Thompson v. McNeill

559 N.E.2d 705, 53 Ohio St. 3d 102, 1990 Ohio LEXIS 341
CourtOhio Supreme Court
DecidedAugust 15, 1990
DocketNo. 89-696
StatusPublished
Cited by312 cases

This text of 559 N.E.2d 705 (Thompson v. McNeill) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thompson v. McNeill, 559 N.E.2d 705, 53 Ohio St. 3d 102, 1990 Ohio LEXIS 341 (Ohio 1990).

Opinion

Wright, J.

The issue before us is the degree of care owed between participants in a sport, in this instance the game of golf. For the reasons that follow, we hold that between participants in such sporting events, only injuries caused by intentional conduct, or in some instances reckless misconduct, may give rise to a cause of action. There is no liability for injuries caused by negligent conduct.

There is a dearth of Ohio case law in this area. In Rogers v. Allis-Chalmers Mfg. Co. (1950), 153 Ohio St. 513, 41 O.O. 514, 92 N.E. 2d 677, the issue was whether a company could be held liable for injuries inflicted by one of its employees playing on a company-sponsored golf team. In dictum, this court remarked that a golfer assumes the ordinary risks of the game, one of which is the risk of being hit by a golf ball. Id. at 522, 41 O.O. at 518, 92 N.E. 2d at 681-682. However, the case was decided on the basis of the doctrine of respondeat superior. This court has never resolved the question of liability between participants in a sport.

It is necessary to fashion a special rule for tort liability between participants in a sporting event because playing fields, golf courses, and boxing rings are places in-which behavior that would give rise to tort liability under ordinary circumstances is accepted and indeed encouraged. Paradoxically, however, amateur and professional athletes are expected to confine their behavior to that which is allowed by the rules of the game.

We say an act is negligent when “* * * the actor does not desire to bring about the consequences which follow, nor does he know that they are substantially certain to occur, or believe that they will. There is merely a risk of such consequences, sufficiently great to lead a reasonable person in his position to anticipate them, and to guard against them. * * *” Prosser & Keeton, Law of Torts (5 Ed. 1984) 169, Section 31. An act is negligent if it “* * * falls .below a standard established by the law for the protection of others against unreasonable risk of harm.” Id. at 170. The difficulty in applying these principles of negligence to sports is that risk inadvertent harm is often built into the sport. Injuries are a regular occurrence in many sports, such as football and hockey. Moreover, one who plays baseball, tennis, volleyball, soccer, basketball, or golf is subjected to risk of harm from balls struck or thrown travelling at considerable speed.

[104]*104Acts that would give rise to tort liability for negligence on a city street or in a backyard are not negligent in the context of a game where such an act is foreseeable and within the rules. For instance, a golfer who hits practice balls in his backyard and inadvertently hits a neighbor who is gardening or mowing the lawn next door must be held to a different standard than a golfer whose drive hits another golfer on a golf course. A principal difference is the golfer’s duty to the one he hit. The neighbor, unlike the other golfer or spectator on the course, has not agreed to participate or watch and cannot be expected to foresee or accept the attendant risk of injury. Conversely, the spectator or participant must accept from a participant conduct associated with that sport. Thus a player who injures another player in the course of a sporting event by conduct that is a foreseeable, customary part of the sport cannot be held liable for negligence because no duty is owed to protect the victim from that conduct. Were we to find such a duty between co-participants in a sport, we might well stifle the rewards of athletic competition.

While we believe there can be no actionable negligence between participants in a sport, we do not embrace the notion that a playing field is a free-fire zone. We agree with the court in Hanson, supra, at 60, 526 N.E. 2d at 329, that “* * * an athlete is not immune from liability for an intentional tort,” because “* * * the duty not to commit an intentional tort against another remains intact, even in the heat of battle * * *.” (Emphasis sic.)

Our conclusion that between participants in a sport intentional or reckless misconduct gives rise to liability, as our conclusion that negligent misconduct does not, must be understood in the context of the rules of the sport. See Marchetti v. Kalish (1990), 53 Ohio St. 3d 95, 559 N.E. 2d 699. If, for example, a golfer knows another is within the line of flight of his shot and fails to offer the customary warning of “fore,” liability might accrue. Such conduct could amount to reckless indifference to the rights of others.

The conduct of an athlete who intentionally injures another athlete in a way not authorized or anticipated by the customs and rules of the game violates the duty not to commit an intentional tort. A more subtle difficulty concerns the intermediate standard of recklessness: Can a player injured by another player’s recklessness bring an action in tort? Taking into account the necessity for explaining the differences between recklessness as it is usually understood and recklessness in the context of a sporting event, we hold that one who is injured by the reckless1 misconduct of a fellow participant in a sport may, under some circumstances, bring an action in tort.

The Restatement of Torts 2d defines “recklessness” as follows:

“The actor’s conduct is in reckless disregard of the safety of others if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially [105]*105greater than that which is necessary to make his conduct negligent.” 2 Restatement of the Law 2d, Torts (1965), at 587, Section 500. Comment/ to Section 500 contrasts recklessness and intentional misconduct: “While an act to be reckless must be intended by the actor, the actor does not intend to cause the harm which results from it.” Id. at 590., Comment a to Section 500 adds that “* * * the risk must itself be an unreasonable one under the circumstances.” (Emphasis added.) Id. at 588.

What constitutes an unreasonable risk under the circumstances of a sporting event must be delineated with reference to the way the particular game is played, i.e., the rules and customs- that shape the participants’ ideas of foreseeable conduct in the course of a game.

If the rules of a sport allow conduct intended to harm another player, as they do in boxing or football, for example, it follows that those same rules also allow behavior that would otherwise give rise to liability for recklessness. But any conduct which is characterized by the strong probability of harm that recklessness entails, and which occurs outside the normal conduct and customs of the sport, may give rise to liability. In the context of the game of golf, a player who hurls a club into the air in a moment of pique and injures another golfer should be held accountable.

The Restatement of Torts 2d supports the view that different standards of care should apply to those who inflict injuries in the course of a game as opposed to those who inflict injuries under ordinary circumstances: “Taking part in a game manifests a willingness to submit to such bodily contacts or restrictions of liberty as are permitted by its rules or usages.

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Cite This Page — Counsel Stack

Bluebook (online)
559 N.E.2d 705, 53 Ohio St. 3d 102, 1990 Ohio LEXIS 341, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-mcneill-ohio-1990.