Even in Extreme Sport, Court Accords Primacy of Primary Assumption of Risk

Nov 19, 2021

By Jon Heshka, Associate Professor at Thompson Rivers University

An appellate court in Wolf v. Kaplan, 2021-Ohio-2447 has ruled that a triathlete injured when she crashed in a race after being clipped by a competitor cannot claim damages because the collision was an inherent risk that she assumed.

Mary Ellen Wolf was an experienced triathlete. She was a certified race director for USA Triathlon, the national governing body for triathlon, and had qualified for the USA Triathlon Nationals. During the August 2018 race, she crashed just over a mile into its bicycling portion and sustained a concussion, a closed fracture of the sacrum, two fractures of the left pubic bone, and multiple abrasions.

In April 2019, Wolf filed a complaint against Gregory Kaplan and asserted claims for battery, assault, negligence, and gross negligence. Wolf alleged that Kaplan violated the drafting rules and caused her to crash. Kaplan filed a motion for summary judgment that was opposed by Wolf.

In becoming a member of USA Triathlon, Wolf electronically signed a Waiver and Release of Liability, Assumption of Risk and Indemnity Agreement, under which she understood and acknowledged that triathlon events – including its swimming, bicycling and running portions – are “inherently dangerous” and that participation involves risks and dangers which include the potential for serious bodily injury caused by contact or collision with other participants. Wolf agreed to release claims for liability caused in whole or in part by the negligence of other participants in the race.

Another athlete witnessed the accident and testified that, while he did not see the exact moment of contact, it was impossible to think that contact was not made due to Kaplan’s proximity to Wolf at the time of her crash. This athlete testified that Kaplan momentarily and inadvertently drafted behind Wolf and then passed her in an unsafe manner. Kaplan denied making any contact and there was no physical evidence to show contact between the bikes that Kaplan and Wolf were riding.

The trial court granted Kaplan’s motion for summary judgment saying that there was no evidence Kaplan intentionally or recklessly injured Wolf. Wolf appealed claiming that the record contains questions of material fact as to whether Kaplan’s actions involved reckless and/or intentional conduct that was in violation of the race rules, which she claimed caused the crash and her resulting injuries.

In July 2021, the Court of Appeals of Ohio, Eighth Appellate District, Cuyahoga County held that the alleged conduct was a foreseeable and customary risk of the sport of triathlon, that the doctrine of primary assumption of risk applies, and that, as a matter of law, the alleged conduct could not be found intentional or reckless.

The court recognized that a participant in a recreational or sport activity assumes the ordinary risks and cannot recovery for an injury without showing that the other participant’s action was either reckless or intentional. This limitation is premised upon the doctrine of primary assumption of risk and is based on the rationale that such a participant assumes the inherent risks associated with the sport or activity. Citing Gentry v. Craycraft, 101 Ohio St.3d 141, 2004-Ohio-379, 802 N.E.2d 1116 at 10, the court said that the underlying policy is to “strike a balance between encouraging vigorous and free participation in recreational or sports activities, while ensuring the safety of the players.”

The court cited a 2003 Court of Appeal of California case of Moser v. Ratinoff, 105 Cl. App. 4th 1211, 1222-1223, 30 Cal.Rptr.2d 198 (2003) which involved one cycling swerving into another during a long-distance ride. That court stated that “in various sports, going too fast, making sharp turns, not taking certain precautions, or proceeding beyond one’s abilities are actions held not to be totally outside the range of ordinary activities involved with those sports.” The court in Moser said that the defendant’s actions may have been negligent, but they were not intentional, wanton or reckless conduct totally outside the range of ordinary activity involved in the sport.

The appellate court in Wolf v. Kaplan noted that “there is no question that triathlon is an inherently dangerous sport and that participation involves foreseeable risks and dangers for serious bodily injury that can arise from accidents, contact, or collision with other participants” [24]. Even though it was alleged that Kaplan passed Wolf with an unsafe maneuver, such conduct is not outside the range of ordinary activity involved in the sport.

The court further found it is not outside the range of ordinary activity involved in the cycling portion of a triathlon race for participants to come into close contact with one another, collide with another participant, or commit a rule infraction in an effort to advance their position. Such conduct is anticipated by the customs and practices of the sport, is reasonably foreseeable, and presents a risk of injury inherent in the sport. 

In an extreme sport where the general public may question the extent to which it is reasonable at all, the courts have again recognized the primacy of the doctrine of primary assumption of risk, that a rule violation is in itself an insufficient basis by which to attach liability, and that free and vigorous participation in triathlons would likely be adversely affected if liability were imposed under the circumstances at bar.

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