Hanson v. Kynast

Milligan, P.J.,

concurring separately. I concur with the majority’s decision that summary judgment was properly granted in the instant case. However, I write separately to clarify the thorny issues this case presents with regard to the existence, nature, and scope of duty owed by one athlete to another during the course of an athletic event.

To defeat a motion for summary judgment in a negligence case the plaintiff must show:

(1) That the defendant owed a duty to plaintiff;

(2) That defendant breached that duty;

(3) That plaintiff suffered injuries; and

(4) That defendant’s breach of duty proximately caused plaintiff’s injuries. See

Keister

v.

Park Centre Lanes

(1981), 3 Ohio App. 3d 19, 22-24 , 3 OBR 20, 23-25, 443 N.E. 2d 532, 535-536 .

I. Duty

The first hurdle in this analysis is the issue of the existence, nature, and scope of duty. There can be no liability for negligence absent a duty owed to a particular plaintiff.

Hager

v.

Griesse

(1985), 29 Ohio App. 3d 329 , 29 OBR 456, 505 N.E. 2d 982 ;

Hager

v.

Griesse

(Mar. 19, 1986), Licking App. No. CA-3143, unreported.

The initial question is whether, under the facts and circumstances of the instant case, such a relationship existed between the parties that the law will impose a legal duty upon one or the other.

There is a dearth of case law in Ohio involving organized athletic competition in which one of the participating athletes is charged with intentional, reckless, or negligent misconduct toward another participating athlete. We therefore look to other jurisdictions for guidance.

Courts have avoided adopting a negligence standard in such cases because the standard would simply place unreasonable burdens on the “free and vigorous participation in sports.”

Nabozny

v.

Barnhill

(1975), 31 Ill. App. 3d 212, 215 , 334 N.E. 2d 258, 260 . See, also,

Hackbart

v.

Cincinnati Bengals, Inc.

(C.A. 10, 1979), 601 F. 2d 516, 518-519, 520, 526 (interpreting Colorado law);

Kabella

v.

Bouschelle

*62

(App. 1983), 100 N.M. 461, 465 , 672 P. 2d 290, 294 .

“* * * Fear of civil liability stemming from negligent acts occurring in an athletic event could curtail the proper fervor with which the game should be played and discourage individual participation * * *.”

Ross

v.

Clouser

(Mo. 1982), 637 S.W. 2d 11, 14 .

A young athlete early learns that • he may never “make the team” .unless willing to participate with “reckless abandon.”

Paradoxically, courts have found a duty based on an intentional or recklessness standard. See

Hackbart

v.

Cincinnati Bengals, Inc., supra,

601 F. 2d at 520-521, 525 ;

Bourque

v.

Duplechin

(La. App. 1976), 331 So. 2d 40, 43 ;

Nabozny

v.

Barnhill, supra,

at 215 , 334 N.E. 2d at 260-261 .

The majority herein fails to specifically identify precise standards of duty which recognize a balance between clearly objectionable athletic misconduct and conduct generally recognized as either an integral or collateral part of the athletic contest involved. See, generally, Note, Compensating Injured Professional Athletes: The Mystique of Sport versus Traditional Tort Principles (1980), 55 N.Y.U.L. Rev. 971; Comment, Torts in Sports — “I’ll see you in court!” (1983), 16 Akron L. Rev. 537 .

Courts considering this problem have given little consideration to a precise definition of the requisite intent in the context of conduct on the athletic field. One reason for this lack of attention may be a general-sense meaning of “intent.” “* * * As Holmes observed, even a dog knows the difference between being tripped over and being kicked. * * * [However,] ‘[ijntent’ is also one of the most often misunderstood legal concepts. * * *” (Footnotes omitted.) Prosser

&

Keeton, Law of Torts (5 Ed. 1984) 33, Section 8.

“Intent” denotes “* * * that the actor desires to cause [the] consequences of his act, or that he believes that the consequences are substantially certain to result from it.” 1 Restatement of the Law 2d, Torts (1965) 15, Section 8A.

Thus, an intentional tort is characterized by the intentional act of an actor to cause the specific harm suffered by the victim. The actor is certain, or substantially certain, that the desired consequences will result from his intentional act. In the context of athletic competition, an intentional tort characterizes the conduct of an athlete whereby he or she intentionally acts to cause a specific harm or injury. Such acts must be reasonably unforeseeable in the context of the particular athletic event engaged in.

Recklessness, on the other hand, involves a lesser degree of substantial certainty that the specific injury will result from the intentional act:

“* * * If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result. As the probability that the consequences will follow decreases, and becomes less than substantial certainty, the actor’s conduct loses the character of intent, and becomes mere recklessness, as defined in § 500. As the probability decreases further, and amounts only to a risk that the result will follow, it becomes ordinary negligence, as defined in § 282. * * *” 1 Restatement of the Law 2d, Torts (1965) 15, Section 8A, Comment

b.

1

*63

This nebulous continuum has lead courts to use various formulations to define reckless conduct. See,

e.g., Bourque

v.

Duplechin, supra,

331 So. 2d at 43 (“reckless disregard of the consequences to [the victim]”);

Nabozny

v.

Barnhill, supra,

at 215 , 334 N.E. 2d at 261 (“a reckless disregard for the safety of the other player[s]”);

Kabella

v.

Bouschelle, supra,

at 465 , 672 P. 2d at 294 (“reckless or wilful conduct”). These tautological definitions of recklessness do not provide much assistance in analyzing the facts of a specific case. Some courts, however, turn to the Restatement of Torts 2d for a clearer definition. See,

e.g., Hackbart

v.

Cincinnati Bengals, Inc., supra,

601 F. 2d at 524-525 ;

Matheson

v.

Pearson

(Utah 1980), 619 P. 2d 321, 322-323 .

“The actor’s conduct is in reckless disregard of the safety of another 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 greater than that which is necessary to make his conduct negligent.” 2 Restatement of the Law 2d, Torts (1965) 587, Section 500.

This relative definition is clarified by the Official Comments to Section 500. See Comment

a

to the Restatement,

supra,

at 588 (“the risk must itself be an unreasonable one under the circumstances”); Comment / to the Restatement,

supra,

at 590 (intentional misconduct and recklessness contrasted); Comment

g

to the Restatement,

supra,

at 590 (negligence and recklessness contrasted). The circuit court in

Hackbart

explained the relative relationship of this continuum.

Hackbart

v.

Cincinnati Bengals, Inc., supra,

601 F. 2d at 524 .

2

In distinguishing reckless misconduct from intentional wrongdoing, the

Hackbart

court stated:

“* * * To be reckless the

act

must have been intended by the actor. At the same time, the actor does not intend to cause the harm which results from it. It is enough that he realized, or from the facts should have realized, that there was a strong probability that harm would result even though he may hope or expect that this conduct will prove harmless. Nevertheless, existence of probability is different from substantial certainty which is an ingredient of intent to cause the harm which results from the act.” (Emphasis

sic.) Hackbart

v.

Cincinnati Bengals, Inc., supra,

601 F. 2d at 524 .

See, also,

Matkovich

v.

Penn Central Transp. Co.

(1982), 69 Ohio St. 2d 210, 214 , 23 O.O. 3d 224, 227, 431 N.E. 2d 652, 655 (“failure to exercise care * * * under circumstances in which there is a great probability that harm will result” and failure to exercise any care whatsoever for the safety of others is wanton misconduct).

Thus, reckless misconduct results

*64

when a person, with no intent to inflict the particular harm, intentionally performs an act so unreasonably dangerous that he knows or should reasonably know that it is highly probable that harm will result.

3

In the context of athletic contests, “recklessness” will vary depending on the nature of the particular athletic event or sport. For example, the sport of lacrosse involves a greater degree of violent physical contact than do the running events of track and field competition. Cf.

Oswald

v.

Twp. High School Dist. No. 214

(1980), 84 Ill. App. 3d 723, 727 , 406 N.E. 2d 157, 160 (“participants in bodily contact games such as basketball assume greater risks than do golfers and others involved in nonphysical contact sports”). The

quid pro quo

of an “assumed greater risk” is a diminished duty. Thus, participants in bodily contact games such as basketball (and lacrosse) owe a lesser duty to each other than do golfers and others involved in non-physical contact sports. Injuries resulting from violent physical contact are reasonably foreseeable in sports such as lacrosse or football. However, injuries which result from conduct on the playing field which are not reasonably foreseeable are of a different nature. The focus is on the reasonable foreseeability of the conduct, and not on the particular injury. Naturally, this foreseeability is dependent upon such factors as the nature of the sport involved, the rules and regulations which govern the sport, the customs and practices which are generally accepted and which have evolved with the development of the sport, and the facts and circumstances of the particular case. Another factor is whether or not the sport is played professionally-

Such a standard is intended to strike a delicate balance between allowing the free and uninhibited participation and development of sports, and curbing the excessive violence sometimes extant in certain sports.

Defenses may be raised in such cases which directly impact the nature and extent of the duty owed (the combatant in an amateur boxing match consents to behavior measured by a diminished duty). Typical defenses include assumption of risk, contributory negligence, and consent. Assumption of risk and contributory negligence have merged under the Ohio comparative negligence paradigm.

Anderson

v.

Ceccardi

(1983), 6 Ohio St. 3d 110 , 6 OBR 170, 451 N.E. 2d 780 . This merger of contributory negligence and assumption of risk implies that reasonable foreseeability is an element of both. The law provides, under assumption of risk, that one assumes only those risks which are reasonably foreseeable.

Bourque

v.

Duplechin, supra,

331 So. 2d at 42 ;

Kabella

v.

Bouschelle, supra,

at 463 , 672 P. 2d at 292 . Contributory negligence focuses on the conduct of the plaintiff, and leaves unaffected the characterization of the

*65

conduct of the tortfeasor. The

defense of consent,

in the context of an athletic event, is specifically treated at 1 Restatement of the Law 2d, Torts (1965) 86, Section 50, Comment

b:

“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. Participating in such a game does not manifest consent to contacts which are prohibited by rules or usages of the games if such rules or usages are designed to protect the participants and not merely to secure the better playing of the game as a test of skill. This is true although the player knows that those with or against whom he is playing are habitual violaters of such rules.”

4

Thus, a player consents as a matter of law to assume the risk of injuries resulting from reasonably foreseeable conduct by other players. Such reasonable foreseeability is determined by the rules and regulations of the particular game, and the customs and practices generally accepted as a part of the game.

In the case

sub judice,

defendant Kynast, as a participant in a lacrosse match, had a duty to refrain from intentionally or recklessly inflicting harm upon other players. Intentional misconduct results when a lacrosse player intentionally performs an act to cause a specific harm or injury, a harm or injury which the player desires to cause or should know is certain to result from his act. Reckless misconduct results when a lacrosse player, with no intent to cause the specific harm or injury, intentionally performs an act so unreasonably dangerous that he knows or should reasonably know that it is highly probable that harm or injury will result. For there to be liability under either the intentional or recklessness standard, the intentional act must be reasonably unforeseeable in the context of an amateur, collegiate lacrosse match. What is reasonably unforeseeable depends upon a number of factors. These factors include the customs and practices generally accepted as a part of lacrosse; the level and degree of violence generally accepted as a part of lacrosse; the rules and regulations which govern lacrosse; the level of play,

i.e.,

whether it is played professionally or by amateurs, organized or unorganized, in college or in high school, etc.; and the particular facts and circumstances surrounding the particular match and incident. Also, the risks lacrosse players generally assume or consent to is another factor to weigh in assessing what risks and acts are reasonably unforeseeable.

II. Breach of Duty

The next question in this sequential, consecutive analysis is whether defendant Kynast breached this duty.

The undisputed facts show that Kynast “checked” an opponent on ap

*66

pellant Hanson’s team while that opponent was trying to score. Kynast then stood over the fallen opponent, taunting him. Hanson, in an effort to protect his teammate, rushed toward Kynast and grabbed him in a bear hug from behind. Kynast, in an effort to defend himself, flipped Hanson over in an apparent effort to get free from his grasp. Hanson landed on his head and, as a result of this flip, sustained severe injuries.

Appellee Kynast was acting entirely within the parameters of permitted conduct when he checked the opposing player. Furthermore, he did not violate any duty recognized at law when he taunted, menaced, and tried to intimidate his fallen opponent.

5

Such actions are a part of many contact sports, and are even condoned and encouraged. The risk of harm from such conduct is reasonably unforeseeable under the facts and circumstances of the instant case.

It is appellant Hanson’s conduct in rushing toward Kynast and grabbing him from behind that was possibly outside the scope of reasonably foreseeable conduct in a lacrosse match. Hanson essentially argues that Kynast had a duty not only to refrain from intentionally or recklessly harming another during the course of the game, but to defend himself from unforeseeable violence upon his person in such a manner as not to inflict injury upon the perpetrator. One is charged with the exercise of reasonable care in defending oneself using only that amount of force sufficient to withstand the attack. Nowhere in his supporting affidavits and depositions does Hanson charge Kynast with violating that duty.

Therefore, whether analyzing this case under the standard of intentional or reckless misconduct, appellee Kynast’s actions during the game breached no duty recognized at law.

III.Injury

Plaintiff has demonstrated severe injury.

IV.Proximate Cause

Because we find no breach of duty we do not reach the question of proximate cause.

V.Conclusion

Absent the showing of evidence establishing each element of appellant Hanson’s case, summary judgment was properly granted.

1

Compare Holmes, Privilege, Malice, and Intent (1894), 8 Harv. L. Rev. 1 , at 1:

“* * * If the manifest probability of harm is very great, and the harm follows,

*63

we say that it is done maliciously or intentionally; if not so great, but still considerable, we say that the harm is done negligently; if there is no apparent danger, we call it mischance.”

2

Cf. Prosser & Keeton, Law of Torts (5 Ed. 1984) 208, 212, Section 34:

“A different approach, at least in theory, looks to the actor’s real or supposed state of mind. Lying between intent to do harm, which * * * includes proceeding with knowledge that the harm is substantially certain to occur, and the mere unreasonable risk of harm to another involved in ordinary negligence, there is a penumbra of what has been called ‘quasi-intent.’ To this area the words ‘willful,’ ‘wanton,’ or ‘reckless,’ are customarily applied; * * *.” (Footnotes omitted.)

3

Cf. Prosser & Keeton, Law of Torts,

supra,

at 208, 213-214, Section 34:

“The usual meaning assigned to ‘willful,’ ‘wanton,’ or ‘reckless,’ according to taste as to the word used, is that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences.* * * .

“The result is that ‘willful,’ ‘wanton,’ or ‘reckless’ conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.* * *” (Footnotes omitted.)

4

The Illustrations provided to Comment

b

of Section 50 are:

“4. A, a member of a football team, tackles B, a player on the opposing side. A’s conduct is within the rules of the game. A is not liable to B.

“5. A, a member of a football team, tackles B, an opposing player, while he, A, is ‘offside.’ The tackle is made with no greater violence than would be permissible by the rules and usages of football were he ‘onside.’ A has not subjected B to a violence greater than, or different from, that permitted by the rules, although he is guilty of a breach of a rule. A is not liable to B.

“6. A, while tackling B, deliberately injuries him. A is subject to liability to B, whether the tackle was or was not otherwise within the rules and usages of football.” 1 Restatement of the Law 2d, Torts (1965) 86, Section 50, Illustrations to Comment

b.

5

Kynast was not penalized for the check or his subsequent conduct vis-a-vis the fallen opponent.