Thompson v. McNeill

• Decision Date: 15 August 1990
• Docket Number: No. 89-696,89-696
• Citation: 53 Ohio St.3d 102,559 N.E.2d 705
• Parties: THOMPSON, et al., Appellees, v. McNEILL, Appellant.
• Court: Ohio Supreme Court

Page 102

53 Ohio St.3d 102

559 N.E.2d 705

THOMPSON, et al., Appellees, v. McNEILL, Appellant.

No. 89-696.

Supreme Court of Ohio.

Submitted May 9, 1990.

Decided Aug. 15, 1990.

Syllabus by the Court

1. Between participants in a sporting event, 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, (Marchetti v. Kalish [1990], 53 Ohio St.3d 95, 559 N.E.2d 699, approved and followed.)

2. 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.

On July 22, 1986, appellee, JoAnn Thompson, was playing golf at Prestwick Country Club with appellant, Lucille McNeill, and two other women. When the foursome reached the twelfth tee, McNeill hit her ball onto the fairway. Her next shot went off to the right into a water hazard. Thompson went to search for the ball in the vicinity of the water hazard. McNeill and another member of the foursome testified in their depositions that McNeill said she (McNeill) was going to hit another ball. Thompson and the other member of the foursome could not remember hearing McNeill say that.

When McNeill hit her third shot from the fairway, Thompson remained to McNeill's right at the water hazard, at a distance Thompson estimated as twelve to fifteen yards from McNeill. Thompson, McNeill, and one other witness located Thompson at an angle approximately ninety degrees from the intended path of the ball. McNeill shanked the shot toward Thompson. McNeill testified in her deposition that once she realized the ball was going off toward the right, she and one of the other women, Carolyn Hammitt, yelled "fore" and "JoAnn." Thompson apparently did not hear such a warning before the ball hit her. Thompson saw McNeill swing her club and the ball coming toward her, but stated later that there was no time to move. The ball hit her in the right eye, causing severe injury.

On August 13, 1987, Thompson and her husband brought an action against McNeill in negligence. McNeill's answer, filed September 24, 1987, denied that McNeill was negligent and raised the defenses of assumption of the risk and comparative negligence. All the members of the foursome were deposed. McNeill moved for summary judgment on March 15, 1988. The trial court followed Hanson v. Kynast (1987), 38 Ohio App.3d 58, 526 N.E.2d 327, finding that Ohio does not recognize a cause of action in negligence for a claim of injury to a participant in a sporting activity by a co-participant.

Thompson appealed to the Court of Appeals for Summit County, which reversed the trial court and remanded. In its March 1, 1989 opinion the court of appeals declined to follow the principles enunciated in its own earlier decision in McElhaney v. Monroe (Feb. 1, 1989), Summit App. No. 13454, unreported 1989 WL 7987. McElhaney adopted the Hanson court's conclusion that a participant in a sport has no cause of action in negligence in Ohio for injuries inflicted by a co-participant. The court of appeals distinguished this case from McElhaney by stating that McElhaney applies only to sports with a high degree of physical contact, unlike golf, which is a non-physical contact sport.

This cause is now before this court pursuant to the allowance of a motion to certify the record.

Marvin A. Shapiro, Dominic A. Musitano, Jr., and Timothy P. Assaf, Akron, for appellees.

William J. Cady, Akron, for appellant.

WRIGHT, Justice.

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 of 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.

Acts 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, 38 Ohio App.3d 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...