Spectators; they do not sign a release. They may not be able to assume the risk, what duty is owed to a spectator?

Organizers of a rugby tournament owed no duty to spectators at the tournament who were free to do at any time from the dangers and risks of lighting.

Patton v. United States Of America Rugby Football, Union, LTD., 381 Md. 627; 851 A.2d 566; 2004 Md. LEXIS 308

State: Maryland, Court of Appeals for Maryland

Plaintiff: Judith Edwards Patton (wife of Donald Patton), acting in both an individual capacity and as personal representative of the estate of Donald Patton; Sophia P. Patton and Robert C. Patton (the parents of Donald Patton); Robert Carson Patton, II; and Meredith Patton (Donald’s daughter).

Defendant: United States of America Rugby Football Union, Ltd., d/b/a USA Rugby (“USA Rugby”), the Mid- Atlantic Rugby Football Union, Inc. ( “MARFU”), the Potomac Rugby Union, Inc. (“PRU”), the Potomac Society of Rugby Football Referees, Inc. (“Referees’ Society”), Kevin Eager, n2 and Steven Quigg,

Plaintiff Claims: liable in tort for the death of Donald Patton and the injuries suffered by Robert Patton. This liability, Appellants contended, was due to Defendants’/Appellees’ failure to employ proper policies and procedures to protect players and spectators at the tournament from lightning strikes

Defendant Defenses: No duty, Maryland Recreational Use Statute and release signed by the survivor plaintiff/rugby player


Year: 2004

This case is a little different for this site; it concerns a rugby game. However, the instrumentality causing the injury was a lighting strike to a player and a spectator.

The plaintiff’s father and son attended a rugby match for the son to play and the father to cheer. A game commenced which the son was playing. The father was on the sidelines watching the game. During the game, a thunderstorm developed and lightning struck in the area. The rugby match was continued even though several other games in the tournament had been ended because of the weather.

Eventually, the match ended. The two plaintiffs’ then ran to some trees where they had left their belongings and took off for their car. On the way, lightning struck killing the father and severely injuring the son.

The plaintiffs were the surviving player and the relatives of the deceased. The defendants were the sponsoring organization, the local organization, the referee association and individual defendants. The plaintiff’s claimed the defendants should have:

(a) Have and implement proper policies and procedures regarding the protection of players and spectators from adverse weather conditions and lightning;

“(b) Have and implement a policy regarding the safe evacuation of players and spectators from the fields of play at its matches when lightning is present;

“(c) Safeguard the health, safety, and welfare of the players and spectators at its matches;

“(d) Terminate the rugby match and tournament when lightning is present;

“(e) Monitor and detect dangerous conditions associated with its matches; and

“(f) Train, supervise, monitor and control actions of officials prior to ensure the safety of the participants and spectators from dangerous lightning strikes.”

Several motions to dismiss were filed and the complaint was amended to defeat the motions. Eventually, the court dismissed the plaintiff’s complaint, and the appellate court stepped in after the dismissal and issued a writ of certiorari removing it from the Court of Special Appeals to the Appellate Court. The Appellate Court is the top court in Maryland, similar to the Supreme Court in other states.

A supreme court rarely issues a writ to remove a case before the intermediary appellate court has had a chance to review the case.

Analysis: making sense of the law based on these facts.

Under Maryland law, the plaintiffs have to prove one or more of the defendants were negligent. That means:

“(1) that the defendant was under a duty to protect the plaintiff from injury,

(2) that the defendant breached that duty,

(3) that the plaintiff suffered actual injury or loss, and

(4) that the loss or injury proximately resulted from the defendant’s breach of the duty

The requirements to prove negligence in Maryland are similar or identical to most other states.

The issue thought court stated was whether a legal duty was owed in this case.

As established in Maryland jurisprudence over a century ago: there can be no negligence where there is no duty that is due; for negligence is the breach of some duty that one person owes to another.

The first and most important step in determining whether a duty exists is to asses several issues in the relationship between the plaintiff(s) and the defendant(s) to determine if a legal duty is owed.

In determining the existence of a duty, we consider, among other things: the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered the injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.

Of these, the major test is one of foreseeability. “The foreseeability test “is simply intended to reflect current societal standards with respect to an acceptable nexus between the negligent act and the ensuing harm.”” At the same time, a legal duty does not necessarily exist because of a moral duty.

Even if the foreseeability test is passed by the plaintiff that alone does not prove the existence of a duty.

Duty can be created by ““(1) by statute or rule; (2) by contractual or other private relationship; or (3) indirectly or impliedly by virtue of the relationship between the tortfeasor and a third party.”

Whether a duty exists is also based on policy reasons; whether a type of behavior should be encouraged or discouraged for the benefit of all.

The plaintiffs argued that a special relationship existed between the defendants and the injured, the third way a duty is created set forth above. The plaintiff’s argued this based on their idea that a special relationship exists as spectators at sporting events.

A participant in a sporting event, by the very nature of the sport, trusts that his personal welfare will be protected by those controlling the event. Stated another way, it is reasonably foreseeable that both the player, and the player’s father, will continue to participate in the match, as []long as the match is not stopped by the governing bodies in charge. It also is reasonably foreseeable that, when matches are played in thunderstorms, there is a substantial risk of injury from lightning. And finally, it is reasonably foreseeable that a father will not abandon his son, when he sees those who have assumed responsibility for his son’s welfare placing his son in a perilous condition . . . .

Honestly, I would suspect that most spectators at most sporting events would believe the above to be true.

Here the court did not agree with the idea that a special relationship had been created or existed with spectators.

…the creation of a ‘special duty’ by virtue of a ‘special relationship’ between the parties can be established by either (1) the inherent nature of the relationship between the parties; or (2) by one party undertaking to protect or assist the other party, and thus often inducing reliance upon the conduct of the acting party.”

The court stated that generally, for a duty to exist, there must be an element of dependence, which is lacking in this case. The court raised another case that failed to find a special duty. IN that case a woman died of hypothermia because the emergency telephone operator gave an incorrect address to the policeman looking for the woman.

..“for a “special relationship” to exist between an emergency telephone operator and a person in need of assistance, it must be shown that the telephone operator affirmatively acted to protect the decedent or a specific group of individuals like the decedent, thereby inducing specific reliance by an individual on the telephone operator’s conduct.

There must be an element of ceding self-control by the injured party to the defendant to create a duty which is lacking in the present case.

In a special relationship, one person entrusts himself to the control and protection of another, with a consequent loss of control to protect himself. The duty to protect is imposed upon the person in control because he is in the best position to provide a place of safety. Thus, the determination whether a duty-imposing special relationship exists in a particular case involves the determination whether the plaintiff entrusted himself to the control and protection of the defendant, with a consequent loss of control to protect himself.

The court then looked at the risk presented by thunderstorms and found that there was less liability owed by a defendant to the risk created by lightning. The court, quoting another state court found “…risks and dangers associated with playing golf in a lightning storm are rather obvious to most adults.”

The Court concluded that “it is reasonable to infer that a reasonably prudent adult can recognize the approach of a severe thunderstorm and know that it is time to pack up the clubs and leave before the storm begins to wreak havoc.”

The court agreed with the trial court and found the defendants did not owe a duty to the plaintiffs based on their relationship and because the risks of thunderstorms were known to all.

So Now What?

Would this case have had a different outcome of the plaintiff had paid to attend the event and was at a specific location because the defendant told the spectator they paid to be at that location, or they were only allowed at a particular location?

In this case, the plaintiffs were free to leave the tournament at any time.

Spectators create a very different risk for event organizers. Do spectators at ski races understand a skier can leave the course and hit them? Do spectators at any match with a ball understand the ball always leaves the field of play and can cause injury to them?

Bicycle races are famous for spectators being allowed on the track where they commonly interfere with racers, but do they understand that they may also receive an injury by being there.

However, once the event organizer attempts to provide additional safeguards or warnings for the spectators, they may change the relationship between themselves and the spectators crating liability. You can protect the participants in the event, match or race and at the same time provide protection to spectators, but providing protection for spectators may increase your liability and in some cases increase the risk to players of the game.

Spectators for a risk manager are a difficult risk to understand and deal with.

What do you think? Leave a comment.

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By Recreation Law       Rec-law@recreation-law.com              James H. Moss

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2 Comments on “Spectators; they do not sign a release. They may not be able to assume the risk, what duty is owed to a spectator?”

  1. Richard Masoner says:

    “Everybody out of the pool!” Event organizers fairly commonly cancel or postpone events when lightning approaches, don’t they?


    • It was a rugby game……..

      Normally yes, but more importantly, the people died after the game had been stopped so even if they had been told to get out of the pool, they were out.


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