C.J.R. v. G.A., 438 N.J. Super. 387 (App. Div. 2014). Near the end of a closely-contested lacrosse game in a youth recreational league for less advanced players, a twelve-year-old player suffered a fractured arm after an eleven-year-old opponent struck him on the arm while trying to get the ball back for his team. The injured player (and his father, as his guardian ad litem) sued the opposing player and the opposing player’s father for that injury. The Law Division granted summary judgment for both defendants. Plaintiffs appealed only as to the summary judgment in favor of the opposing player. The Appellate Division affirmed in an opinion by Judge Sabatino that noted that this was a “case of first impression under New Jersey law.”
Judge Sabatino stated that the proper outcome involved dovetailing two distinct bodies of caselaw: cases as to personal injuries sustained in adult sporting events, and cases imposing limitations on the tort liability of minors, depending on their ages. He carefully analyzed the two leading cases on the first of those subjects, Schick v. Ferolito, 167 N.J. 7 (2001) (golf), and Crawn v. Campo, 136 N.J. 494 (1994) (baseball). Those cases applied a “heightened recklessness” standard, in recognition of the “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.”
On the second subject, Judge Sabatino noted that there is a rebuttable presumption that children under age seven are rebuttably presumed to be incapable of negligence, and that children above that age are evaluated using a “fact-sensitive and context-specific approach,” factoring in the child’s age, intelligence, experience, and capacity to understand and avoid the danger at issue. Though those principles were expressed in the negligence context, Judge Sabatino found them useful for a recklessness inquiry as well. He cited cases from other jurisdictions that had applied a comparable recklessness standard to cases involving minor children.
Ultimately, Judge Sabatino distilled the test into a “double-layered” inquiry: “(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.” Applying that test, the panel affirmed the summary judgment for the defendant athlete.
Even assuming for the purposes of argument that an adult might have been liable for the same conduct that occurred here, the second layer of analysis compelled a ruling for the defendant. He was only eleven years old, and was “playing in a program level designed for less-experienced or less-proficient lacrosse players of his age.” Though the defendant may have committed a foul, that foul was required to be viewed in the context of a close game, with only a few seconds left in the game, and where the defendant’s team could not win, or even tie, unless his team got the ball back. Moreover, there was “no proof of any pre-existing enmity” between the two players earlier in the game. Judge Sabatino concluded by saying that “[a]lthough C.J.R.’s injury is regrettable, it is one of those unfortunate occasional consequences of minors playing in a rough-and-tumble sport.”
The panel rightly recognized that children who play sports can sustain “serious and sometimes long-lasting injuries” from those activities. Judge Sabatino cited in particular the concern about concussions and similar injuries. The panel thus disclaimed any intent to adopt “a laissez faire attitude that is oblivious to the risks of such injuries.” But Judge Sabatino also observed that children “will inevitably commit fouls in sporting activities out of inexperience, youthful exuberance, lack of self-discipline, clumsiness, immaturity, frustation, or some combination of those traits,” especially in a game like lacrosse, which has complicated rules and much physical contact. The panel did not wish for “the prospect of a lawsuit [to] crop up every time that a referee calls a foul on a child who is learning how to play the game. The law should not unduly discourage our youths from taking advantage of opportunities through organized sports to appreciate and cultivate the virtues of teamwork and physical conditioning.”
This decision involved a balancing act, in a previously unexplored area of the law. Judge Sabatino seems to have gotten that delicate balance right.