FANTINI v. ALEXANDER
172 N.J. Super. 105 (1980)
410 A.2d 1190
THOMAS FANTINI, PLAINTIFF-APPELLANT, v. GARY ALEXANDER, DEFENDANT-RESPONDENT.
Superior Court of New Jersey, Appellate Division.
Decided January 25, 1980.
Eugene M. Purcell argued the cause for appellant ( Purcell, Ries & Shannon, attorneys; William P. Ries, on the brief).
Michael T. Cooney argued the cause for respondent ( Hueston, Hueston & Sheehan, attorneys; Michael T. Cooney, on the brief).
Before Judges FRITZ, KOLE and LANE.
Plaintiff, a college student, instituted suit to recover damages for personal injuries he received while participating in the activities of a karate club of which defendant was the instructor in charge. The injury was received when plaintiff, who had
The allegation of negligence was:
The applicable rule for measuring defendant's conduct is set forth in Restatement, Torts 2d, § 299A at 73 (1965):
In In re Suspension of Heller, 73 N.J. 292, 308 309 (1977), the rule was held applicable to a pharmacist. In Milliken v. Woodward, 64 N.J.L. 444, 448 (Sup.Ct. 1900), such rule was held applicable to fire insurance brokers. Certainly it is applicable to the conduct of those teaching karate.
In Sanzari v. Rosenfeld, 34 N.J. 128 (1961), the court discussed the requirement of establishing an applicable standard of conduct in cases where a jury is not competent to supply the standard by which to measure a defendant's conduct, as here.
Plaintiff called Ronald J. Gaeta, who owned and taught in a karate school, as an expert witness. It is admitted that Gaeta was well qualified and accomplished in the field of karate. After an examination out of the presence of the jury, the trial judge examined a report Gaeta had submitted to plaintiff's attorney and then ruled that Gaeta had not established any generally accepted standard in this type of situation. He based his ruling on Fernandez v. Baruch, 52 N.J. 127 (1968), and Sesselman v. Muhlenberg Hospital, 124 N.J.Super. 285 (App.Div. 1973).
The determination of an expert's competency to testify and of the sufficiency, as distinguished from the weight of the testimony, is primarily for the discretion of the trial judge. An appellate court, however, will interfere where there has been a clear abuse of discretion. Sanzari v. Rosenfeld, supra, 34 N.J. at 136; Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 411 (1960). We find that there was a clear abuse of discretion in the holding of the trial judge, induced probably by the judge's consideration of the report submitted by Gaeta to plaintiff's attorney. Gaeta's testimony makes clear that in his opinion there was a generally recognized standard in the profession of karate instruction of when a student should be permitted to
Shortly after that testimony Gaeta testified on redirect examination:
A standard does not mean a principle which every practitioner in the applicable profession will follow. It is a generally recognized standard. There are always going to be persons in every profession who do not follow what the vast majority of practitioners recognize as proper conduct. Although it may be that Gaeta's testimony was weak, it was sufficient to constitute
It is apparent from reading the transcript of Gaeta's testimony that he had some difficulty in distinguishing between the way in which he operated his school and the generally recognized standard. What he himself did would not be establishing the generally recognized standard and should not be offered to the jury. In re Hyett, 61 N.J. 518, 531 (1972). Upon the retrial, that problem can be adequately controlled by the trial judge.
The weight to be given to Gaeta's testimony is not for the trial judge but rather for the jury. Polyard v. Terry, 160 N.J.Super. 497, 511 (App.Div. 1978), aff'd o.b. 79 N.J. 547 (1979); Sanzari v. Rosenfeld, supra, 34 N.J. at 138.
Under the allegation of negligence asserted above, cases such as Jackson v. Hankinson, 51 N.J. 230 (1968), and Titus v. Lindberg, 49 N.J. 66 (1967), are not applicable. It is apparent, however, from the argument on the motion to dismiss, which was granted because plaintiff had failed to adduce testimony from an expert witness establishing a generally recognized standard of care from which defendant departed, that plaintiff wished to contend that there were other bases to support negligence which did not involve the conduct of defendant as a professional. Since plaintiff should have a proper opportunity to prepare his case, on remand a pretrial conference will be held well in advance of the retrial.
The judgment of dismissal is reversed. The matter is remanded to be proceeded with in accordance with this opinion. We do not retain jurisdiction.
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