PHILIP A. SPATARO v. THE STEAKMASTER, INC.
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0711-16T1
PHILIP A. SPATARO,
Plaintiff-Appellant,
v.
THE STEAKMASTER, INC. d/b/a
EAGLESWOOD AMUSEMENT PARK,
Defendant,
and
CHANCE O'NEILL,
Defendant-Respondent.
Argued November 29, 2017 – Decided February 9, 2018
Before Judges Fuentes, Koblitz and Manahan.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Docket No.
L-0211-15.
John G. Devlin argued the cause for appellant
(Devlin, Cittadino & Shaw, PC, attorneys; John
G. Devlin, of counsel and on the brief; Andrew
M. Salmon, on the brief).
Kevin F. Sheehy argued the cause for
respondent (Leyden, Capotorto, Ritacco &
Corrigan, attorneys; Arthur F. Leyden, of
counsel; Kevin F. Sheehy, on the briefs).
Richard John Albuquerque argued the cause for
amicus curiae New Jersey Association for
Justice (D'Arcy Johnson Day, attorneys;
Richard John Albuquerque, on the brief).
PER CURIAM
Plaintiff Philip Spataro appeals from an order granting
summary judgment in favor of defendant Chance O'Neill. We affirm
in part and reverse in part.
After joinder of issue, Steakmaster filed a motion for summary
judgment. O'Neill filed a cross-motion for summary judgement and
opposition to Steakmaster's summary judgment motion on August 23,
2016. All parties appeared for oral argument on September 16,
2016.1 After hearing arguments from both parties, the judge
granted O'Neill's motion finding: (1) the heightened standard of
intentional or reckless conduct applied pursuant to Crawn v. Campo,
136 N.J. 494 (1994); and (2) the conduct of O'Neill did not rise
to the level of recklessness. An order was executed that same day
granting O'Neill's motion for summary judgment and dismissing
Spataro's complaint with prejudice. This appeal followed.
We recite the following facts taken from the discovery record
in a light most favorable to Spataro. Brill v. Guardian Life Ins.
1
Prior to the hearing on the motions, Steakmaster and Spataro
entered into a settlement agreement.
2 A-0711-16T1
Co. of Am.,
142 N.J. 520, 540 (1995). On August 21, 2012, O'Neill
struck Spataro in the face with a golf club while demonstrating
how to hit a golf ball at the Eagleswood Driving Range. Both
young men were occupying the same stall when this occurred.
Neither Spataro nor O'Neill were experienced golfers. In fact,
this was the first time that Spataro had been to a golf range or
swung a golf club. O'Neill had been to a driving range on
approximately two occasions before the accident.
Spataro and O'Neill arrived at Eagleswood Driving Range with
friends around 9:30 p.m. The driving range has over thirty stalls,
each partitioned by a short wall. There is a painted yellow line
on the floor of the stalls, indicating the entrance. Multiple
signs are posted in the vicinity of the stalls that noted, "All
persons using the facility do so at their own risk." Each
individual stall also had posted signs that specified the "Driving
Range Rules." The first rule stated, "Only one person allowed per
tee area." The fifth rule indicated, "When walking into the area,
keep a safe distance from occupied tees." None of the group of
friends had a recollection of reading the posted signs. After
obtaining golf balls and clubs, Spataro, O'Neill, and their friends
occupied separate stalls.
Spataro requested that O'Neill demonstrate for him how to
properly hit a golf ball. Upon entering Spataro's stall, O'Neill
3 A-0711-16T1
stated, "All right, get back," and set up a golf ball on the tee.
O'Neill testified that he thought Spataro had moved out of the tee
stall area "outside of the two-foot-wide yellow line." However,
O'Neill never confirmed this by actual observation. After O'Neill
demonstrated to Spataro how to position his feet, how to hold the
club, and how to keep his arms straight, he swung the golf club.
During the follow-through, the club struck Spataro in the face
resulting in significant multiple facial injuries including
permanent vision impairment and scarring.
Spataro raises the following points on appeal:
POINT I
THE TRIAL COURT ERRED BY HOLDING THAT THE
RECKLESSNESS/INTENTIONAL DUTY OF CARE SET
FORTH UNDER CRAWN APPLIES TO INDIVIDUALS
HITTING GOLF BALLS IN INDIVIDUAL DRIVING RANGE
STALLS.
POINT II
IF CRAWN IS APPLICABLE, THE TRIAL COURT ERRED
BY HOLDING O'NEILL'S CONDUCT WAS NOT RECKLESS
AS A MATTER OF LAW.
A. The trial court failed to
properly evaluate the totality of
circumstances and apply them to the
governing standard.
B. The trial court's holding that
a reasonable person could never find
O'Neill's conduct to be reckless is
not supported by the totality of the
evidence before the court.
4 A-0711-16T1
Additionally, the New Jersey Association for Justice raises
the following arguments in its capacity as amicus curie:
POINT I
THE MOTION JUDGE FAILED TO APPLY THE
APPROPRIATE LEGAL STANDARD APPLICABLE TO A
MINOR INJURED IN A SPORTING ACTIVITY BY
ANOTHER MINOR.
A. Applying the appropriate legal
standard applicable to minors,
there are sufficient factual
disputes which support submission
of this matter to the jury.
B. The negligence standard applies
because [d]efendant qualifies as a
de facto instructor to the
[p]laintiff.
POINT II
THE NEGLIGENCE STANDARD APPLIES.
When determining a motion for summary judgment, the trial
judge must decide whether "the competent evidential materials
presented, when viewed in the light most favorable to the non-
moving party, are sufficient to permit a rational factfinder to
resolve the alleged disputed issue in favor of the non-moving
party." Brill,
142 N.J. at 540. Summary judgment must be granted
if "the pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact challenged
and that the moving party is entitled to a judgment or order as a
5 A-0711-16T1
matter of law." R. 4:46-2(c). When reviewing an order granting
or denying summary judgment, we apply the same standard used by
the trial court. Prudential Prop. & Cas. Ins. v. Boylan,
307 N.J.
Super. 162, 167 (App. Div. 1998).
We turn first to the trial judge's conclusion that O'Neill
was entitled to the benefit of the heightened standard articulated
by our Supreme Court in Crawn. There, the Court considered the
extent of a sports participant's duty to avoid inflicting physical
injury on another player. Crawn,
136 N.J. at 496-97. In Crawn,
the plaintiff was participating in an informal softball game in
the position of catcher. Id. at 498. He sustained an injury when
a base runner slid into home plate. Id. at 498-99. The Court
held that "the duty of care applicable to participants in informal
recreational sports is to avoid the infliction of injury caused
by reckless or intentional conduct." Id. at 497.
In reaching the conclusion that a co-participant had no
liability in the absence of reckless or intentional conduct, the
Court relied on two policy considerations that supported that
standard of care. Id. at 501. First, the benefit to be derived
from promoting vigorous participation in athletic activities, and
second, the need to avoid the "flood of litigation" that would be
generated by participation in recreational sports if the standard
were to be set at ordinary common law negligence. Ibid. The
6 A-0711-16T1
Court determined that those two policies outweighed the harm of
immunizing conduct that would otherwise expose the responsible
party to liability. Crawn,
136 N.J. at 502. In determining that
the recklessness standard should apply, rather than the common law
standard of ordinary negligence, the Court observed that the
"rough-and-tumble of sports" between two equally situated
participants "should not be second-guessed in courtrooms." Id.
at 508.
In subsequent decisions that applied Crawn, the reckless
conduct standard was applied in circumstances where one player
collided with, or somehow directly injured another player, in the
course of the sporting activity. See Schick v. Ferolito,
167 N.J.
7, 11, 22 (2001) (applying the recklessness standard when a golfer
hit an unannounced and unexpected second tee shot, or "mulligan,"
after all members of the foursome had already teed off); Obert v.
Baratta,
321 N.J. Super. 356, 358-60 (App. Div. 1999) (applying
the recklessness standard when a softball player sued his teammate
for injuries sustained when the two collided while in pursuit of
a fly ball during an informal intra-office game); Rosania v.
Carmona,
308 N.J. Super. 365, 367-68 (App. Div. 1998) (applying
the recklessness standard where a karate student brought an action
against a martial arts academy and instructor); Calhanas v. S.
Amboy Roller Rink,
292 N.J. Super. 513, 522-23 (App. Div. 1996)
7 A-0711-16T1
(applying the recklessness standard where a roller skater suffered
a broken leg from collision with another skater).
We are informed in our decision relative to the standard of
care to be employed by Schick, where the Court held that "[T]he
recklessness or intentional conduct standard of care applies
generally to conduct in recreational sporting contexts, including
golf."
167 N.J. at 22. As Justice LaVecchia noted, "[t]he
applicability of the heightened standard of care for causes of
action for personal injuries occurring in recreational sports
should not depend on which sport is involved and whether it is
commonly perceived as a 'contact' or 'noncontact' sport." Id. at
18-19. Schick emphasized that "[t]he policies of promotion of
vigorous participation in recreational sports and the avoidance
of a flood of litigation over sports accidents are furthered by
the application of the heightened standard of care to all
recreational sports." Id. at 18.
As the Court further noted, the risk of injury in golf "arises
in myriad forms and for many reasons." Ibid. "Risk of injury
also is as real when it arises from an instrumentality used in a
game, such as a golf club a golfer swings. . . ." Ibid.
Here, the parties were hitting golf balls at a driving range.
The parties were each participating in the activity of practicing
their golf-swing, an inherent and quintessential aspect of the
8 A-0711-16T1
recreational activity of the game of golf. This activity required
the use of a golf club and the striking of a golf ball, both
intrinsic to the game of golf. The fact that the activity did not
take place on a golf course and was characterized as "practice"
does not render the activity "non-recreational." We conclude,
therefore, that to determine whether a player should be held
civilly liable to another player for an injury suffered while that
player is engaged in this recreational activity, the trier of fact
must apply the heightened standard of recklessness or intentional
conduct our Supreme Court applied in Crawn.
On this issue, we add that we are unpersuaded by the argument
raised by Spataro that the application of the heightened standard
to the recreational activity of practicing golf represents a novel
extension of the class of activities subject to the heightened
standard. To the contrary, our determination is in accord with
and embodies the persuasive dual policy considerations of
promotion of recreational activity and avoidance of a flood of
litigation associated with that activity as enunciated in Crawn
and Schick.2
2
We are similarly unpersuaded that it was error for the motion
judge to not employ the standard for minor's engaging in sports
set forth in C.J.R. v. G.A.,
438 N.J. Super. 387, 400-01 (App.
Div. 2014). We are further unpersuaded by the argument advance
by amicus that reasonable minds could find O'Neill qualified as
9 A-0711-16T1
We next address whether there are any genuine issues of
material fact in dispute regarding whether defendant acted
recklessly that should preclude the granting of summary judgment.
See R. 4:46-2(c).
At the conclusion of oral argument, the judge placed his
decision on the record:
I've reviewed all of the depositions and
all of the facts that have been submitted by
the [p]laintiff alleging reckless behavior,
that the — at least there's a genuine issue
of material fact as to Mr. O'Neill's
recklessness, and I respectfully disagree. I
think the most that could be drawn from the
facts that are before the [c]ourt is one of
negligence.
. . . An actor acts recklessly when he
or she intentionally commits an act of an
unreasonable character in disregard of a known
or obvious risk that was so great as to make
it highly probable that a harm would follow
and which thus is usually accompanied by a
conscious indifference to the consequences.
The standard is objective and may be proven
by showing that the [d]efendant proceeded in
disregard of a high and excessive degree of
danger either known to him or her apparent to
a reasonable person in his or her position.
Reckless conduct is an extreme departure from
ordinary care in a situation in which a high
degree of danger is apparent. Reckless
behavior must be more than any mere mistake
resulting from inexperience, excitement or
an "instructor," which would implicate a negligence standard. The
undisputed facts are that O'Neill himself was a relative novice
to the game and would not qualify as an "instructor" such as the
karate instructor in Rosania,
308 N.J. Super. at 367-68.
10 A-0711-16T1
confusion, and more than mere thoughtlessness
or inadvertence or simple inattention.
I think that's exactly what we have here,
is that we have a situation that is
inadvertent, simple inattention,
thoughtlessness, a mistake, a terrible mistake
that resulted in a bad injury.
In reaching this decision, the judge erroneously usurped the
role of the factfinder by making findings of fact and liability
in matters in dispute between the parties. A "judge's function
is not himself [or herself] to weigh the evidence and determine
the truth of the matter but to determine whether there is a genuine
issue for trial." Brill,
142 N.J. at 540 (alteration in original)
(quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249
(1986)). The competent evidence must be viewed in a light most
favorable to plaintiff, the non-moving party. Ibid.; R. 4:46-
2(c).
We are again informed by Schick. There the Court held that
the facts of that case presented a question of recklessness for
the jury to decide. Schick,
167 N.J. at 20.
As the Court noted:
This case is not one reconciled on a motion
for summary judgment under a recklessness
standard of care on the simple basis of an
unannounced "mulligan" or on the sole basis
that defendant hit a "shanked" shot. Rather,
a jury must assess a combination of alleged
events in which defendant, believing plaintiff
11 A-0711-16T1
to be located "in his line of fire" . . .
proceeded to hit the tee shot anyway.
[Id. at 21-22.]
The Court then concluded that the totality of defendant's action
should be determined by a jury under a recklessness standard of
care. Id. at 22.
"Recklessness, unlike negligence, requires a conscious choice
of a course of action, with knowledge or a reason to know that it
will create serious danger to others." Id. at 20. The
recklessness standard "may be proven by showing that a defendant
'proceeded in disregard of a high and excessive degree of danger
either known to him [or her] or apparent to a reasonable person
in his [or her] position.'" Id. at 19 (alterations in original)
(quoting Prosser & Keaton on the Law of Torts, § 34 at 214 (5th
Ed. 1984)). Reckless conduct "is an extreme departure from
ordinary care, in a situation in which a high degree of danger is
apparent." Ibid. Reckless behavior must be more than a "mere
mistake resulting from inexperience, excitement or confusion, and
more than mere thoughtlessness or inadvertence, or simple
attention . . . ." Schick,
167 N.J. at 19. A defendant's conduct
is in reckless disregard of the safety of another:
if he does an act or intentionally fails to
do an act which it is his duty to the other
to do, knowing or having reason to know of
facts which would lead a reasonable man to
12 A-0711-16T1
realize, not only that his conduct creates an
unreasonable risk of physical harm to another,
but also that such risk is substantially
greater than that which is necessary to make
his conduct negligent.
[Id. at 20 (quoting Restatement (Second) of
Torts § 500 at 587 (1965)).]
Here, in the employment of our de novo standard of review,
we are satisfied there exists a material fact in dispute concerning
whether O'Neill made appropriate observations prior to swinging
the golf club consonant with the attendant risk of significant
injury to a bystander. As such, a jury should decide whether
O'Neill's swinging the club, without certainty as to Spataro's
location, was in reckless disregard of that risk.
Affirmed in part. Reversed in part. We do not retain
jurisdiction.
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