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Burke Costanza & Carberry LLP is the leading law firm in Northwest Indiana. Our full-service law firm has offices in Merrillville and Valparaiso Indiana as well as one in Chicago Illinois. At BCC, our lawyers pride themselves on being able to provide a wide range of legal services to our clients, who benefit from the depth and experience we provide from top to bottom.

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Litigation Blog

Supreme Court Clarifies Liability of Participants in Sporting Events

Robert F. Parker

In a recent decision, the Indiana Supreme Court may have opened the door a crack to imposing legal liability on participants in sporting events.

When Cassie Pfenning was 16, her grandfather took her to a golf outing. While he played, she drove the beverage cart. An errant tee shot from another golfer hit her in the mouth, causing considerable injuries. She sued the golfer who hit the ball, the tavern that promoted the event, the golf course, and (believe it or not) her grandfather’s estate, since he died before suit was filed. The trial court granted a summary judgment to all the defendants on the ground that she was a willing participant in a sporting event and, therefore, the defendants did not owe her any duty to protect her from “the inherent risks of the sport.” The Court of Appeals agreed and affirmed the decision. She appealed to the Indiana Supreme Court and, in a decision handed down May 18, 2011, the Justices affirmed most of the summary judgment, but their language in doing so seems to leave the door open to liability in some readily foreseeable circumstances.

Specifically, the Justices said that “We reject the concept that a participant in a sporting event owes no duty of care to protect others from inherent risks of the sport, but adopt instead the view that summary judgment is proper when the conduct of a sports participant is within the range of ordinary behavior of participants in the sport and therefore is reasonable as a matter of law.”

Pfenning v. Lineman, 2011 Ind. LEXIS 376 (Ind. May 18, 2011)  (emphasis supplied). The Court explained further that “we agree with the Court of Appeals in permitting liability when an athlete intentionally causes injury or engages in reckless conduct.” Id. at p. 26, n. 3.

Consider how this might apply to the game of high school football. Player A runs with the ball and, after a nice gain, he’s knocked out of bounds on the opponent’s sideline. While he’s in the bench area, a few players from the other team make some remarks to which Player A takes offense. He loses his temper and takes a swing at one of them. Unfortunately, he connects with a kid who doesn’t have either his helmet on or his mouthguard in. The result is a broken jaw, loss of a couple of teeth, and a possible concussion. Player A is immediately ejected from the game for “fighting.”

The parents of the injured youth are hopping mad and they make a beeline to their lawyer’s office. The lawyer has read the Pfenning decision discussed above. He gets his hands on a high school football rulebook and sees that the definition of “fighting” is “any attempt by a player or nonplayer to strike or engage a player or nonplayer in a combative manner unrelated to football.” (National Federation Rule 2-11 (emphasis supplied)) He then compares that to the language in the Pfenning opinion that seems to allow liability for conduct that it outside “the ordinary behavior of participants in the sport,” and “intentional or reckless.” And then he’s off to the courthouse faster than you can say “contingent fee.”

It is debatable whether the Supreme Court intended liability to attach in the example hypothesized, or in any of hundreds of other scenarios that could arise during sporting events, or even practices or during training. But the door is clearly open. All that remains is to determine how wide.

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