by: Peter J. Gallagher (@pjsgallagher)
When I was around ten-years-old, I showed up for soccer practice a little late and found an ambulance at the field waiting to take one of my teammates to the hospital. He and another one of my teammates collided while both were going after the ball and one of them broke his leg. As far as I know, no lawsuit was ever filed. Earlier this week, the Appellate Division issued its opinion in C.J.R. v. G.A., and established the standard that might have applied had my teammates (or their parents) been a little more litigious.
In C.J.R., the Medford youth lacrosse team was playing the Marlton youth lacrosse team. In the waning seconds of the game, with Medford ahead by one goal, plaintiff, a member of the Medford team, had the “ball nestled in the basket of his stick” when defendant, a player on the Marlton team, struck him in the forearm. The blow knocked plaintiff to the ground. He was later taken to a hospital and treated for a fractured arm. Plaintiff’s father sued both defendant and defendant’s father (the latter for negligent supervision). The trial court granted summary judgment to both defendants and plaintiff appealed, but only as to the dismissal of his claims against the child.
The Appellate Division noted that the issue presented in C.J.R. was one of first impression under New Jersey law. However, the approach that the Court ultimately adopted to resolve the case was a combination of two well-settled tort principles. The first involving the liability of adults who intentionally or recklessly injure another person in a sporting activity, and the second involving the limited tort liability of minors. The Appellate Division combined these two into a “double-layered” to be used when minors are injured by other minors in sporting events:
The inquiry we have fashioned examines: (1) whether the opposing player’s injurious conduct would be actionable if it were committed by an adult, based on sufficient proof of the defendant’s intent or recklessness as required by the Supreme Court’s case law; 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 defendant to refrain from the injurious physical condition.
Applying this standard to the facts before it, the Appellate Division concluded that, “at the very least, the second query, must be answered  in the negative,” therefore summary judgment was appropriate.
As noted above, each strand of the “double-layered approach” adopted by the Appellate Division is derived from well-settled notions of tort liability, both of which were explained in the Court’s opinion.
First, the Appellate Division observed that an adult plaintiff seeking to impose liability on an adult defendant for injuries arising out of recreational sports faces a high burden. Because of the “inherent” physicality of many sports, the plaintiff in such a case must prove that the defendant intentionally injured the plaintiff or that the defendant was reckless. Citing precedent, the Appellate Division noted that this heightened 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.”
Second, the Appellate Division described the law generally governing the potential tort liability of minors. In New Jersey, children under the age of seven are protected by a rebuttable presumption that they are incapable of negligence. (Obviously the judges who developed this rule never met my children.) Children older than seven may be liable for negligence, but establishing liability involves a “fact-sensitive and context-specific approach, examining the age and other characteristics of the defendant minor, and the surrounding circumstances.” Essentially, the “child’s conduct should be measured in light of his or her capacity to exercise care under all attendant circumstances.” Under this approach, “the younger the child, the greater the risk, for younger children are less able – and less likely – to discern danger.”
The Appellate Division combined these two strands into the “double-layered approach” described above. Applying this approach to the facts before it, the Appellate Division affirmed the trial court’s decision to grant summary judgment to defendant:
[Defendant] was only eleven years old when this incident took place. He was playing in a program level designed for less-experienced or less-proficient lacrosse players of his age. Although he may well have committed a foul by approaching [plaintiff] in the manner that has been described, that mistake must be considered in context. The game was apparently close, and time was running down. [Defendant’s] team could not tie or win the game unless it got control of the ball back. There was no proof of any pre-existing enmity between [plaintiff] and [defendant] earlier in the game.
. . .
A reasonable jury could not find the facts of this particular case here rising to a level of recklessness that would or should make this eleven-year-old lacrosse novice monetarily liable for his misguided actions on the field. Although [plaintiff’s] injury is regrettable, it is one of those unfortunate occasional consequences of minors playing in a rough-and-tumble sport.
Something to think about as we all shuttle our kids around to various sports this weekend!