Opinion
No. CV 02-0815482
December 24, 2003
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ( #110)
On March 28, 2002, the plaintiff, Elizabeth Lomansky, filed a single-count complaint sounding in negligence against the defendant, Stacey Gersten. The plaintiff alleges that while the parties were participating in an advanced jazz dance class, the defendant negligently and carelessly performed a leg kick, striking the plaintiff in the face causing her to suffer, among other injuries, a fractured nose, a lacerated nasal bridge and an obstructed nasal septal deviation. On June 28, 2002, the defendant filed an answer and a special defense. In her special defense, the defendant alleges that the plaintiff's own conduct was negligent.
On January 23, 2003, the defendant filed a motion for summary judgment on the ground that there is no genuine issue of material fact in dispute and she is entitled to judgment as a matter of law on the plaintiff's negligence claim because she owed the plaintiff no duty of care in light of the holding in Jaworski v. Kiernan, 241 Conn. 399, 696 A.2d 332 (1997). The defendant also filed a memorandum of law and affidavits in support of her motion. On June 24, 2003, the plaintiff filed a memorandum of law in opposition to the defendant's motion for summary judgment and a counter affidavit. The defendant thereafter filed a reply.
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Webster Bank v. Oakley, 265 Conn. 539, 545, 830 A.2d 139 (2003).
The defendant argues that the plaintiff's negligence claim is barred by the holding in Jaworski v. Kiernan, supra, 241 Conn. 399, in which the Connecticut Supreme Court adopted an intentional or reckless standard of care for participants in team contact sports. The defendant contends that the Jaworski holding extends to participants in advanced jazz dance classes. Thus, because jazz dancers owe a duty to refrain only from reckless or intentional conduct toward other participants, the defendant maintains that summary judgment should be granted. Arguing that dance is not a contact sport, the plaintiff relying on Walsh v. Machlin, 128 Conn. 412, 23 A.2d 156 (1941), asserts that negligence is the appropriate standard of care, and, therefore, the defendant's motion for summary judgment should be denied.
In Walsh v. Machlin, supra, 128 Conn. 412-14, the plaintiff, who sought recovery for personal injuries caused by the defendant's alleged negligence in hitting a golf ball without warning, appealed the trial court's judgment in favor of the defendant. The Supreme Court noted that "[t]he [trial] court concluded that the defendant did not act unreasonably, recklessly, or negligently in attempting to play the ball from where it lay, and that the injury received by the plaintiff was the result of an accident involving no negligence . . ." Id., 414. In affirming the trial court's decision, the court held: "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 circumstances . . . [I]t is clear that upon the . . . facts [of this case] the trial court was warranted in concluding that the plaintiff's injury was not caused by the defendant's negligence." Id.
In Jaworski v. Kiernan, supra, 241 Conn. 400-01, the plaintiff was injured during the course of an adult coed soccer game when she made contact with the defendant, a participant on the opposing team. In her complaint, the plaintiff alleged that the defendant's negligent and reckless conduct caused her injuries. Id., 401. The jury returned a verdict for the plaintiff on the negligence claim. Id. Posttrial motions were filed and a new trial was ordered on the negligence claim because the defendant failed to file an additur. Id., 402. The defendant subsequently appealed the trial court's judgment. Id. On appeal, the court considered what standard of care should be imposed on participants in team contact sports. Id., 400. The court held that "as a matter of policy, it is 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." Id., 412.
In Jaworski, the court specifically noted that its holding was not inconsistent with its holding in Walsh v. Machlin, supra, 128 Conn. 412. "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." Jaworski v. Kiernan, supra, 241 Conn. 412.
In Ford v. Hamden, Superior Court, judicial district of New Haven, Docket No. CV 96 0387793 (December 11, 1997, O'Keefe, J.) ( 21 Conn. L. Rptr. 145), the plaintiff brought a negligence action seeking damages for injuries he allegedly sustained while participating in a game of "catch" with the defendant. The defendant, in moving for summary judgment, relied on Jaworski to support his claim that, as a matter of law, he did not owe a duty of care to the plaintiff. Id. In denying the defendant's motion for summary judgment, Judge O'Keefe held that the game of catch "was not a team contact sport; the defendant was not a participant in any type of organized contest." Id. The policy that led to the conclusion in Jaworski does not form the basis for summary judgment in this case.
This court is willing to assume, without deciding, that dance is a "sport." However, the court finds this case to be analogous to Walsh and Ford. Although the defendant argues in her reply memorandum that "[b]oth the national trend and the trend in Connecticut based on the Supreme Court's rationale in Jaworski would seem to extend the doctrine of recklessness set forth in Jaworski to either non-contact or non-team situations," she fails to support this assertion with any Connecticut case law. Additionally, the defendant notes that Walsh was decided in 1941 and asserts that its "viability . . . is tenuous at best." Walsh remains, however, good law. "It is axiomatic that a trial court is bound by Supreme Court precedent." Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 195, 676 A.2d 831 (1996).
The court notes that the parties characterize dance as a sport.
Based on the foregoing, the defendant's motion for summary judgment is denied.
BY THE COURT, KEVIN E. BOOTH, JUDGE.