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Crawn v. Campo7/30/1993
Plaintiff Michael Crawn, playing catcher in a pick-up softball game, was injured in a collision at home plate with defendant John Campo, an opposing baserunner. Crawn brought this action for damages, alleging that Campo (1) "negligently ran into" him, (2) "violently slid into home plate . . . in violation of the rules and regulations of the game" and (3) ran into him "willfully and maliciously and with intent to harm." The allegation of intentional harm was withdrawn and, following a liability-only trial, the jury found that Campo acted "in reckless disregard of the safety of [Crawn]." The trial Judge granted a new trial, R. 4:49-1(a), and, in a separate order, directed that at the retrial "the standard of care to be proven by the plaintiff [again] must be . . . reckless conduct rather than . . . simple negligence." By leave granted, R. 2:2-4, Crawn appeals from both of those orders; Campo cross-appeals from the denial of his motion to dismiss the action because of Crawn's failure to present expert testimony.
I
We affirm the new trial order. The trial Judge was correct in concluding that Campo's attorney was wrongly precluded from confronting witness Patruno with his prior inconsistent statement and that Crawn's attorney improperly referred to the injuries Crawn suffered. Our review of the record satisfies us that those errors could well have affected the jury's determinations. We accordingly defer to the trial Judge's decision to order the new trial. See Lanzet v. Greenberg, 126 N.J. 168, 175, 594 A.2d 1309 (1991).
We reject as clearly without merit Campo's cross-appeal contention that Crawn's cause of action should have been dismissed
because of his failure to present expert testimony. R. 2:11-3(e)(1)(E). See Butler v. Acme Markets, Inc., 89 N.J. 270, 283-284, 445 A.2d 1141 (1982).
II
The Law Division Judge held that, as between players "in a sporting event such as a softball game,"
only those injuries caused by intentional conduct or by acting in reckless disregard of the safety of others will give rise to a cause of action. Liability will not be found to exist where ordinary negligence caused the injuries.
[ Crawn v. Campo, 257 N.J. Super. 374, 377, 608 A.2d 465 (Law Div.1992).]
That ruling is the underpinning of the order directing that at the new trial Crawn must prove "reckless conduct rather than . . . simple negligence." We reverse, for we are persuaded that ordinary negligence is the appropriate standard to be applied.
The issue has not previously been addressed in New Jersey. The trial Judge relied on "the great weight of case authority in the various states," which he read as requiring proof of reckless or intentional conduct in sports-injury cases. Ibid. Other courts
have similarly described the case law. See, e.g., Gauvin v. Clark, 404 Mass. 450, 537 N.E. 2d 94, 97 (1989) (" he majority of jurisdictions which have considered this issue have concluded that personal injury cases arising out of an athletic event must be predicated on reckless disregard of safety"); Marchetti v. Kalish, 53 Ohio St. 3d 95, 97, 559 N.E. 2d 699, 701 ("courts generally allow a cause of action for injuries sustained in recreational or sports activities only under reckless or intentional tort theories"), reh'g denied, 54 Ohio St. 3d 716, 562 N.E. 2d 163 (1990). Indeed, the only case unequivocally adopting ordinary ne
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