Courts Have Ruled that Participants Assume the Risk of Injury

July 14, 2011

Katharine M. Nohr, Esq.
Nohr Sports Risk Management, LLC

Three appellate courts have ruled in the last two months that participants in golf, soccer and football have assumed the risk of their involvement in New York and Indiana. On January 26, 2010, the Supreme Court, Appellate Division of New York issued a decision in Brown v. City of New York, __N.Y.S.2d__, 69 A.D.3d 893 (2010), concluding that a football player injured at a public field owned by the city had assumed the risk. The facts of the case were as follows: while playing touch football, Plaintiff dove for the football at the sideline of the public field. His knee struck a cement strip, which was approximately five feet outside of the sideline and ran alongside the field. The evidence established that the player had played there before and that he was aware of the cement strip, which was open and obvious. The defendant was able to establish that the Plaintiff assumed the risk of injury by voluntarily participating in the football game, even though he knew that by doing so, he could come into contact with the cement strip located in the out-of-bounds area of the field.
On February 9, 2010, the same New York appellate court, addressed a similar case, Morabito v. MacArthur, 70 A.D.3d, 894 N.Y.S.2d 110 (2010) (this time involving a high school player who was injured during a varsity interscholastic soccer game when he collided with a player from the opposing team. The injured player filed a lawsuit against the player who he claimed caused his injury. The court determined that the Plaintiff assumed the risks of contact with another soccer player during the course of playing the game. The defendant player prevailed.

On February 12, 2010, The Court of Appeals of Indiana in Pfenning v. Lineman, __ N.E.2d __, 2010 WL 502750 (Ind.App.2010), addressed a case involving a sixteen year old girl who was struck in the mouth by a golf ball while voluntarily riding in a golf cart which contained beverages for sale at a golf scramble event. Plaintiff’s grandfather was driving the cart and, with her mother’s permission, she was allowed to ride along in the cart that had no roof or windshield, but contained a large cooler in the back. Plaintiff was not given any instruction as to how to drive the cart, she did not understand golf etiquette and had only been on a golf course one other time. Plaintiff’s grandfather decided to play in the tournament, and so Plaintiff drove the cart while another person dispensed beverages. About 3 hours into the tournament, Defendant hit a golf ball from the 16th hole’s tee, which traveled approximately 60 to 70 yards, hitting Plaintiff in the mouth, causing injury to her jaw, mouth and teeth. Defendant did not warn that the ball was coming in her direction. The court concluded that Plaintiff was a participant in the golf scramble and that the other participants did not owe her a duty to prevent injury from the inherent risk of playing golf; that Plaintiff consented to the inherent risks of golf and that the conduct of the golfer who hit the ball was not reckless. The lodge, sponsor and grandfather were also found not to be negligent under various theories.

Each of the above cases did not proceed to trial, but were resolved in favor of the defendants when their attorneys filed motions for summary judgment with the lower courts. Upon reviewing the legal argument presented, the lower courts ruled in favor of the defendants, granting their motions for summary judgment. The cases were then appealed and the appellate courts agreed that the Plaintiffs assumed the risk.

The defendants were successful in these cases and they can be used as precedent in future, similar cases in New York and Indiana (and for persuasive purposes in other jurisdictions). Despite the successes by these defendants, it is prudent to continue your organizations’ careful attention to safety and risk management practices. Lawsuits and appeals are expensive and will drive your insurance premiums up and impact your organizations’ bottom line.

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