While I was growing up, if I was hurt or faced some negative challenge that resulted from a decision I made, my parents would often tell me that I should have known better.
The legal doctrine called “assumption of risk” is like saying, “You should know better,” and that doctrine often applies to participants in recreational activities who are hurt in the midst of that recreation.
Broadly, Ohio law provides that people who participate in recreational activities assume the risk of injury while participating, because certain risks are so inherent in some recreational activities so as to be unavoidable.
For instance, a common injury for people who play basketball (especially in organized contexts) is a sprain or tear to a ligament in the knee area called the anterior cruciate ligament or ACL. If someone plays in an after-work basketball league and tears his or her ACL, the participant likely assumed the risk of injury, because the possibility of an ACL injury in basketball is an inherent risk of the physical action of playing the game.
Similarly, baseball players are presumed to accept the risk that they may be hit by errant pitches.
Similarly, Ohio law provides that swimming includes the inherent risk of drowning. Therefore, the family of a swimmer who drowns while swimming in a neighbor’s swimming pool is generally unable to recover money from the pool owner.
Of course, as with most laws, there are exceptions. Organizers of recreational activities who are reckless can be held liable for injury to participants. Recklessness is generally defined as (a) a conscious disregard of or indifference to a known or obvious risk of harm to another that is (b) unreasonable under the circumstances and (c) substantially greater than the negligent conduct of the participant.
In other words, a recreational activity sponsor who is aware that his or her conduct will in all probability result in injury can be held responsible for the injury.
Recklessness, in this context in particular, is an especially high standard. The best example is from the 2004 movie “Dodgeball: A True Underdog Story.” In the movie, a coach teaches dodgeball discipline by having participants duck and dodge the coach’s throws of wrenches (pipe wrenches, hammers, Crescent wrenches, etc.). Although the movie is fictional and intended to be funny, it is a pretty clear example of how reckless and irresponsible someone must be in order to be responsible for someone else’s injury in the context of recreational activities.
Further, just by making a facility/court/gym available for other people to use, owners, tenants and other occupiers of recreational facilities are not liable for participants’ injuries. However, if the facility controller accepts responsibility or is consciously aware of certain visitors’ unique medical/physical conditions, the facility controller can be deemed to be responsible for some injuries.
As is the case in most circumstances, organizers of (formal or informal) recreational activities are advised to have participants/guests sign simple, written waivers of liability, despite the distastefulness (party foul) that such waivers necessarily embody.
Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at Lee@LeeSchroeder.com or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.