Incident During P.E. Floor Hockey Game Demonstrates Heightened Standard of Care
John T. Wolohan
Because of the inherent risk of injury in participatory sports, some states, to keep from being overloaded by an avalanche of sports injury litigation and to promote vigorous participation in athletics, have adopted a heightened standard of care in sports participant cases. In applying "reckless misconduct" (as opposed to ordinary negligence) in cases in which the competitors' sports participation is voluntary, the courts generally have held that 1) there must be an intentional act on the part of the defendant, and 2) the act must be performed with reckless disregard to the health and safety of the injured party. In addition, the injured party must show that the defendant's conduct was so far outside the scope or rules of the games that the injured participant could not have assumed such a risk.
What happens, however, when participation is not voluntary? Does the same heightened standard apply, or should the courts apply the lower standard of ordinary negligence? That was just one of the issues presented to the Superior Court of New Jersey, Appellate Division, in Saracino v. Toms River Regional High School East [2009 N.J. Super. Unpub. LEXIS 2623].
During a physical education class at Toms River Regional High School East, students were playing a game of floor hockey. They had been given hockey sticks and a ball, but not safety equipment such as face masks, helmets or padding. However, all were told that the hockey sticks were not to be swung above the waist.
During the game, Michael Arabitg struck one of the other students, Tatiana Saracino, in the nose with his hockey stick. While it is undisputed that Arabitg's stick came in contact with Saracino's nose, how it happened is not so clear. Saracino claimed that Arabitg violently swung his stick well above his waist, missed the ball and struck her in the nose. This version was supported by at least one other student who witnessed the incident. Arabitg, on the other hand, claimed that the blade of his stick was on or near the floor at all times and that he did not swing his stick. This version was supported by their teacher, Ron DeVito, who averred that Saracino basically stepped into the path of Arabitg's stick.
Saracino, who suffered a broken nose that required surgery, filed a lawsuit against Arabitg, DeVito and the school district (although this article examines only the suit against Arabitg). Before Saracino could present her case to a jury, Arabitg moved for summary judgment. In granting the motion, the judge, citing Crawn v. Campo [136 N.J. 494, 643 A.2d 600 (1994)], held that when a person participates either in recreational or organized sports, the standard of care is one of recklessness and/or intentional conduct. Even assuming that Arabitg committed a rule violation by raising his stick above his waist, the judge determined that such actions did not rise to the level of recklessness or intentional conduct.
On appeal to the Superior Court of New Jersey, Appellate Division, Saracino argued that the judge committed two errors. First, she argued that the judge applied the wrong standard of care, arguing that Crawn was not applicable because (unlike the parties in Crawn) she was taking part in a required physical education class, not a voluntary activity. Second, she claimed that even if a reckless or intentional standard were appropriate, the judge erred in concluding that there was no genuine issue of material fact with respect to whether Arabitg's conduct satisfied that standard.
In reviewing Saracino's first claim, the court agreed that Crawn involved voluntary participation in sports and that the voluntariness of that participation was a factor in the New Jersey Supreme Court's decision in that case. Therefore, in looking at Saracino's case, the court asked whether the same heightened standard of care should be applied when the consensual nature of the participation is absent. In ruling that it should, the court held that because the participation of both parties was equally involuntary and required by statute, application of the reckless or intentional standard under the circumstances would not only promote vigorous participation in athletic activities, but would also avoid a flood of litigation involving injuries by students in physical education classes, two public policy objectives identified by the New Jersey Supreme Court in Crawn. In addition, the court ruled that just as the Supreme Court in Crawn found that the societal importance of informal recreational sports warranted application of the heightened standard, the societal importance of mandatory physical education warrants a similar approach.
Having determined that the reckless or intentional standard was applicable, the court turned to Saracino's second argument. Since there was nothing in the record to support a finding that Arabitg intentionally struck Saracino in the face with his hockey stick, the court said the issue was whether a rational jury could find that his conduct was reckless.
A person acts recklessly, the court held, when he or she intentionally commits an act in disregard of a known or obvious risk that is so great as to make it highly probable that harm will follow, and is usually accompanied by a conscious indifference to the consequences. The court also held that reckless behavior is more than any mere mistake resulting from inexperience, excitement or confusion, and more than mere thoughtlessness, inadvertence or simple inattention. Recklessness, unlike negligence, requires a conscious choice of an action, with knowledge or a reason to know that it will create a serious danger to others.
In looking at the facts, the court found that Arabitg was playing the game aggressively and enthusiastically at the time of the incident. There was no evidence, however, that he was doing anything beyond playing the game or that he knew he was intentionally endangering Saracino. As for evidence given by one witness that Arabitg brought his hockey stick above his waist, the court held that a rule violation alone does not necessarily compel a determination of recklessness. It is only one factor in the totality of circumstances to be examined under the recklessness standard. Saracino would have to demonstrate that Arabitg knew she was close by and that he intentionally raised his stick, in total disregard to the serious danger it might cause. Even accepting Saracino's version of the facts as true, the court concluded that there was no recklessness, despite the apparent swinging of the hockey stick above the waist.
The Saracino decision is important to school and athletics administrators since it reinforces the public policy favoring the promotion of vigorous participation in athletics. By holding participants in physical education classes to a heightened standard of care, the court makes it clear that physical education has an important role in children's education, and one that society will protect. It should be noted, however, that while participants will be judged under a heightened standard, school districts and teachers will still be held to the ordinary negligence standard.
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Saracino v. Toms River Regional High School East
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