Marchetti v. Kalish

• Decision Date: 15 August 1990
• Docket Number: No. 89-1424,89-1424
• Citation: 53 Ohio St.3d 95,559 N.E.2d 699
• Parties: MARCHETTI, Appellee, v. KALISH, et al., Appellants.
• Court: Ohio Supreme Court

Page 95

53 Ohio St.3d 95

559 N.E.2d 699

MARCHETTI, Appellee, v. KALISH, et al., Appellants.

No. 89-1424.

Supreme Court of Ohio.

Submitted May 9, 1990.

Decided Aug. 15, 1990.

Syllabus by the Court

Where individuals engage in recreational or sports activities, they assume the ordinary risks of the activity and cannot recover for any injury unless it can be shown that the other participant's actions were either "reckless" or "intentional" as defined in Sections 500 and 8A of the Restatement of Torts 2d.

In June 1982, thirteen-year-old plaintiff-appellee, Angela Marchetti, had several neighborhood friends over to her house, including Richard Kalish, age fifteen, to play a game called "kick the can." The object of "kick the can" is to keep from being captured by the person designated as "it" and to free those players already caught. The parties agree that the game traditionally involves the use of a tin can, which indicates "home base." The other participants run and hide while the designated "it" looks for them. When someone is spotted, the designated "it" runs to home base and calls out the spotted player's name, followed by "kick the can--one, two, three." The player is then considered captured and must stay near home base. Other players can release any captured players by sneaking up on home base while the designated "it" is not there and kicking the can off home base. When "it" has captured all of the other players, the first player caught is the new "it." ¹

On the day in question, the children were playing a modified version of the game. Their variations included the use of a ball instead of a can, and the first player captured immediately became the new "it." While appellee was the person designated "it," she spotted appellant and ran to home base. Appellee placed her left foot on the ball and shouted appellant's name. Under the rules of the game, appellant was supposed to stop and in turn become "it." Appellant, however, continued to run towards appellee, colliding with her and kicking the ball out from under her foot. Appellee fell to the ground, and her right leg was broken in two places.

Appellee filed a complaint on October 19, 1987, alleging appellant had "negligently and/or willfully, wantonly and maliciously" caused the above injury. The trial court granted appellant's motion for summary judgment, relying on Hanson v. Kynast (1987), 38 Ohio App.3d 58, 526 N.E.2d 327, for the proposition that a participant in a recreational or athletic sporting event can recover only for an intentional tort. The trial court found that in the appellee's deposition she admitted that she did not believe that the defendant had intended to injure her during the game. The trial court also held that as a voluntary participant in The court of appeals reversed the trial court and remanded the cause, holding that an issue of fact existed as to whether appellee consented to appellant's action through her participation in the game. The court adopted 1 Restatement of the Law 2d, Torts (1965), Section 50, and 4 Restatement of the Law 2d, Torts (1979), Section 892A, and rejected the holding in Hanson, supra. Finding its decision to be in conflict with the decision of the Fifth District Court of Appeals in Hanson, the court certified the record of this case to this court for review and final determination.

the game, appellee had assumed the risk of her injury.

Law Offices of Perchick, Lallo & Feldman and Mario deCaris, Cleveland, for appellee.

Keller, Scully & Williams Co., L.P.A., and G. Michael Curtin, Cleveland, for appellants.

ALICE ROBIE RESNICK, Justice.

The issue for this court's determination is whether a participant in a recreational or sporting activity can recover for personal injuries received during the course of the activity absent evidence of reckless or intentional conduct. ² Stated differently, the question is whether a showing of negligence will suffice to allow recovery under these circumstances. The court of appeals adopted Sections 50 and 892A of the Restatement of Torts 2d, and essentially applied a negligence standard. Since these issues have not been previously addressed by this court, we must determine the proper standard as to the liability of persons engaging in a recreational or sporting activity.

I

Legal commentators have identified three distinct standards which are used by some jurisdictions to permit recovery for injuries received during sports and recreational activities: (1) intentional tort, i.e., assault and battery; (2) willful or reckless misconduct; and (3) negligence. See Note, Civil Liability of Athletes--Professional Football Player May Have Tort Claim For Injuries Intentionally Inflicted During Football Game (1980), 84 Dick.L.Rev. 253; Comment, Civil Liability: An Alternative to Violence in Sporting Events (1988), 15 Ohio N.U.L.Rev. 243; Note, Participant In Athletic Competition States Cause of Action For Injuries Against Other Participant (1977), 42 Mo.L.Rev. 347. However, courts traditionally have not been inclined to allow a cause of action for injuries received during participation in such activities. In Kuehner v. Green (Fla.1983), 436 So.2d 78, 81, Justice Boyd, concurring specially, noted that Likewise, while allowing a recovery for a sports injury based on intentional tort, a Michigan court has stated that "[p]articipation in a game involves a manifestation of consent to those bodily contacts which are permitted by the rules of the game. Restatement of Torts, 2d, § 50, comment b. However, there is a general agreement that an intentional act causing injury, which goes beyond what is ordinarily permissible, is an assault and battery for which recovery may be had." Overall v. Kadella (1984), 138 Mich.App. 351, 361 N.W.2d 352, 355. Thus, courts generally allow a cause of action for injuries sustained in recreational or sports activities only under reckless or intentional tort theories.

"[h]istorically, the courts have been reluctant to allow persons to recover money damages for injuries received while participating in a sport, especially a contact sport, unless there was a deliberate attempt to injure. In denying recovery, the courts have often explained that a person who participates in a sport assumes the risk that he or she may be injured. Only recently have some courts allowed a sport participant to recover damages for injuries resulting from unintentional but reckless misconduct. See Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (10th Cir.), cert. denied, 444 U.S. 931, 100 S.Ct. 275, 62 L.Ed.2d 188 (1979); Nabozny v. Barnhill, 31 Ill.App.3d 212, 334 N.E.2d 258 (1975). These courts reasoned that a sport participant does not assume the risk of injuries resulting from bodily contact uncustomary to or prohibited by the rules of the particular sport."

In Hanson, supra, the court of appeals held that there is no liability for participants in an athletic competition for conduct which falls short of an intentional tort. The court in Hanson was confronted with a plaintiff injured while competing in a collegiate lacrosse match. The court stated that " * * * the only cause of action in the instant situation that can exist (and thus survive a summary judgment motion) is an intentional tort * * *." Id., 38 Ohio App.3d at 60, 526 N.E.2d at 329. The court thus affirmed the summary judgment granted in favor of the defendant, holding that " * * * the facts as presented to the trial court show no element of an intent to injure on the part of [defendant] Kynast." Id. A review of case law from other jurisdictions supports the proposition set forth in Hanson. See Nabozny v. Barnhill (1975), 31 Ill.App.3d 212, 334 N.E.2d 258; Oswald v. Twp. High School Dist. No. 214 (1980), 84 Ill.App.3d 723, 40 Ill.Dec. 456, 406 N.E.2d 157 (liability for injuries sustained in an athletic competition can not be predicated upon ordinary negligence; rather, willful and wanton misconduct must be shown); Kabella v. Bouschelle (App.1983), 100 N.M. 461, 672 P.2d 290 (minor lacked cause of action predicated on negligence against another minor for injuries sustained in an informal game of tackle football; cause of action must be predicated upon reckless or intentional conduct); Ramos v. Countryside (1985), 137 Ill.App.3d 1028, 92 Ill.Dec. 607, 485 N.E.2d 418 (fourteen-year-old boy who struck eight-year-old boy in the eye with ball while playing the game of "bombardment" could not be held liable for younger boy's injury on theory of negligence, since both were participating in a sporting event); Keller v. Mols (1987), 156 Ill.App.3d 235, 108 Ill.Dec. 888, 509 N.E.2d 584 (plaintiff injured in floor hockey game on neighbor's patio was precluded from recovery for injuries on negligence theory); Turcotte v. Fell (1986), 68 N.Y.2d 432, 510 N.Y.Supp.2d 49, 502 N.E.2d 964 (plaintiff's complaint was properly dismissed where plaintiff did not claim that defendant intentionally or recklessly caused injury, but only that injury was the result

of carelessness); Ross v. Clouser (Mo.1982), 637 S.W.2d 11 (a cause of action for personal injuries incurred during athletic competition must be predicated on recklessness, not mere negligence).

II

Appellee argues that these cases from other jurisdictions are distinguishable from the present case because here we are dealing with children involved in a simple neighborhood game rather than an organized contact sport. However, courts in other jurisdictions have not made this distinction as to whether the injury arises in an organized activity, neighborhood game, or whether it involves children or adults. For example, in Kabella, supra, a minor child was injured while playing a game of tackle football. The court noted that "* * * the players at the time of the infliction of Kabella's injury were not involved in any organized athletic activity being played under the supervision of coaches or referees, or a definite set of rules. The participants were playing under a loose set...