By Gary Chester, Senior Writer
It seemed like a good idea at the time. Charles “Bud” Wilkinson, the legendary football coach who guided Oklahoma to three national titles in the 1950s, devised a two-on-two tackling drill in a confined space to improve technique and toughness. More recently, the NFL and many high schools have banned the so-called “Oklahoma drill” over concussion concerns.
But the health and safety issues apparently did not reach TikTok, where the dangerous practice is something of a phenomenon. Millions on social media are watching videos of young participants running the drill without any helmets or padding.
Injuries are certain to follow, and injuries produce lawsuits. One example is Bacoulis v. Bellios, No. FBTCV216110797S, Sup. Ct. Conn. (November 20, 2023), which raises this legal issue: Does one who injures another participant in this activity enjoy immunity because he or she is engaging in a sport?
The Defendant Ran Amok
Alexa Bacoulis and Manny Bellios were playing the Oklahoma drill on a Rhode Island beach in 2022. According to Bacoulis’ Amended Complaint, Bellios “suddenly and without warning or provocation” ran roughshod over Bacoulis while carrying a football, causing her to sustain substantial injuries.
The three counts set forth in the Amended Complaint allege that Bellios is liable for (1) negligent assault, (2) willful, wanton, and intentional assault, and (3) negligent infliction of emotional distress. Judge Jennifer Castro-Tunnard considered Defendant Bellios’s motion for summary judgment.
Bellios argued that he is entitled to judgment as a matter of law on the first and third counts based on Connecticut’s “sports exception” doctrine, and that there is insufficient proof of intent to support the second count. The plaintiff countered that there is a genuine issue of fact as to whether the Oklahoma drill falls within the sports exception doctrine.
Judge Castro-Tunnard relied on Jaworski v. Kiernan, 241 Conn. 399, 412 (1997), where the Connecticut Supreme Court held that “a participant in a team contact sport [has] a legal duty to refrain from reckless or intentional conduct…mere negligence is insufficient to create liability.” In determining a defendant’s legal duty, courts are to consider four factors: the normal expectations of the participants in the sport in issue, the public policy encouraging participation in “recreational sporting activities,” the avoidance of increased litigation, and the decisions of other jurisdictions.
Bellios argued that negligence is insufficient to create liability because the parties were engaged in a sport or recreational activity. If so, the first and third counts should be dismissed. Bacoulis contended that the activity was not an athletic event, contest, or competition, and that the Oklahoma drill, by its very name, is a “drill” and therefore the sports exception doctrine does not apply, so the motion should be denied.
(Another important distinction is that even a football drill starts with a coach’s whistle, unlike the activity on the beach that allegedly began without any notice.)
The Precedents That Could Have Shaped the Outcome
The attorneys presented one notable precedent each, and it is the role of the trial judge to decide which precedent best applies to the facts. For Bacoulis, it was Benedetto v. Avon, Canton & Farmington Youth Hockey Association, 2001 Conn. Super. LEXIS 1015 (April 6, 2001), where the plaintiff participated in a hockey “game” between parents of players between the ages of seven and nine and those players. The court noted that even though the activity was a game, it was a “benign and fun activity requiring little skills or conditioning.”
In finding that the sports exception did not apply, the court held that the main objective was not to win a competitive, team contact sport, but rather for parents and children to have fun.
Counsel for Bellios argued that D’Agostino v. Easton Sports, Inc., 2010 Conn. Super. LEXIS 3200 (December 9, 2010) was a more applicable precedent. There, a pitcher in a softball game who was struck by a batted ball alleged that the batter had altered his bat so it would strike the ball with more force. The court dismissed the claim against the batter (though not against the bat manufacturer) because voluntary participants in a sport or recreational activity assume or consent to the common, inherent risks of participation.
Bellios urged that the objective of getting past a would-be tackler in the Oklahoma drill is the same as in football, and that both require physical contact and tackling that involve obvious risks.
The Non-Decision Decision
Rather than decide whether the Oklahoma drill was merely an informal drill falling outside the sports exception or whether it was a competitive sport or recreation, the trial judge punted. She found a genuine issue of material fact exists as to “the classification of the type of activity the parties were engaged in.”
The defendant argued that Bacoulis had assumed the risk of injury because she had testified that she understood the specific rules of the game and that physical contact was needed to win. Bacoulis argued that she had testified that she knew neither the name nor the rules of the Oklahoma drill. Judge Castro-Tunnard deemed this an issue of material fact that precluded summary judgment.
The result was consistent with the general law of negligence in Connecticut. As the court noted: “Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner.” (Fogarty v. Rashaw, 193 Conn. 442 (1984)).
The Takeaway
Whether Bacoulis understood the Oklahoma drill and assumed the risk of injury is a fact issue that relates to all three counts in her Amended Complaint. But whether the sports exception applies to the drill is arguably an issue of law, as it was in the two precedent cases. However, the court left for the jury the fundamental question of whether the defendant enjoyed immunity under the sports exception doctrine.
The court considered the reasonable expectations of the parties, which is only one of the four factors set forth in Jaworski. The judge failed to consider additional factors such as the decisions of other jurisdictions. In New York, for instance, the standard governing a related issue is whether a drill closely resembles the sport itself (see “Two New York Decisions Reflect Confusion Over Assumption of Risk Defense,” Sports Litigation Alert, June 2, 2023, p. 5).
On the surface, it would appear that playing the Oklahoma drill on a beach without any pads or helmets is closer to a youth hockey exhibition played for fun than a competitive, organized baseball game. If so, then Bacoulis would need to prove mere negligence rather than reckless or intentional conduct. But a jury of her peers, rather than the trial judge, will make that call if the case does not settle before the trial date of April 11, 2024.
