Laughman v. Girtakovskis

• Decision Date: 08 October 2015
• Docket Number: Court of Appeals No. 14CA1506
• Parties: Brian LAUGHMAN, Plaintiff–Appellant, v. Juris GIRTAKOVSKIS, Defendant–Appellee.
• Court: Colorado Court of Appeals

374 P.3d 504

2015 COA 143

Brian LAUGHMAN, Plaintiff–Appellant

v.Juris GIRTAKOVSKIS, Defendant–Appellee.

Court of Appeals No. 14CA1506

Colorado Court of Appeals, Division VII.

Announced October 8, 2015

Garline Driscoll, LLC, David J. Driscoll, Jeffrey S. Rose, Louisville, Colorado, for Plaintiff–Appellant.

Campbell, Latiolais & Averbach, LLC, Colin C. Campbell, Kirstin M. Dvorchak, Denver, Colorado, for Defendant–Appellee.

Opinion by JUDGE ASHBY

¶ 1 Plaintiff, Brian Laughman, appeals from the trial court's order granting summary judgment in favor of defendant, Juris Girtakovskis. We conclude that the martial arts sparring match between Mr. Laughman and Mr. Girtakovskis was an inherently dangerous activity and, thus, Mr. Girtakovskis owed no duty of ordinary care to Mr. Laughman. We therefore affirm.

I. Background

¶ 2 This case arises from a martial arts sparring session. Mr. Girtakovskis was preparing to test for his black belt. As part of a pre-test, two other students were asked to attack him so that he could demonstrate his skill and control in defending himself. Mr. Laughman was one of the students who agreed to spar with Mr. Girtakovskis and assume the role of an attacker.

¶ 3 The attackers were in full protective gear, including helmets. Mr. Laughman's helmet, however, did not have a facemask. The demonstration was supposed to involve light sparring, and the head was off limits as a target.

¶ 4 At some point during the pre-test, Mr. Girtakovskis performed a ridge hand strike, an accepted technique in martial arts sparring, that unintentionally connected with Mr. Laughman's face. The strike resulted in serious facial and visual damage. Mr. Laughman has had multiple surgeries to repair the damage and continues to suffer permanent vision impairment.

¶ 5 Mr. Laughman initiated the underlying action, asserting a claim for negligence. Mr. Girtakovskis filed a motion for summary judgment, asserting that Colorado does not recognize negligence claims in physical sports cases and, because Mr. Laughman did not claim that Mr. Girtakovskis's conduct was reckless or intentional, he failed to state a claim upon which relief could be granted. Accordingly, Mr. Girtakovskis asserted that he was entitled to judgment as a matter of law.

¶ 6 The trial court agreed and granted the summary judgment motion. It found that “martial arts fighting is a violent activity that inherently subjects participants to an unreasonable risk of harm,” and concluded that Colorado does not recognize negligence claims in cases involving inherently dangerous sports.

II. Discussion

¶ 7 Mr. Laughman raises several contentions of error on appeal; however, we agree with Mr. Girtakovskis that, other than the contention regarding section 13–21–111.7, C.R.S.2015

, which we address separately below, those individual contentions can be summarized as a single issue: Did the trial court err by finding that Colorado does not recognize liability for the negligent conduct of a co-participant in an inherently dangerous sport? We perceive no error, and affirm the trial court's order.

¶ 8 We review the trial court's granting of a motion for summary judgment de novo. See Teneyck v. Roller Hockey Colo., Ltd., 10 P.3d 707, 709 (Colo.App.2000)

. Summary judgment is appropriate where “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” C.R.C.P. 56. In reviewing the order, “the nonmoving party is entitled to all favorable inferences that may reasonably be drawn from the undisputed facts, and all doubts as to whether a triable issue of fact exists must be resolved against the moving party.” Graven v. Vail Assocs., Inc., 909 P.2d 514, 516 (Colo.1995), superseded by statute on other grounds

as stated in

Fleury v. IntraWest Winter Park Operations Corp., 2014 COA 13.

A. Negligence in an Inherently Dangerous Sport

¶ 9 To prevail on a claim of negligence, the plaintiff must show: (1) that the defendant owed him or her a legal duty of care; (2) that the defendant breached that duty; (3) that the plaintiff suffered injury; and (4) the cause of that injury was the defendant's conduct. See Westin Operator, LLC v. Groh, 2015 CO 25, ¶ 23, 347 P.3d 606

; Keller v. Koca, 111 P.3d 445, 447 (Colo.2005). Thus, to determine liability, the court must first determine if the defendant owed a legal duty to the plaintiff. See

Westin, ¶ 24 ; Keller, 111 P.3d at 447 (“A negligence claim fails where the law does not impose a duty on the defendant to act for the plaintiff's benefit.”). The existence of a duty is a legal question that we review de novo. See

Westin, ¶ 18 ;

Keller, 111 P.3d at 447

; Vigil v. Franklin, 103 P.3d 322, 325 (Colo.2004).

¶ 10 To determine whether a legal duty exists, courts consider a number of factors, including the nature of the relationship between the parties, the risk involved, the foreseeability and likelihood of injury as weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against injury or harm, the consequences of placing the burden upon the actor, the convenience of administration, the capacity of the parties to bear the loss, a policy of preventing future injuries, and the moral blame attached to the wrongdoer. See Westin, ¶ 25

; Keller, 111 P.3d at 447. This list is not exhaustive and no single factor is determinative. See

Collard v. Vista Paving Corp., 2012 COA 208, ¶ 30, 292 P.3d 1232 (“ ‘Colorado law recognizes that these factors are not exclusive and allows a court to consider any other relevant factors founded on the competing individual and social interests implicated by the particular facts of the case at issue.’ ” (quoting Ryder v. Mitchell, 54 P.3d 885, 890 (Colo.2002) )).

¶ 11 Generally, every individual owes a duty of ordinary care not to create an unreasonable risk of harm to others. Shin v. Ahn, 42 Cal.4th 482, 64 Cal.Rptr.3d 803, 165 P.3d 581, 584 (2007)

; Karas v. Strevell, 227 Ill.2d 440, 318 Ill.Dec. 567, 884 N.E.2d 122, 129 (2008). Contact sports, however, present a special circumstance because, by their nature, they involve an unreasonable risk of harm. Simply by participating in the sport, participants could cause or suffer significant injuries, even though their conduct may fall within the rules, and indeed the purpose, of the sport. See, e.g.,

Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516, 520 (10th Cir.1979) (“[S]ubjecting another to unreasonable risk of harm, the essence of negligence, is inherent in the game of football, for admittedly it is violent.”).

¶ 12 Colorado courts have not yet addressed whether a participant in a contact sport, specifically a martial arts sparring match, owes a duty to fellow participants other than to refrain from intentional or reckless conduct. However, the majority of courts in other jurisdictions that have addressed this issue hold that when a sport is inherently dangerous, a defendant is generally not liable for damage or injury caused by his or her negligent conduct. See, e.g., Bevolo v. Carter, 447 F.3d 979, 982 (7th Cir.2006)

(“Illinois courts have established the ‘contact sports exception’ to negligence. Under this exception, voluntary participants in contact sports may be held liable for injuries to co-participants caused by wilful and wanton or intentional misconduct, but they are not liable for injuries caused by ordinary negligence.”); Knight v. Jewett, 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696, 704 (1992) (“[T]he question whether the defendant owed a legal duty to protect the plaintiff from a particular risk of harm does not turn on the reasonableness or unreasonableness of the plaintiff's conduct, but rather on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.”); Dunagan v. Coleman, 427 S.W.3d 552, 555–57 (Tex.App.2014). To be liable, therefore, the defendant's conduct must be so reckless as to be outside the range of the ordinary conduct in the sport or intentionally harmful. See, e.g.,

Kahn v. E. Side Union High Sch. Dist., 31 Cal.4th 990, 4 Cal.Rptr.3d 103, 75 P.3d 30, 32 (2003) ; Ross v. Clouser, 637 S.W.2d 11, 13–14 (Mo.1982). And even when a defendant violates the rules of the game, he will generally not be liable for injury unless his conduct is beyond simple negligence. See

Knight, 11 Cal.Rptr.2d 2, 834 P.2d at 710 ; Karas, 318 Ill.Dec. 567, 884 N.E.2d at 131, 133.

¶ 13 Some jurisdictions hold that a defendant is not liable because he owes no duty of ordinary care to the plaintiff. See, e.g., Karas, 318 Ill.Dec. 567, 884 N.E.2d at 131

(“[T]he contact sports exception is an objective doctrine that defines the scope of the defendant's duty.”). Others hold that, although a defendant owes a duty of ordinary care, because the plaintiff has assumed the risk of injury by participating in an inherently violent sport, the defendant does not breach that duty with merely negligent conduct. See, e.g.,

Knight, 11 Cal.Rptr.2d 2, 834 P.2d at 711 ; Pfenning v. Lineman, 947 N.E.2d 392, 403–04 (Ind.2011). Mr. Laughman's reliance on Wells v. Colorado College, 478 F.2d 158 (10th Cir.1973)

, is misplaced. The Tenth Circuit did not reach the issue that we are called on to decide.

¶ 14 On the undisputed facts here, we conclude that co-participants in a martial arts sparring activity, an inherently dangerous sport, do not owe each other a duty of ordinary care that would support a negligence claim. We reach this conclusion for the following reasons.

¶ 15 First, when two people voluntarily agree to participate in a sport that is inherently dangerous, such as the martial arts sparring engaged in by Mr. Laughman, we assume that each participant knows of the risks associated with such participation. See Sanperi v. Junsch, 274 A.D.2d 462, 711 N.Y.S.2d 32, 33 (N.Y.App.Div.2000)

(“By engaging in a sport or recreational activity, a participant consents to those commonly-appreciated risks which...