Robert F. Bouw, Plaintiff-Respondent, v. Cuddy Mutual Insurance. Company and Leopold Jerger, Defendants-Appellants

Transcription

1 Robert F. Bouw, Plaintiff-Respondent, v. Cuddy Mutual Insurance Company and Leopold Jerger, Defendants-Appellants PRT 508 Case #2 June 9, 2014 Sherard Clinkscales 1.) SUMMARY The alleged incident took place on April 20, 1988, during a recreational soccer game sponsored by the Waukesha County Old Timers League. The plaintiff, (45 years old) Robert F. Bouw, was playing an offensive position for his team and doing quite well. Subsequent to scoring his first goal, he was on the attack to score his second goal when the defendant, (57 years of age) Leopold Jerger was defending his team s goal, as the goal- keeper. In order to stop Mr. Bouw s advancement, Mr.... Jerger ran out of the goal area and collided with the plaintiff. The plaintiff asserted that defendant attempted to slide tackled him in order to prevent him from scoring. Although slide tackles are allowed under some soccer rules, this league prohibits the use of this technique in order to minimize risk of injury. The defendant claimed that the collision occurred as he and the plaintiff simultaneously attempted to kick the soccer ball. As a result of this incident Mr. Bouw, the plaintiff filed a personal tort action against the defendant, Leopold Jerger, and the Jerger s homeowner s insurer, Cuddy Mutual Insurance Company. The parties agreed that the standard of care was negligence, but after a judgment for the offensive player was entered, the goalie and his insurance sought review. On appeal, the

2 court found that the actions for sports-related injuries would be analyzed under three theories: 1) intentional torts. 2) Willful or reckless misconduct, and 3) negligence. The court determined that players were liable for intentional torts during a recreational team contact sport. The court declined to adopt a recklessness standard to analyze the liability of players. The court determined that negligence standard was appropriate because it required a person to exercise ordinary care under the circumstances. The plaintiff suffered major injuries to his left knee and leg in the collision that started this action, alleging that the defendant s conduct was less than professional. The defendant moved for a summary of judgment on the negligence issue, asserting that the plaintiff s allegations of negligence were insufficient as a matter of law to state cause of action for injuries sustained during a recreational team contact sports competition. The precedence set for this case comes from the Ceplina v. South Milwaukee School Board, 73 NY.2d 338,243 N.W.2d 183(19883) Thus the parties agreed to limit the trial to negligence, and to reserve the right to appeal, regarding the merits of the negligence standard. The parties also agreed on what damages may be may be rewarded to the plaintiff on the basis of the jury s determination of the defendant s negligence. The jury was unanimous in finding the defendant casually negligent. The defendant filed motions regarding whether negligence was the appropriate legal standard. The circuit court denied post verdict motions and entered judgment in favor of the plaintiff. The defendant appealed one issue to the court of appeals, to determine whether negligence was the appropriate standard in the case. The court of appeals certified the cause to this court.

3 2.) ASSUMPTIONS - That both parties knew the rules of the league This would prove that both knew the rules and possible repercussions. - That soccer is inherently dangerous and physical contact is a part of the game They both understood that by playing, incidents such as this may happen. This would help justify the negligence standard. - That the officials on the field agreed that the technique in question was sliding tackle In the trial this would be expert testimony in that it was determined to be a sliding tackle and not up for discussion. 3.) PLANTIFFS COMPLAINT The plaintiff is Robert F. Bouw a 45 year old weekend warrior who enjoys playing in an adult soccer recreation league. He is filing a personal injury tort action against Leopold Jerger, the defendant, and his insurer, Cuddy Mutual Insurance Company. Mr. Bouw was competing in a soccer league called the Waukesha County Old Timers League, a recreational league for players over the age of 30. Mr. Bouw was injured in a collision by the defendant caused by the defendant s attempt to stop him from scoring for a second time by slide tackling him. This technique is not allowed by the recreational league. The plaintiff agreed to limit the trial to the issue of negligence, as well as agreed to the amount in damages, in the event the case is ruled in favor of the plaintiff. No specifics of the amount were given.

4 4.) REMEDIES In this case I don t believe any remedies are necessary, other than the agreed upon damages. There is discussion to change the complaint to recklessness standard as opposed to standard negligence. The idea behind it is to ascertain a more specific complaint that is congruent with this sort of behavior in recreational sports. To prescribe the negligence standard does not get to the heart of the act. There is malicious aspect of competiveness that goes beyond what is standard and customary. 5.) AREAS OF LAW This case definitely comes under negligence. However there is an argument that the recklessness standard may be be used, which makes sense in the competitive environment of recreation sports. I believe everyone means good, but sometimes competitive circumstances elevate the need to use the reckless standard in certain cases. For example the case study mentions Nabozny v. Barnhill. App. 3d 212, 334 N.E.2d 258,261 (1975), which is the lead case establishing that a player is liable for injury in a tort action if his conduct is such that it is deliberate, willful or with reckless disregard for the safety of the player so as to cause injury to that player 6.) Judgment I would find in favor of the plaintiff, under the standard of negligence. However as I mentioned earlier, the Nabozony v.barnhill, case sets a strong precedent as to how competitive the nature of recreation sports has become. Hence, in the Bouw vs. Cuddy Mutual Insurance Company and Leopold, the reckless disregard exhibited by

5 the defendant, elevates it to a case of recklessness standard. 7.) Management Action I would have each of the participants sign waivers that list the rules and consequences. This would be an administrative burden, but should have minimal budget impact. Put a policy in place where if rules are not followed the person/s will be removed from the league and prohibited from playing the remainder the year. They would need to petition to commissioner to reinstated. This would make a huge impact on the participation numbers, thus the income would be affected, as many weekend warriors want to relive their glory days and would see this as impediment. Thus they would go elsewhere to compete. References: Ceplina v. South Milwaukee School Board, 73 NY.2d 338,243 N.W.2d 183(19883) Nabozny v. Barnhill. App. 3d 212, 334 N.E.2d 258,261 (1975),