South Carolina Supreme Court writes a clear decision on Assumption of the Risk for sporting activities.

Cole v. Boy Scouts of America, 2011 S.C. LEXIS 383

Defendants not liable because the plaintiff assumed the risk of his injuries when playing softball.

The plaintiff was on a Cub Scout outing with his son and their Cub Scout Pack. As part of the outing the fathers and sons were playing softball. During the play, things got a little intense, and the Unit Leader stepped in to cool things down. The plaintiff volunteered to be the catcher because he was afraid one of the boys would be hit by a bat or ball.

The defendant Wagner was on second base when the batter hit a long ball. Wagner was running home when the plaintiff Cole stepped in front of home plate. The resulting collision injured both parties.

The plaintiff sued Wagner the runner, the Boy Scouts of America, Indian Waters Council of the BSA, Cub Scout Pack 48, and Faith Presbyterian Church. The plaintiff claimed losses for personal injury, loss of consortium, and negligent infliction of emotional distress.

The plaintiff settled with all the other defendants. The defendant Wagner filed a motion for summary judgment, which was granted and the case was appealed to the South Carolina Supreme Court.

So? Summary of the case

The court first reviewed the legal definition of Assumption of the Risk in South Carolina.

Primary implied assumption of risk arises when the plaintiff impliedly assumes those risks that are inherent in a particular activity.”  

The doctrine of primary implied assumption of risk “goes to the initial determination of whether the defendant’s legal duty encompasses the risk encountered by the plaintiff.” To establish a claim for negligence, a plaintiff must first show that the defendant owed a duty of care to the plaintiff.

The plaintiff assumed the risk of his injuries when he decided to play softball. It did not matter if the game was organized or not, supervised or not, the playing of softball a player assumes the risks of the sport. Nor does it matter if the sport is amateur or professional.

The court also found that softball was a contact sport that increased the risks of the sport and the level of risk any player must assume.

Nor does violating a rule of the game change the risk assumed. As the court stated:

If no one ever violated the rules, then there would be no need for penalty shots in basketball, a penalty box in hockey, or flags on the field in football. Collisions at home plate are common, mainly because catchers often attempt to keep a runner from scoring by blocking the plate with their body.

The plaintiff also argued the defendant was reckless. However, the court did not find any recklessness in the facts or pleadings and found the level of activity argued by the plaintiff did not rise to the level of recklessness necessary to create liability. The court found recklessness or willfulness is conduct “so grossly negligent that a person of ordinary reason and prudence would then have been conscious of the probability of resulting injury.”

Recklessness implies the doing of a negligent act knowingly . . . [or] the conscious failure to exercise due care.” “Due care” can be defined as “that degree of care which a person of ordinary prudence and reason would exercise under the same circumstances.”

The actions of the defendant were within the scope of risks to be assumed in softball.

The likelihood of someone running too fast to stop or playing more aggressively than anticipated is part of the competitive atmosphere of athletics.” Almost all contact sports, especially ones that require protective gear as part of their equipment, involve conduct that a reasonably prudent person would recognize may result in injury.

Accordingly, a player assumes the risk of ordinary recklessness committed within the course of the game.

The court differentiated intentional conduct that was so reckless as to be outside of the scope of the game. The players have a reciprocal duty to not intentionally injure each other.    did not allege that the defendant’s conduct was intentional.

So Now What?

This is a great decision for youth volunteers and coaches as well as anyone who engages in sports in South Carolina. You can do so without fear of being sued for playing the game.

The issue is to make sure that everyone plays the game within the general rules of the sport, does not intentional injure someone and that everyone has fun.

Backyards are now safe for games again!

What do you think? Leave a comment.

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2 Comments on “South Carolina Supreme Court writes a clear decision on Assumption of the Risk for sporting activities.”

  1. People who make those decisions are called jurists. If a batter is warming up and swinging a bat or two in the warm up circle and someone walks into a bat is that part of the game? If a batter loses his grip during a swing at a pitch and the bat flies into the crowd is that part of the game. If you piss off a player and he chases you into the stands hitting you with a bat, I don’t think that is part of the game.


  2. Ian Fruend says:

    I agree that assumption of risk is very important in the recreation field; however, if the injury that was sustained was not part of regular play (such as getting hit with a bat before the game), is it still part of assumption of risk, or does it fall into a different category since it is not a part of the normal game?


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