to win, the participants were competitive and spirited, and rules violations were expected. Accordingly, the normal expectations of all involved included the potential for injuries resulting from an inadvertent rule violation, including an errant bat. Coaches, players, managers, referees, and others who voluntarily participate in softball events must accept the risks to which their roles expose them. Presumably, their roles dictate that they are paying close attention to the game, probably more so than mere spectators.
In her motion to strike, the defendant characterizes the softball event as a game. The plaintiff has not objected to this characterization.
As to the public policy factor, our Supreme Court explained: " We believe that participants in recreational sports will not alter their enthusiasm for competition or their participation in recreational activities for fear of liability for injuring someone because of their reckless or intentional conduct. We are convinced, however, that liability for simple negligence would have an opposite effect. We also are convinced that a recklessness standard will sufficiently protect participants in athletic contests by affording them a right of action against those who cause injuries not inherent in the particular game in which the participants are engaged. In other words, we believe that the reckless or intentional conduct standard of care will maintain civility and relative safety in team sports without dampening the competitive spirit of the participants." Id., 409. In the present case, this court believes that applying a negligence standard to the facts of this case would alter softball batters' enthusiasm and participation. The risk of an errant bat, or a fly ball, is inherent and routine in softball and fear of the consequences of an overzealous, substandard, or even improper but inadvertent release of the bat would dampen the competitive spirit of any batter.
In discussing the third element, namely its concern for a possible flood of litigation, the Jaworski court explained: " When the number of athletic events taking place in Connecticut over the course of a year is considered, there exists the potential for a surfeit of lawsuits when it becomes known that simple negligence, based on an inadvertent violation of a contest rule, will suffice as a ground for recovery for an athletic injury. This should not be encouraged." Id., 410. This rationale applies equally to coaches and players, as most, if not all, competitive team contact sports involve both coaches and players.
Finally, the fourth Jaworski factor directs the court to look to the decisions of other jurisdictions. Other jurisdictions have considered whether the definition of " participant" includes persons other than players. For example, in Chrismon v. Brown, 246 S.W.3d 102 (Tex.App. 2007), reh'g denied, 246 S.W.3d 102 (2008), " [a] volunteer assistant coach on a girls softball team sustained injuries when she was struck in the face by a bat that slipped from the hand of the volunteer head coach during a softball drill . . . In reviewing the trial court's summary judgment as to [a particular defendant, the appellate court had to] determine what duties, if any, one sports participant owes to another sports participant . . . [The court] h[e]ld that (1) a sports participant owes no negligence duty to another sports participant regarding risks inherent in the sport in question; (2) a sports participant owes a negligence duty to another sports participant regarding risks that are not inherent in that sport; and (3) regardless of whether the risk is inherent, a sports participant owes a duty not to cause injury to another sports participant by gross negligence or intentional conduct." Id., 104-05. In applying this analysis to the case before it, the Chrismon court implicitly concluded that both a volunteer assistant softball coach and a volunteer head softball coach should be considered participants.
In Chrismon, the court noted that at least one other court, the Court of Appeals of Indiana in Geiersbach v. Frieje, 807 N.E.2d 114 (2004), overruled in part by Pfenning v. Lineman, 947 N.E.2d 392 (2011), had applied the previously discussed three-prong approach to both coaches and players. In Geiersbach, the court stated: " Much has been made by the parties in this case as to whether the coaches should be considered co-participants in the sporting event." The court explained: " By participant, we mean any person who is part of the sporting event or practice involved. This would include players, coaches, and players who are sitting on the bench during play." Id., 120. See also McGee v. Board of Education, 16 A.D.2d 99, 226 N.Y.S.2d 329 (New York Appellate Division, First Department, 1962) (" Generally, the participants in an athletic event are held to have assumed the risks of injury normally associated with the sport . . . Players, coaches, managers, referees and others who, in one way or another, voluntarily participate must accept the risks to which their roles expose them."), appeal dismissed, 12 N.Y.2d 1100, 190 N.E.2d 537, 240 N.Y.S.2d 165 (1963); Egerter v. Amato, Docket No. HNT-L-108-04, 2006 WL 551571, *3 (N.J.Super.Law Div. 2006) (relying on Crawn v. Campo, supra, 136 N.J. 494, and holding " [s]imple negligence does not justify judicial intervention by a coach against his charges"), aff'd, Docket No. A-4005-05T1, 2007 WL 1484541 (N.J.Super.App.Div. 2007), cert. denied, 192 N.J. 478, 932 A.2d 29 (2007).
Based on the above analysis, the court agrees with the decisions from other jurisdictions that have concluded, consistent with an analysis using the Jaworski factors, that coaches are participants and that they must allege and show reckless or intentional conduct in order to recover for injuries sustained during a game of girls' softball.
CONCLUSION
By reason of the foregoing, the defendant's motion to strike is GRANTED.