by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)
If you thought that the yellow card that your child got at his or her soccer match (undeserved though I am sure it was) could never land you in court, you were wrong. In G.C. v. New Jersey Youth Soccer, the parents of a child who received a yellow card were sued by the parents of a child who was injured on the play that resulted in the yellow card. Here is how the Appellate Division described the play:
During the last two minutes of a close soccer match, twelve-year old [plaintiff] was dribbling the ball to take a shot at the goal . . . [Defendant] 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. [Plaintiff] 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.
The play resulted in a knee injury to plaintiff and a yellow card being issued to defendant because, according to the referee, he "contacted [plaintiff] in a manner that didn't confirm with normal level of play."
It also resulted in a lawsuit being filed by plaintiff's parents, on his behalf, against a number of parties, including the other child, several individuals, and various soccer clubs and associations. Plaintiff alleged negligence and reckless and intentional conduct on the part of all defendants. After discovery, each defendant moved for, and was granted, summary judgment. Plaintiff only appealed the grant of summary judgment to the other child.
At the trial court, and again on appeal, plaintiff argued that defendant's conduct was reckless and therefore actionable under the standards set forth in C.J.R. v. G.A. That case, which I wrote about when it was decided, involved a youth lacrosse match. Plaintiff sued after being struck in the forearm by defendant during the match, which resulted in defendant suffering a fractured arm. In a case of first impression, the Appellate Division looked to two tort law principles — the liability of adults who intentionally or recklessly injure another person in a sporting activity and the limited tort liability of minors — to develop a “double-layered” test when minors are injured by other minors in sporting events. That test asks: (1) whether the minor's conduct was sufficiently intentional or reckless that it would be actionable if it were committed by an adult; 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 condition. Applying that standard to the facts in C.J.R., the Appellate Division refused to hold the child liable. Applying that same standard to the facts in G.C., the trial court and Appellate Division came to the same conclusion.
In G.C., plaintiff tried to distinguish his case from C.J.R. by, among other things, noting that defendant received a yellow card and plaintiff proffered an expert who opined that defendant's conduct was intentional and/or reckless. As a result, plaintiff argued that the case should have gone to the jury. The trial court disagreed, holding that "neither the referee nor any other witness indicated that [defendant'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 further held that there was no evidence that defendant "kicked or tripped plaintiff long after the shot had been taken." As a result, the trial court held that plaintiff could not establish that defendant acted intentionally or recklessly.
The Appellate Division agreed. It observed that "[r]eckless conduct is an extreme departure from ordinary care, in a situation in which a high degree of danger is apparent," and that there was no evidence that defendant's conduct rose to this level. It further noted that "[i]njuries are a part and parcel of minors playing in physical sports," which further supported the trial court's finding that defendant's conduct did not rise to the level of recklessness.
Although the presence of the yellow card made this case somewhat unique, it appears that the trial court's and Appellate Division's application of the "double-layered" test established in C.J.R. was correct. The interesting question is whether the result would have been different if the play resulted in a red card. According to FIFA's official rules, a red card can be issued for "serious foul play," which is defined as "a tackle that endangers the safety of an opponent or uses excessive force or brutality." Would this be considered per se intentional or reckless conduct for purposes of civil liability? Probably not, but it would seem to make the question a tougher one for a court to answer on a motion for summary judgment. Stay tuned because I am sure we will see that lawsuit before long.