By: Rob Harris
New Jersey, as many states, distinguishes at law between negligence and reckless behavior. As to this standard, “recklessness, unlike negligence, requires a conscious choice of a course of action, with knowledge or a reason to know that it will create serious danger to others.”
So, what happens when a boy, swinging a golf club at a driving range, whacks his friend with the club on the follow through?
The court set the stage as follows:
“On August 21, 2012, O’Neill struck Spataro in the face with a golf club while demonstrating how to hit a golf ball at the Eagleswood Driving Range. Both young men were occupying the same stall when this occurred. Neither Spataro nor O’Neill were experienced golfers. In fact, this was the first time that Spataro had been to a golf range or swung a golf club. O’Neill had been to a driving range on approximately two occasions before the accident.
“Spataro and O’Neill arrived at Eagleswood Driving Range with friends around 9:30 p.m. The driving range has over thirty stalls, each partitioned by a short wall. There is a painted yellow line on the floor of the stalls, indicating the entrance. Multiple signs are posted in the vicinity of the stalls that noted, ‘All persons using the facility do so at their own risk.’ Each individual stall also had posted signs that specified the ‘Driving Range Rules.’ The first rule stated, ‘Only one person allowed per tee area.’ The fifth rule indicated, ‘When walking into the area, keep a safe distance from occupied tees.’ None of the group of friends had a recollection of reading the posted signs. After obtaining golf balls and clubs, Spataro, O’Neill, and their friends occupied separate stalls.
“Spataro requested that O’Neill demonstrate for him how to properly hit a golf ball. Upon entering Spataro’s stall, O’Neill stated, ‘All right, get back,’ and set up a golf ball on the tee. O’Neill testified that he thought Spataro had moved out of the tee stall area ‘outside of the two-foot-wide yellow line.’ However, O’Neill never confirmed this by actual observation. After O’Neill demonstrated to Spataro how to position his feet, how to hold the club, and how to keep his arms straight, he swung the golf club. During the follow-through, the club struck Spataro in the face resulting in significant multiple facial injuries including permanent vision impairment and scarring.”
On these facts, the trial court determined that the club swinger’s actions, at most, constituted negligence, requiring that the case against him be dismissed.
The appellate court disagreed, however. According to the appellate court, ” the judge erroneously usurped the role of the factfinder by making findings of fact and liability in matters in dispute between the parties. A ‘judge’s function is not himself [or herself] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'”:
“Here, in the employment of our de novo standard of review, we are satisfied there exists a material fact in dispute concerning whether O’Neill made appropriate observations prior to swinging the golf club consonant with the attendant risk of significant injury to a bystander. As such, a jury should decide whether O’Neill’s swinging the club, without certainty as to Spataro’s location, was in reckless disregard of that risk.”