Lead Opinion
On July 27, 1994, two pairs of golfers reached the tenth hole of East Orange Golf Course and agreed there to play the rest of the course as a foursome. Plaintiff Jeffrey Schick and his father, Wolfgang Schick, played the ensuing holes with defendant John Ferolito and Tom Ganella. At the tee-box on the sixteenth hole, a par four straightaway approximately 300 yards in length, an errant ball hit off the tee by defendant struck plaintiff in the right eye causing personal injuries. According to plaintiff, defendant hit an unannounced and unexpected second tee shot, or “mulligan,” after all members of the foursome had teed off. Defendant moved for summary judgment, claiming that the heightened standard of care established by Crawn v. Campo, 136 N.J. 494,
The trial court agreed that a recklessness standard applied and dismissed the action. The Appellate Division reversed,
I.
The facts presented through deposition testimony were disputed in several critical aspects. For purposes of our review, we give plaintiff the benefit of all reasonable inferences. Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523,
According to plaintiff, he and his father met defendant and Ganella at the tenth tee and the four decided to play as a group, which would speed up play. It was dusk, and there were nine holes remaining to play. They played without incident until the sixteenth hole. There, plaintiff and his father teed off first. He and his father then left the tee-box area, returned to their golf cart, placed their clubs in their golf bags, and proceeded to sit down in the cart. Plaintiff described his cart as located ahead of the tee-box area at a forty-five-degree angle to the left.
Seated in the driver’s position, plaintiff looked back over his right shoulder toward the teeing area and observed defendant about to strike a ball off the tee. Plaintiff claims that defendant and Ganella already had hit their tee shots and that defendant was hitting an unannounced second drive off the tee. Plaintiff stated that defendant’s first ball had sliced, or angled sharply, off to the right, toward a series of trees situated along the right side of the fairway, but in an area where no out-of-bounds markers were located. Thus, while it might have presented a poor location for his next shot, defendant’s first ball was still “in-play.”
Although he saw defendant in a tee-off stance, plaintiff said he did not have time to move out of the way. He had only a few seconds to think about what was happening when defendant commenced his swing and hit his second tee shot. The ball struck plaintiff in the right eye socket, rendering him temporarily unconscious.
Defendant gives a different version of what transpired. He did not recall if it was his first or second shot off the tee. Defendant claims that he and plaintiff made eye contact before defendant teed off and that he gave a hand warning, described as a “wave,” to plaintiff to move aside. According to defendant, plaintiffs cart was approximately thirty feet ahead, at a forty-five-degree angle, of where he was taking his stance to drive the ball onto the fairway. Defendant states he was trying to hit the ball straight down the middle of the fairway, and plaintiff similarly testified that defendant was not trying to hit in plaintiffs direction. Nevertheless, defendant explained that he waved plaintiff to move aside because defendant believed plaintiff “was in the line of fire.”
Ganella’s deposition testimony indicated that he did not recall defendant taking a tee shot other than the one that struck plaintiff. Ganella could not even recall if he had teed off on the sixteenth hole, suggesting that plaintiff and his father returned to their cart before the two other men had hit their drives. He stated that on previous holes plaintiff and his father had been returning to their cart before all members of the foursome had teed off.
II.
In Crawn, the Court considered the nature of a sports participant’s duty to avoid inflicting physical injury on another player. Crawn, supra, 136 N.J. at 497,
In applying the recklessness standard, the Court sought to avoid the complexities inherent in applying a negligence standard to conduct in recreational sports. Id. at 507-08,
Our conclusion that a recklessness standard is the appropriate one to apply in the sports context is founded on more than a concern for a court’s ability to discern adequately what constitutes reasonable conduct under the highly varied circumstances of informal sports activity. The heightened standard will more likely result in affixing liability for conduct that is clearly unreasonable and unacceptable from the perspective of those engaged in the sport yet leaving free from the supervision of the law the risk-laden conduct that is inherent in sports and more often than not assumed to be “part of the game.”
One might well conclude that something is terribly wrong with a society in which the most commonly-accepted aspects of play — a traditional source of a community’s conviviality and cohesion — spurs litigation. The heightened recklessness 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.
[Id. at 508,643 A.2d 600 .]
The Court’s holding in Crawn placed New Jersey among the majority of jurisdictions that apply the recklessness standard of care to determine the duty that recreational players owe to one another. See, e.g., Knight v. Jewett,
Since Crawn, the recklessness standard of care has been applied in New Jersey to sporting environments that span team competitions, one-on-one competitions, and individualized sporting endeavors. See, e.g., Obert v. Baratta, 321 N.J.Super. 356, 729 A.2d 50 (App.Div.1999) (applying recklessness standard when softball player sued teammate for injuries sustained as result of teammate’s pursuit of fly ball during informal intra-office game); Rosania v. Carmona, 308 N.J.Super. 365,
Several other jurisdictions have applied the heightened standard of care in the context of the game of golf. The Ohio Supreme Court was the first court to so extend the reckless disregard or intentional conduct standard to a “noncontact sport.” Thompson v. McNeill, 53 Ohio St.3d 102,
Shanking the ball is a foreseeable and not uncommon occurrence in the game of golf. The same is true of hooking, slicing, pushing, or pulling a golf shot. We would stress that “[i]t is well known that not every shot played by a golfer goes to the point where he intends it to go. If such were the case, every player would be perfect and the whole pleasure of the sport would be lost. It is common knowledge, at least among players, that many bad shots must result although every stroke is delivered with the best possible intention and without any negligence whatsoever.”
[Ibid. (quoting Benjamin v. Nernberg, 102 Pa.Super. 471, 475-76, 157 A. 10 (1931)).]
California also applies the recklessness standard of care to golf. In Dilger v. Moyles,
[E]ven when a participant's conduct violates a rule of the game and may subjectthe violator to internal sanctions prescribed by the sport itself, imposition of legal liability for such conduct might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity that falls close to, but on the permissible side of, a prescribed rule.
[Ibid. (quoting Knight, supra, 11 Cal.Rptr.2d 2,834 P.2d at 696 ).]
The court reasoned that a lower standard of care could deter people from participating in golf and cause them to forego the benefits of the sport, such as exercise and socialization. Ibid.
Similarly, the Texas courts apply the recklessness standard to golf. See Allen v. Donath, 875 S.W.2d 438, 440 (Tex.App.1994) (applying reckless or intentional conduct standard in evaluating conduct of golfer whose second tee shot caused injury to co-participant); Hathaway v. Tascosa Country Club, Inc., 846 S.W.2d 614, 616 (Tex.App.1993) (applying recklessness and intentional standard rather than ordinary negligence to cause of action arising out of injury resulting when golfer’s ball struck another golfer). The facts in Allen are notably similar to this case. The defendant was the first of a threesome to tee off on the third hole. Allen, supra, 875 S.W.2d at 439. As the defendant teed off from the furthest back blue, or “professional,” tee-box area, the two other golfers watched from a golf cart situated near a white tee-box marker further forward, approximately fifteen to twenty feet ahead of defendant. Ibid. After watching the defendant hit his tee shot, the plaintiff and the other player turned away from the defendant and moved to the back of their cart. The plaintiff then heard a club hit a ball, turned toward the defendant, and was struck in the left temple. Ibid. Whether the defendant warned of his second shot was a disputed fact. Ibid. The case proceeded to trial.
The jury was instructed that the defendant was under a duty not to act recklessly or to intend to cause injury. The plaintiffs objection to the heightened charge was overruled, and the jury returned a verdict for defendant. Ibid. On appeal, the plaintiff contended that the recklessness standard should apply only to errant or shanked balls, not to second unannounced shots, because the latter are not foreseeable in the game of golf. Id. at 440. The court disagreed and found that the jury was instructed properly concerning the recklessness standard. Implicit in the court’s ruling was that the jury was free to find that the defendant acted recklessly when considering whether he hit a second unannounced tee shot in violation of the game’s custom when the plaintiff was standing unprotected forward of the defendant’s tee-box location. Ibid.
Many legal commentators have written to support the use of the recklessness standard in the context of all sporting activities. See Brendon D. Miller, Hoke v. Cullinan: Recklessness as the Standard for Recreational Sports Injuries, 28 Ky. L.J., 409, 434 (1996) (supporting Kentucky Supreme Court’s decision to apply recklessness standard to all sports activities; and stating that that decision allows participants in recreational sporting activities to perform with utmost intensity without apprehension that any wrong move could spawn liability, quelling competitive juices and enjoyment along the way); Mel Narol, Sports Participation with Limited Litigation: The Emerging Reckless Disregard Standard, 1 Seton Hall J. Sport L. 29 (1991) (concluding reckless disregard standard is correct approach for courts to take in deciding when and in what manner to become involved in sports injury litigation); Frank J. Deangelis, Note, Duty of Care Applicable to Participants in Informal Recreational Sports to Avoid the Infliction of Injury Caused by Reckless or Intentional Conduct, 5 Seton Hall J. Sport L. 509 (1995) (concluding that correct standard, as adopted by majority of courts, is recklessness). Two articles specifically have called on courts to apply the recklessness standard to golf. See Melissa Cohen,
The 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. We perceive no persuasive reason to apply an artificial distinction between “contact” and “noncontact” sports. In fact, only a minority of courts do so. See LaVine v. Clear Creek Skiing Corp., 557 F.2d 730 (10th Cir.1977) (applying negligence standard in siding context); Gray v. Houlton,
[T]he contact-non-contact distinction does not sufficiently take into account that we are dealing with a spectrum of duties and risks rather than an either-or distinction. Is golf a contact sport? Obviously a golfer accepts the risks of coming in contact with wayward golf shots on the links, so golf is more dangerous than table tennis, for instance, but certainly not as dangerous as kickboxing.
[Thompson, supra, 559 N.E.2d at 709.]
The 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. The recklessness or intentional conduct standard of care articulated in Crawn was not meant to be applied in a crabbed fashion. That standard represented the enunciation of a more modern approach to our common law in actions for personal injuries that generally occur during recreational sporting activities. It is the pertinent standard for assessing the duty of one sports participant to another concerning conduct on golf courses and tennis courts, as well as conduct on basketball courts and ice rinks.
III.
Application of a recklessness or intentional conduct standard to a cause of action involving a golfing injury should not convert a golf course into a free-fire zone. But application of a recklessness standard in a golf setting will affect the analysis of the probability of harm and the defendant’s indifference to that harm. The question presented here is whether plaintiffs case can survive a summary judgment
The Restatement (Second) of Torts articulates the standard as follows, contrasting negligence and recklessness:
The actor’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 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.
[Restatement (Second) of Torts § 500 at 587 (1965).]
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. Negligence may consist of an intentional act done with knowledge that it creates a risk of danger to others, but recklessness requires a substantially higher risk. The quantum of risk is the important factor. Ibid.
Application of that standard to this matter requires an analysis of whether a finding of recklessness would be open to the jury. If so, summary judgment rightfully was denied defendant and the matter should proceed to trial. As was the case in Allen, we find that this case presents a question of recklessness that is properly for a jury to determine.
The facts are in conflict, but they are open to an interpretation that defendant did hit a second shot off the tee without telling the others in his playing group that he was about to do so. That version of the facts explains the so-called “mulligan” reference by the Appellate Division. Defendant’s conduct in that respect is certainly relevant, but of itself is not determinative of the quality of his act. Although the formal rules of golf do not recognize the term “mulligan,” informal custom may permit that familiar “do-over.” And the formal rules of the game allow for the taking of a second, or “provisional shot,” if certain conditions are met. United States Golf Ass’n, The Rules of Golf Rule 27.2. Provisional Ball, at 73-74 (2000-01). The rules prescribe a strict form of notice to one’s playing partners of intent to take a provisional shot. Id. at 73. Decisions on the Rules of Golf prescribe that the player must inform his opponent or fellow player that he intends to play a provisional ball and he must mention the words “provisional ball.” United States Golf Ass’n, Decisions on the Rules of Golf 27-2a/1, at 458 (2000-01). The following statements have been ruled not to satisfy the requirement of announcing a provisional ball: “That might be lost, I am going to re-load.” “I’d better hit another one.” “That might be out of here.” Id. at 459. As a practical matter, technical compliance with the rules at times may be lax on the course, but that should not compel a determination of recklessness. It is but one factor in the totality of circumstances to be
What does bear emphasis in this matter is defendant’s own testimony that he perceived plaintiff to be in the “line of fire” and that he waved plaintiff off in an effort to induce plaintiff to move from his location. Plaintiff did not move, or defendant did not wait for him to move, and defendant hit anyway. That scenario presents a set of facts that a jury could find constitutes reckless conduct because it may reflect a conscious choice of a course of action with knowledge or reason to know that the action will create serious danger to others.
The dissent emphasizes the need for stringent application of the recklessness standard of care in a golf setting, or in the context of other recreational sports, in order to isolate truly “egregious” conduct on the part of fellow sports participants (op. at 18,
We conclude that plaintiffs case, even analyzed under a recklessness standard of care, survives defendant’s motion for summary judgment and should proceed to trial. The facts here more persuasively present a jury question concerning recklessness than did the facts in Allen, supra,
In conclusion, we hold that the recklessness or intentional conduct standard of care applies generally to conduct in recreational sporting contexts, including golf. Notwithstanding that holding, this matter must proceed to trial. Properly instructed on the heightened standard of care, a jury must resolve the disputed facts that encompass allegations of reckless conduct by defendant.
IV.
The judgment of the Appellate Division is affirmed, as modified. The matter is remanded to the Law Division for trial.
Concurrence Opinion
concurring in part, dissenting in part.
I concur in that part of the Court’s opinion adopting the recklessness standard in recreational sporting contexts, including golf. The Court’s analysis in that regard is persuasive. I respectfully dissent, however, from the majority’s determination that there are disputed material facts warranting a trial in this ease. Only the most egregious acts of golfers should give rise to liability in this setting. Because that standard has not been satisfied here, I would reverse the judgment of the Appellate Division and reinstate the trial court’s summary disposition in favor of defendant.
The Court correctly holds that defendant’s conduct should be measured against a recklessness standard. I part company from my colleagues because existing case law supports a finding that defendant’s conduct was not so egregious as to violate the heightened standard of care described by the majority. Unlike the majority, I find no issues for the jury.
Implicit in the recklessness standard is a requirement that a defendant’s conduct be egregious. In Obert v. Baratta, 321 N.J.Super. 356, 358,
Importantly, the Appellate Division reasoned that the defendant’s conduct “was not the kind of egregiously reckless conduct that merits a departure from the strong public policy encouraging vigorous participation in the ‘rough-and-tumble of sports’ activity freely, without fear of being ‘second-guessed in courtrooms.’ ” Id. at 360,
Decisions involving golf from other jurisdictions support a finding that defendant here was not reckless as a matter of law. In Gray v. Giroux, 49 Mass.App.Ct. 436,
The appellate court held that the recklessness standard of conduct was appropriate, and affirmed the lower court’s summary disposition. Id. at 340-41. The court explained that because the hole was a dogleg to the right, and the plaintiff and the defendant were standing on the left side of the fairway, the defendant was not aiming his shot toward the plaintiff; rather, the defendant was trying to hit his ball onto the green to his right. Id. at 341. Accordingly, the court found that the plaintiff was not in the intended line of flight of the defendant’s shot. Ibid. The court ruled that “[i]n these circumstances, the fact that the defendant’s shot did not follow its intended path does not amount to wilful, wanton, or reckless conduct.” Ibid.
Similarly, other courts have found that a golfer is not reckless simply because he or she “shanks” a shot that happens to hit a fellow golfer. In Monk v. Phillips,
The defendant proceeded to his second ball and decided to play that shot. Ibid. As the defendant was standing near his ball, one of the plaintiffs and the fourth member of the group passed in front of the defendant and went to the defendant’s right to search for the defendant’s first ball. Ibid. As he was about to hit, the defendant heard someone say, “ ‘look out, he’s fixing to hit[,]’ ” but no one asked the
The trial court granted the defendant’s motion for summary judgment. Id. at 323. AfSrming the lower court, the appellate court noted that although the defendant’s “conduct may qualify as incompetence or unskillfulness, we find as a matter of law that it does not rise to the level of recklessness. Shanking the ball is a foreseeable and not uncommon occurrence in the game of golf that all golf players must accept.” Id. at 325.
Hathaway v. Tascosa Country Club, Inc.,
The appellate court ruled that the recklessness standard applied to golf. Id. at 616. In finding that the defendant was not reckless as a matter of law, the court explained that “[a]s those persons who play golf well know, ‘shanking the ball is a foreseeable and not uncommon occurrence____ The same is true of hooking, slicing, pushing, or pulling a golf shot.’ ” Ibid. (citation omitted). Moreover, the court noted, “[b]ecause of the great likelihood of these unintended and offline shots, it can indeed be said that the risk of being inadvertently hit by a ball struck by another competitor is built into the game of golf.” Ibid.
Another case upholding summary disposition in a golf setting is Thompson v. McNeill, 53 Ohio St.3d 102,
The Supreme Court of Ohio found that the defendant was not reckless as a matter of law and affirmed the trial court’s grant of summary judgment. Id. at 709. The court stated:
[W]e hold that summary judgment for [the defendant] was appropriate— We would stress that “[i]t is well known that not every shot played by a golfer goes to the point whei’e he intends it to go. If such were the case, every player would be perfect and the whole pleasure of the sport would be lost. It is common knowledge, at least among players, that many bad shots must result although every stroke is delivered with the best possible intention and without any negligence whatsoever.”
[The plaintiff) was off to [the defendant’s] right at such a sharp angle that she was not in the intended path of [the defendant’s] ball. There was no recklessness here and certainly no intentional misconduct. The rules of golf require that one call out “fore” when a shot goes awry, but in this instance the ball was traveling so rapidly that such a warning would have availed nothing.
[Ibid. (citation omitted).]
The above cases, all decided on motions for summary judgment, illustrate the stringent manner in which the recklessness standard should be applied in recreational sport eases, especially golf. In one of those eases, Thompson v. McNeill, the
When a golfer steps onto the golf course, he or she knows that other golfers are likely to “slice,” “hook,” or “shank” shots. The likelihood of such wayward shots is an inherent part of the game. Courts from other jurisdictions have recognized that reality, correctly choosing not to expose golfers to liability for their erroneous or incompetent swings under factual situations similar to the present case.
II.
In Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520, 529,
Unlike the majority, I believe that this case turns on only two facts: first, that defendant was at the tee for the purpose of hitting the ball straight toward the green; and second, that at the time of defendant’s shot, plaintiff was positioned forty-five degrees to the left of the tee box. Those facts are undisputed in the record. Significantly, as plaintiff himself admitted at his deposition, defendant did not intend to hit plaintiff with the ball:
Q. Do you think that [defendant] intended to hit you with his golf ball?
A. No.
Q. Do you think that this was anything more than an accident?
A. No.
By that acknowledgment, plaintiff buttresses the inescapable conclusion to be drawn from this record, namely, that plaintiff stood outside the intended line of flight of defendant’s shot. That being the case, the fact that defendant may have taken an unannounced “mulligan” is not material or relevant to the Court’s disposition. Defendant’s “line of fire” reference was explained by defendant to mean, “[ejverybody’s in the line of fire when you hit a golf ball. You play golf.” Viewed in that context, defendant’s reference does no more than support the notion that the risk of injury is a foreseeable, albeit unfortunate, aspect of all sporting games. Together, the parties’ respective comments render the mulligan issue immaterial in my view.
In the same vein, we need not decide whether a mulligan is a recognized part of golf. If required to reach that question, however, I would conclude that because golfers -widely understand what is meant by a mulligan, this Court may take judicial notice of that term. See Wright v. Spinks, 722 N.E.2d 1278, 1279 (Ind.Ct.App.2000) (taking judicial notice of meaning of mulligan). In so doing, I would find as a matter of law that the practice of taking a second shot off the tee is a foreseeable aspect of the game. See Mel Narol, Sports Torts: Standard on the Line, New Jersey Lawyer: The Weekly Newspaper, Nov. 20, 2000 at 7 (“With respect to whether hitting a mulligan is ‘part of the game’ of golf, the mere fact it is a long-time common occurrence in recreational golf, and even has a proper name attached to the shot, might be viewed as strong evidence that golfers recognize this as part of the game.”).
It bears repeating that in Thompson v. McNeill, supra, 559 N.E.2d at 706, the parties disputed whether the defendant, after “shanking” her shot, warned or announced to the plaintiff that she (the defendant) was about to take an additional
Interestingly, the Ohio Supreme Court also observed that the defendant would not be liable for the plaintiff’s injury even under a negligence standard because the plaintiffs “position relative to [the defendant] placed [the plaintiff] outside the zone of danger.” Id. at 709 n. 2. Although that observation was not necessary for the court’s holding, it indicates the extent of the willingness of some jurisdictions to shield amateur athletes from costly and onerous litigation.
As noted, the parties in this ease do not dispute that plaintiff was located at a forty-five degree angle from the tee at the time of defendant’s swing. Generally, golfers intend to hit straight shots off the tee, not shots that “hook” or “slice” the ball either to the left or right. John Allan May, The Complete Book of Golf 54-55 (Gallery Books 1991). Someone in plaintiffs position, located at an acute angle from the tee on a straight-away hole, is not in the intended path of a fellow golfer’s tee shot. Plaintiff conceded as much when he stated at his deposition that he did not believe that defendant intended to hit him with the ball.
Thus, I do not share the majority’s conclusion that the dispute concerning whether defendant warned or waved to plaintiff is material for purposes of summary judgment. A golfer is not required to warn other golfers of an impending shot if those other golfers are not within the shot’s intended line of flight. See Carrigan v. Roussell, 177 N.J.Super. 272, 278-79,
III.
I would also rely on policy grounds to reinstate the grant of summary judgment. “[Ijnformal athletic and recreational sports activities are quite important, as evidenced by their universal popularity in all walks and in all stages of life. To that extent a societal interest is served by encouraging the vigorous participation in sports activity.” Crawn, supra, 136 N.J. at 503,
Parties to a sports-related suit will nearly always be able to highlight some disputed facts. For example, in a typical soccer game, there are eleven players from each team on the field, as well as a referee. On the sidelines, there are usually several coaches for each team, additional team members who are substitutes, and numerous spectators. In a fast-moving game like soccer, an incident on the field that causes injury could be viewed by any number of individuals and from any number of perspectives and vantage points. In that setting, disputed facts are bound to exist. Unless the recklessness standard is applied strictly by the courts, costly and protracted litigation may become the norm.
As this Court declared in Crawn, supra, 136 N.J. at 508,
A California appeals court recently articulated a similar concern related specifically to golf. The court stated:
Holding participants liable for missed hits would only encourage lawsuits and deter players from enjoying the sport. Golf offers many healthful advantages to both the golfer and the community. The physical exercise in the fresh air with the smell of the pines ... renews the spirit and refreshes the body. The sport offers an opportunity for recreation with friends and the chance to meet other citizens with like interests____Social policy dictates that the law should not discourage participation in such an activity whose benefits to the individual player and to the community at large are so great.
[Dilger v. Moyles, 54 Cal.App.4th 1452, 63 Cal.Rptr.2d 591, 593 (1997).]
In sum, the judiciary should refrain from interposing any set of rules that would discourage the spirited pursuit of sporting games, unless those rules are clearly necessary to protect the public interest. Unfortunately, injuries do occur on the playing field, even in a non-contact sport like golf. On balance, the public is best served by having players assume the risks of those injuries absent egregious conduct on the part of their fellow participants. By my reading of the record, defendant’s only “offense” is that he hit an errant ball. He intended no injury to plaintiff. Accordingly, the public is not harmed by sustaining the grant of summary judgment in favor of the amateur athlete in this ease.
IV.
This Court has observed that punitive damages may be imposed when a plaintiff is able to prove that a defendant acted recklessly. Smith v. Whitaker, 160 N.J. 221, 242,
Mere negligence, no matter how gross, will not suffice as a basis for punitive damages. Rather, plaintiff must prove by clear and convincing evidence a “deliberate act or omission with knowledge of a high degree of probability of harm and reckless indifference to the consequences.” “The defendant, however, does not have to recognize that his conduct is ‘extremely dangerous,’ but a reasonable person must know or should know that the actions are sufficiently dangerous.”
[Ibid. (citations omitted).]
Here, the Court’s disposition exposes this and similarly-situated defendants to the possibility of punitive damages. That possibility reinforces my view that the unintended consequence of the majority’s holding is that it may foster more sports-related lawsuits and potentially punish well-intended athletes engaged in a variety of sports. Although it erred in applying the negligence standard, the Appellate Division below correctly concluded that “[ujnder plaintiffs version of the facts, defendant’s conduct cannot be considered “wantonly reckless’ so punitive damages are not awardable.” I would rely on that conclusion as additional support to dismiss plaintiffs complaint as a matter of law.
V.
For the reasons stated, the Court should reverse the judgment of the Appellate Division and reinstate the trial court’s grant of summary judgment.
For affirmance as modified and remandment — -Chief Justice PORITZ and Justices STEIN, COLEMAN, LONG, LaVECCHIA and ZAZZALI — 6.