explaining that “the focus in determining whether an activity is recreational is not on the instrument used in the activity but on the expectations of the participants” and holding that a game of “BB Gun War” was a recreational activity subject to a recklessness standard of care
How later courts described this case
- explaining that “the focus in determining whether an activity is recreational is not on the instrument used in the activity but on the expectations of the participants” and holding that a game of “BB Gun War” was a recreational activity subject to a recklessness standard of care
Written by the judges who cited it.
The opinion
Christley, Presiding Judge,
concurring.
I concur in judgment only, as I believe the opinion goes beyond what is necessary for a resolution of the assignment of error. Our affirmance need only concern itself with the fact that appellant only pled negligence and not reckless or intentional behavior.
Marchetti,
the controlling case on this issue, defines a recreational or sporting activity in sweeping terms. Appellant argues, despite his pleadings, that because the object of the game was for one player to intentionally shoot the other with a BB gun, albeit below the neck or waist, it is distinguishable from
Marchetti
and the long line of cases which require more than negligence to impose liability. The appellant’s gist is that, as a matter of public policy, even within the context of the rules of a recreational or sports activity, the permitted use of an inherently dangerous instrument to intentionally hit or shoot the other player within a game or sporting context is recklessness
per se
and that any resulting harm is therefore intentional.
*808
From a standpoint of public policy, appellant’s point is certainly arguable. We note that the legislature has preempted the sport of boxing for similar public policy reasons even though it does not involve the use of an inherently dangerous instrument other than fists.
However, the legislature has not chosen to speak on this specific subject. That being the case,
Marchetti
is the final word on this matter in this state. And
Marchetti
simply does not support appellant’s proposition that mere negligent behavior will be actionable in recreational or sporting activities. His failure to plead reckless or intentional conduct rather than simple negligence is fatal to his cause. Thus, a directed verdict was appropriate and I concur in judgment only that appellant’s assignment is without merit.