Sports injuries in Ohio are common. In 2013, to address the growing incidence of traumatic brain injury among young athletes, Ohio enacted its Return to Play law, which requires coaches to pull players out of a game or practice if they exhibit the signs of a concussion or head injury. The players can return to play only after they’ve been cleared by a medical professional.
But Return to Play only addresses one aspect of sports injuries in Ohio. That is, it’s only meant to prevent future injury or the exacerbation of a present injury. What about compensation for past sports injuries?
In Ohio, when you’re injured by the negligent act of another person, you can normally recover against that person by filing a personal injury lawsuit. But for sports injuries, your ability to recover in a lawsuit is significantly curtailed. The Ohio Supreme Court explained why in a 1990 case called Thompson v. McNeill:
It is necessary to fashion a special rule for tort liability between participants in a sporting event because playing fields, golf courses, and boxing rings are places in which behavior that would give rise to tort liability under ordinary circumstances is accepted and indeed encouraged.
In other words, Ohio courts are concerned that they may “stifle the rewards of athletic competition” if they impose the normal rules of liability in the sports context. So, they’ve developed a special set of rules that applies to sports injuries. These rules make it more difficult for injured plaintiffs to recover in such cases.
How do courts treat sports injuries in Ohio?
Sports injuries in Ohio are frequently subject to one of three defenses with similar-sounding names: express assumption of the risk, primary assumption of the risk, and secondary (or implied) assumption of the risk. Here’s how each works:
Express Assumption of the Risk
A participant in a sporting event or recreational activity can waive another person’s liability for negligently injuring the participant. The organizers of such events often require participants to sign such a waiver or release before they can participate. Under the doctrine of express assumption of the risk, such waivers or releases are generally enforceable, and will bar the participant’s claim.
However, to be effective, such waivers must clearly and unequivocally express a release from liability for the particular kinds of claims at issue — for instance, claims resulting from negligence.
Primary Assumption of the Risk
In Thompson, the Ohio Supreme Court explained that “between participants in … sporting events, only injuries caused by intentional conduct, or in some instances reckless misconduct, may give rise to a cause of action. There is no liability for injuries caused by negligent conduct” (emphasis added). This is the defense of primary assumption of the risk.
The idea is that when a person participates in a sports event or recreational activity, he or she accepts (or “assumes”) the risks of the foreseeable and customary parts of that sport or activity. For instance, when a person plays tackle football, he or she assumes the risk of injury from being tackled.
But this rule extends well beyond contact sports. Ohio cases in which primary assumption of the risk has barred recovery have involved a wide range of activities, such as:
- Children playing “kick the can”
- Children hammering nails while building a chair
Notice that primary assumption of the risk doesn’t bar claims where injury was caused by another person’s recklessness or intentional conduct. That’s an important exception, but not as broad as it may appear at first. Like the rules of liability generally, what qualifies as intentional or reckless conduct is also modified in the sports injury context. Conduct that would be reckless in another context may not be in the context of a particular sport.
For example, Thompson involved a golfer who shanked the ball, hitting another golfer who was at a 90-degree angle to the intended line of the shot. The Court concluded that this was “a foreseeable and not uncommon occurrence in the game of golf.” But if the golfer had been practicing her swing at home near a crowded street, the result would likely have been different.
Secondary (or Implied) Assumption of the Risk
In some cases, a risk could be eliminated without negatively affecting the sport being played or activity being engaged in. In such cases, Ohio courts have refused to apply primary assumption of the risk. When they do, defendants can still raise the defense of secondary (or implied) assumption of the risk.
Secondary and primary assumption of the risk differ in two ways: First, when a defendant raises the defense of primary assumption of the risk, whether the plaintiff was aware of the risks involved in the sport or recreational activity is irrelevant. But with secondary assumption of the risk, the defendant must prove that the plaintiff actually understood the risk, but participated anyway.
Second, whereas primary assumption of the risk will prevent a plaintiff’s recovery entirely, secondary assumption of the risk requires that a court weigh the plaintiff’s fault in causing his or her own injury with the fault of other parties. In other words, a plaintiff can still recover when a defendant successfully raises secondary assumption of the risk, but his or her recovery will be reduced in proportion to his or her fault.
What should I do if I suffered a sports injury?
In short, it’s harder to recover for injuries you sustain while playing a sport or engaged in a recreational activity than it is in other contexts. But that doesn’t mean you should just forget about it. As you can see from the discussion above, this area of the law can be complicated, and the answer in your case may not be as clear as you think it is.
Instead, you should consult a knowledgeable Ohio personal injury attorney, who can assess your case and advise you as to the best course of action. The attorneys of Plevin & Gallucci have been fighting for the rights of our clients since 1971. Contact us today for a free consultation.