By Michael S. Carroll, PhD & Andrew L. Goldsmith, PhD
In June 2016, the Court of Appeals of Ohio affirmed the lower court judgment of the Court of Claims of Ohio and rejected an appeal by the plaintiff-appellant, who was injured while participating in a martial arts class at Kent State University (KSU). At the time of the incident in the Fall semester of 2012, the plaintiff, Aaron Morgan, was enrolled at KSU’s Stark campus in a Beginning Karate course. He had no prior experience with karate other than what he had seen on television and in the movies. The course syllabus specified that the class would include demonstration of basic self-defense techniques, including joint locks, throws, punches, and kicks, and that students would be expected to perform them. The course also required a waiver signed by all participants. For safety purposes, students were required to wear mouth guards and padded gloves. Students were expected to spar with one another, as well as the instructor, Edward Malecki, using light physical contact only. Students engaged in sparring were not allowed bodily or facial contact with one another and were supposed to be working on guarding themselves in defensive postures.
On October 24, 2012, Morgan was participating in a sparring session with the instructor, Malecki, when he lost his balance and dropped his guard. When he dropped his guard, Malecki punched him in the face bare-knuckle, resulting in a bloody nose. An incident report was filled out, and following medical care, Morgan was diagnosed with a nasal fracture. On June 15, 2014, Morgan filed a complaint in the Court of Claims of Ohio alleging negligence and negligent hiring against KSU. He subsequently filed a motion for partial summary judgement and attorney fees and expenses. The defendant University also filed a motion for summary judgement. On June 19, 2015, the Court of Claims granted KSU’s motion for summary judgement and denied Morgan’s motion for attorney fees and expenses.
In support of his appeal, Morgan cited four assignments of error:
The trial court erred in holding that the broad and general language contained in the waiver, which neither Kent State University nor Aaron Morgan intended to apply to academic or physical education classes, effectively released the Appellee from liability resulting from the Appellant being struck in the face by his instructor during a class the Appellant subsequently enrolled in through the University.
The trial court erred in holding that the Appellant’s claim against Kent State University is barred by the doctrine of primary assumption of risk.
The trial court erred in failing to grant Plaintiff-Appellant’s Motion for Partial Summary Judgment, as to the issue of liability.
The trial court erred by its failure to rule on Plaintiff-Appellant’s Motion for Attorney Fees and Expenses pursuant to Civ.R. 37(C).
Tackling the second assignment of error first, the Appellate Court considered the doctrine of primary assumption of risk, which effectively barred his negligence claim in the first case. In order to establish negligence actionable in Ohio, a plaintiff must demonstrate the existence of a duty, the breach of that duty, and injury that proximately results from said breach of duty. Ohio courts have historically applied the primary assumption of risk defense in cases involving sporting events and recreational injuries. Under the doctrine of primary assumption of the risk, a plaintiff who voluntarily engages in a recreational activity or sporting event assumes the inherent risks of that activity and cannot recover for injuries sustained in engaging in the activity unless the defendant acted recklessly or intentionally in causing the injuries. The test for applying the doctrine of primary assumption of the risk to recreational activities and sporting events requires that (a) the danger is ordinary to the game or activity, (b) the danger that exists is commonly understood by participants, and (c) the injury occurs as a result of the danger during the course of the game or activity. Primary assumption of risk is designed to only protect risks that are inherent to an activity and that cannot be removed without fundamentally altering said activity. As such, “the affirmative defense of primary assumption of risk completely negates a negligence claim, because the defendant owes no duty to protect the plaintiff from the inherent risks of the activity in which the plaintiff is engages,” and with no duty, there is no negligence claim.
With respect to the issue at hand, the court considered their ruling in a different case involving a cheerleading injury at KSU. In that case, a cheerleader at KSU was injured when she fell approximately 15 feet while engaged in a stunt during cheerleading practice, resulting in paraplegia. At issue was whether the doctrine of primary assumption of risk applied and relieved KSU of liability with respect to the actions of the cheerleading coach, who was not directly involved in the activity that led to the injury. The court found that the doctrine focuses on the act itself (in this case cheerleading) and that if the activity is one that is inherently dangerous and from which risks cannot be eliminated, primary assumption of the risk is applicable. In that case, the court ruled that suffering an injury from a fall during a cheerleading practice was inherent to the activity and that the doctrine of primary assumption of risk applied, thus relieving KSU from a duty to protect the injured cheerleader, absent any reckless or intentional misconduct. Back to the current case, Morgan contends that the facts establish that the injury he sustained was not a foreseeable consequence of participating in a beginning-level karate class, because all of the participants were novices in martial arts, participants were told there would be no bodily contact and especially no facial contact, the instructor was required to wear padded gloves, and the instructor was required to stop a sparring session once a student dropped their guard. The lower Court of Claims had previously found that there was no question that the martial arts class was a sports or recreational activity with an inherent risk of injury and that physical contact between participants during karate sparring is simply a foreseeable hazard of the activity. Following this rationale, the Appellate Court stated that by its very nature karate is an inherently dangerous activity from which the risk of harm cannot be eliminated.
Due to the inherent danger in karate, the common knowledge that such a hazard exists in participation, and the fact that Morgan’s injuries came about while participating in the inherently dangerous activity, the Appellate Court found that the doctrine of primary assumption of risk applied in this case. As such, Morgan is precluded from establishing a prima facie case of negligence, and the trial court did not err in granting KSU’s motion for summary judgment. Having overruled Morgan’s second assignment of error, his first and third assignments of error were rendered moot, and the court declined to discuss them.
The fourth assignment of error, in which Morgan asserted that the Court of Claims erred by failing to rule on his motion for attorney fees and expenses pursuant to Civ.R. 37(C), requires a demonstration of abuse of discretion. The Appellate Court stated that Morgan failed to demonstrate that the Court of Claims abused its discretion by denying the motion and subsequently overruled the fourth assignment of error. As such, the Appellate Court affirmed the judgment of the Court of Claims in Ohio.
Michael S. Carroll is an Associate Professor of Sport Management at Troy University specializing in research related to sport law and risk management in sport and recreation.
Andrew L. Goldsmith is an Assistant Professor of Sport Management at Kutztown University specializing in research related to organizational behavior and ethical decision-making in sport and recreation.
