Day on Torts
The Supreme Court of South Carolina has ruled that a father playing catcher in a softball game who was injured during a collision at home plate did not have a claim against the baserunner.
In Cole v. Boy Scouts of America, Opinion No. 27072 (S.C. S. Ct. 12/5/11), South Carolina’s Supreme Court affirmed a grant of summary judgment in favor of the baserunner (Wagner) who collided with the plaintiff’s husband at home plate. Plaintiff’s husband sustained a serious brain injury in the collision.
Defendant Wagner moved for summary judgment contending that he owed no duty to Plaintiff’s husband because because he (the husband) assumed the risks of playing the sport of softball. Plaintiff alleged that Wagner’s behavior was inconsistent with the ordinary risks of softball because the game was intended to be noncompetitive. He also argued that Wagner violated a rule of the game, and he acted recklessly.
The Court found that no duty was owed to Cole, saying as follows:
A risk inherent in a sport can be found at any level of play, possibly more so in a non-professional arena where the players engage with less skill and athleticism. While Cole was playing a casual game in which the teams did not even keep score, he was still playing softball, which is a contact sport. Where a person chooses to participate in a contact sport, whatever the level of play, he assumes the risks inherent in that sport. See Landrum v. Gonzales, 629 N.E.2d 710, 714 (Ill. App. Ct. 1994) (noting that the relative inquiry into the standard of care is whether the sport is a contact sport, which should be determined "by examining the objective factors surrounding the game itself, not on the subjective expectations of the parties"); Keller v. Mols, 509 N.E.2d 584, 586 (Ill. App. Ct. 1987)("[I]n determining whether a sports participant may be liable for injuries to another player caused by mere negligence, the relevant inquiry is whether the participants were involved in a contact sport, not whether they were organized and coached."). Therefore by playing softball, Cole assumed those risks that are integral to the sport of softball, which includes the risk of a collision at home plate.
Appellants accordingly contend that Wagner violated a rule of softball by "running over the catcher during a play at home plate," and therefore his conduct was outside the scope of the game. However, the risk of someone violating a rule of the game is one of the risks taken when engaging in a sport. See Landrum, 629 N.E.2d at 714 (citing Oswald v. Township High Sch. Dist. No. 214, 406 N.E.2d 157, 160 (Ill. Ct. App. 1980)) (noting that "rule infractions, deliberate or unintentional, are virtually inevitable in contact games" and thus a different standard of care in such sports is justified). If no one ever violated the rules, then there would be no need for penalty shots in basketball, a penalty box in hockey, or flags on the field in football. Collisions at home plate are common, mainly because catchers often attempt to keep a runner from scoring by blocking the plate with their body. Even if a rule prohibits running into the catcher, that fact alone is insufficient evidence to show the injury resulting from the violation of the rule was not inherent in the sport.
As a final matter, Appellants argue that even if mere negligence may be outside the duty of care, Wagner’s conduct was reckless and therefore outside the scope of risks assumed in the game of softball. "[R]ecklessness or willfulness may be inferred from conduct so grossly negligent that a person of ordinary reason and prudence would then have been conscious of the probability of resulting injury."Yuan v. Baldridge, 243 S.C. 414, 419, 134 S.E.2d 248, 251 (1964). "[R]ecklessness implies the doing of a negligent act knowingly . . . [or] the conscious failure to exercise due care." Id. (quoting State v. Rachels, 218 S.C. 1, 8, 61 S.E.2d 249, 252 (1950)). "Due care" can be defined as "that degree of care which a person of ordinary prudence and reason would exercise under the same circumstances." Berberich v. Jack, 392 S.C. 278, 287, 709 S.E.2d 607, 612 (2011) (quoting Hart v. Doe, 261 S.C. 116, 122, 198 S.E.2d 526, 529 (1973)). [Further omitted.]
The Court left open the possibility that some acts could trump the no-duty rule:
We emphasize that this holding is limited to recklessness committed within the scope of the game and does not include intentional conduct by a coparticipant of a sport, or conduct so reckless as to be outside the scope of the game. Even within the context of a contact sport, players owe reciprocal duties to not intentionally injure each other. Cole does not allege that Wagner’s conduct was intentional nor does he allege such recklessness as would fall outside the scope of the game of softball. Thus, Wagner’s conduct fell within the duty of care he owed to Cole as a coparticipant in the game. [Footnote omitted.]
My guess is that Tennessee’s appellate courts would reach the same result under the facts as stated in the opinion. For an older Tennessee case involving injury to a softball catcher, see Brackman v. Adrian, 472 S.W.2d 7355 (Tenn. Ct. App. 1971) (school was not negligent in case where softball catcher injured in schoolyard game; decision seems inconsistent with current law concerning the scope of review of court-approved jury verdicts.)