In Sharper Focus: Recovery for Recreational Activities.

We Americans love sports. So it is no surprise that tort law has developed immunities for those engaging in sporting activities. The recently argued case of Smith v. Landfair involved the interpretation of Ohio’s Equine Immunity statute codified at R.C. 2305.321. That statute grants immunity from tort claims for a number of equine activities and equine activity participants. Injured spectators are one group of individuals who cannot sue for tort damages under that statute. The Smith case turns on the meaning of the word “spectator.” So let’s look in sharper focus at the common law development of recreational use immunity in other kinds of cases.

Our starting point is Marchetti v.Kalish, 53 Ohio St.3d 95 (1990). Thirteen-year-old Angela Marchetti was injured while playing a modified version of the backyard game of kick-the-can. A group of neighborhood kids she’d invited over were using a ball instead of a can, but the object of the game was the same, which was to keep from being captured by the person designated as “it,” and to free any players who had already been caught. Marchetti was trying to capture fifteen year old Richard Kalish, who was supposed to stop and become “it” when she called his name. Instead he continued running toward her, and the two collided. When Kalish kicked the ball out from under her foot, Marchetti fell and broke her leg in two places.

Marchetti sued Kalish alleging he had “negligently and/or willfully, wantonly and maliciously” caused her injuries. In denying recovery, the Court found that Kalish’s actions were neither reckless nor intentional, and that Marchetti had assumed the risks of the game. The syllabus of this case is “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.”

Next up is Thompson v. McNeill, 53 Ohio St.3d 102 (1990.) This case involved a foursome of adult golfers. McNeill hit a ball to the right of a water hazard. Thompson went off to look for it. McNeill decided to hit another ball, assuming it could go nowhere near Thompson, who was at a sharp angle away from her. McNeill and another member of the foursome yelled “fore. ” Thompson saw McNeill swing, didn’t hear the yell, saw the ball coming toward her, but had no time to get out of the way. She was hit in the eye and severely injured. Thompson sued McNeill for her injuries. The trial court granted summary judgment, but the court of appeals reversed, finding that recreational use immunity applied only to contact sports.

The Supreme Court of Ohio rejected this contact/non-contact distinction, and reversed the court of appeals in the Thompson case. The syllabus in Thompson followed the Marchetti case, and held that “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.” Opinion author Justice Craig Wright had this to say:

“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.” And, the Court noted, participants in sporting activities assume the ordinary risks of the game. The Court did make it clear, though, that athletes are expected to play by the rules of the game. In the case of the golfers, the Court found McNeill’s shot, while lousy, was within the rules of the game, and neither intentional nor reckless. Thompson was not allowed to recover.

In the Marchetti and Thompson cases those injured were participants in the activity. The more recent case of Gentry v. Craycraft, 2004-Ohio-379 extended this line of reasoning to spectators.

Four year old Levi Gentry was watching two older boys build a chair. As 11 year old Christopher Craycraft was hammering away, a nail flew out of the chair and hit Levi in the eye, seriously injuring him. Somewhat dubiously, the Court found this “typical backyard activity” to be a recreational activity at which Levi was a spectator. More to the point, though, the Court denied recovery. Following its holdings in Marchetti and Thompson the Court again held that recovery depended only on whether the underlying conduct was either reckless or intentional. In Craycraft the Court rejected the argument that its precedents were limited to active participants or to spectators old enough to appreciate the risks of the particular sport or activity. The Court held in the syllabus that “the age of the participant or spectator and whether he or she was capable of appreciating the inherent risks is immaterial.” The only thing that matters is the conduct of the defendant. In this case it was neither reckless nor intentional. No recovery.

Currently, in Estate of Anderson v. City of Massillon, and Burlingame v. Estate of Burlingame , both still under submission, the Court is dealing with the definition of recklessness in the sovereign immunity context. And in the recently-argued Angel L. Horvath et. al. v. David Ish et. al. the Court is tackling statutory recreational activity immunity in an accident between a skier and a snowboarder. If there is a common thread here, it is that recovery for participants or spectators in recreational activities cases is very difficult.