Liability for Personal Injuries Sustained in Sporting Events after

Transcription

Casenote
LIABILITY FOR PERSONAL INJURIES SUSTAINED IN
SPORTING EVENTS AFTER JA WORSKI V. KIERNANM
I. INTRODUCTION
Americans are participating more and more in recreational sports.
The proliferation of sports programming on television,3 more leisure
time, 4 and many other factors support this trend. Recently, female participation in recreational sports has increased dramatically, 5 and more
people are continuing to participate after they graduate from high school
or college. 6 This continuing participation stems largely from the promotional efforts of the President's Physical Fitness Council, and the
teaching in schools and colleges of sports that participants can play
throughout their lifetime.
As more Americans play sports in recreational leagues, the number
of sports-related injuries continues to increase,8 as does the number of
1. 241 Conn. 399, 696 A.2d 332 (1997).
2. See JAMES A. BAILEY & DAVID L. MATrHEwS, LAW AND LIABILITY INATHLETICS,
PHYSICAL EDUCATION AND RECREATION 2 (2d ed. 1989).
3. See id. at 1. Over the last couple of decades television broadcasts of the Olympics
and other prime-time televised athletic events have encouraged more people to participate in
a wide variety of sports. See id. at 3.
4. See id. at 1.
5. See BAILEY & MATrHEWS, supra note 2, at 1.
6. See id. at 1.
7. See id.
8.
See id. at 2. In 1976, estimated statistics represented a high number of sports-
related injuries. See BAILEY & MATrHEWS, supra note 2, at 2. For example, injuries included 16,767 trampoline-related accidents, 384,502 football-related accidents, 355,898
baseball-related accidents, 343,973 basketball-related accidents, and 447,279 bicycle-related
accidents. See id. Although not all of these injuries result in lawsuits, these shocking numbers underscore the need for finding the appropriate standard of care in deciding liability.
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sports-related lawsuits.9 Litigation with regards to sports injuries, therefore, raises the question of the proper standard of care to determine liability.
The issue in Jaworski v. Kieman,'° and the subject of this
Casenote, is the standard of care that should be used to determine liability among co-participants in a recreational," coed, contact 2 sporting
event.' 3 Although several Connecticut trial courts had addressed this issue, no appellate court in Connecticut had ruled on it before Jaworski."
The trial courts, going back to 1941, had applied a negligence standard
to determine liability among co-participants.
The Connecticut Supreme Court in Jaworski, however, held that a participant would be liable for behavior or conduct only if he or she caused injuries recklessly.' 6 The court adopted the recklessness standard to promote the
public policies of "vigorous competition and participation" as well as
"avoiding a flood of litigation."' 7
This Casenote will argue, however, that based on the facts of Jaworski, a recklessness standard is problematic. First, although a recklessness standard may achieve the court's policy goals of encouraging
9. See id. at 1. It is arguable that although liability issues have always been associated with sports injuries in general, the increase in the number of injuries makes liability a
greater concern for society. More specifically, Bailey and Matthews attribute an increase in
lawsuits to a number of factors including small claims courts improving the legal system
(thereby making services readily available to people in medium income brackets), the increase in lawyers who take cases on a contingency fee basis, and the switch in most states
from contributory negligence to comparative negligence, which make it easier for plaintiffs
to recover damages. See id.
10. 241 Conn. 399, 696 A.2d 332 (1997).
11. Courts have not defined the term "recreational" with respect to sports injury cases.
However, Webster's Dictionary defines "recreation" as the "refreshment in body or mind, as
after work, by some form of play, amusement, or relaxation." WEBSTER'S NEW WORLD
DICTIONARY 1123 (3d ed. 1994) (emphasis added). Arguably, one can distinguish a recreational sport from a professional sport because the definition includes "after work," which
implies that a recreational sport cannot be an individual's profession. See discussion infra
Part VI.A. 1.
12. The Jaworski court defined the term "contact sport" as a sport in which players
inevitably will make contact with each other during the course of the game. Jaworski, 241
Conn. at 406-07, 696 A.2d at 336. Furthermore, Webster's Dictionary has defined "contact"
as "the act or state of touching or meeting." See WEBSTER'S NEW WORLD DICTIONARY, supra note 11, at 300. For a more in-depth discussion, see infra Part VI.A.2.
13. See Jaworski, 241 Conn. at 400, 696 A.2d at 333.
14. See Jaworski v. Kiernan, No. CV 940464969S, 1996 WL 489038, at *1 (Conn. Super. Ct. Aug. 28, 1996), rev'd, 241 Conn. 399, 696 A.2d 332 (1997).
15.
See infra Parts II.B.1-3.
16.
See Jaworski, 241 Conn. at 402-04, 696 A.2d at 334-35.
17.
Id.
JAWORSKI v. KIERNAN
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vigorous competition and participation and avoiding a flood of litigation, a negligence standard would achieve the same goals just as well
without sacrificing participants' safety. 8 It will also lead to more injuries than a negligence standard would because it promotes other policies
above safety. '9 Second, a recklessness standard may lead to a decline in
participation in coed recreational sports and other negative consequences. 0 Lastly, a recklessness standard is difficult to apply to contact
sports such as the one in Jaworski2 In addition, this Casenote will argue that the standard moves away from the widely recognized principle
that negligence is appropriate because "society has an obligation not to
tolerate behavior which is unreasonable. 22
This Casenote examines the opinion of the Supreme Court of Connecticut in Jaworski v. Kiernan. Part II provides the background for the
case, discussing the standards of care that courts in Connecticut and
elsewhere have applied to determine liability for injuries sustained in
recreational and professional sporting events 3 Part 1M examines the
facts and procedural history of Jaworski 4 Part IV describes the judicial
decisions in the superior and supreme courts.1
Part V analyzes the Connecticut Supreme Court's opinion. 6 This
Part argues that the Connecticut Supreme Court's application of a recklessness standard was improper for several reasons. 2' The recklessness
standard will not serve the court's policy goals of encouraging vigorous
competition and participation and avoiding a flood of litigation any better than a negligence standard would.2 ' Furthermore, it may lead to
more injuries than a negligence standard; it could very well lead to a decline in participation in coed recreational sports, in addition to other
negative consequences; and it is difficult to apply.29
Part VI proposes an alternative approach for choosing the proper liability rule for injuries sustained in recreational sporting events.3 ° For
18.
19.
20.
21.
See infra Part
See infra Part
See infra Part
See infra Part
22.
Jaworski, 241 Conn. at 404, 696 A.2d at 335.
23.
24.
25.
28.
See infra Part I.
See infra Part III.
See infra Part IV.
See infra Part V.
See infra Part V.
See infra Part V.A.
29.
See infra Parts V.A-C.
30.
See infra Part VI.
26.
27.
V.A.
V.A.
V.B.
V.C.
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some, but not all recreational sports, a negligence standard is superior to
a recklessness standard." The standard proposed in this section offers
the factfinder different variables to consider in determining liability, and
therefore offers more flexibility than does a recklessness standard.32
II.BACKGROUND
A. The Standardsof Care Generally
As is the case with physical injuries, when a sports injury is the result of tortious conduct by another participant, the injured player may be
able to state a cause of action for damages based on one of three theories: (1) intentional tort, such as battery or assault; (2) recklessness; and
(3) negligence.33 This section analyzes and explains the background and
current status of each theory to determine the appropriate standard of
care for co-participants in sporting events4
1. IntentionalTort
Although it is undisputed that violent behavior occurs during most
contact sports, courts generally agree that one injured participant may
sue another under an intentional tort theory when the injury-causing
conduct was non-consensual.35 A battery is committed if a person commits and intends to cause unprivileged, harmful or offensive contact
with another person.36 A person commits an assault if he or she, without
31. See infra Part VI. The alternative approach set forth in this Casenote requires only
that a court apply a negligence standard to recreational sports that are either coed (Jaworski)
or non-contact. It does not go as far as to say that negligence should be applied to all recreational, professional, or contact sports in general. The application of a negligence standard
is, therefore, appropriate only when certain variables are present. See infra Part VI.
32.
See infra Part VI.
See RAYMOND L. YASSER, TORTS AND SPORTS: LEGAL LIABILITY IN PROFESSIONAL AND AMATEUR ATHLETICS 3 (1985).
34. See infra Part IB.A.1-3.
35. See Ray Yasser, In the Heat of Competition: Tort Liability of One Participantto
Another; Why Can't ParticipantsBe Required to Be Reasonable, 5 SETON HALL J. SPORTS L.
33.
253, 257 (1995).
36. See W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS
39 (5th ed. 1984). The Restatement (Second) of Torts defines a battery as follows:
§ 9, at
An actor is subject to liability to another for battery if (a) he acts intending to
cause a harmful or offensive contact with the person of the other or a third person,
or an imminent apprehension of such a contact, and (b) a harmful contact with the
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JAWORSKI v. KIERNAN
privilege, intentionally places another individual in apprehension of an
imminent harmful or offensive touching.37
8
Liability often hinges on whether the conduct was privileged.1
Section 10 of the Restatement (Second) of Torts defines privilege as
follows:
(1) The word "privilege" is used.., to denote the fact that conduct which,
under ordinary circumstances, would subject the actor to liability, under particular circumstances does not subject him to such liability.
(2) A privilege may be based upon (a) the consent of the other affected by
the actor's conduct, or (b) the fact that its exercise is necessary for the protection of some interest of the actor or of the public which is of such impor39
tance as to justify the harm caused or threatened by its exercise.
Participants in sporting events do not incur liability for most conduct that could otherwise be construed as assault or battery because
courts hold that participants impliedly consent to such conduct, making
it privileged.40 Consensual behavior, a sub-category of privilege, includes behavior or contact that is inherent in the game itself.4' It does
not, however, include contact that is outside the bounds of the game.42
Furthermore, mere participation in a sporting event by an individual
does not demonstrate consent to physical contact that is unforeseeable
and not permitted by the applicable rules. 43
person of the other directly or indirectly results.
RESTATEMENT (SECOND) OF TORTS § 13 (1965).
37. See KEETON ET AL., supra note 36, § 10, at 43.
38. See YASSER, supra note 33, at 3.
39. Id. at 3-4 (quoting RESTATEMENT (SECOND) OFTORTS § 10 (1965)).
40. See infra notes 41-43.
41. See KEETONET AL.,supranote 36, § 18, at 112-14.
42. See id. Behavior "outside the bounds of the game" is conduct that is not consistent
with the rules inherent in the game. Id. Arguably, implied consent changes to different levels depending upon the rules and inherent tendencies of the game. A participant would not
consent to a punch to the nose in a game of baseball, but this might be fully acceptable in a
game of hockey.
43. See RESTATEMENT (SECOND) OF TORTS § 50 cmt. b (1965). This section provides
in full:
[t]aking part in a game manifests a willingness to submit to such bodily contacts or
restrictions of liberty as are permitted by its rules or usages. Participating in such
a game does not manifest consent to contacts which are prohibited by rules or usages of the game if such rules or usages are designed to protect the participants
and not merely to secure the better playing of the game as a test of skill. This is
true although the player knows that those with or against whom he is playing are
habitual violators of such rules.
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This principle is exemplified by Tomjanovich v. California Sports,
Inc." In Tomlanovich, the plaintiffs cause of action arose out of a fight
that occurred during a professional basketball game between the
Houston Rockets and the Los Angeles Lakers. 5 The plaintiff player,
Rudy Tomjanovich, was punched in the face by another player, Kermit
Washington, while Tomjanovich was trying to break up a fight between
Washington and Kevin Kunnert. 6 Tomjanovich sustained serious
career-ending injuries to his skull, face, and brain.47 After Tomjanovich
filed a complaint based on an intentional tort theory, the parties settled
the dispute. 48 The court approved the settlement, recognizing the
underlying principle that Washington's actions toward Tomjanovich
were not privileged. 9 Tomjanovich may have consented to playing
basketball and therefore to the contacts inherent in the game, but he
certainly did not consent to Washington's actions, which were clearly
Id.
44. No. 78-243 (S.D. Tex. Oct. 10, 1979); see also People v. Freer, 381 N.Y.S.2d 976
(Sup. Ct. 1976); Griggas v. Clauson, 128 N.E.2d 363 (I11.
App. 2d 1955). In Freer, the
plaintiff and the defendant were participating in a football game on opposite teams. See
Freer,381 N.Y.S.2d at 977. While the defendant was carrying the ball, he was tackled by
the plaintiff. See id. As the plaintiff tackled the defendant, the plaintiff punched him in the
throat. See id. Furthermore, players piled on top of both the plaintiff and the defendant. See
id. After the play, the defendant punched the plaintiff in the eye, causing damage that included a laceration requiring surgery. See Freer,381 N.Y.S.2d at 977. The court recognized
two defenses to assault by participants in sporting events: 1) that the participants consented
to the act as being part of the game, or the "consent defense;" and 2) that the act was justified
as an act of "self defense." Id. However, the court rejected both of these defenses in this
case because it reasoned that the attack that the defendant may have believed was being
made upon him was over, therefore depriving the defendant of any further self-defense
privilege. See id. at 979. Furthermore, the court found that the plaintiff did not consent to
being punched by the defendant. See id.
In Griggas, the plaintiff and defendant were participants in an amateur basketball
game on opposing teams. See Griggas, 128 N.E.2d at 364. The plaintiff alleged in his complaint that while his back was to the defendant, the defendant "maliciously, wantonly and
wilfully and without provocation assaulted [the] plaintiff." Id. He further alleged that the
defendant repeatedly hit the plaintiff violently in the head and knocked the plaintiff unconscious to the floor. See id. The appellate court rejected the defense's argument that the trial
court erred and upheld the verdict for assault and battery. See id. at 366.
45. See YASSER, supra note 33, at 21. Although the federal district court's opinion in
the case of Tomjanovich is not published, Professor Yasser details the facts and the court's
holding quite accurately. Therefore, most of the future references to Tomjanovich used in
this Casenote will be taken from Yasser's book.
46. See id.
47. See id.
48. See id. at 26.
49. See Brendon D. Miller, Note, Hoke v. Cullinan: Recklessness as the Standardfor
RecreationalSports Injuries, 23 N. KY. L. REV. 409, 413 (1996).
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JAWORSKI v. KIERNAN
outside of the NBA rules.5 ° Essentially, the court settlement established
that the defendant committed an intentional tort because the plaintiff did
not consent to or assume that particular risk."
2. Recklessness
If a participant's conduct is more dangerous to others than mere
negligence, but falls short of an intentional tort, a cause of action may
exist for recklessness. 52 In order for a participant's conduct to be reckless, it would have to "take on the aspect of highly unreasonable conduct, involving an extreme departure from5 3ordinary care, in a situation
where a high degree of danger is apparent.
The first case to use recklessness as the standard of care in this
context was Nabozny v. Barnhill.4 Since then, most courts that have
50.
51.
See id.
See id. Other courts have cited Tomjanovich. For example, in Ordway v. Superior
Court, 243 Cal. Rptr. 536 (Cal. Ct. App. 1988), the court stated:
[a] verdict for Tomjanovich was clearly proper. He did assume the risk of being
hit in the face by a flying elbow in the course of defending against an opponent's
jump shot, suffering a painful insult to his instep by a size-16 foot descending with
a rebound, or even being knocked to the court by the sheer momentum of a sevenfooter driving home a slam dunk. But the scope of his consent did not extend to
an intentional blow considerably beyond the expected risks inherent in basketball.
Intentional fouls are part of that game. But where the intent is to injure and the
force used is far greater than necessary to accomplish a legitimate objective within
the scope of play, a defendant may not prevail on an assumption of risk defense.
Id. at 543-44.
52.
53.
See KEETON ET AL., supra note 36, § 30, at 164-67, § 34, at 211-14.
Id. § 34, at 214. The Restatement (Second) of Torts states that a person has a
"reckless disregard" for another's safety
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 (1965).
54. 334 N.E.2d 258 (Ill. App. 3d 1975). The court in Nabozny used public policy arguments to reach its decision. See id. at 260. The Nabozny court found it important not to
inhibit participation in recreational sports by creating a fear of liability. See id. It noted that
the law does not condone reckless and dangerous behavior and that conduct in the sports
arena should not be an exception to this principle. See id. Though it also observed that "the
law should not place unreasonable burdens on the free and vigorous participation in sports
by our youth," it proceeded to limit that principle by stating that "we also believe that organized, athletic competition does not exist in a vacuum. Rather, some of the restraints of
civilization must accompany every athlete onto the playing field." Nabozny, 334 N.E.2d. at
260.
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adopted a recklessness standard cite the reasoning of Nabozny in their
decisions. 5 The jurisdictions that apply the recklessness standard are
New Jersey, Kentucky,57 Texas,58 Ohio, 9 California, 6° Nebraska' Massachusetts,62 New York,63 Missouri, 64 New Mexico,65 Louisiana,66 and Ilinois 7
The majority of states hold that the parties are required to show
recklessness to state a cause of action for injuries sustained in a sporting
event 68 but there is little uniformity in the application of the recklessness standard among the jurisdictions where it is used. 69 Conduct that
would be considered reckless in one state would not be in another.
55.
See, e.g., Jaworski v. Kiernan, 241 Conn. 399, 696 A.2d 332 (1997).
56.
See Crawn v. Campo, 643 A.2d 600 (N.J. 1994). In Crawn, the Supreme Court of
New Jersey changed the standard of care in New Jersey from a negligence standard to a
reckless conduct standard. See id. at 601. It is arguable that the reversal of Crawn impacted
Jaworski because the plaintiff in Jaworski, the trial court below, and other Connecticut
courts all cited to the appellate division's decision that negligence was the applicable standard of care. See Jaworski v. Kiernan, No. CV 940464969S, 1996 WL 489038, at *2 n.2
(Conn. Super. Ct. Aug. 28, 1996), rev'd, 241 Conn. 399, 696 A.2d 332 (1997); Cahill v.
Carella, 43 Conn. Supp. 168, 172, 648 A.2d 169, 172 (1994).
57. See Hoke v. Cullinan, 914 S.W.2d 335 (Ky. 1995) (applying a recklessness standard to an injury sustained in a doubles tennis match).
58. See Connell v. Payne, 814 S.W.2d 486 (Tex. Ct. App. 1991) (applying the recklessness standard to an injury in a recreational polo game).
59. See Marchetti v. Kalish, 559 N.E.2d 699 (Ohio 1990) (applying the recklessness
standard to a minor who was injured while participating in the recreational game of "kick the
can").
60. See Knight v. Jewett, 834 P.2d 696 (Cal. 1992) (applying recklessness to an injury
in an informal game of coed touch football).
61. See Dotzler v. Tuttle, 449 N.W.2d 774 (Neb. 1990) (applying a reckless conduct
standard to an injury arising in an unorganized basketball game).
62. See Gauvin v. Clark, 537 N.E.2d 94 (Mass. 1989) (applying a recklessness standard to an injury sustained in a college hockey game).
63. See Turcotte v. Fell, 502 N.E.2d 964 (N.Y. 1986) (applying a recklessness standard
to injuries sustained in a professional horse race).
64. See Ross v. Clouser, 637 S.W.2d 11 (Mo. 1982) (applying a recklessness standard
to injuries sustained during a recreational church softball game).
65. See Kabella v. Bouschelle, 672 P.2d 290 (N.M. Ct. App. 1983) (applying recklessness as the standard to injuries sustained in an unorganized neighborhood game of tackle
football).
66. See Bourque v. Duplechin, 331 So. 2d 40 (La. Ct. App. 1976) (applying recklessness standard to an injury sustained during an informal softball game); see also Picou v.
Hartford Ins. Co., 558 So. 2d 787 (La. Ct. App. 1990) (affirming Bourque).
67. See Nabozny v. Barnhill, 334 N.E.2d 258 (1975).
68. See Daniel E. Lazaroff, Torts & Sports: ParticipantsLiability to Co-Participants
for Injuries Sustained During Competition, 7 U. MIAMI ENT. & SPORTS L. REV. 191, 198
(1990); see also Mel Narol, Sports Participation with Limited Litigation: The Emerging
Reckless DisregardStandard, 1 SETON HALL J. SPORTS L. 29 (1991).
69.
See Narol, supra note 68, at 29-30.
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JAWORSKI v. KIERNAN
Also, in many jurisdictions, courts choose between the recklessness and
the negligence standards based upon whether the sport is contact or noncontact, or recreational or professional. Some states draw a distinction
between contact and non-contact sports because participants in noncontact sports generally expect to be safe from physical contact that
could cause injury.' Some courts have drawn a distinction between professional and recreational sports because professional athletes, unlike
recreational athletes, usually anticipate injuries during play even when
such injuries are caused by another's negligence.72
3. Negligence
It has been said that "no court in the land would hold that intentional conduct falls to state a cause of action [for injuries to a coparticipant in a sporting activity]; none have said that recklessness is not
a basis for recovery; but many have stated that negligence is insuffi' However, some jurisdictions do allow a claim for negligence.74
cient. 73
In contrast with the intentional tort or reckless conduct theories of recovery, the negligence standard offers an injured athlete a greater possibility for recovery when a safety rule for a particular sport is violated.75
Negligence is generally defined as "conduct which falls below the standard established by law for the protection of others against unreasonable
risk of harm., 76 Most jurisdictions apply a negligence standard with regard to injuries sustained in non-contact sports.77 Only two jurisdic70. See id.
71.
See infra Part VI.A.2.
72. See infra Part VI.A.I.
73. Yasser, supra note 35, at 261.
74. See id.
75. See Hana R. Miura, Note, Lestina v. West Bend Mutual Insurance Co.: Widening
the Court as a Playing Field for Negligent Participants in Recreational Team Contact
Sports, 1994 WIS. L. REV. 1005, 1010.
76. RESTATEMENT (SECOND) OF TORTS § 282 (1965). The Restatement (Second) of
Torts further defines "unreasonableness" and sets forth a balancing test that provides:
Where an act is one which a reasonable man would recognize as involving a risk
of harm to another, the risk is unreasonable and the act is negligent if the risk is of
such magnitude as to outweigh what the law regards as the utility of the act or of
the particular manner in which it is done.
Id. § 291.
77. See Miller, supra note 49, at 420. Such jurisdictions hold that a negligence stan-
dard is sufficient to state a cause of action in non-contact sports such as skiing and golf. See
LaVine v. Clear Creek Skiing Corp., 557 F.2d 730 (10th Cir. 1977); Ninio v. Hight, 385 F.2d
350 (10th Cir. 1967); Gray v. Houlton, 671 P.2d 443 (Colo. Ct. App. 1983); Novak v. Virene,
586 N.E.2d 578 (I11.App. Ct. 1991); Duke's GMC, Inc. v. Erskine, 447 N.E.2d 1118 (Ind. Ct.
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tions, Ohio"8 and Texas, 79 have held otherwise. 0 A minority of courts
also allow recovery for negligently inflicted injuries in recreational
contact sports.,,
In Lestina v. West Bend Mutual Insurance Co.,82 the Supreme
Court of Wisconsin held liable a defendant who negligently injured another player during a recreational team contact sports competition.8 ' The
plaintiff, a soccer player, sustained a knee injury when he was "slide
tackled" by the defendant, an opposing player.M By using the slide
tackle, the defendant violated a safety rule of the adult recreational
league.85 On appeal, the supreme court affirmed the circuit court's decision that the legal standard governing the defendant's behavior was
86
negligence.
The Lestina court's reasoning was based upon a six-part test 87 that
it derived from Niemczyk v. Burleson.8 Although Ross v. Clouser 9 later
App. 1983).
78. See Thompson v. McNeill, 559 N.E.2d 705 (Ohio 1990).
79. See Hathaway v. Tascosa Country Club, Inc., 846 S.W.2d 614 (Tex. Ct. App.
1993).
80. See infra Part VI.A.2.
81. See Miller, supra note 49, at 420.
82. 501 N.W.2d 28 (Wis. 1993).
83. See id. at 29.
84. See id.
85. See id. A "slide tackle" is when an opposing player slides on his or her knee with
the opposite foot positioned forward to make contact with the foot of another player in an
attempt to steal the ball. See Lestina, 501 N.W.2d at 29 n. 1.
86. See id. at 29. The Supreme Court of Wisconsin affirmed the judgment of the circuit court, which found the defendant 100% causally negligent. See id.
87. See id. at 33.
88. 538 S.W.2d 737 (Mo. 1976), overruled by Ross v. Clouser, 637 S.W.2d 11, 14
(Mo. 1982) (applying recklessness standard to injuries sustained during a recreational church
softball game). In Niemczyk, the defendant injured the plaintiff while both participated in a
softball game. See id. at 739. In deciding the appropriate legal duty that sports participants
owe to each other, the trial court dismissed the plaintiff's cause of action, holding that a negligence theory was insufficient to create liability. See id. However, on appeal, the appellate
court reversed the trial court's decision, thus allowing the plaintiff to bring a cause of action
for negligence. See id. at 743. In addition, the court implemented a test which determines if
a participant's conduct is negligent. See Niemczyk, 538 S.W.2d at 741-42.
In determining whether a player's conduct was negligent, the Niemczyk test instructs
that the factfinder should consider material factors such as the following: (1) the sport involved; (2) the rules and regulations governing the sport; (3) the generally accepted customs
and practices of the sport (including the level of violence usually accepted and the general
types of contact involved); (4) the risks inherent in the game along with those that are outside the realm of anticipation; (5) the presence of protective equipment or uniforms worn by
the participants; and (6) the circumstances and facts of the particular case (including the ages
and physical attributes of the participants,- the respective skills of the participants at the
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overturned Niemczyk, the Supreme Court of Wisconsin adopted the sixpart test because it promised flexibility when applied to a wide range of
situations. 9°
B. ConnecticutLaw Before Jaworski
Prior to Jaworski, Connecticut case law dictated that negligence
was the correct standard of care to determine liability for injuries sustained not only in recreational sports, but in professional contact sports
as well. 9' Thus, for many years Connecticut law was unique because
even those states that allowed claims for negligently caused injuries in
contact sports limited the rule to recreational activities; injuries in professional sports were subject to the recklessness standard.92 The Connecticut Supreme Court case of Walsh v. Machlin93 and two superior
court cases supported this proposition.94
1. Walsh v. Machlin
95
Although prior to Jaworski, the Supreme Court of Connecticut had
not determined the standard of care that co-participants owe to each
other while playing in a recreational sporting event, the court indicated
that negligence would be the appropriate rule.96 In Walsh, the plaintiff
brought suit against the defendant for injuries sustained while the two
game, and the participants' general knowledge of the rules and customs). See Lestina, 501
N.W.2d at 33 (citing Niemczyk, 538 S.W.2d at 741-42).
89. 637 S.W.2d 11, 14 (Mo. 1982).
90. See Lestina, 501 N.W.2d at 33. In reconsidering this issue in Ross, the Supreme
Court of Missouri overturned Niemczyk and determined that recklessness was the more appropriate standard for imposing liability on participants who failed to adhere to their legal
duty. See Ross, 637 S.W.2d at 12-14. However, the Lestina court decided that it would still
use the six-part test derived from Niemczyk to decide liability. See Lestina, 501 N.W.2d at
33.
91.
See Babych v. McRae, 41 Conn. Supp. 280, 283, 567 A.2d 1269, 1270 (1989).
92. See, e.g., Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516, 524-25 (10th Cir.
1979) (holding that in a professional football game, liability could only be created by a
showing of reckless or intentional conduct); Turcotte v. Fell, 502 N.E.2d 964, 968-70 (N.Y.
1986) (holding that negligence was an inappropriate standard to apply in professional horse
racing).
93. 128 Conn. 412, 414, 23 A.2d 156, 157 (1941); see also infra text accompanying
notes 196-207.
94. See Cahill v. Carella, 43 Conn. Supp. 168, 171, 648 A.2d 169, 171 (1994); Babych,
41 Conn. Supp. at 283, 567 A.2d at 1270.
95. 128 Conn. 412, 23 A.2d 156 (1941).
96. See id. at 414, 23 A.2d at 157.
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participated in a foursome of golf. 97 The plaintiff alleged that the defendant negligently hit him in the eye with a golf ball, seriously injuring
him.9' In Connecticut's earliest opinion to determine the applicable
standard of care in this setting, the supreme court found that the duty
between the co-participants in a non-contact sport was one of
"reasonable care," thus negligence. 99
2. Cahill v. Carella"'0
The plaintiff in Cahill was injured during a recreational softball
game.10 1 The plaintiff alleged that his injury resulted from the defendant's negligent conduct during the game.' 2 The defendant argued that
the court should adopt an immunity against ordinary negligence liability
when injuries arise from recreational sporting events.' 3 Recognizing
that the majority of jurisdictions had concluded that proof of reckless or
intentional conduct is required in sports injury cases, Judge Fuller still
declined to hold negligence immune."' 4
3. Babych v. McRae'°5
In Babych, the plaintiff, a professional hockey player, was injured
when the defendant, a player on the other team, hit him across the knee
with his hockey stickY"6 The plaintiffs complaint alleged that the defendant violated the league's safety rules.'0 7 However, Judge Schaller
held that Connecticut law did not limit recovery for torts between professional athletes to recklessness and allowed the plaintiff to state a
cause of action in negligence.' 8
97. See id. at 412, 23 A.2d at 156.
98. See id. at 413-14, 23 A.2d at 156-57.
99. Walsh, 128 Conn. at 414, 23 A.2d at 157. Although the court found that the defendant's actions were not negligent, the court clearly set forth that negligence was the governing standard. See id.
100. 43 Conn. Supp. 168, 648 A.2d 169 (1994). For a more in-depth discussion, see
infra text accompanying notes 148-62.
101.
See Cahill, 43 Conn. Supp. at 169, 648 A.2d at 170.
102. See id. at 169, 648 A.2d at 171.
103. See id. at 171, 648 A.2d at 171-72.
104. See id. at 171-72, 648 A.2d at 171-72.
105. 41 Conn. Supp. 280, 567 A.2d 1269 (1989). For a more in-depth discussion, see
infra text accompanying notes 163-69.
106. See Babych, 41 Conn. Supp. at 282, 567 A.2d at 1270.
107. See id. at 282-83, 567 A.2d at 1270.
108. See id. at 283, 567 A.2d at 1270. The court noted that a negligence cause of action
JAWORSKI v. KIERNAN
1998]
Ill. FACTS AND PROCEDURAL HISTORY OF JAWORSKI V. KIERNAN"'
The plaintiff, Cynthia Jaworski, sued the defendant, Harry Kiernan,
in the Superior Court for the Judicial District of Hartford-New Britain at
New Britain, seeking monetary damages for personal injuries she allegedly sustained when Kiernan came in contact with her while both were
participating in an outdoor, adult, recreational soccer game.'" ° During
the game, Jaworski possessed and controlled the ball,"' and was in the
process of shielding the ball so that the goalie on her team could retrieve
it. 112
The soccer league, sponsored by the town of South Windsor, Connecticut, implemented rules to encourage safety among players. ' 3 One
of these rules, the "challenge rule," prohibited a male player from challenging a female player while she controlled the ball." 4 Despite the rule,
Kiernan challenged Jaworski, and attempted to take the ball away from
Jaworski by hitting her from behind. "' In the process, Kiernan allegedly
kicked Jaworski and injured her knee." 6 The injury consisted of a torn
anterior cruciate ligament (ACL) which left the plaintiff with a fifteen
percent permanent disability.' 17
The plaintiffs claim consisted of two counts." 8 In the first count,
Jaworski alleged that Kiernan "failed to exercise due care and that his
conduct was negligent and careless in that he 'hit' and 'tripped' her from
behind and that he challenged a female player, both in violation of
league rules.""
9
The plaintiff cited the same violation of league rules in
would be allowed for an injury sustained in a professional sport. See id. This is unusual because almost all jurisdictions that have addressed the issue have held that an injured athlete
can only state a cause of action for reckless conduct or intentional torts for injuries sustained
during the course of the game. An explanation for this would be that Connecticut courts
have followed a trend, since Walsh, to allow recovery based upon negligence for any kind of
sport, recreational or professional.
109. 241 Conn. 399, 696 A.2d 332 (1997).
110. See id. at 400-02, 696 A.2d at 333-34.
111. See Jaworski v. Kiernan, No. CV 940464969S, 1996 WL 489038, at * 1 (Conn. Super. Ct. Aug. 28, 1996), rev'd, 241 Conn. 399, 696 A.2d 332 (1997).
113. See Brief of the Plaintiff-Appellee at 10-19, Jaworski v. Kiernan, 241 Conn. 399,
696 A.2d 332 (1997).
114. See Jaworski, 241 Conn. at 401 n.1, 696 A.2d at 333 n.1.
115. See Jaworski, 1996 WL 489038, at * 1.
116. See id.
118. See id.
119. Id. at 400-01, 696 A.2d at 333.
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her second count, in which she alleged "that the 20defendant's conduct
was wanton and reckless," and caused her injuries.
He
Kiernan moved to strike Jaworski's negligence count.' 2'
claimed that he was not liable for injuries Jaworski sustained during the
game because a participant in an athletic contest is, as a matter of law,
not liable to a co-participant for injuries arising out of simple negligence. 22 The court denied Kieman's motion. 23 Kiernan filed a special
defense to the plaintiffs action, alleging that Jaworski's own conduct
was negligent, and that this negligent conduct exceeded his alleged negligence. 124
The superior court held that negligence was the appropriate standard for determining liability among participants for injuries sustained
in a coed, recreational, sporting event. 2 5 The jury found the defendant
negligent on the first count, and attributed no comparative negligence to
the plaintiff. 26 The jury, on the second count, determined that the defendant did not act recklessly toward the plaintiff.' 2 The jury returned a
verdict for the plaintiff, awarding her $20,910.33 in damages, the exact
amount of her medical bills.' 21 Since the jury awarded the plaintiff no
non-economic damages, the court instructed the jury to reconsider the
29
After further deliberations, the jury returned the same veraward.'
30
dict.'
Following the trial, Kiernan moved to set aside the verdict and for
judgment notwithstanding the verdict as to the negligence count. 3 ' He
contended that the court erred in characterizing the league rule as a
safety rule, and therefore misinformed the jury as to the rule's relevance. 32 Furthermore, Kiernan restated his contention that an "action
for personal injuries sustained in an athletic competition must be predi-
120.
Id. at 401, 696 A.2d at 334.
See Jaworski, 241 Conn.
121.
122. See id.
123. See id.
124. See id.
125. See Jaworski v. Kiernan,
per. Ct. Aug. 28, 1996), rev'd, 241
126. See Jaworski, 241 Conn.
127. See id.
128. See id.
at 401, 696 A.2d at 334.
No. CV 940464969S, 1996 WL 489038, at *3 (Conn. SuConn. 399, 696 A.2d 332 (1997).
at 401, 696 A.2d at 334.
129.
See Jaworski, 1996 WL 489038, at * 1.
130.
131.
132.
See id.
See Jaworski, 241 Conn. at 401-02, 696 A.2d at 334.
See Jaworski, 1996 WL 489038, at *3.
19981
JAWORSKI v. KIERNAN
'
cated on recklessness and not mere negligence."133
Jaworski also moved to set aside the verdict as to the negligence
count, but for different reasons. 1 She also moved for the court to order
an additur, claiming that the verdict was "inadequate as a matter of law
due to the jury's failure to award noneconomic [sic] damages."'35
The superior court denied the defendant's motion
. 136 to set aside the
verdict and for judgment notwithstanding the verdict.
However, the
court granted the plaintiffs motion for an additur and conditionally
granted the plaintiffs motion to set aside the verdict.'
Following this
ruling, the defendant did not file for an additur, and the court set aside
38
the verdict as to the first count and ordered a new trial on that count.
The defendant appealed this decision to the Appellate Court of
Connecticut.'39 Following the defendant's appeal, the Supreme Court of
Connecticut transferred the appeal to itself pursuant to section 4023 of
the Practice Book and section 51-199(c) of the General Statutes. 40 The
133. Jaworski, 241 Conn. at 402, 696 A.2d at 334.
134. See id.
135. Id. Jaworski believed that, since there was no comparative negligence on her part,
the verdict was unjust and inadequate because it awarded her full economic damages, but
zero non-economic damages. See Jaworski, 1996 WL 489038, at *3. For an in-depth analysis on the validity of jury awards that appear to award economic damages for physical injury,
but no non-economic damages, see Childs v. Bainer, 235 Conn. 107, 663 A.2d 398 (1995);
Sean D. Hanlon, Casenote, Judicial Review of Jury Damage Awards in Connecticut After
Childs v. Bainer, 16 QuINNTPiAc L. REV. 491 (1997).
137. See id. The-court ruled that
if the defendant did not file a $45,000 additur with the clerk or if the plaintiff did
not accept such an additur, the motion to set aside the verdict would be granted,
and a new trial on the first count as to both liability and damages would be ordered.... If, however, the additur was filed and accepted, judgement would enter
in the sum of $65,910.33.
Id. (citation omitted).
138.
See id.
140. See id. Section 51-199, entitled "Jurisdiction," provides, in full:
(a) The supreme court shall have final and conclusive jurisdiction of all matters
brought before it according to law, and may carry into execution all its judgments
and decrees and institute rules of practice and procedure as to matters before it.
(b) The following matters shall be taken directly to the supreme court: (1) Any
matter brought pursuant to the original jurisdiction of the supreme court under
section 2 of article sixteen of the amendments to the constitution; (2) an appeal in
any matter where the superior court declares invalid a state statute or a provision
of the state constitution; (3) an appeal in any criminal action including conviction
for a capital felony, class A felony, or other felony, involving any persistent offender status, for which the maximum sentence which may be imposed exceeds
twenty years; (4) review of a sentence of death pursuant to section 53a-46b; (5)
QLR
[Vol. 18:307
sole issue in the appeal was "what duty of care the defendant, Harry Kiernan, owed the plaintiff, Cynthia A. Jaworski, while both were particiby the
pating on opposing teams in an adult coed soccer game 1'sponsored
4
1
Windsor.
South
of
town
the
of
department
recreational
The Supreme Court of Connecticut held that participants in team
contact sports owe a duty to other participants to refrain only from
other, with proof of mere neglirecklessly or intentionally harming
• ••each
142
court reversed the superior
The
liability.
create
to
insufficient
gence
court's decision because the jury found that the defendant's conduct,
which caused the plaintiff's injuries, was negligent, but not reckless or
intentional. 41 3 The court remanded the case to the superior court with the
direction to strike the first count of the plaintiff's complaint.'44
IV. THE SUPERIOR AND SUPREME COURT DECISIONS
A. The Superior CourtDecision
The superior court began its analysis by recognizing that there was
no appellate authority in Connecticut on the duty of care that coparticipants in a sporting event owe to each other.'4 5 The defendant relied on the principle that when personal injuries occur during athletic
competition, negligent conduct does not create liability. 46 The court
noted that only two other trial courts in Connecticut had addressed the
7
1
issue, and that those decisions went against the defendant's position.
any election or primary dispute brought to the supreme court pursuant to section
9-323 or section 9-325; (6) an appeal of any reprimand or censure of a probate
judge, pursuant to section 45-1 1g; (7) any matter regarding judicial removal or
suspension pursuant to section 51-5 1j; (8) an appeal of any decision of the judicial
review council pursuant to section 51-51r; (9) any matter brought to the supreme
court pursuant to section 52-265a; (10) writs of error, pursuant to section 52-272;
and (11) any other matter as provided by law.
CONN. GEN. STAT. § 51-199 (1995).
141. Jaworski, 241 Conn. at 400, 696 A.2d at 333. On appeal, the court did not decide
the issue of damages because this point became moot in light of the court's decision that the
plaintiff could not state a cause of action for negligence.
142. See id. at 412, 696 A.2d at 339.
143. See id. at 400, 696 A.2d at 333.
144. See id. at 412, 696 A.2d at 339.
145. See Jaworski v. Kiernan, No. CV 940464969S, 1996 WL 489038, at *I(Conn. Super. Ct. Aug. 28, 1996), rev'd, 241 Conn. 399, 696 A.2d 332 (1997).
146. See id.
147.
See id. at *1-2.
1998]
JAWORSKI v. KIERNAN
In Cahill v. Carella,'48 the court decided the issue of whether participants in a sporting event should be immune from liability for ordinary negligence.4 9 During a softball game, the plaintiff was running
from first base toward second base when the batter hit a ground ball to
the third baseman.'5 ° The defendant, an opposing infielder, was the
"pivot man" on the double play."' In the negligence count of the complaint, the plaintiff alleged that "as the plaintiff was sliding into second
base the defendant 'submarined' the ball directly at the plaintiff."'' The
complaint further alleged that the defendant should have known that the
plaintiff was sliding.'5 3 The plaintiff contended that the defendant negligently threw the ball in an improper manner considering the defendant's
ability and skill level, and threw it too low to the ground while the
plaintiff was sliding into the base. 5 4 The plaintiff added a recklessness
count, supported by identical allegations.'55
The defendant in Cahill argued that negligence, as a matter of law,
was not a sufficient basis to state a cause of action for sports-related in5 6
juries sustained by individuals who participate in competitive games.
In denying the defendant's motion to strike, the court held that Connecticut law does not provide for complete immunity for all sports related injuries.5 7 The court reasoned that negligence can create liability
based upon the theory that a person participating in sports activities
should be required to act as a reasonable person of ordinary prudence
under the circumstances. ' Furthermore, the court classified the recreational softball game in which the injury occurred as a non-contact
148. 43 Conn. Supp. 168, 648 A.2d 169 (1994).
149. See id. at 168-69, 648 A.2d at 170.
150. See id. at 169, 648 A.2d at 170.
151. See id.
152. Cahill, 43 Conn. Supp. at 169, 648 A.2d at 170-7 1.
153. See id. at 169, 648 A.2d at 171.
154. See id.
155. See id.
156. See Cahill,43 Conn. Supp. at 171, 648 A.2d at 171.
157. See id. at 174, 648 A.2d at 173. The Cahill court first reviewed the decisions of
other jurisdictions. See id. at 171-72, 648 A.2d at 172. The court acknowledged that the
majority of jurisdictions that have considered the issue have concluded that proof of reckless
or intentional conduct is required to establish liability in sports injury cases. See id. at 172,
648 A.2d at 172. However, the court also noted that other courts have applied an ordinary
negligence standard of care. See Cahill, 43 Conn. Supp. at 172, 648 A.2d at 172. The court
went on to state that some courts have denied recovery on the basis of assumption of risk.
See id. at 172-73, 648 A.2d at 172. It is important to note that Connecticut has abolished the
assumption of risk doctrine for negligence actions. See id. at 173,648 A.2d at 172.
158. See id. at 172, 648 A.2d 172.
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[Vol. 18:307
sport."59 The court found that while some contact occurred during the
game of softball, it was only occasional and accidental.' 60 The court
concluded that because the sport was non-contact, recovery for injuries
6
was not necessarily limited to a reckless conduct standard of care. '
In reaching its decision, 62 the Cahill court relied on Babych v.
McRae. 63 In Babych, the plaintiff, a professional hockey player, alleged
that the defendant, a rival professional hockey player, injured him by
striking him across the knee with his hockey stick.'" Babych alleged
that the defendant violated league rules,
and caused the plaintiff to suffer
6
personal injuries and financial losses. 5
Babych sued the defendant hockey player and the defendant's team
franchise, citing negligence as one theory of recovery.'" The defendant
filed a motion to strike the negligence count of the plaintiffs complaint
on the ground that a negligent action by a professional athlete who injures another professional athlete is insufficient to support a cause of
action.167 The defendant cited authority from another jurisdiction in
support of his argument.' 68 However, the court found that the plaintiff
had pleaded sufficient facts to state a cause of action, and stated that because there was no analogous69 Connecticut case law, it would deny the
defendant's motion to strike.'
Based on these precedents, Cynthia Jaworski argued that "[i]f players are held to use reasonable care to obey the rules, casual athletes will
be emboldened to participate with fewer reservations than if careless
play were encouraged by immunity.' 70 Jaworski also noted that other
jurisdictions use negligence as the appropriate standard of care in cases
159.
160.
161.
See Cahill, 43 Conn. Supp. at 174, 648 A.2d at 173.
See id.
See id.
162.
See id. at 171, 648 A.2d at 171.
163.
164.
41 Conn. Supp. 280, 567 A.2d 1268 (1989).
See id. at 281, 567 A.2d at 1269.
165.
See id.
166. See id. The plaintiff also stated a cause of action against the defendant for reckless
conduct and intentional assault. See Babych, 41 Conn. Supp. at 281, 567 A.2d at 1269. The
plaintiff further stated a separate cause of action against the opposing team for improper
control and training of the named defendant. See id.
167. See id.
168. See id. at 283, 567 A.2d at 1270. The case the defendants relied on was Turcotte v.
Fell, 502 N.E.2d 964 (N.Y. 1986).
169. See Babych, 41 Conn. Supp. at 283, 567 A.2d at 1270.
170. Jaworski v. Kiernan, No. CV 940464969S, 1996 WL 489038, at *2 (Conn. Super.
Ct. Aug. 28, 1996), rev'd, 241 Conn. 399, 696 A.2d 332 (1997).
JAWORSKI v. KIERNAN
1998]
dealing with contact and non-contact recreational sports injuries.' 7'
Kiernan replied that the majority of states that have decided the issue prohibit recovery based upon mere negligence.'
Kieman supplied
the court with a list of states that require reckless or intentional conduct
to create liability.'
Kiernan further contended that if courts recognized
negligence as a sufficient cause of action, then
[s]occer, basketball, football, or any other contact sport will never be the
same.... Every penalty in a football game, soccer game, hockey game, or a
foul in a basketball game will present an opportunity for another lawsuit....
If the court allows the jury verdict on the first count [in negligence] for the
plaintiff to stand, the chill which it will supply to vigorous athletic competition will be widespread and pervasive.14
The superior court, finding the plaintiffs rationale to be more
compelling and realistic than the defendant's, ruled that the general
negligence standard was the better rule in this situation.'75 In reaching
its decision, the court reasoned that it is for the legislature or a higher
court to create an exception to the general negligence rule in coed recreational sports. 176 The court found that by "[c]ombining this limited
cause of action with the invariably fact specific negligence standard of
care, this decision's 'chilling effect' on recreational sporting events, if
any, will be offset
by the injection of the element of care in the way the
7
sport is played.'1
171.
172.
173.
See id.
See id.
See id.
174.
Jaworski, 1996 WL 489038, at *2.
175.
176.
See id. at *2-3.
See id.
177. Id. at *3.The court read the following jury instructions to the jury:
FACTORS IN ASSESSING WHETHER THE DEFENDANT'S CONDUCT WAS
NEGLIGENT[:] As I have indicated generally, it is for you to determine whether
the defendant breached his duty to act as a reasonable person under all existing
circumstances. In the present context, you may wish to consider the following circumstances, along with any others you deem relevant, in determining whether the
defendant breached his duty as a reasonable person under all of the circumstances
of a sports event: What type of sport and game were involved, which in this case
was an amateur coed recreational soccer [game]; The generally accepted customs
and practices of amateur coed recreational soccer, including the types of contact
and the level of violence generally accepted in such games; Whether the game was
conducted pursuant to a recognized set of rules and if so, what those rules were;
Whether the conduct, as you find it to be, violated a rule of the game and, if so,
whether the rule was designed for the safety of participants; What risks were and
were not inherent in the coed recreational soccer game as it was expected to be
QLR
[Vol. 18:307
The superior court limited its holding to injuries occurring between
participants in a coed, recreational, sporting event." The court noted
that the participants in Jaworski had dissimilar skill levels because it
was a coed recreational sport. 79 In dicta, the court stated that "had the
plaintiff and the defendant been of equal abilities, or had the game been
between players of the same age and gender, or had the game been between professional or collegiate athletes, the outcome may have been
different.1 80
The defendant also contended that the court erred by instructing the
jury on the relevance of the "challenge rule."'' 1 Kiernan argued that the
court mistakenly characterized this rule as a safety rule, and it was,
therefore, irrelevant to whether he was negligent. 1 2 The court, in essence, left it up to the jury to determine if it was a safety rule, and
whether there was a violation
of that rule."' The court did not find error
4
in this jury instruction.1
Jaworski also argued that because there was no comparative negliplayed in this setting; The presence or absence of protective equipment; The ages,
physical characteristics, and skills of the participants; What degree of competitiveness was involved; What knowledge of the rules and customs of the game the
participants possessed; What relationship the conduct of the participants bore to
the ultimate purpose of the contest.
Jaworski, 1996 WL 489038, at *3 n.4.
178. See id. at *3.
179. See id.
180. Id. at *3.
181. Jaworski, 1996 WL 489038, at *3. The court gave the jury the following instruction:
EFFECT OF SAFETY RULE GOVERNING CONDUCT IN COMPETITION[:]
Like the Probable Cause instructions that I gave you, the next instruction which I
am going to give you may have application to both the recklessness count and the
negligence count. You have heard testimony about the rules which were in effect
during the soccer game in which the injury occurred. Where a recognized set of
rules governs the conduct of a competition; and a safety rule contained therein, is
primarily designed to protect players from serious injury, a player is charged with
a legal duty to every other player on the field to refrain from conduct prohibited
by the safety rule. If you find that the defendant violated such a safety rule, you
may use such a violation in your consideration of whether the defendant was
guilty of either negligent or reckless conduct under the circumstances. Of course,
the factual questions of whether any rule was a safety rule, whether the defendant
violated the rule and, if so, whether the violation was negligence and/or reckless
are all factual questions for your determination based upon evidence presented
during this trial.
Id. at *3 n.5.
182. See id.
183. See id.
184. See Jaworski, 1996 WL 489038, at *3.
1998]
JAWORSKI v. KIERNAN
gence on her part, the jury verdict of full economic damages and zero
non-economic damages was manifestly unjust and inadequate.'85 The
trial court stated that Connecticut courts "have held that where the
plaintiffs are entitled to recover damages for their injuries, an award
limited to nominal or special damages is 'manifestly inadequate' and
should be set aside.' 8 6 The trial court also noted that "as a general rule,
it is manifestly unjust for the jury to fail to award damages for pain and
suffering when it awards special damages.' 87
The court noted that courts should be cautious when determining
whether they should interfere with the jury verdict."' In Jaworski, the
jury awarded
the plaintiff the full amount of her claimed economic dam189
ages.
Jaworski introduced substantial testimony regarding her injury.' 9 Kiernan did not contest the amount of damages after the jury
determined the verdict. 9' Furthermore, after the jury determined the defendant's liability, it faced a substantial amount of uncontested evidence
concerning the plaintiffs non-economic damages. 192 Based upon this
testimony, the court determined that the award of zero non-economic
damages was manifestly unjust as a matter of law.'93
B. The Supreme Court Decision
The opinion of the Connecticut Supreme Court, written by Chief
Justice Callahan, focused on the duty of care the defendant, Harry Kiernan, owed Cynthia A. Jaworski, the plaintiff, while both were partici-
185.
See id.
186.
187.
Id. (citations omitted).
Id. (citations omitted).
188. See Jaworski, 1996 WL 489038, at *3; see also Childs v. Bainer, 231 Conn. 924,
648 A.2d 162 (1994); Johnson v. Franklin, 112 Conn. 228, 229, 152 A. 64, 65 (1930); Jefferies v. Johnson, 27 Conn. App. 471,473-74, 607 A.2d 443, 446 (1992); Hanlon, supra note
135.
It is interesting to note that Childs is distinguishable from the other above-mentioned
cases as well as the present case. The jury's verdict in Childs was not inadequate as a matter
of law. See Jaworski, 1996 WL 489038, at *3. The court refused to adopt a per se rule that
would classify a verdict awarding economic damages, but zero non-economic damages, as
manifestly unjust as a matter of law. See id.
189. See Jaworski, 1996 WL 489038, at *4.
190.
See id. The plaintiff introduced testimony to show the extent of her treatment, e.g.,
two surgeries, painful therapy, loss of use, pain and suffering, and a 15% permanent partial
disability of her knee. See id. at *4.
191. See id.
192.
See Jaworski, 1996 WL 489038, at *4.
193.
See id.
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pating in an adult coed recreational soccer game.194
The plaintiff argued that the supreme court should uphold the trial
court's conclusion that negligence is the appropriate standard of care in
this situation.'95 The plaintiff cited Walsh v. Machlin'96 for the proposition that Connecticut courts had already determined that negligence is
the appropriate standard for determining liability in an athletic contest. 97
Furthermore, Jaworski contended that a negligence standard can be applied for determining liability in any given factual circumstances because of its flexibility. 198
In Walsh, the plaintiff and the defendant, both experienced golfers,
were partners in a foursome competition.'99 During the game, the plaintiff walked ahead of the defendant, but was not in what should have
been the line of direction of the defendant's ball. 0 Without calling
"[fWore," the defendant hit his ball and shanked it almost ninety degrees
to the right. 20 ' As the plaintiff turned around, the defendant's ball struck
and injured his eye.20 2
The trial court found that the defendant's conduct was neither negligent nor reckless. 0 3 On appeal, the plaintiff argued that the court erred
in not finding the defendant negligent. 2 4 The Connecticut Supreme
Court found no error in the trial court's decision. 20 5 However, the court
noted that a cause of action would have existed if the trial court had
found the defendant negligent. 206 The court stated that "it is undisputed
that the duty to the plaintiff which rested upon the defendant while
playing this game was the usual one of reasonable care under the cir-
194. See Jaworski v. Kiernan, 241 Conn. 399, 400, 696 A.2d 332, 333 (1997). The
court did not focus on the issue of whether the defendant's conduct was reckless because the
trial court had determined that the defendant's conduct was negligent only and not reckless.
See id. Furthermore, the court did not discuss the issue of zero non-economic damages because the plaintiff withdrew her cross-appeal and because the court's holding made this issue
moot. See id. at 402 n.4, 696 A.2d at 334 n.4.
195. See id. at 403, 696 A.2d at 334.
196. 128 Conn.412, 23 A.2d 156 (1941).
197. See Jaworski,241 Conn. at 403, 696 A.2d at 334-35.
198. See id. at 403, 696 A.2d at 334.
199.
200.
201.
202.
203.
See Walsh, 128 Conn. at 412, 23 A.2d at 156.
205.
See id. at 413-14, 23 A.2d at 156.
Id.at 413, 23 A.2d at 156.
See id.
See Walsh, 128 Conn. at 414, 23 A.2d at 157.
See id.
See id. at 415, 23 A.2d at 157.
206.
See id. at 414, 23 A.2d at 157.
204.
1998]
JAWORSKI v. KIERNAN
cumstances. '2 °7
The Jaworski court dismissed the plaintiff's argument that Walsh
should control the court's resolution of this issue.0 8 The court factually
distinguished the soccer game in Jaworski from the golf match in
Walsh.2° Jaworski dealt with injuries sustained in a team contact
sport. 210 It noted that golf, however, is not a true team sport, nor is it a
game where contact is made between the participants .
The court also
found that the inherent expectations of a participant in an individual
game, such as golf, differ drastically from those in team contact sports,
such as soccer.2 2 The court, therefore, concluded that the negligence
standard endorsed by Walsh did not apply to a contact sport like soc213
cer.
Jaworski next contended that public policy required a negligence
rule. 214 She argued that the general public would not condone Kiernan's
behavior, for "society has an obligation not to tolerate behavior which is
unreasonable, especially when it involves the violation of [athletic]
safety rules. 2 5
Finally, Jaworski argued that it would be incorrect to apply a recklessness standard because that standard relied on the assumption of risk
doctrine, which has been abolished in Connecticut.1 6 Jaworski argued
that a recklessness standard is based upon assumption of risk principles,
or stated more specifically, "that plaintiffs have assumed the risk of
negligent conduct, but not of reckless or intentional conduct, by their
participation in the athletic contest... and therefore, the reckless con-
207.
208.
209.
210.
Walsh, 128 Conn. at 414, 23 A.2d at 157.
See Jaworski, 241 Conn. at 411, 696 A.2d at 338.
See id.
See id. at 411-12, 696 A.2d at 338-39.
211.
See id. at 412, 696 A.2d at 339.
213. See id. The court noted that it would decide the standard of care in a non-contact
team sport another day. See id. It is arguable that this will cause a flood of litigation in itself
due to the uncertainty of which standard of care is applicable to non-contact sports in Connecticut. It is, therefore, arguable that the -court should have affirmed Walsh in dicta because
although the majority of jurisdictions hold that recklessness is the standard for contact
sports, most states adhere to a negligence standard for injuries sustained in non-contact athletic events.
214. See id. at 404, 696 A.2d at 335.
216. See id. The court declined to address this argument, stating, "[I]n light of our conclusion that, as a matter of policy, the defendant owed the plaintiff a duty to refrain only
from reckless or intentional conduct, irrespective of any notions of assumption of risk, we
need not address this issue." Id. at 404 n.7, 696 A.2d at 335 n.7.
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duct standard is inappropriate.,
217
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Jaworski contended that assumption
of risk principles "are incompatible with Connecticut law, and... have
been replaced by General Statutes § 52-572h." '
Kiernan responded by summarizing case law from other jurisdictions," 9 a majority of which have adopted a reckless or intentional misconduct threshold for liability for injuries sustained in athletic contests."'
The defendant disagreed with the plaintiff's claim that
Connecticut General Statutes section 52-572h completely abolished the
doctrine of assumption of risk."' In addition, the defendant made two
public policy arguments that tend to support the conclusion reached by
the majority of other states.222 First, Kiernan argued that a recklessness
or intentional conduct standard would best promote "vigorous competition and participation., 223 Second, the defendant contended that if the
court applied a negligence standard to injuries sustained in recreational
sports, there would be a "flood of litigation. 224
The supreme court agreed with Kiernan.225 It reversed the superior
court's decision and held that the defendant had "a legal duty to refrain
Id. at 403-04, 696 A.2d at 335.
218. Jaworski, 241 Conn. at 403-04, 696 A.2d 335. Section 52-572h of the Connecticut
General Statutes provides in relevant part:
(b) In causes of action based on negligence, contributory negligence shall not bar
recovery in an action by any person or his legal representative to recover damages
resulting from personal injury, wrongful death or damage to property if the negligence was not greater than the combined negligence of the person or persons
against whom recovery is sought including settled or released persons under subsection (n) of this section. The economic or noneconomic [sic] damages allowed
shall be diminished in the proportion of the percentage of negligence attributable
to the person recovering which percentage shall be determined pursuant to subsection (f) of this section.
217.
(e) In any action to which this section is applicable, the instructions to the jury
given by the court shall include an explanation of the effect on awards and liabilities of the percentage of negligence found by the jury attributable to each party
(1) The legal doctrines of last clear chance and assumption of risk in actions to
which this section is applicable are abolished.
CONN. GEN. STAT. § 52-572h (1995).
220. See id; see also supra Part II.A.
222. See id. at 404, 696 A.2d at 335.
223.
Id.
224.
225.
Id.
JAWORSKI v. KIERNAN
1998]
[only] from reckless or intentional
226 conduct. Proof of mere negligence is
insufficient to create liability.
In reaching this decision, the supreme court started its analysis by
determining whether or not a duty existed between the defendant and the
plaintiff.227 The court defined a duty as a "legal conclusion about relationships between individuals, made after the fact, and imperative to a
negligence cause of action.... [A duty is] determined by the circumstances surrounding the individual., 22' The threshold question for the
court was whether the defendant foresaw the specific harm that the
plaintiff alleged. 9 Furthermore, the court recognized that a duty is "an
expression of the sum total of those considerations of policy which lead
the law to say that the plaintiff is entitled to protection."23 The court
decided that its next role in the inquiry was to "make a determination of
'the fundamental policy of the law, as to 23whether the defendant's responsibility should extend to such results."' 1
In deciding whether the defendant owed the plaintiff a duty, the supreme court in Jaworski asked whether a reasonable person in Kiernan's
position would have anticipated the specific injury that resulted from his
actions.232 The court found that although soccer is not a violent sport, it
still is a contact sport because players inevitably will make contact with
each other during the course of the game.233 The court, therefore, concluded that when a player makes contact with an opposing player while
challenging him or her for the ball or seeking to prevent him or her from
gaining possession of the ball, a resulting injury to either player is reasonably foreseeable. 234
After having determined that Kiernan should have foreseen Jaworski's injury, the court determined whether public policy supported imposing a legal duty on the defendant. 235 The court considered:
(1) the normal expectations of participants in the sport in which the plaintiff
226.
227.
228.
Id.
See id. at 405, 696 A.2d at 335.
229.
230.
Id. at 406, 696 A.2d at 336 (quoting KEETON ET AL., supra note 36, § 53, at 358)
Id. at 405, 696 A.2d at 336 (quoting 2 DANIEL C. POPE, CONNECTICUT ACTIONS
AND REMEDIES: TORT LAW § 25:05, at 25-27 (1993)).
(internal quotation marks omitted).
231. Id. (quoting KEETON ET AL., supra note 36, § 43, at 281).
232. See id.
233. See Jaworski, 241 Conn. at 406-07, 696 A.2d at 336.
234. See id. at 407, 696 A.2d at 336.
235.
See id.
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and the defendant were engaged; (2) the public policy of encouraging continued vigorous participation in recreational sporting activities while weighing the safety of the participants; (3). ..the avoidance
of increased litigation;
236
and (4) the decisions of other jurisdictions.
In determining the participants' expectations, the court found that
physical injuries and rule violations are an inevitable part of athletic
competitions in which the ultimate goal is to win.237 The court explained that the existence of "penalty boxes, foul shots, free kicks, and
yellow cards" in the sport of soccer is evidence that rule violations are
anticipated features of the game of soccer.238 The court found that participants' expectations include the possibility of injuries sustained as a
result of rule violations.!
The supreme court noted that the specific rule violation that occurred in this case was expected to occur during the normal course of
play. 240 The court reasoned that these violations are not always intentional acts, but can be the result of inadvertent actions that occur when
athletes play competitive sports enthusiastically. 24' The court found that
the expectation between the players was an important factor in determining the duty that Kiernan owed to Jaworski. 242 The court concluded
that the "normal expectations of participants in contact team sports
counsel the adoption of a reckless or intentional conduct duty of care
standard for those participants. 243
236. Id. at 407, 696 A.2d at 336-37.
238. Id. at 408, 696 A.2d at 337.
239. See id. at 407, 696 A.2d at 337. The league was well aware of the possibility of leg
injuries. See id. at 407 n.8, 696 A.2d at 336 n.8. The defendant demonstrated evidence that
the league contemplated probable leg injuries through the league's mandate that all participants wear shin guards and by its prohibition of metal spikes on the participants' shoes. See
Jaworski, 241 Conn. at 406-07, 696 A.2d at 336.
240. See id. at 408, 696 A.2d at 337. The court even cited the "challenge rule" itself,
which provides that "no male player may challenge a female player, however, he may 'post
up' if more than six feet away at the time of possession. In the event of an infraction, the
female player will be awarded a direct free kick (the exception is [the] goalie in the penalty
area)." Id. at 401 n.l, 696 A.2d at 333 n.l (quoting South Windsor Recreation Dept., Adult
Coed Soccer Program Rules and Regs. (1992)). The rule also provided that "[a]ny male
player who is called for challenging a female player twice during the course of a game may
be charged with unsportsmanlike conduct (at discretion of referee) and awarded a yellow
card." Id. at 401 n.1, 696 A.2d at 333 n.l (quoting South Windsor Recreation Dept., Adult
Coed Soccer Program Rules and Regs. (1992)).
242.
See id.
243. Id. Stated otherwise, the court concluded that because participants expect inadvertent rule violations leading to injuries, the violations are not actionable. See id. Rather,
1998]
JAWORSKI v. KIERNAN
Turning to the next policy consideration, the court also found that
the reckless or intentional conduct standard provided the proper balance
to satisfy the important public policy considerations that pertain to contact sports injuries. 2" In support of its decision, the supreme court cited
24 ' Nabozny established that "a
the seminal case of Nabozny v. Barnhill.
player is liable for injury in a tort action if his conduct is such that it is
either deliberate, willful or with reckless disregard
'246 for the safety of the
other player so as to cause injury to that player.
The Jaworski court also determined that the proper balance is best
accomplished by allowing a sports participant to maintain a cause of action against a co-participant only for reckless or intentional conduct that
causes injury, and not for merely negligent conduct. 247 In defense of its
position, the court noted that competitiveness and participation in recreational sports would decline if liability could result from negligent
acts. 4 8 The court concluded that the reckless or intentional conduct
only recklessly or intentionally caused injuries are actionable because participants neither
expect nor anticipate this type of behavior. See Jaworski, 241 Conn. at 408, 696 A.2d at
337.
244. See id.
245. 334 N.E.2d 258 (I11.App. 1975). The Jaworski court noted that Nabozny, to the
court's knowledge, was the first appellate decision to address the issue. See Jaworski, 241
Conn. at 408, 696 A.2d at 337.
In Nabozny, the plaintiff sustained injuries from another player in a soccer match
where the litigants were players on opposing teams. See Nabozny, 334 N.E.2d at 259. The
plaintiff played the position of goalkeeper. See id. During the course of play, the plaintiff
gained control of the ball and went down to his knee while pulling the ball to his chest. See
id. at 260. The defendant, however, continued to run towards the ball and kicked the plaintiff in the head, causing him serious injury. See id. The court allowed testimony to help determine the standard of care to apply to the defendant's conduct. See Nabozny, 334 N.E.2d
at 260. The court found that
[AIIl of the occurrence witnesses agreed that the defendant had time to avoid contact with plaintiff and that the plaintiff remained at all times within the 'penalty
area,' a rectangular area between the eighteenth yard line and goal. Four witnesses testified that they saw the plaintiff in a crouched position on his left knee
inside the penalty zone. Plaintiff testified that he actually had possession of the
ball when he was struck by the defendant. One witness... stated that plaintiff had
the ball when he was kicked. All other occurrence witnesses stated that they
thought plaintiff was in possession of the ball.
Id. Expert testimony introduced at trial showed that the rules of the game prohibited all
players from making contact with the goalkeeper when he has possession of the ball in the
goal area, and that the only legal contact that soccer permits is shoulder to shoulder contact
when two players are going for the ball within the playing area. See id.
246. Id. at 261.
248. See id.
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standard would not have this negative effect on recreational sports 2 4 9
The court also addressed the public policy goal of providing a stan2
dard of care that offered safety to participants in team contact sports. 50
The court found that a recklessness standard adequately protected participants by creating a cause of action for injured participants when an
individual's conduct was outside the scope of foreseeable conduct in the
game. 251 The court stated that "[w]e believe that the recklessness or intentional conduct standard of care will maintain civility and relative
safety in team sports without dampening the competitive spirit of the
participants .252
The Jaworski court noted that a negligence standard would also
undermine another public policy concern. 253 The court wanted to avoid
the increased litigation that it feared a negligence standard would create.254 This standard would produce a "flood of litigation" if "every
punter with whom contact is made, every midfielder high sticked, every
basketball player fouled, every batter struck by a pitch, and every
hockey player tripped" were allowed to state a cause of action. 2" The
court then factored in the risk for injury, accompanied by the number of
Connecticut athletic events that take place over the course of a year, and
determined that the potential for a "flood of litigation" would increase
when it becomes common knowledge that simple negligence, arising
from a rule violation, could create liability. 256
The court observed that the majority of jurisdictions addressing the
issue of liability for accidental injuries during contact sports have agreed
with Nabozny, choosing to adopt a recklessness standard.25" The supreme court cited Crawn v. Campo.258 In Crawn, liability turned upon
"the nature of a player's duty to avoid inflicting physical injury on another player., 259 In rejecting the plaintiff's argument that negligence was
the appropriate standard, the court reasoned that
[o]ne might well conclude that there is something terribly wrong with a soci-
249.
250.
251.
252.
253.
254.
255.
256.
257.
258.
259.
See id.
See id.
Id.
See id. at 409-10, 696 A.2d at 337-38.
See Jaworski,241 Conn. at 409-10, 696 A.2d at 337-38.
Id. at 409-10, 696 A.2d at 338.
Id. at 410, 696 A.2d at 338.
See id. at 410, 696 A.2d at 338.
643 A.2d 600 (N.J. 1994).
Id. at 601.
1998]
JAWORSKI v. KIERNAN
ety 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-andtumble of sports that should occur freely on the playing fields and should not
260
be second-guessed in courtrooms.
The Jaworski court agreed with this reasoning and declared that recklessness, not negligence, would be the standard for determining liability
for accidental injuries sustained in coed recreational contact sporting
events. 6 '
V. ANALYSIS OF THE SUPREME COURT OPINION IN
JA WORSKI V. KIERNAN
The supreme court in Jaworski opined that a recklessness or intentional misconduct standard, not a negligence standard, is the more suitable standard of care to use to determine liability for injuries sustained
in a recreational coed contact sport. 6 The recklessness standard, however, has several shortcomings that the court did not address. 6 1 This
section demonstrates that, under the facts of Jaworski, the recklessness
standard is improper for several reasons. 264 First, although a recklessness standard may achieve the court's policy goals of encouraging vigorous competition and participation and avoiding a flood of litigation, a
negligence standard would achieve the same goals without sacrificing
participants' safety.26 ' Because it promotes other policies above safety,
the recklessness standard will lead to more injuries than a negligence
standard.26 Second, the recklessness standard may lead to a decline in
participation in coed recreational sports, in addition to other negative
consequences.2676 Lastly, the standard is problematic when applied to
contact sports such as the one in Jaworski.26
260. Id. at 607.
262. See id. at 408-12, 696 A.2d at 337-39.
263. See infra Part V.A-C. One commentator stated that "[t]he use of recklessness as a
tort principle may be perfectly sensible in most societal situations. Its adoption as a standard
of behavior in most sports, however, brings to mind the proverbial attempt to fit a square peg
into a round hole." Lazaroff, supra note 68, at 213.
264. See infra Part V.A-C.
265.
266.
267.
268.
See infra Part
See infra Part
See infra Part
See infra Part
V.A.
V.A.
V.B.
V.C.
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A. The Negligence StandardServes the Same Goals as the Recklessness
Standard,but Promotes Safety as Well
A negligence standard would achieve the same goals as a recklessness standard without sacrificing participants' safety.26 9 Furthermore,
the court implied that these policy goals are equally important in all
contact sports, thereby ignoring the possibility that safety may be more
important in coed recreational settings. 70 In contrast to this reasoning,
some courts have promoted the safety of the game's participants, even if
the end result were a decline in vigorous participation.
In Lestina, the Wisconsin Supreme Court considered the argument
that a negligence standard would discourage participation and vigorous
competition.2 7 ' The court denied that this effect would occur, and
boasted that the negligence standard is more favorable because of its
flexibility.272 The court reasoned "that the negligence standard, properly
understood and applied, accomplishes the objectives sought by the
courts adopting the recklessness standard, objectives with which we
269. The justification of the negligence standard on the ground that it is "adequate" is
an interesting concept. Even in the state of Illinois, where the seminal case of Nabozny
arose, two Justices of the Illinois Supreme Court recently dissented in a case that upheld the
use of recklessness in this context. See Pfister v. Schusta, 657 N.E.2d 1013, 1019 (Ill. 1995)
(Miller, J., dissenting); id. at 1019-20 (Harrison, J., dissenting). They argued that a negligence standard adequately serves the needs and goals of sporting activities. In Pfister, Justice Harrison stated:
It is unnecessary to license negligence in order to foster vigorous and enthusiastic
participation in contact sports.... I am unpersuaded that adopting the standard of
ordinary negligence, as opposed to wilful or wanton misconduct, will have a
chilling effect upon participation in such sports. Negligence is no more a necessary part of vigorous play than is intentional misconduct, and injuries that occur as
a result of ordinary negligence are no more to be countenanced than are injuries
that occur as a result of either intentional or wilful and wanton misconduct. If
negligence were discountenanced rather than sanctioned in contact sports, one
might reasonably expect a decline in not only the number but also the severity of
injuries that happen during their play.
Id. at 1019-20.
270. See Jaworski v. Kiernan, 241 Conn. 399, 407, 696 A.2d 332, 336-37 (1997).
271.
See Lestina v. West Bend Mut. Ins. Co., 501 N.W.2d 28, 33 (Wis. 1993).
272. See id. The plaintiff in Jaworski also argued that the negligence standard would
provide more flexibility in determining liability. The court, however, gave short shrift to the
flexibility that a negligence standard would afford. See Jaworski, 241 Conn. at 408-09, 696
A.2d at 337. The court felt that the negligence standard would have a negative impact on
recreational sport. See id. at 409, 696 A.2d at 337. However, some courts and commentators
feel that a negligence standard, if correctly applied, would meet the same policy goals as a
recklessness standard.
1998]
JAWORSKI v. KIERNAN
agree. 273 The court believed that a negligence standard requires individuals to behave reasonably under the circumstances, and that behavior
in recreational team contact sports should not be an exception.274
The court stated that there was "no need ... to adopt a recklessness
standard for recreational team contact sports when the negligence standard.., is sufficient., 27 5 In the end, the Lestina
court found other pol•276
icy objectives such as safety to be more important.
The Jaworski court erred in placing equal weight on encouraging
vigorous competition and avoiding litigation on one hand, and protecting participants on the other. This balance, however, was noted by the
trial court. After balancing, the superior court found the policy goal of
safety to be more compelling.277 The court adopted a negligence standard on the premise that unreasonable conduct should not be allowed to
jeopardize the safety of the participants for the sake of slightly more
vigorous competition. 271 Vigorous participation may be acceptable as
the primary public policy goal in professional or recreational non-coed
contact sports. 21 9 In recreational sports that are non-contact or coed,
however, "the means employed to reach the goal should be tempered by
the countervailing concerns about condoning unreasonable and violent
behavior in sporting activities. ,,210
The supreme court emphasized the second policy goal that recovery
under a negligence standard would possibly produce excessive litiga-
273. Lestina, 501 N.W.2d at 33.
274.. See id.
275. Id.
276. See id.
278. See id.
279. See infra Part VI.
280. See Brief of the Plaintiff-Appellee, supra note 113, at 12. In accordance with the
court's observation, some critics have noted that violence in sports is one of society's increasing problems. See Ian M. Burnstein, Note, Liabilityfor Injuries Suffered in the Course
of RecreationalSports: Application of the Negligence Standard, 71 U. DET. MERCY L. REV.
993, 995 (1994); see also Ronald DiNicola & Scott Mendeloff, Controlling Violence in Professional and Amateur Sports: Rule Reform and the FederalProfessional Violence Commission, 21 DUQ. L. REV. 843 (1983); Cameron J. Rains, Note, Sports Violence: A Matter of Social Concern, 55 NOTRE DAME LAW. 796, 797 (1980) (describing sports violence as a
"matter of grave societal concern"). One commentator went as far as to say, "[firom kids'
sports to professional sports, sportsmanship, fair play and reasonable restraint are lost values.
Grotesque showmanship, unethical means to win, and reckless unconcern mar the landscape
of the sport. Sports participants don't need breathing room; they should rather have their
feet held to the liability fire." Yasser, supra note 35, at 271-72.
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282
tion. It is unlikely, however, that this would occur.
In 1941, the
Connecticut Supreme Court stated that sports participants would be liable for negligently injuring co-participants.
Since that time, Connecticut courts have not experienced the flood of litigation that supporters of a recklessness standard fear.2 8 In fact, there have only been two
reported
trial court cases involving this type of litigation in Connecti28 5
cut.
Other courts have also argued that a negligence standard will not
produce an unwarranted increase in lawsuits. 216 These courts have observed that "frivolous or inflated claims... [would be weeded out] by
defining and delineating... conduct which cannot and should not be the
basis for tort litigation. 287 Moreover, the mere prospect of an increase
in litigation
is not a sufficient reason to exclude otherwise legitimate
288
claims.
In addition, a recklessness standard is not likely to provide participants in contact recreational sports with adequate protection, and may
2s In Jaworski,
even lead to more injuries. 219
the South Windsor recreational soccer league enacted the "challenge rule," as well as other safety
precautions, to prevent injuries and to "reflect the co-ed nature of the
game. ,290 The rule was also designed to "eliminate whatever inherent
281. See Jaworski v. Kiernan, 241 Conn. 399, 409-10, 696 A.2d 332, 337-38 (1997).
282. See Brief of the Plaintiff-Appellee, supra note 113, at 15.
283. See Walsh v. Machlin, 128 Conn. 412, 23 A.2d 156 (1941).
285. See Cahill v. Carella, 43 Conn. Supp. 168, 648 A.2d 169 (1994); Babych v. McRae,
41 Conn. Supp. 280, 567 A.2d 1269 (1989).
286. See, e.g., Crawn v. Campo, 630 A.2d 368, 374 (N.J. Super. 1993).
287. Id. (citing Merenoff v. Merenoff, 388 A.2d 951, 961 (N.J. 1978)).
288. See, e.g., Bumstein, supra note 280, at 1021. This commentator noted:
Medical malpractice is an area of tort law predominately resolved by settlements.
Doctors are continually forced to settle cases due to the economic consequences
they would suffer if they elected to litigate the case. However, this system continues today despite the difficult position of doctors. If this system is permitted to
continue in medical practice, why should courts hold that it is improper in regard
to injuries sustained in recreational sports?
Id. at 1021 n.236.
289. The superior court in Jaworski clearly favored the public policy goal of providing
adequate safety to the participants by protecting them from players who were reckless and
disobeyed the safety rules of the game. See Jaworski v. Kiernan, No. CV 940464969S, 1996
WL 489038, at *2 (Conn. Super. Ct. Aug. 28, 1996), rev'd, 241 Conn. 399, 696 A.2d 332
(1997). The court even stated that it would accept the "chilling effect" that proponents of the
recklessness standard claim negligence has on recreational sports, as long as "the injection of
the element of care in the way the sport is played" is preserved. Id. at *3.
290. Brief of the Plaintiff-Appellee, supra note 113, at 10-11.
1998]
JAWORSKI v. KIERNAN
physical contact might arise in traditional soccer games."2' 91 The participants in the league were aware of the rule and why it was enacted.292 By
adopting a recklessness standard of conduct, the court not only allows
participants to disobey the precise rule that the league had set up for encouraging safety, but also in effect condones conduct that could cause
more injuries.293
B. Will Jaworski Lead to Less ParticipationIn Coed Sports?
Far from encouraging participation in coed sports, the court's decision in Jaworski could reduce female participation in coed activities. 294
Increased leisure time has led more and more people to participate in
sports and to participate more often.2 95 Furthermore, females, young and
296
old, are becoming more involved in sporting and athletic activities.
This trend, however, may be slowed or even reversed by the Jaworski
decision:
If players are not accountable for their negligent behavior on the field, then
casual, older, weaker or more vulnerable athletes will be driven away from a
healthy recreational activity by those who play carelessly or violate rules
intended to protect such players. The facts and
297circumstances of [Jaworski]
clearly illustrate how such an effect can occur.
Women like Jaworski participated in the South Windsor soccer league
under the assumption that the league rules would forbid male players to
291. Id.
292. See id. at 11. Furthermore, the defendant was aware prior to the injurious play that
he was challenging a female player. See id.
293. In reaching the conclusion that negligence is the appropriate standard, the trial
court in Jaworski noted that the players in the league possessed different backgrounds and
skills. See Jaworski, 1996 WL 489038, at *3. Other jurisdictions that follow a negligence
standard also look at the factual circumstances of the game in which the injury occurred. See
Miura, supra note 75, at 1019. Miura stated that "the Lestina court must have noted the
player's different background and skills." Id. It was apparent that the plaintiff in Lestina
was playing for casual enjoyment. See id. at 1014. The defendant, on the other hand, played
for the true competitive spirit. See id. In finding the defendant liable, the court "seemed to
punish him for playing in a league that was inappropriate for [the defendant]." Miura, supra
note 75, at 1019. Miura also observed that "the decision [in Lestina] signals that athletes
who participate in recreational team contact sports should play for recreational purposes....
Athletes who wish to play aggressively should perhaps form a more competitive league of
their own-possibly a league with fewer safety rules." Id.
295. See BAILEY & MATrHEWS, supra note 2, at 2.
296. See id. at 2-3.
297. See Brief of the Plaintiff-Appellee, supra note 113, at 10-19.
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make contact in dangerous situations.29 ' Allowing players to commit
negligent acts and violate safety rules will chill both coed competitiveness and coed participation, depriving participants of the casual fun and
299
enjoyment for which they joined the league in the first place."
C. The Recklessness Standard is Problematic
Lastly, holding only reckless injurers liable for contact sports injuries is troublesome for several reasons. 3°° Standard tort doctrine defines
a person's conduct as reckless if that person acts or fails to act while
having knowledge that would lead a reasonable person to realize that
such conduct creates an unreasonable risk of injury to another." 1 Yet
most contact sports inherently involve conduct that can inflict injury and
pain. 12 A recklessness standard, therefore, would seem to subject any
player to liability for conduct that is inherent in the game, which seems
unjust. 3 3 In their efforts to avoid imposing such obviously overextensive liability, courts applying a recklessness standard have reached
inconsistent and peculiar results.3 °
Jaworski exemplifies the inconsistency of a recklessness standard
when applied to contact sports. In Jaworski, the supreme court noted
that soccer was a contact sport. 35 The trial court established that Kiernan's conduct violated a safety rule,3° yet the jury found it was not the
298.
See id.
299. See id. at 14. Furthermore, the South Windsor Recreational Department's Rules
and Regulations explicitly contained language that encouraged participants to play for the
purpose of fun. See South Windsor Recreation Dept., Adult Coed Soccer Program Rules and
Regs. (1992). The Rules stated, "This is a co-ed soccer program, so it would be in your best
interest to maintain control of yourself at all times!! Let's face it we're all out here for some
exercise and FUN." Id.
300. See Lazaroff, supra note 68, at 213-14.
301. See RESTATEMENT (SECOND) OF TORTS § 500 (1965).
302. See Lazaroff, supra note 68, at 213-14. Although most contact sports have the
potential to cause injury, football and hockey are commonly cited as examples that
strengthen this argument against a reckless standard of conduct. See id. at 214.
303. See id. Case law suggests that courts are unlikely to extend liability for injurycausing conduct that is inherently part of the game. See id. Courts also fail to recognize that
a recklessness standard does not acknowledge these risks. See Lazaroff, supra note 68, at
214. As Professor Daniel E. Lazaroff notes, "[ilf players are permitted by the rules of the
game to pursue their goals with reckless abandon, how can they be held legally accountable
in a civil action for the inevitably injurious results of their unbounded enthusiasm?" Id.
304. See Bumstein, supra note 280, at 1013.
305. See Jaworski v. Kiernan, 241 Conn. 399, 406-07, 696 A.2d 332, 336 (1997).
JAWORSKI v. KIERNAN
1998]
type of conduct that would be considered reckless.30 7 Thus Connecticut,
like other jurisdictions that have adopted the reckless or intentional
standard of care, allows a participant in a sporting event to escape liability when his conduct is "part of the game," even though it violates
rules enacted precisely to ensure the safety of other participants.308
VI. PROPOSAL
Instead of the uniform recklessness standard that the Connecticut
Supreme Court applied to all contact sports, this Casenote proposes an
alternative approach. This approach varies the appropriate standard of
care in accordance with certain key features of the particular activity,
whether the activity is: 1) contact or non-contact; 2) coed or non-coed;
and 3) professional or recreational. Whether negligence or recklessness
is the better rule would depend upon which of the eight possible combinations of these variables best describes the activity in question. 309 The
chart in Appendix A describes these combinations and the proposed liability rule for each possible activity.1 After a general discussion of
each variable, this section will recommend a liability rule for each combination.
A. The Variables
1. Professionalversus Recreational
There are two obvious distinctions between professional and recreational sports that are relevant to the choice of liability rule."' First,
athletes who play a professional sport are expected to compete at the
"highest level" possible. This degree of competition increases the risk
that a professional athlete will incur an injury caused by the careless be307. See id. at * 1.
308. See, e.g., Knight v. Jewett, 834 P.2d 696, 710 (Cal. 1992); Hoke v. Culinan, 914
S.W.2d 335, 338-39 (Ky. 1995); Crawn v. Campo, 630 A.2d 368, 373 (N.J. Super. 1993);
Lestina v. West Bend Mut. Ins. Co., 501 N.W.2d 28, 31-33 (Wis. 1993) (Wilcox, J., dissenting). One commentator argued that a possible explanation of the majority's adoption of a
negligence standard in Lestina was that the court "believed that a recklessness standard
would not have allowed recovery from a recreational team contact sport participant who
caused injury by violating a safety rule." Miura, supra note 75, at 1016-17.
309. See infra Part VIII.
310. See infra Part VIII.
311. See Burnstein, supra note 280, at 1015.
QLR
[Vol. 18:307
havior of other participants.3"2 Second, professional athletes participate
in sporting events to make a living, and their contracts usually compensate them well for any injuries they may suffer in the course of the
game.3" 3 In contrast, a recreational athlete who sustains an injury during
the course of a game may not have financially anticipated such a loss.
The casual recreational athlete's expectations of the game and concerns
regarding the risk of injury involved differ drastically from those of the
full-time professional athlete. 14 It makes sense, therefore, that the duty
of care that one professional owes to another should be less than the
duty of care that participants in recreational sports owe each other.3 3
Courts have recognized the distinction between professional and
recreational sports and have held that recklessness is the appropriate
standard to determine liability for injuries sustained in professional
sports.36 One court stated that "a professional clearly understands the
usual incidents of competition resulting from carelessness, particularly
those which result from the customarily accepted method of playing the
sport, and accepts them. They are within the known, apparent and foreseeable dangers of the sport and not actionable.""3 ' A professional, even
in a non-contact sport, understands these "known, apparent and foreseeable dangers" and assumes the risk of injury caused by negligent behavior."
In sum, both the common law rules and the rationales behind them
support a recklessness standard for all professional sports, although the
case for a recklessness standard is stronger for contact than for noncontact professional sports, as will be discussed below. In contrast, recreational sports participants are not being compensated for additional
risks. The fact that their livelihood does not potentially depend upon
312. Furthermore, the professional athlete presumably has the ability to avoid injury by
others due to superior reflexes, anticipation, and conditioning.
314. See id.
315. See id. Put another way, professional athletes "understand and assume the risks
inherent in their respective sports." Id. When one professional athlete causes an injury to
another professional athlete, the injuring party is protected from liability under the "consent
defense." Bumstein, supra note 280, at 1015.
316. See, e.g., Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (10th Cir. 1979).
317.
Turcotte v. Fell, 502 N.E.2d 964, 970 (N.Y. 1986). Moreover, "a professional
athlete is more aware of the dangers of the activity, and presumably more willing to accept
them in exchange for salary, than is an amateur" or recreational athlete. Id. at 969.
318. Therefore, in this proposal, the professional status of the sport, not the degree of
contact involved (i.e., contact versus non-contact) determines the level of care in all combinations. See infra Part VI.B.1-3.
JAWORSKI v. KIERNAN
1998]
putting their utmost effort into every play indicates that a recklessness
standard is less appropriate. Whether recklessness or negligence is better when applied to recreational sports depends upon the other variables
mentioned in this proposal.
2. Contact versus Non-Contact
This distinction is important because the lack of contact in noncontact games increases expectations that participants will be safe from
physical contact that could cause injury. 31 9 Thus, a recklessness standard
will not provide participants in non-contact sports with the protection
they expect and deserve."2 A negligence standard, by contrast, will encourage individuals participating in non-contact sports to refrain
• 321 from
unreasonable behavior and play within the confines of the rules.
On
the other hand, participants in contact sports are generally not entitled to
expect freedom from careless physical contact. In some circumstances,
however, even those participating in contact sports should have a right
to expect reasonable conduct at all times. In such instances, the determining factor is whether the sport is coed or non-coed.
Case law suggests that contact sports should be governed by a different liability rule than non-contact sports. Most courts that have
adopted a recklessness standard for recreational contact sports have applied a higher duty of care (i.e., negligence) to co-participants engaging
in non-contact sports.122 When injuries occur in non-contact sports such
as golf3 23 and skiing, 32 most courts hold that a cause of action exists
when participants allege negligent conduct. 32 Only two jurisdictions,
Texas326 and Ohio,327 currently require recklessness before imposing liability for injuries in non-contact sports.3 28 Thus, courts have already
recognized the importance of the contact versus non-contact distinction.
320. See id.
321. However, a negligence standard should not be applied to non-contact professional
sports. See supra Part VI.A.1.
322.
323.
324.
325.
326.
1993).
327.
328.
See Burnstein, supra note 280, at 1016.
See, e.g., Duke's GMC, Inc. v. Erskine, 447 N.E.2d 1118 (Ind. Ct. App. 1983).
See, e.g., Novak v. Virene, 586 N.E.2d 578 (Ill. App. Ct. 1991).
See Miller, supra note 49, at 420.
See Hathaway v. Tascosa Country Club, Inc., 846 S.W.2d 614 (Tex. Ct. App.
See Thompson v. McNeill, 559 N.E.2d 705 (Ohio 1990).
Miller, supra note 49, at 418.
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[Vol. 18:307
3. Coed versus Non-Coed
The skill level, size, and strength of the participants in coed sports
usually differ greatly from the attributes of participants in non-coed
sports. In order to compensate for the disparity between male and female participants, and to encourage safety among the participants, most
leagues enact specific.rules or codes of conduct. If safety rules are established in order to encourage males and females to compete on the
same playing field, courts should not allow participants to violate such
rules with impunity. 32' The expectations of participants in coed sporting
events should determine the standard of care. Would-be participants
should not be discouraged from playing because a court condones behavior that is not tolerable in that sport.330 Whether a recklessness standard or negligence standard is appropriate, therefore, should depend in
part upon whether the sport is coed or non-coed.
B. The Application of the Variables
The three variables-professional versus recreational, contact versus non-contact, coed versus non-coed-yield eight different combinations. For any given activity, the configuration of variables indicates the
standard of care each participant in the activity owes to the others. Policy arguments will support either negligence or recklessness for each
possible activity type.
1. Professional,contact, non-coed
The first configuration represents a professional, contact, non-coed
sport, such as Major League Baseball or professional football. Under
this proposal, participants in this type of sport are held liable only if
their injury-causing conduct is reckless or intentional.
2. Professional,contact, coed
The next configuration, although not widely seen, is the professional, contact, coed sport. As in its non-coed professional counterpart,
a participant in a sport in this configuration would not be liable for negligently injuring a co-participant. The professional nature of the sport
329.
See Brief of the Plaintiff-Appellee, supra note 113, at 17.
330.
See supra Part V.B.
1998]
JAWORSKI v. KIERNAN
and the high levels of physical contact outweigh the safety considera"'
tions that a coed sport implicates.33
3. Professional,non-contact, coed or non-coed
Professional, non-contact sports, whether coed or non-coed, present
a closer choice between negligence and recklessness as the appropriate
standard of care. As discussed earlier, the non-contact status of the
game usually requires a negligence standard. Courts refuse, however, to
apply a negligence standard to injuries sustained in professional games.
This proposal supports a recklessness standard for these types of sports
because a professional athlete's expectation and ability, among other
things, vary from that of the recreational athlete. For example, participants in a non-contact game of tennis or volleyball, on a recreational
Partici
level, might expect reasonable behavior from co-participants .
pants in professional tennis or volleyball, however, are generally expected to win at all costs because they are being compensated for the
additional risk involved in putting forth their utmost effort.333 Although
negligent behavior is, of course, not encouraged in these sports, the professional nature of such sports makes a recklessness standard appropriate.
4. Recreational,contact, non-coed
A recreational, contact, non-coed sport, such as rugby, also presents a closer case. Most courts have rejected the notion that a negligence standard of care should determine liability for injuries sustained in
these types of sports.3 4 Although the intensity level in a recreational,
contact, non-coed sport does not rise to the level of its professional
counterpart, injury-causing physical contact does occur frequently.
331. As noted in this Casenote, there are strong public policy goals supporting a negligence standard for coed sports. However, those goals are outweighed by the professional
and contact distinctions within this type of sport.
332. A beginner in a game of tennis would expect his or her co-participant to play the
game exercising reasonable care at all times. The overall theme of the game would be for
casual enjoyment. The same behavior would also be expected from participants playing
backyard volleyball at a family picnic. In both of these situations the law should demand
that participants refrain from negligent acts.
333. See supra Part VI.A.1. Athletes competing at the professional level realize and
expect that careless behavior will occur during the course of the game. Therefore, liability
should only arise if a participant is injured by a reckless or intentional act.
334. See supra Part ll.A.2.
QLR
[Vol. 18:307
Furthermore, the non-coed nature of the game implies that the participants will be more similar to one another in size and skill than they are
335
in a coed game. Individuals participating in recreational, contact, noncoed sports, therefore, should reasonably expect some vigorous and potentially careless behavior that results in occasional injuries. Only
reckless or intentional injury-causing conduct should create liability.
5. Recreational,contact, coed (Jaworski)
As Jaworski indicates, skill level, size, and strength are factors that
shape how recreational games are set up and played.336 Participants in
recreational coed sports usually possess very different physical attributes
from each other. More importantly, these types of sports are usually designed for casual enjoyment at a relatively low intensity level. Participants in these games, therefore, should be required to behave reasonably. Sports participants who want to play at a higher intensity level
should join a non-coed league where physical attributes are relatively
equal, and the likelihood of physical injury is greater.
In addition to skill level, size, and strength, other factual variations
of the game itself (e.g., whether safety rules were involved) should be
considered by courts when determining the standard of care. Jaworski
raises the question whether the recklessness standard applies to all recreational sports.337 Jaworski is now the second case in the United States
to decide the standard of care for injuries sustained in a coed sport. The
other case is Knight v. Jewett.3 1 Jaworski and Knight both state that
recklessness is the appropriate standard of care to determine liability for
injuries sustained in a coed, recreational, sporting event.339 In Knight,
the Supreme Court of California held that recklessness was the appropriate standard of care to determine liability for an injury sustained in an
informal coed game of touch football. 34° The sport in Knight, however,
335. On the other hand, recreational coed leagues usually provide certain rules to level
the playing field between males and females due to the size and strength disparities. Although there are some non-coed leagues that contain comparable physical disparities, most
participants usually play sports tailored to their age group and skill level.
336. See Jaworski v. Kiernan, No. CV 940464969S, 1996 WL 489038, at *3 n.4 (Conn.
Super. Ct. Aug. 28, 1996), rev'd, 241 Conn. 399, 696 A.2d 332 (1997).
337. Id. at *3. The trial court recognized this distinction because it proposed a negligence standard, but only for coed, recreational sports. See id.
338.
339.
340.
834 P.2d 696 (Cal. 1992).
See Knight, 834 P.2d at 711.
See id.
19981
JAWORSKI v. KIERNAN
was unorganized and without safety rules."'
The Jaworski decision,
therefore, is distinguishable from Knight because the injury in Jaworski
occurred in violation of a safety rule. 2 Perhaps the factual variations of
Jaworski and Knight represent the need for courts to apply different
standards of care depending upon the context of the game and the players involved.
6 Recreational, non-contact, coed or non-coed
This proposal also supports the application of a negligence standard
for recreational, non-contact sports such as tennis and volleyball,
whether coed or non-coed. Due to the casual nature of recreational
sports and the lack of contact expected in these types of sports, participants should be liable for negligently injuring co-participants because
reasonable behavior is demanded.
VII. CONCLUSION
In Jaworski v. Kiernan, the Connecticut Supreme Court held that a
recklessness or intentional misconduct standard, not a negligence standard, should be used to determine liability for injuries sustained in a
sporting event.3 43 Jaworski is important because it establishes that
recklessness is the appropriate standard for all sporting events, even
coed recreational sporting contests. Instead of adopting a standard of
care that takes into account the different types of sports and players involved, the court found that a recklessness standard should apply universally to all sporting injuries in Connecticut, regardless of the context
of the particular sport in which the injury occurred. As discussed earlier
in this Casenote, strong policy reasons support the application of a
recklessness standard to all professional sports, as well as to recreational, non-coed, contact sports. The rationale and policy reasons for
the recklessness standard, however, are diminished in the context of recreational sports that are coed, non-contact, and/or both.
341. See id. at 697. Courts have been reluctant to impose liability under a negligence
standard for these backyard types of games that are played without rules and regulations.
See, e.g., Kabella v. Bouschelle, 672 P.2d 290 (N.M. Ct. App. 1983).
342. See supra text accompanying notes 181-84. The proposal suggested in this
Casenote only provides a framework for determining liability. Other factors, such as
whether a participant causes an injury by a violation of a safety rule or whether the sport was
organized or unorganized, should also be relevant in determining liability.
343. See Jaworski v. Kiernan, 241 Conn. 399, 412, 696 A.2d 332, 339 (1997).
348
Q LR
[Vol. 18:307
In effect, the court failed to consider an alternative proposal, such
as the one suggested in Part VI of this Casenote, that would impose a
different standard of care based on the aspects of the activity at issue. A
rule holding participants liable even for negligently inflicted injuries
would have been fairer and more efficient as applied to the facts of Jaworski. Specifically, the negligence rule is better because participants in
a casual, coed, recreational sporting event expect reasonable behavior.
The rule also allows courts to determine liability based upon the type of
sport, the players involved, and the physical nature of the game. Overall, this rule will encourage players to act reasonably while maintaining
the competitive spirit and active participation that all sports deserve.
Mark M. Rembish
19981
JAWORSKI v. KIERNAN
VIII. APPENDIX A
FIGURE 1.
PROFESSIONAL
RECREATIONAL
NON-COED
COED
NON-COED
COED
C
Recklessness:
Professional,
contact, non-
Recklessness:
Professional,
contact, coed
Recklessness:
Recreational,
contact, non-
Negligence:
Recreational,
contact, coed
N
coed sport
(e.g., NFL
football)
sport
coed sport,
(e.g., Recreational Men's
Rugby
Leagues)
sport (e.g.,
Recreational
Coed Soccer
Leagues
(Jaworski))
Recklessness:
Professional,
non-contact,
coed sport
Recklessness:
Professional,
non-contact,
coed sport
Negligence:
Recreational,
non-contact,
non-coed
Negligence:
Recreational,
non-contact,
coed sport
(e.g., Professional Tennis)
(e.g., Professional Mixed
Doubles Tennis)
sport (e.g.,
Recreational
Tennis)
(e.g., Recreational
Mixed Doubles Tennis)
T
A
C
T
N
0
N
"
C
0
N
T
A
C
T

Liability for Personal Injuries Sustained in Sporting Events after

Transcription

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