CALLAHAN, C. J.
The sole issue in this appeal is what duty of care the defendant, Harry Kiernan, owed the plaintiff, Cynthia A. Jaworski, while both were participating on opposing teams in an adult coed soccer game sponsored by the recreation department of the town of South Windsor. We conclude that the defendant owed the plaintiff a duty of care to refrain from reckless or intentional conduct. Because the jury determined that the defendant's conduct, which caused the plaintiffs injuries, was negligent only, and not reckless or intentional, we reverse the judgment of the trial court.
The jury reasonably could have found the following facts. The South Windsor recreation department sponsors an outdoor adult coed soccer league. On May 16, 1993, during a game, the defendant made contact with the plaintiff while she was shielding the soccer ball from the opposition so that the goalie on her team could retrieve the ball. As a result of this incident, the plaintiff suffered an injury to her left anterior cruciate ligament, which caused a 15 percent permanent partial disability of her left knee.
The plaintiff brought this action against the defendant in two counts. In the first count, she alleged that the defendant failed to exercise due care and that his conduct was negligent and careless in that he "hit" and
Both parties filed posttrial motions with respect to the verdict. The defendant moved to set aside the verdict
The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).
The defendant, on the other hand, summarizes cases from foreign jurisdictions, the vast majority of which has adopted an intentional or reckless conduct standard of care for athletic contests. He also presents two public policy arguments, which he contends support that conclusion: (1) promoting vigorous competition and participation; and (2) avoiding a flood of litigation. Finally, the defendant challenges the plaintiffs contention that the theory of assumption of risk was completely abolished by the enactment of § 52-572h.
We first note that the determination of whether a duty exists between individuals is a question of law. Petriello v. Kalman, 215 Conn. 377, 382, 576 A.2d 474 (1990); Shore v. Stonington, 187 Conn. 147, 151, 444 A.2d 1379
"Duty is a `legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual.' 2 D. Pope, Connecticut Actions and Remedies, Tort Law (1993) § 25:05, p. 25-7. Although it has been said that `no universal test for [duty] ever has been formulated'; W. Prosser & W. Keeton, [Torts (5th Ed. 1984)] § 53, p. 358; our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. `The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised.... By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?'... Frankovitch v. Burton, 185 Conn. 14, 20-21, 440 A.2d 254 (1981); Noebel v. Housing Authority, 146 Conn. 197, 200-201, 148 A.2d 766 (1959); Orlo
"A simple conclusion that the harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally `foreseeable,' yet for pragmatic reasons, no recovery is allowed. See, e.g., Maloney v. Conroy, 208 Conn. 392, 400-401, 545 A.2d 1059 (1988) (looking beyond foreseeability, this court imposed limitations on the right of a bystander to recover for emotional distress that allegedly resulted from medical malpractice of doctors in their treatment of the plaintiff's ... mother). A further inquiry must be made, for we recognize `that "duty" is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.' W. Prosser & W. Keeton, supra, § 53, p. 358. `While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree.' ... Maloney v. Conroy, supra, 401-402. The final step in the duty inquiry, then, is to make a determination of `the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results.' W. Prosser & W. Keeton, supra, § 43, p. 281." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 385-86, 650 A.2d 153 (1994).
Our first step in an analysis of whether a duty exists and the extent of the defendant's duty, therefore, is to determine the foreseeability of the plaintiffs injury, i.e., whether a reasonable person in the defendant's position, knowing what he knew or should have known, would have anticipated the harm that resulted from his actions. Soccer, while not as violent a sport as football,
Having concluded that the plaintiff's injury was a foreseeable consequence of the defendant's actions, we need to determine as a matter of policy the extent of the legal duty to be imposed upon the defendant. In order to determine the extent of the defendant's responsibility, we consider: (1) the normal expectations of participants in the sport in which the plaintiff 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; and (4) the decisions of other jurisdictions. See, e.g., Maloney v. Conroy, supra, 208 Conn. 400-401 (looking beyond foreseeability to other pragmatic concerns to limit liability).
In athletic competitions, the object obviously is to win. In games, particularly those played by teams and involving some degree of physical contact, it is reasonable to assume that the competitive spirit of the participants will result in some rules violations and injuries.
A proper balance of the relevant public policy considerations surrounding sports injuries arising from team contact sports also supports limiting the defendant's responsibility for injuries to other participants to injuries resulting from reckless or intentional conduct. The Appellate Court of Illinois in Nabozny v. Barnhill, 31 Ill.App.3d 212, 334 N.E.2d 258 (1975),
We too appreciate the tension between promoting vigorous athletic competition on the one hand and protecting those who participate on the other. As have most jurisdictions, we conclude that this balance is best achieved by allowing a participant in an athletic contest to maintain an action against a coparticipant only for reckless or intentional conduct and not for merely negligent conduct. We believe that participants in recreational sports will not alter their enthusiasm for competition or their participation in recreational activities for fear of liability for injuring someone because of their reckless or intentional conduct. We are convinced, however, that liability for simple negligence would have an opposite effect. We also are convinced that a recklessness standard will sufficiently protect participants in athletic contests by affording them a right of action against those who cause injuries not inherent in the particular game in which the participants are engaged. In other words, we believe that the reckless or intentional conduct standard of care will maintain civility and relative safety in team sports without dampening the competitive spirit of the participants.
A final public policy concern that influences our decision is our desire to stem the possible flood of litigation that might result from adopting simple negligence as the standard of care to be utilized in athletic contests. If simple negligence were adopted as the standard of care, every punter with whom contact is made, every midfielder high sticked, every basketball player fouled,
The majority of jurisdictions addressing this issue has chosen to adopt either a reckless or an intentional conduct standard of care when determining liability for injuries that occur during an athletic contest. Nabozny v. Barnhill, supra, 31 Ill.App.3d 212, also involved an injury received during a soccer game. The plaintiff was a goalie on one team and had fielded the ball within the penalty area surrounding his goal. The ball had been passed to the plaintiff by a teammate who was closely pursued by the defendant, an opponent. The defendant did not turn away after the plaintiff had fielded the ball, but continued to run toward him and subsequently kicked the plaintiff, causing injury. The court concluded that "a player is liable for injury in a tort action if his conduct is such that it is either deliberate, wilful or with a reckless disregard for the safety of the other player so as to cause injury to that player, the same being a question of fact to be decided by a jury." Id., 215.
Finally, we address the plaintiff's contention that in Walsh v. Machlin, supra, 128 Conn. 412, we imposed the negligence standard as the appropriate standard to be used for injuries occurring during athletic contests. Walsh is, however, distinguishable.
In Walsh, both the plaintiffs and the defendant's golf balls were roughly one hundred feet from the green. "Standing by the defendant's ball, the plaintiff and [the]
Our conclusion herein does not conflict with Walsh because, initially, we decide the standard to be applied to only those injuries occurring during team athletic contests involving contact as part of the game. Golf, generally, is neither a team sport in the true sense nor a sport where contact with other participants is a part of the game. Further, the normal expectations of participants in a golf match are far different from those inherent in soccer, and therefore a different standard of care may be appropriate. We, therefore, leave the question of what standard of care might be applicable in other factual circumstances for another day.
Applying the foregoing considerations to the facts before us, we conclude that, as a matter of policy, it is appropriate to adopt a standard of care imposing on the defendant, a participant in a team contact sport, a legal duty to refrain from reckless or intentional conduct. Proof of mere negligence is insufficient to create liability.
The judgment is reversed in part and the case is remanded with direction to strike the first count of the plaintiff's complaint.
In this opinion the other justices concurred.
"Any 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." South Windsor Recreation Dept., Adult Coed Soccer Program Rules and Regs. (1992).
"(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 to be attributable to each party....
"(l) The legal doctrines of last clear chance and assumption of risk in actions to which this section is applicable are abolished...."