One box was unchecked in the release which was signed online, and the court would not grant the motion for summary judgment of the defendant because whether or not the release was valid was a decision for the jury.

This judge was either not going to make a decision or only allow the plaintiff to win. However, the defendants set themselves up to lose by having a check box in the release.

Moore v. North America Sports, Inc., et al., 2009 U.S. Dist. LEXIS 134557

State: Florida: United States District Court for the Northern District of Florida, Panama City Division

Plaintiff: Brian Moore

Defendant: North America Sports, Inc., USA Triathlon

Plaintiff Claims:

Defendant Defenses: Assumption of the risk, Release

Holding: for the Plaintiff

Year: 2009

Summary

Having a box unchecked on a release sent the case to trial because the judge would not decide if that made the release valid. Having no jurisdiction and venue clause also created an opening, left unresolved on whether Florida or Montana’s law would apply. If Montana’s law, the releases would be void.

Overall, a poorly prepared or thought-out motion and supporting documents that helped the plaintiff more than the defendant left the defendant in a worse position than before they filed the motion.

Facts

The deceased lived in Montana and signed up in Montana to enter a triathlon in Panama City Beach Florida. In the process of signing up, he signed two releases. One for the website and one for the triathlon. The defendant also stated that the deceased signed two more releases upon registering for the event in Florida. The release signed for the website was not a factor in this decision.

During the swim portion of the triathlon the deceased experienced distress and died three days later.

His survivors filed this lawsuit.

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

The first issue reviewed by the court was the defense of assumption of the risk. The court resolved this issue in favor of the plaintiff in a short paragraph. Whether or not the deceased assumed the risk of his injury is a question for the jury. It cannot be resolved in a Motion for Summary Judgment.

When a participant volunteers to take certain chances, he waives his right to be free from those bodily contacts inherent in the chances taken.” However, it is the jury’s function to determine whether a participant should have anticipated the particular risk, and whether the defendant made the activity as safe as possible.

The second argument made by the plaintiff was whether or not the USA Triathlon was liable as a sanctioning body. “In order for a sanctioning organization, or sponsoring organization, to be liable, it must have some control over the event.” USA Triathlon argued they did not control the event and should be dismissed.

Again, the court stated whether or not USA Triathlon had any control over the event was a question of fact for the jury.

The next issues were the releases. The first issue was what law applied to the releases. There was obviously no jurisdiction and venue clause in the release or because there was an issue of the validity of the release, the court took it upon itself to determine what law applied.

The plaintiff’s argued that Montana’s law should apply. Montana does not allow the use of a release. See Montana Statutes Prohibits Use of a Release.

All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law.” Mont. Code Ann. § 28-2-702 (2007). However, Plaintiff fails to take into account that first the applicable choice-of-law must be determined, and then the contract is interpreted according to that state’s substantive law.

Since this decision, the statute has been amended to allow the use of releases for sport or recreational opportunities. See Montana Recreation Responsibility Act.

However, the court never made a definitive statement as to whose law would be applied to the releases in this situation.

The next issue was a review of the releases signed on-line when the deceased registered for the event. The on-line release required a box to be checked. In the discovery process, the defendant provided a copy of the release signed by the deceased that had a box that was unchecked.

Defendants provide a printout showing an electronic signature. However, in order to properly exe-cute the waiver, the waivers state that the participant must check the box. Defendants fail to pro-vide any evidence to show a connection between checking the box and an electronic signature appearing in the printout. This lack of evidence leaves us just short of the finish line. Had a proper showing been made, summary judgment for the Defendants might have been warranted. Whether the online wavier was properly executed is a material fact for the jury to decide.

Again, the court saved this issue for the jury. Somehow the deceased was able to register for the event and leave a box unchecked; consequently, the court found one unchecked box was enough to deny a motion for summary judgment as to the validity of the release.

The defendant then argued that there were two additional releases signed by the deceased that would have stopped the plaintiff’s claims. However, the copies the defendant provided did not have signatures on them.

Defendants claim that Rice would have been required to sign two additional waivers in order to complete the onsite registration and be allowed to participate. Defendants do not provide signed copies of these waivers, only blank copies. Plaintiff denies that Rice signed any waiver on the day of the race. The fact that Defendants cannot provide a signed waiver does not exclude testimony on this matter; it merely goes to the weight of the evidence for the jury to consider.

This allowed the plaintiff to plead the deceased never signed the documents and the court again through the decision to the jury.

So Now What?

Remember this decision was decided nine years ago. At that time, the law concerning assumption of the risk has changed, and more courts are determining that the risk the plaintiff suffered was inherent in the sport. Therefore, the plaintiff assumed the risk. Whether or not that evolution in the law has occurred in Florida. I have not researched.

I suspect that USA Triathlon now has written agreements with all races it sanctions setting forth the legal requirements of the relationship. Absent an agreement, an industry practice can easily be proven, but not in a motion for summary judgement. A contract outlining the legal responsibilities between the parties can be used in a motion for summary judgment.

Check Boxes in a Release are landmines waiting to explode.

Why do you have boxes to be checked in a release? They do not support a contract, they only support the theory that the unchecked section is not valid or as in this case the entire release is not valid.

It was just stupid not to have your ducks in a row as a defendant when filing or defending motions for summary judgment. Here the defendants looked bad. Their arguments were strong, but they had no proof to support their arguments. For more on how check boxes can void your release see Trifecta of stupidity sinks this dive operation. Too many releases, operation standards and dive industry standards, along with an employee failing to get releases signed, sunk this ship on appeal.

You can prove the deceased signed a release if you don’t have a copy of the signature on the release, however, to do so you have to be able to prove that your system would not have allowed the deceased to race unless he signed. Nothing like that was introduced for all three of the releases the defense argued the decedent signed.

That does not even take into account novation. The second and third release might have been void because they were not signed for consideration. Only the first release had consideration, a benefit flowing to the decedent, entrance into the race. The decedent was in the race when he signed the second and third release, so there was no new consideration. See Too many contracts can void each other out; two releases signed at different times can render both release’s void.

Two many releases, no contracts between the defendants and this order made the defendants look bad and guaranteed a trial.

Honestly, the decision reads like either a judge, who does not want to make a decision or one that was heavily leaning towards the Plaintiff. At the same time, the defendants made easy for the judge to rule this way. However, there is not much choice, you have to play with the cards the court clerk gives you.

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Industry standards are proof of gross negligence and keep defendant in lawsuit even with good release

If the industry says you should and calls it a standard you better

Lautieri v. Bae, 17 Mass. L. Rep. 4; 2003 Mass. Super. LEXIS 290 (Mass. Sup 2003)

Plaintiff: Derek A. Lautieri

Defendant: Jorun G. Bae

Third Party Defendants: defendants USA Triathlon, Inc., William Fiske d/b/a Fiske Independent Race Management, the Boys and Girls Clubs of Metrowest, Inc.

Plaintiff Claims: negligence and court added gross negligence

Defendant Defenses: Release

Holding: Holding release released defendants who could not be held to gross negligence.

This decision is from a trial court in Massachusetts. It has limited value in Massachusetts and other states.

If you have read many of these articles, you understand that releases do not bar claims for gross negligence. In this case, the release did not bar the claim for gross negligence, even when the plaintiff did not plead gross negligence.

This is a car/bike accident case during a triathlon. The plaintiff was cycling in a triathlon with several other cyclists. The defendant Bae, driver pulled out in front of the cyclists resulting in a collision. The course was not closed to traffic.

The defendant car driver brought in as third party defendants the race organizer, William Fiske d/b/a Fiske Independent Race Management (Fiske), the race charity Boys and Girls Clubs of Metrowest, Inc. (BGC) and the triathlon association sanctioning body USA Triathlon, Inc., (USTA).

The third party defendants were brought in for “contribution.” Contribution is defined in Massachusetts as:

Where two or more persons become jointly liable in tort for the same injury to person or property, there shall be a right of contribution among them.” The Supreme Judicial Court (“SJC”) has consistently interpreted the language of this statute to mean that an “action for contribution is not barred if, at the time the accident occurred, the party for whom contribution is sought could have been held liable in tort.”

For the defendant, Bae to enable to enforce contribution against the third party defendants she must show that the third party defendants could be held liable at trial in tort. Any defenses available to the third party defendants against the original plaintiff will also be a defense to the contribution claim of the defendant Bae.

Therefore, in order for Bae to be able to enforce a right of contribution against any of the third-party defendants, she must be able to show that the particular third-party defendant could have been found tortiously liable to the plaintiff at the time the accident occurred.

Fiske was the person who put the triathlon together. Even though Fiske was operating as Fiske Independent Race Management, the court indicated that Fiske was not a corporation or company (LLC). USTA sanctioned the race, including providing liability insurance and standards, according to the court, on how the race should be run.

The defendant Bae argued that the third party defendants should be liable for failing to “a safe layout for the race course, failure to provide warning signs and directions, and failure to place volunteers and/or police personnel at the intersection where the incident occurred.”

The court determined that USTA was:

…the governing body of triathlon races and promulgates safety requirements for use by organizers of sanctioned triathlon races.

USTA is the governing body of triathlon races and promulgates safety requirements for use by organizers of sanctioned triathlon races.

In that position, USTA created regulations for running triathlons which the court quoted:

2. It is highly recommended to close the [bike race] road to traffic. If not possible, cone bike lanes with a minimum width of six feet from vehicles . . . 9. Control stoplights/stop sign intersections, traffic hazards and turnarounds with police and an ample amount of volunteers . . . 12. Use ‘Race in Progress’ or ‘Watch for Cyclists’ signs placed along the course to help warn motorists about conditions . . . 23. All turns, turn-arounds, traffic hazards and intersections must be monitored and marked with signs and volunteers. Any intersections with stop signs or stop lights must be controlled by police or professional traffic personnel.

Fiske did not follow any of the guidelines offered by the USTA.

…it does not appear that Fiske, as Race Director, heeded any of the guidelines described above for the triathlon at issue; rather, he left the intersection at which Lautieri collided with Bae open to traffic, uncontrolled by police or volunteers, unmarked with warnings, and unmonitored.

Summary of the case

The defense raised by the third party defendants was “release.” The plaintiff signed a release to join the USTA and receive a license. The plaintiff also signed an application which contained language similar to that of a release when she entered the race.

Under Massachusetts law, the enforceability of a release is a question (issue) of law to be decided by the court. “Massachusetts law favors the enforcement of releases.”

There can be no doubt . . . that under the law of Massachusetts . . . in the absence of fraud a person may make a valid contract exempting himself from any liability to another which he may in the future incur as a result of his negligence or that of his agents or employees acting on his behalf.” While any doubts about the interpretation of a release must be resolved in the favor of the plaintiff, an unambiguous and comprehensive release will be enforced as drafted.

Nor does the word negligence have to be found in the release. Releases, like all other states, do not bar claims of gross negligence. Neither the plaintiff nor the defendant complained of any gross negligence. The court, however, stated that even though not pled, gross negligence could be found later against Fiske. If that was the case, then the releases signed by the plaintiff did not bar the claim against Fiske. “While these waivers are sufficient to release Fiske from all liability for harm caused by his own negligence, they do not release him from his own gross negligence.” The court found that the actions of Fiske could rise to the level of gross negligence.

The basis of that finding was Fiske did not follow the guidelines or regulations of the governing body, the USTA in running the race. “As this definition is necessarily vague, it is important to note that courts have found that “industry standards may be some evidence of negligence.”

To some extent, the court must have thought that Fiske’s failure to follow the standards of the USTA was very egregious to raise the issue of gross negligence in the case.

The court quoted the regulations cited above as evidence that what Fiske did when ignoring the industry standards was sufficient to void the release because it raised the possibility that Fiske was grossly negligent.

…it does not appear that Fiske, as Race Director, heeded any of the guidelines described above for the triathlon at issue; rather, he left the intersection at which Lautieri collided with Bae open to traffic, uncontrolled by police or volunteers, unmarked with warnings, and unmonitored.

The court further defined negligence and gross negligence under Massachusetts law.

Negligence, without qualification and in its ordinary sense, is the failure of a responsible person, either by omission or by action, to exercise that degree of care, vigilance and forethought which, in the discharge of the duty then resting on him, the person of ordinary caution and prudence ought to exercise under the particular circumstances. It is a want of diligence commensurate with the requirement of the duty at the moment imposed by the law.

Gross negligence is substantially and appreciably higher in magnitude than ordinary negligence. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care. It is very great negligence, or the absence of slight diligence, or the want of even scant care. It amounts to indifference to present legal duty and to utter forgetfulness of legal obligations so far as other persons may be affected. It is a heedless and palpable violation of legal duty respecting the rights of others. The element of culpability which characterizes all negligence is in gross negligence magnified to a high degree as compared with that present in ordinary negligence. Gross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence . . . It falls short of being such reckless disregard of probable consequences as is equivalent to a wilful and intentional wrong. Ordinary and gross negligence differ in degree of inattention, while both differ in kind from wilful and intentional conduct which is or ought to be known to have a tendency to injure.”

The court’s justification for not letting Fiske out of the case and for allowing the possibility of a claim for gross negligence was interesting.

While Bae has specifically pled negligence, and not gross negligence, this Court has considered the summary judgment motion as if a claim for gross negligence against the third-party defendants has been made.

Accordingly, because gross negligence may be considered an alternative theory of a standard negligence claim, Bae should be permitted to proceed with her claim of gross negligence against the third-party defendants.

The court then looked at the allegations against the USTA.

In order for Lautieri to establish that USTA owed him a duty of care at the time the accident occurred, Lautieri would have to establish that such a duty has a “source existing in social values and customs,” or that USTA voluntarily, or for consideration, assumed a duty of care to Lautieri. This is a burden that Lautieri–or, more appropriately, Bae, standing in Lautieri’s shoes–cannot meet.

There was no evidence that showed USTA participated or was supposed to participate in the planning, operation, supervision or running of the race. USTA did not even have a representative of USTA attend the race. Consequently, because there was no duty and USTA created no duty to the plaintiff the release barred the claims of the third party defendant.

The court’s discussion of the Boys and Girls Club was shorter.

A similar finding regarding the B&G Clubs is mandated. While there is evidence that the B&G Clubs provided volunteers for the triathlon, there is no evidence to support a claim of gross negligence against the B&G Clubs or any of its members.

USTA and the Boys and Girls Club were dismissed from the lawsuit.

So Now What?

The “release” or as identified by the court, application, was extremely weak. If the release had identified the course as being an open course, not closed to cars, this might have changed the outcome of the case for Fiske. No matter, the document was too weak not to create problems rather than resolve them in this case.

However, even if the release was stronger, it might not have gotten Fiske out of the case because of the court raised allegations of gross negligence. The USTA created regulations for running a race. By requesting and receiving sanctioning for the race, Fiske knowingly or unknowingly, became burdened or bound by those regulations. The court called them standards, regulations and guidelines throughout the decision, but the simple fact is they were a noose around the third party defendant’s neck.

You cannot look at your industry and not understand the standard of care in the industry or not find and follow the guidelines the industry is creating.

These “regulations” are fairly simple and appear to be commons sense. However, they substantially increase the cost of running an event. Closing a street requires government paperwork, government employees and usually help from law enforcement. All significantly increase the cost of running the event.

However, the regulations more importantly are proof that if an industry association creates regulations, standards, guidelines or rules, they are the standard of care against which members of the same industry will be judged in court.

For more articles on how standards created by an association are used to harm association members see:

ACA Standards are used by Expert for the Plaintiff in a lawsuit against a Camp

Expert Witness Report: ACA “Standards” are used by Expert for the Plaintiff in a lawsuit against a Camp

Plaintiff uses standards of ACCT to cost defendant $4.7 million

Trade Association Standards sink a Summer Camp when plaintiff uses them to prove Camp was negligent

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Lautieri v. Bae, 17 Mass. L. Rep. 4; 2003 Mass. Super. LEXIS 290

Lautieri v. Bae, 17 Mass. L. Rep. 4; 2003 Mass. Super. LEXIS 290

Derek A. Lautieri v. Jorun G. Bae 1

1 The Town of Hudson was also named as a third-party defendant in the complaint. Count IV against the Town has been dismissed. Memorandum of Decision, dated June 7, 2002 (Bohn, J.).

01-4078

SUPERIOR COURT OF MASSACHUSETTS, AT MIDDLESEX

17 Mass. L. Rep. 4; 2003 Mass. Super. LEXIS 290

October 29, 2003, Decided

October 29, 2003, Filed

DISPOSITION: Third party defendants’ motions for summary judgment allowed in part and denied in part.

JUDGES: [*1] Kenneth J. Fishman, Justice of the Superior Court.

OPINION BY: Kenneth J. Fishman

OPINION

MEMORANDUM OF DECISION AND ORDER ON THIRD-PARTY DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

INTRODUCTION

Plaintiff, Derek A. Lautieri (“Lautieri”), was injured during a triathlon held in Hudson, Massachusetts. Lautieri brought this action against the defendant/third-party plaintiff, Jorun G. Bae (“Bae”), claiming negligence for Bae’s failure to exercise reasonable care in the operation of her motor vehicle. Bae in turn brought an action against third-party defendants USA Triathlon, Inc. (“USAT”) (Count I of Third-Party Complaint), William Fiske (“Fiske”) d/b/a Fiske Independent Race Management (Count II) 2 and the Boys and Girls Clubs of Metrowest, Inc. (“B&G Clubs”) (Count III), seeking contribution in the event that the plaintiff recovers damages for his alleged injuries. 3 Specifically, Bae claims negligence on part of the third-party defendants for failure to provide a safe layout for the race course, failure to provide warning signs and directions, and failure to place volunteers and/or police personnel at the intersection where the incident occurred. This matter is before this Court on the third-party [*2] defendants’ motions for summary judgment as to all counts. For the reasons described below, the third party defendants’ motions are ALLOWED, in part, and DENIED, in part.

2 Bae’s complaint uses the spelling “Fisk” in the caption. As all the parties, including Bae, have since used the spelling “Fiske”, this Court will use the latter spelling.

3 Bae initially also claimed a duty of indemnification, but has since stipulated that no privity of contract existed between himself and any of the third-party defendants, and, therefore, that no right of indemnification exists.

BACKGROUND

On June 4, 2000, Lautieri participated in an organized triathlon, one leg of which was competitive bicycling. Bae, while operating a motor vehicle, came to the intersection of Main Street and Lewis Street in Hudson. Bae stopped, looked to her left, looked to her right, and then looked to her left again for approaching traffic. Seeing no vehicles approaching, Bae proceeded straight through the intersection. Lautieri, [*3] then approaching the intersection with four or five other bicyclists, turned to avoid Bae’s vehicle but did not have sufficient time to prevent a collision. Lautieri suffered significant injuries as a result of the accident.

On May 12, 2000, prior to the race, Lautieri completed and signed a “USA Triathlon Annual Licence Application Waiver.” That waiver contained the following language in the form duplicated below:

I acknowledge that a triathlon or bisport/duathlon event is an extreme test of a person’s physical and mental limits and carries with it the potential for death, serious injury and property loss. I HEREBY ASSUME THE RISKS OF PARTICIPATING IN TRIATHLONS OR BISPORT/DUATHLON EVENTS. I certify that I am physically fit and have sufficiently trained for participating in this event(s), and have not been advised against participating by a qualified health professional. I acknowledge that my statements in this AWRL are being accepted by the USAT in consideration for allowing me to become a member in USAT and are being relied upon by USAT and the various race sponsors, organizers and administrators in permitting me to participate in any USAT sanctioned event . . . (b) I AGREE that [*4] prior to participating in an event I will inspect the race course, facilities, equipment and areas to be used and if I believe they are unsafe I will immediately advise the person supervising the event activity or area; (c) I waive, release, AND DISCHARGE for any and all claims, losses or liabilities for death, personal injury, partial or permanent disability, property damage, medical or hospital bills, theft, or damage of any kid, including economic losses, which may in the future arise out of or relate to my participation in or my traveling to and from a USAT sanctioned event, THE FOLLOWING PERSONS OR ENTITIES: USAT, EVENT SPONSORS, RACE DIRECTORS, EVENT PRODUCERS, VOLUNTEERS, ALL STATES, CITIES, COUNTIES, OR LOCALITIES IN WHICH EVENTS OR SEGMENTS OR EVENTS ARE HELD, AND THE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES AND AGENTS OF ANY OF THE ABOVE, EVEN IF SUCH CLAIMS, LOSSES OR LIABILITIES ARE CAUSED BY THE NEGLIGENT ACTS OF OMISSIONS OF THE PERSONS I AM HEREBY RELEASING OR ARE CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OF ANY OTHER PERSON OR ENTITY; (d) I ACKNOWLEDGE that there may be traffic or persons on the course route, and I ASSUME THE RISK OF RUNNING, BIKING, SWIMMING [*5] OR PARTICIPATING IN ANY OTHER EVENT SANCTIONED BY USAT.

(e) I AGREE NOT TO SUE any of the persons or entities mentioned above in paragraph (c) for any of the claims, losses or liabilities that I have waived, released or discharged herein; (f) I INDEMNIFY AND HOLD HARMLESS the persons or entities mentioned above in paragraph (c) for any and all claims made or liabilities assessed against them as a result of my acts or inactions (ii) the actions, inactions or negligence of others including those parties hereby indemnified (iii) the conditions of the facilities, equipment or areas where the event or activity is being conducted (iv) the Competitive Rules (v) any other harm caused by an occurrence related to a USAT event . . .

Prior to the race, Lautieri also completed and signed a “Wet ‘N’ Wild Triathlon Application,” which contained the following language:

In consideration of the entry being accepted, I do hereby forever waive and release Fiske Independent Race Management, the sponsoring organization, companies, agents, representatives, assigns and successors from all claims of action, which I at any time acquire as a result of participation in the event for which this entry relates.

[*6] USTA is the governing body of triathlon races and promulgates safety requirements for use by organizers of sanctioned triathlon races. The subject triathlon was sanctioned by USTA based upon an application submitted by Fiske. On that application, William Fiske is identified as the Race Director. The Boys and Girls Clubs of Metrowest, Inc. provided a number of volunteers for the event.

DISCUSSION

[HN1] A party is entitled to summary judgment, “if pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material facts and that the moving party is entitled to a judgment as a matter of law.” Mass.R.Civ.P. 56(c). The burden of the moving party “is not sustained by the mere filing of the summary judgment motion,” but “must be supported by one or more of the materials listed in rule 56(c) . . .” Kourouvacilis v. General Motors Corp., 410 Mass. 706, 714, 575 N.E.2d 734, citing Celotex Corp. v. Catrett, 477 U.S. 317, 328, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). That party may satisfy this burden either by submitting affirmative evidence that negates an essential [*7] element of the opposing party’s case or by demonstrating that the opposing party has no reasonable expectation of proving an essential element of his case at trial. Flesner v. Technical Communications Corp., 410 Mass. 805, 809, 575 N.E.2d 1107 (1991); Kourouvacilis, 410 Mass. at 716. “If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts which would establish the existence of a genuine issue of material fact in order to defeat a motion for summary judgment.” Pederson v. Time, Inc., 404 Mass. 14, 17, 532 N.E.2d 1211 (1989), citing O’Brion, Russell & Co. v. LeMay, 370 Mass. 243, 245, 346 N.E.2d 861 (1976).

General Laws c. 231B, § 1, [HN2] provides in pertinent part: “Where two or more persons become jointly liable in tort for the same injury to person or property, there shall be a right of contribution among them.” The Supreme Judicial Court (“SJC”) has consistently interpreted the language of this statute to mean that an “action for contribution is not barred if, at the time the accident occurred, the party for whom [*8] contribution is sought could have been held liable in tort.” McGrath v. Stanley, 397 Mass. 775, 781, 493 N.E.2d 832 (1986) (emphasis in original). See also, Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 346-50, 446 N.E.2d 1033 (1983); Liberty Mutual Ins. Co. v. Westerlind, 374 Mass. 524, 526, 373 N.E.2d 957 (1978); O’Mara v. H.P. Hood & Sons, Inc., 359 Mass. 235, 238, 268 N.E.2d 685 (1971). 4 Therefore, in order for Bae to be able to enforce a right of contribution against any of the third-party defendants, she must be able to show that the particular third-party defendant could have been found tortiously liable to the plaintiff at the time the accident occurred. Each third-party defendant will be discussed separately below.

4 In McGrath, where a plaintiff’s failure to comply with the particular jurisdictional requirements of G.L.c. 258, § 4 was held not sufficient to bar a right of contribution, the SJC noted that the “contribution statute is aimed at eliminating the unfairness of allowing a disproportionate share of a plaintiff’s recovery to be borne by one of several joint tortfeasors.” 397 Mass. at 777-78. The third-party defendants in the instant case, however, are not claiming a lack of jurisdiction, but instead that the plaintiff’s signature on certain waivers releases them from all liability. The SJC has approved the denial of the right of contribution in similar cases. See O’Mara, 359 Mass. at 238 (denying contribution to defendant company from the driver of car in which plaintiff was a passenger when company truck hit driver’s car); Liberty Mutual Ins. Co., 374 Mass. at 526 (denying contribution of plaintiff’s employer for work related injury on grounds that the employer’s contributions to workers’ compensation benefits released the employer from all tort claims that might have resulted from the accident).

[*9] A. William Fiske d/b/a/ Fiske Independent Race Management

Fiske argues that he was released from all liability regarding the Wet ‘N’ Wild Triathlon when Lautieri signed the USA Triathlon Annual Licence Application Waiver and the Wet ‘N’ Wild Triathlon Application. [HN3] Whether the waivers signed by the plaintiff are enforceable to bar any claims in tort against Fiske is a question of law to be decide by this Court.

[HN4] “Massachusetts law favors the enforcement of releases.” Sharon v. City of Newton, 437 Mass. 99, 105, 769 N.E.2d 738 (2002). “There can be no doubt . . . that under the law of Massachusetts . . . in the absence of fraud a person may make a valid contract exempting himself from any liability to another which he may in the future incur as a result of his negligence or that of his agents or employees acting on his behalf.” Id., quoting Schell v. Ford, 270 F.2d 384, 386 (1st Cir. 1959). While any doubts about the interpretation of a release must be resolved in the favor of the plaintiff, an unambiguous and comprehensive release will be enforced as drafted. Cormier v. Central Massachusetts Chapter of the National Safety Council, 416 Mass. 286, 288, 620 N.E.2d 784 (1993). [*10]

Thus, in Cormier, the SJC upheld summary judgment against a plaintiff who executed a waiver of liability prior to sustaining injuries while riding on a motorcycle safety course. The Court found the waiver sufficient to bar a claim in negligence, even though the word negligence never appeared in the document. Id. at 288. The SJC also rejected the plaintiff’s claim that she believed that she was only relieving the defendant for liability for any accidental injury, not for any injury caused by the defendant’s negligence, holding that her “subjective intent not to release any claim for negligence, does not furnish a basis for avoiding the release on the ground of mistake.” Id. at 289.

Upon examination of the two releases signed by Lautieri prior to the subject triathlon, it is evident that he executed an unambiguous release of the third-party defendant, William Fiske. The USA Triathlon Annual Licence Application Waiver clearly and unambiguously releases “RACE DIRECTORS” from “any and all claims, losses or liabilities . . .” Fiske is listed as the “Race Director” on the 2000 USA Triathlon Event Sanction Application submitted to USAT. Furthermore, [*11] the Wet ‘N’ Wild Triathlon Application releases “Fiske Independent Race Management, the sponsoring organization, companies, agents, representatives, assigns and successors from all claims of action . . .” To the extent that Bae argues that the phrase “agents, representatives, assigns and successors” might refer to the phrase “sponsoring organization,” and that Fiske Independent Race Management–while not a legal entity–does not actually refer to William Fiske, individually, such interpretations are not reasonable given the plain meaning of the waiver language. 5 Nevertheless, even if this Court were to hold that the Wet ‘N’ Wild Triathlon Application was sufficiently ambiguous to render the waiver unenforceable, the language of the USA Triathlon Annual Licence Application Waiver is unambiguous and releases Fiske from liability. Thus, Fiske’s motion for summary judgment, as it relates to Bae’s claim of negligence against him, is well founded.

5 William Fiske used the name “Fiske Independent Race Mgt.” and “F.I.R.M” on the 2000 USA Triathlon Event Sanction Application regarding the Wet ‘N’ Wild Triathlon. Since there is no evidence in the record that “Fiske Independent Race Mgt.” or “F.I.R.M” are incorporated entities, or that William Fiske filed a business certificate in Massachusetts under these names, William Fiske is not afforded any legal protection by virtue of the use of these fictional business entities. See Pedersen v. Leahy, 397 Mass. 689, 691, 493 N.E.2d 486 (1986).

[*12] This analysis, however, does not end the matter. [HN5] Both the SJC and the Appeals Court “have noted that releases are effective against liability for ordinary negligence.” Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass.App.Ct 17, 18, 687 N.E.2d 1263 (1997) (emphasis in original), citing Lee v. Allied Sports Associates, Inc., 349 Mass. 544, 551, 209 N.E.2d 329 (1965). In Zavras, the Appeals Court, citing reasons of public policy, held that the owner of a premises at which organized dirt bike races were held did not exempt itself from liability for gross negligence by requiring participants in races to sign a release as a condition of participating. 44 Mass.App.Ct. at 18-19. See also, Restatement (Second) of Contracts § 195 (1981) (“A term exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy”). The Zavaras court noted that there is “substantial authority . . . [for] the position that while a party may contract against liability for harm caused by its negligence, it may not do so with respect to its gross [*13] negligence.” 44 Mass.App.Ct. at 19.

The present case is indistinguishable from Zavras. Here, Lautieri signed two valid waivers releasing Fiske, among others, from any and all liability that might arise from his participation in the subject triathlon race. While these waivers are sufficient to release Fiske from all liability for harm caused by his own negligence, they do not release him from his own gross negligence.

Thus, for purposes of determining contribution, the question for this Court becomes whether a finder of fact could find Fiske liable to Lautieri for gross negligence. Based on the summary judgment record viewed in a light most favorable to Bae, a genuine issue of material fact exists concerning whether the accident resulted from Fiske’s gross negligence.

[HN6] Gross negligence is defined as “very great negligence, or the absence of slight diligence, or the want of even scant care.” Zavras, 44 Mass.App.Ct. at 20, quoting Altman v. Aronson, 231 Mass. 588, 591, 121 N.E. 505 (1919). 6 As this definition is necessarily vague, it is important to note that courts have found that “industry standards may be some evidence of negligence. [*14] ” Fidalgo v. Columbus McKinnon Corp., 56 Mass.App.Ct. 176, 184, 775 N.E.2d 803 (2002), citing Poirier v. Plymouth, 374 Mass. 206, 211, 372 N.E.2d 212 (1978); Resendes v. Boston Edison Co., 38 Mass.App.Ct. 344, 358, 648 N.E.2d 757 (1995). Bae has submitted the USAT 2000 Event Sanctioning Guidelines & Requirements as evidence of the negligence of Fiske and the other third-party defendants. In the section entitled “Bike,” the USAT triathlon regulations state: “2. It is highly recommended to close the [bike race] road to traffic. If not possible, cone bike lanes with a minimum width of six feet from vehicles . . . 9. Control stoplights/stop sign intersections, traffic hazards and turnarounds with police and an ample amount of volunteers . . . 12. Use ‘Race in Progress’ or ‘Watch for Cyclists’ signs placed along the course to help warn motorists about conditions . . . 23. All turns, turn-arounds, traffic hazards and intersections must be monitored and marked with signs and volunteers. Any intersections with stop signs or stop lights must be controlled by police or professional traffic personnel.” Based on the record before this Court, [*15] it does not appear that Fiske, as Race Director, heeded any of the guidelines described above for the triathlon at issue; rather, he left the intersection at which Lautieri collided with Bae open to traffic, uncontrolled by police or volunteers, unmarked with warnings, and unmonitored. Therefore, this Court cannot say that there is no genuine dispute as to whether a failure to heed any of the triathlon industry guidelines regarding intersections, which left oncoming drivers totally unaware of the possible dangers that awaited them, constitutes gross negligence. See Chiacchia v. Lycott Environmental Research, Inc., 4 Mass. L. Rptr. 399, 1995 WL 1146824, *10 (Mass.Super.) (finding that the multiple ways in which the defendant’s investigation of certain property “failed to conform to established standards in the industry lead the court to conclude that [defendant’s] negligence in this matter [amounted] to gross negligence”).

6 [HN7] “Negligence, without qualification and in its ordinary sense, is the failure of a responsible person, either by omission or by action, to exercise that degree of care, vigilance and forethought which, in the discharge of the duty then resting on him, the person of ordinary caution and prudence ought to exercise under the particular circumstances. It is a want of diligence commensurate with the requirement of the duty at the moment imposed by the law.

[HN8] “Gross negligence is substantially and appreciably higher in magnitude than ordinary negligence. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care. It is very great negligence, or the absence of slight diligence, or the want of even scant care. It amounts to indifference to present legal duty and to utter forgetfulness of legal obligations so far as other persons may be affected. It is a heedless and palpable violation of legal duty respecting the rights of others. The element of culpability which characterizes all negligence is in gross negligence magnified to a high degree as compared with that present in ordinary negligence. Gross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence . . . It falls short of being such reckless disregard of probable consequences as is equivalent to a wilful and intentional wrong. Ordinary and gross negligence differ in degree of inattention, while both differ in kind from wilful and intentional conduct which is or ought to be known to have a tendency to injure.” Altman, 231 Mass. at 591-92.

[*16] While Bae has specifically pled negligence, and not gross negligence, this Court has considered the summary judgment motion as if a claim for gross negligence against all of the third-party defendants has been made. [HN9] “Under current Massachusetts State practice there is no requirement that a complaint state the correct substantive theory of the case.” Gallant v. Worcester, 383 Mass. 707, 709, 421 N.E.2d 1196 (1981), citing Mass.R.Civ.P. 8(a)(2); Mass.R.Civ.P. 54 (c). Even though it is sound practice to state all possible claims, the SJC has held that “a complaint is not subject to dismissal if it would support relief on any theory of law.” Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 89, 390 N.E.2d 243 (1979) (emphasis in original), citing Thompson v. Allstate Ins. Co., 476 F.2d 746, 749 (5th Cir. 1973). Thus, courts are generally “obligated to consider each of the alternative theories of law . . . on which [the complaining party’s] action might be maintained.” Id. Several courts in other jurisdictions have permitted a plaintiff to proceed with a claim for gross negligence after having only pled a claim for negligence. [*17] See, e.g., McTavish v. Chesapeake and Ohio Railroad Co., 485 F.2d 510, 512 (4th Cir.1973) (holding that Kentucky law permitted a claim of gross negligence to flow from an allegation of “negligence and carelessness”); Smith v. Hill, 510 F. Supp. 767, 775 (D.Utah 1981) (upon review of pleading and briefs court assumed that plaintiff “intended to plead that the [defendants] were grossly negligent”). Accordingly, because gross negligence may be considered an alternative theory of a standard negligence claim, Bae should be permitted to proceed with her claim of gross negligence against the third-party defendants. See Altman, 231 Mass. at 593 (holding that a plaintiff has the right to insist that a jury be instructed on the distinction between negligence and gross negligence at trial).

Accordingly, Fiske may be held liable for contribution to any successful claim for gross negligence that Lautieri could have made against Fiske at the time of the accident.

B. USAT

USAT argues that no duty exists between itself and the individuals who choose to participate in the triathlon. [HN10] Neither the SJC nor the Appeals Court has specifically ruled [*18] on whether a duty of care is owned to participants in an athletic event by a sanctioning body of the subject sport when that race takes place on public property.

USAT argues that the reasoning in Gauvin v. Clark, 404 Mass. 450, 537 N.E.2d 94 (1989), compels the application of a recklessness standard in the present case. In Gauvin, the SJC held that “personal injury cases arising out of an athletic event must be predicted on reckless disregard of safety,” on grounds that “vigorous and active participation in sporting events should not be chilled by the threat of litigation.” Id. at 454, citing Kabella v. Bouschelle, 100 N.M. 461, 465, 672 P.2d 290 (1983). The Gauvin case is not controlling here. Bae is not seeking to hold another participant in the triathlon responsible for Lautieri’s injuries. Instead, he is seeking damages from those who organized and sanctioned the event.

[HN11] Whether a defendant owed a duty of care to the plaintiff is a question of law. O’Sullivan v. Shaw, 431 Mass. 201, 204, 726 N.E.2d 951 (2000). In order for Lautieri to establish that USAT owed him a duty of care at the time the accident [*19] occurred, Lautieri would have to establish that such a duty has a “source existing in social values and customs,” Yakubowicz v. Paramount Pictures Corp., 404 Mass. 624, 629, 536 N.E.2d 1067 (1989), or that USAT voluntarily, or for consideration, assumed a duty of care to Lautieri. Mullins v. Pine Manor College, 389 Mass. 47, 52-53, 449 N.E.2d 331 (1983). This is a burden that Lautieri–or, more appropriately, Bae, standing in Lautieri’s shoes–cannot meet. The only involvement of USAT with the subject triathlon was its approval of Fiske’s application, which, in essence, effectively permitted Fiske to be eligible for insurance coverage from the USAT Triathlon liability policy. There is no evidence in the record that suggests that USAT had any obligation or was expected to participate in the planning, operation, or supervision of the race, much less have a representative attend the Wet ‘N’ Wild triathlon. Accordingly, there is no basis on which to conclude that USAT owed Lautieri a duty of care. Assuming, arguendo, that USAT did owe a duty of care to Lautieri, the summary judgment record is devoid of any evidence that would permit a finder of fact [*20] to conclude that USAT acted with gross negligence with regard to Lautieri or the subject triathlon. Therefore, summary judgment in favor of third-party defendant USAT must be allowed.

C. Boys and Girls Clubs of Metrowest, Inc.

A similar finding regarding the B&G Clubs is mandated. While there is evidence that the B&G Clubs provided volunteers for the triathlon, there is no evidence to support a claim of gross negligence against the B&G Clubs or any of its members. Thus, the waivers are operative to release the B&G Clubs from liability. Accordingly, summary judgment for the third-party defendant B&G Clubs must also be allowed.

ORDER

For the foregoing reasons, USA Triathlon, Inc’s and Boys and Girls Clubs of Metrowest, Inc.’s motions for summary judgment are ALLOWED, and, accordingly, judgment shall enter for the third-party defendants on Counts I and III of the third-party complaint, as they relate to claims of contribution, and on Counts I, II, and III of the third-party complaint, as they relate to indemnification. William Fiske, d/b/a Fiske Independent Race Management’s motion for summary judgment on Count II of the third-party complaint is DENIED as it relates [*21] to a claim for contribution.

Kenneth J. Fishman

Justice of the Superior Court

Date: October 29, 2003

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Indiana adopts the higher standard of care between participants in sporting events in this Triathlon case

Mark, v. Moser, 46 N.E.2d 410; 2001 Ind. App. LEXIS 671

This decision examines the different legal decisions involving lawsuits between participants in Indiana and other states.

The plaintiff and the defendant were racing in a triathlon. Both agreed to abide by the rules of USA Triathlon, and both signed releases. While in the bicycle portion

English: Transition area (bicycles) of Hamburg...

of the race, the defendant cut in front of the plaintiff causing a collision. The defendant was disqualified for violating the USA Triathlon rule concerning endangerment.

No cyclist shall endanger himself or another participant. Any cyclist who intentionally presents a danger to any participant or who, in the judgment of the Head Referee, appears to present a danger to any participants shall be disqualified.

The referee stated the defendant’s conduct was not intentional, “rather, he was disqualified for violating the rule “because, by moving over, an accident occurred.” As you can seem the rule, and its interpretation are subject wide interpretation and would lead to more arguments (lawsuits) after that.

The plaintiff sued the defendant for negligence and for acting intentionally, recklessly and willfully causing her injuries. The defendant filed a motion for summary judgment on both claims. The trial court granted the motion on the negligence claim and denied the motion on the second claim, the international acts.

In some jurisdictions, you can appeal motions for summary judgment that do not finish the case in its entirety. Here the plaintiff appealed the decision. Whether or not you can appeal the decision is dependent on the state rules of civil and appellate procedure.

Summary of the case

The Indian appellate court did a thorough analysis of the legal issues after determining this was an issue of first impression in Indiana. An issue of first impression is one where the court has not ruled on this particular legal issue before.

The issue was what was the standard of care owed by co-participants in a sporting event. The standard for a school sporting event was negligence. The court stated that the standard was negligence, low, because of the duty the school personnel had to exercise reasonable care over the students.

The court then looked at other decisions for the duty between co-participants. The court found three states, Arizona, Nevada and Wisconsin where the duty was negligence. The court found California, Connecticut, Illinois, Kentucky, Louisiana, Massachusetts, Michigan, Missouri, Nebraska, New Jersey, New Mexico, New York, Ohio, and Texas had adopted a “reckless or intentional conduct” or a “willful and wanton or intentional misconduct” standard of care. This is a much higher standard of care than the negligence standard.

English: Triathlon photographs from the Chinoo...

The court found the higher standard of care was established because participants assume the risk of the activity, to stop mass litigation that would arise every time a foul occurs, and not to limit the sport because of the fear of liability.

The Indiana court determined that participants in sports activities:

…assume the inherent and foreseeable dangers of the activity and cannot recover for injury unless it can be established that the other participant either intentionally caused injury or engaged in conduct so reckless as to be totally outside the range of ordinary activity involved in the sport.

The court granted the summary judgment as to the first count, the negligence claim and sent the second claim back to the lower court to determine if the plaintiff could prove that the action of the defendant was intentional, reckless and willful when he rode his bike. The court sent it back with this statement.

…the trial court must determine whether Kyle’s [defendant] action was an inherent or reasonably foreseeable part of the sport, such that Rebecca [plaintiff] assumed the risk of injury as a matter of law. In our view, it is reasonably foreseeable that a competitor in a cycling race may attempt to cut in front of co-participants in an effort to advance position. Thus, if Rebecca is unable to develop the facts beyond those presented at this juncture, we would conclude that Kyle’s action was an inherent risk in the event that Rebecca assumed as a matter of law, thereby precluding recovery.

That is a very specific statement as to how the lower court must examine the facts in the case.

The appellate court also made another statement that is very important in this day and age.

As is generally the case, the release form that Rebecca signed does not relieve Kyle from liability as co-participants are not listed among the specific entities or individuals released from liability ac-cording to the plain language of the document.

The court looked at the release to determine if the release stopped the suit even though that was not argued by the parties.

So Now What?

A triathlon bicycle with triathlon handlebar a...

It’s OK to play touch football, softball and have fun in Indiana.

At the same time, the court pointed out the fact that if the release had included the term co-participants in the release, the lawsuit might have started because the defendant would have been protected.

Here just one additional word in the release might have stopped a lawsuit.

What do you think? Leave a comment.

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Mark, v. Moser, 46 N.E.2d 410; 2001 Ind. App. LEXIS 671

Mark, v. Moser, 46 N.E.2d 410; 2001 Ind. App. LEXIS 671

Rebecca J. Mark, Appellant-Plaintiff, vs. Kyle Moser, Appellee-Defendant.

No. 29A02-0010-CV-623

COURT OF APPEALS OF INDIANA, SECOND DISTRICT

746 N.E.2d 410; 2001 Ind. App. LEXIS 671

April 19, 2001, Decided

PRIOR HISTORY: [**1] APPEAL FROM THE HAMILTON SUPERIOR COURT. Cause No. 29D03-9806-CT-323. The Honorable William Hughes, Judge.

DISPOSITION: Trial court’s decision affirmed with respect to Count I. Remanded to trial court for further proceedings on Count II consistent with this opinion.

COUNSEL: FOR APPELLANT: JOSEPH A. CHRISTOFF, KONRAD M. L. URBERG, Christoff & Christoff, Fort Wayne, Indiana.

FOR APPELLEE: STEVEN K. HUFFER, DEREK L. MANDEL, Huffer & Weathers, P.C., Indianapolis, Indiana.

JUDGES: BAKER, Judge. BROOK, J., and BARNES, J., concur.

OPINION BY: BAKER

OPINION

[*413] BAKER, Judge

Today we are called upon to clearly define the standard of care one competitor owes another in a sporting event. Although this court may have tangentially addressed the issue in the past, there has been no case since the adoption of the Comparative Fault Act where an in-depth analysis was warranted. Thus, the precise issue we must decide is whether a participant in an athletic activity may recover in tort for injury as the result of another participant’s negligent conduct.

FACTS

The uncontroverted facts are that on September 7, 1997, Rebecca Mark (Rebecca) and Kyle Moser (Kyle) were co-participants in a triathlon competition in [**2] Marion County, which consisted of three events, swimming, bicycling, and running. Before the competition, each triathlon participant agreed to abide by the rules adopted by USA Triathlon. In addition, all the participants signed an entry form, which included a waiver provision and release from liability.

During the bicycling leg of the triathlon, Kyle was riding on the left side of Rebecca and cut in front of her. As a result, the two bicycles collided and Rebecca was hospitalized with serious injuries. Kyle was subsequently disqualified for violating the USA Triathlon rule against endangerment. That rule provides: “No cyclist shall endanger himself or another participant. Any cyclist who intentionally presents a danger to any participant or who, in the judgment of the Head Referee, appears to present a danger to any participants shall be disqualified.” Record at 115. The triathlon referee, Ardith Spence, stated that Kyle’s conduct was not considered intentional; rather, he was disqualified for violating the rule “because, by moving over, an accident occurred.” R. at 111.

On June 7, 1998, Rebecca filed a two-count complaint against Kyle. In Count I, Rebecca alleged that the collision [**3] was caused by Kyle’s negligence and, in the alternative, in Count II, Rebecca alleged that Kyle acted intentionally, recklessly and willfully in causing her injuries. In response, on September 29, 2000, Kyle filed a motion for summary judgment as to both counts of Rebecca’s complaint. Specifically, Kyle argued that Rebecca was barred from recovering on a negligence theory and, instead, asserted that she was required to establish that he intentionally, recklessly, willfully, or wantonly caused her injuries. In addition, Kyle argued that there was no evidence indicating that he had intentionally or recklessly caused the collision between the two bicycles.

The trial court held a hearing on Kyle’s motion on June 7, 2000. Thereafter, on August 3, 2000, the trial court granted summary judgment as to Count I of Rebecca’s complaint and denied it as to Count II. Rebecca now appeals the trial court’s judgment regarding the negligence count.

DISCUSSION AND DECISION

I. Standard of Review

The standard of review of a summary judgment is well settled. [HN1] This court [*414] applies the same standard as the trial court. USA Life One Ins. Co. v. Nuckolls, 682 N.E.2d 534, 537 (Ind. 1997). [**4] We do not weigh the evidence designated by the parties. Instead, we liberally construe the evidence in the light most favorable to the non-moving party. Id. Summary judgment is appropriate only if the pleadings and the evidence show both the absence of a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Butler v. City of Indianapolis, 668 N.E.2d 1227, 1228 (Ind. 1996). Where material facts conflict, or undisputed facts lead to conflicting material inferences, summary judgment is inappropriate. Id.

II. The Current State of the Law

A. Indiana Law

Many people might think that Rebecca’s claim would be barred because she in some way incurred, or assumed, the risk of injury by participating in the sporting event. However, under present Indiana law that would not necessarily be the case if the standard of care was negligence. On January 1, 1985, Indiana adopted the Comparative Fault Act (the Act). IND. CODE § 34-51-2-1 to -19. The Act was intended to ameliorate the harshness of the then prevailing common law doctrine of contributory negligence. [**5] Baker v. Osco Drug, Inc., 632 N.E.2d 794, 797 (Ind. Ct. App. 1994). Under the common law rule, a slightly negligent plaintiff was precluded from recovery of any damages, even against a highly culpable tortfeasor. Id. In [HN2] contrast, under the Act, if a plaintiff’s conduct satisfies the statutory definition of “fault,” he will be permitted to recover damages, but those damages will be reduced by his proportion of fault. Id. However, if the plaintiff’s percentage of fault is assessed at greater than fifty percent, his recovery will still be completely barred. Id. For purposes of defining comparative fault, [HN3] the term “fault” includes “any act or omission that is negligent, willful, wanton, reckless, or intentional towards the person or property of others. The term also includes unreasonable assumption of risk not constituting an enforceable express consent, incurred risk, and unreasonable failure to avoid an injury or to mitigate damages.” I.C. § 34-6-2-45(b). [HN4] This inclusion of “incurred risk” in the definition of fault abolishes incurred risk as a complete bar to recovery and establishes that the fault of each party should be apportioned. [**6] Baker, 632 N.E.2d at 797. Thus, under Indiana law, if we adopt negligence as the standard of care between co-participants in a sporting event, it would be a question of fact for the jury to decide whether the plaintiff in any way incurred the risk of harm but is, nevertheless, entitled to recover for his injury.

Our supreme court has not specifically addressed the standard of care between co-participants in athletic events. However, it has addressed the appropriate standard of care owed by an educational institution and its representatives to students for injuries sustained while playing campus sports. [HN5] In this context, the court has adopted a negligence standard. See Beckett v. Clinton Prairie Sch. Corp., 504 N.E.2d 552, 554 (Ind. 1987) (holding that school personnel have a duty to exercise reasonable care over students participating in a school activity under school supervision, in a case involving a collision between two student baseball players). Our supreme court adopted this standard based on its recognition that there is a well-established “duty on the part of school personnel to exercise ordinary and reasonable care for the safety of children [**7] under their authority.” Beckett, 504 N.E.2d at 553; cf. Brewster v. Rankins, 600 N.E.2d 154, 158 (Ind. Ct. App. 1992) (holding that [*415] while school authorities have a duty to exercise reasonable care for the safety of children under their tutelage, they have no duty to prevent a student from injuring other players while practicing his golf swing at home). According to the court, whether school personnel exercised their duty with the level of care of an ordinary prudent person under the same or similar circumstances is generally a factual question for the determination of the jury. Beckett, 504 N.E.2d at 554.

Our supreme court has also recognized, however, [HN6] that if the student athlete can be shown to have incurred the risks inherent in the sports event, this acts as a potential bar to recovery. Id.; see also Clark v. Wiegand, 617 N.E.2d 916, 919 (Ind. 1993) (holding that the question of whether a student in a university judo class incurred the risk of injury from another student so as to bar recovery from the university was a question for the jury). According to the Beckett court, for the “doctrine of incurred [**8] risk” to affect the plaintiff’s likelihood or percentage of recovery, it is not enough that the plaintiff merely has a general awareness of a potential for mishap in engaging in the particular sports activity. Id. Rather, the doctrine involves a subjective analysis focusing upon the plaintiff’s actual knowledge and appreciation of the specific risk and voluntary acceptance of that risk. Clark, 617 N.E.2d at 919 (stating that whether the possibility of sustaining a knee ligament injury while participating in a judo class “was within the plaintiff’s actual knowledge, appreciation, and voluntary acceptance, is a factual matter not easily susceptible to determination as a matter of law”). 1

1 For another case where a student brought suit against the school corporation for injuries caused by a fellow student during a sports event, see Huffman v. Monroe County Community Sch. Corp., 588 N.E.2d 1264 (Ind. 1992). In that case, the plaintiff sustained head and shoulder injuries when a fellow student struck her in the back of the head with a shot put during a track meet. Id. at 1264.

[**9] In Duke’s GMC v. Erskine, 447 N.E.2d 1118, 1118 (Ind. Ct. App. 1983), a panel of this court addressed the situation where a sports participant sued for injuries caused by another player. Duke’s GMC involved a golfer, Erskine, who sued for loss of an eye from being struck by a golf ball at a country club. Id. In addition to being decided prior to Indiana’s adoption of the Comparative Fault Act, Duke’s GMC is distinguishable from the case at bar because the court was not confronted with the standard of care between sports co-participants and because Erskine sued the corporation that paid the dues of its president who hit the golf ball causing the injury, rather than suing the president himself. Id. Specifically, in Duke’s GMC, this court was called upon to decide whether the trial court erred in admitting certain evidence and in the instructions it gave to the jury. In addressing whether the trial court’s instruction regarding incurred risk was erroneous, this court approved the parties’ assertion that a golfer could not incur the risk of another golfer’s negligence as a matter of law. This court then discussed the instruction based on a negligence [**10] standard, but it never addressed the standard of care one competitor owes another in a sporting event. However, when discussing the appropriateness of the trial court’s instructions regarding damages, the Duke’s GMC court did examine how violations of the rules of sport affect the negligence analysis. In so doing, this court recognized that the “rules of sport are at least an indicia of the standard of care which players owe each other,” and concluded that “while a violation [*416] of those rules may not be negligence per se, it may well be evidence of negligence.” 2 Id. at 1124.

2 The parties dispute whether the court in this case proceeded under a standard of negligence or reckless misconduct. Appellant’s brief at 8; Appellee’s brief at 4-5. While the standard is unclear, it appears from the court’s holding and analysis of how violations of the rules of sport affect the negligence analysis, that it permitted the case to proceed under a negligence standard. Duke’s GMC, 447 N.E.2d at 1124.

[**11] [HN7]

Thus, under the current state of Indiana law, in actions for sports-related injuries against school authorities, rather than against a co-participant, liability will attach in the event that negligence is shown. We note, however, that the plaintiff’s negligence claim is subject to the defense of incurred risk, which requires the defendant to establish that the plaintiff had actual knowledge of the risk that resulted in his injury. Should the defendant carry his burden of proof on this defense, the plaintiff’s recovery will be reduced or eliminated depending on the degree of the plaintiff’s fault.

B. Law in Other Jurisdictions

The authority from other jurisdictions is instructive with regard to the standard of care to be applied between co-participants in a sports activity. Other jurisdictions have generally taken one of two approaches to this issue, and have adopted either a negligence or recklessness standard. They have also recognized two principle defenses, contributory negligence and assumption of risk.

Arizona, Nevada, and Wisconsin judge sports injury cases between co-participants according to an “ordinary care” or negligence standard. See Estes v. Tripson, 188 Ariz. 93, 932 P.2d 1364, 1366 (Ariz. Ct. App. 1997); [**12] Auckenthaler v. Grundmeyer, 110 Nev. 682, 877 P.2d 1039, 1043 (Nev. 1994); Lestina v. West Bend Mut. Ins. Co., 176 Wis. 2d 901, 501 N.W.2d 28, 33 (Wis. 1993). The primary argument for adhering to the negligence standard is the belief that this standard is flexible enough to be applied to a wide range of situations because it only requires that a person exercise ordinary care under the circumstances. See Auckenthaler, 877 P.2d at 1043; Lestina, 501 N.W.2d at 33. Thus, “within the factual climate of . . . sporting events, the question posed is whether the defendant participated in a reasonable manner and within the rules of the game or in accordance with the ordinary scope of the activity.” Auckenthaler, 877 P.2d at 1043 (citing Lestina, 501 N.W.2d at 33).

The majority of other states have adopted a “reckless or intentional conduct” or a “willful and wanton or intentional misconduct” standard. These states include California, Connecticut, Illinois, Kentucky, Louisiana, Massachusetts, Michigan, Missouri, Nebraska, New Jersey, New Mexico, New York, Ohio, and Texas. See Knight v. Jewett, 3 Cal. 4th 296, 834 P.2d 696, 711 (Cal. 1992) [**13] (applying a recklessness standard to an injury in an informal game of coed football); Jaworski v. Kiernan, 241 Conn. 399, 696 A.2d 332, 339 (Conn. 1997) (holding that a recklessness or intentional misconduct standard should be used in a case involving a recreational soccer game); Hoke v. Cullinan, 914 S.W.2d 335, 339 (Ky. 1995) (applying a recklessness standard with respect to an injury sustained in a doubles tennis match); Picou v. Hartford Ins. Co., 558 So. 2d 787, 790 (La. Ct. App. 1990) (applying recklessness as the standard for injuries sustained during a softball game); Gauvin v. Clark, 404 Mass. 450, 537 N.E.2d 94, 96 (Mass. 1989) (adopting a “reckless disregard of safety” standard in a case involving a college hockey game); Ritchie-Gamester [*417] v. City of Berkley, 461 Mich. 73, 597 N.W.2d 517, 518 (Mich. 1999) (holding that co-participants owe each other a duty not to engage in reckless misconduct in a case involving a collision between two recreational skaters); Dotzler v. Tuttle, 234 Neb. 176, 449 N.W.2d 774, 779 (Neb. 1990) (adopting a recklessness standard with respect to injuries [**14] sustained in a “pickup” basketball game); Crawn v. Campo, 136 N.J. 494, 643 A.2d 600, 601 (N.J. 1994) (adopting a “reckless disregard for the safety of others” standard in a case involving a “pickup” softball game); Kabella v. Bouschelle, 100 N.M. 461, 672 P.2d 290, 293 (N.M. Ct. App. 1983) (adopting recklessness as the standard for injuries sustained during an informal game of tackle football); Turcotte v. Fell, 68 N.Y.2d 432, 502 N.E.2d 964, 968, 510 N.Y.S.2d 49 (N.Y. 1986) (concluding that a “reckless or intentional” standard applied in a case involving a professional jockey injured during a horse race); Marchetti v. Kalish, 53 Ohio St. 3d 95, 559 N.E.2d 699, 703 (Ohio 1990) (applying the recklessness standard to a minor who was injured participating in a recreational game of “kick the can”); Hathaway v. Tascosa Country Club, Inc., 846 S.W.2d 614, 616 (Tex. App. 1993) (applying a “reckless or intentional” standard in a case involving an injury suffered during a recreational golf game).

Of those states that have adopted a recklessness or intentional misconduct standard, some, including Illinois [**15] and Missouri, have explicitly limited application of this standard to contact sports. See Pfister v. Shusta, 167 Ill. 2d 417, 657 N.E.2d 1013, 1017, 212 Ill. Dec. 668 (Ill. App. Ct. 1995) (holding that participants who voluntarily engage in contact sports cannot recover for injuries resulting from the negligence of other players and, instead, must establish willful and wanton or intentional misconduct); Zurla v. Hydel 289 Ill. App. 3d 215, 681 N.E.2d 148, 152, 224 Ill. Dec. 166 (Ill. App. Ct. 1997) (holding that negligence is the appropriate standard of care between co-participants in golf); Novak v. Virene, 224 Ill. App. 3d 317, 586 N.E.2d 578, 579, 166 Ill. Dec. 620 (Ill. App. Ct. 1991) (concluding that negligence is the appropriate standard between skiers); Gamble v. Bost, 901 S.W.2d 182, 186 (Mo. Ct. App. 1995) (holding that a negligence standard is proper in bowling, a non-contact sport) trans. denied; Ross v. Clouser, 637 S.W.2d 11, 14 (Mo. 1982) (adopting a recklessness standard for contact sports). 3

3 One critic has noted that a “shortcoming of the recklessness standard is the inconsistent formulas courts have established to define recklessness.” Ian M. Burnstein, Liability For Injuries Suffered In The Course of Recreational Sports: Application of the Negligence Standard, 71 U. Det. Mercy L. Rev. 993, 1014 (1994). Burnstein points out that the Louisiana Court of Appeals in Bourque v. Duplechin, 331 So. 2d 40, 43 (1976), defined recklessness “in terms of consequences to the victim,” whereas the Illinois Court of Appeals in Nabozny v. Barnhill, 31 Ill. App. 3d 212, 334 N.E.2d 258, 261 (Ill. App. Ct. 1975), defined it in terms of the “actor’s ‘reckless disregard’ for the safety of other players.” Id. The New Mexico Court of Appeals in Kabella, 672 P.2d at 294, “defined reckless disregard as reckless or willful conduct,” and other jurisdictions have used the definition set out in the Restatement (Second) of Torts (1965). Id.

[**16] Courts that have departed from the negligence standard and adopted an elevated standard of care in the co-participant context, have recognized public policy justifications for doing so. Specifically, some courts have feared that use of an ordinary negligence standard could result in a flood of litigation. For example, in Jaworski, the Supreme Court of Connecticut declined to adopt a negligence standard, acknowledging that:

If simple negligence were to be adopted as the standard of care, every punter with whom contact is made, every midfielder [*418] high sticked, every basketball player fouled, every batter struck by a pitch, and every hockey player tripped would have the ingredients for a lawsuit if injury resulted.

696 A.2d at 338. The Jaworski court went on to state that given “the number of athletic events taking place in Connecticut over the course of a year . . . such potential for a surfeit of lawsuits . . . should not be encouraged.” Id.

Several courts have also recognized that “fear of civil liability stemming from negligent acts occurring [during] an athletic event could curtail the proper vigor with which the game should be played and discourage [**17] individual participation.” Ross, 637 S.W.2d at 14. The Supreme Court of New Jersey in Crawn, noted that “one might well conclude that something is terribly wrong with a society in which the most commonly-accepted aspects of play–a traditional source of a community’s conviviality and cohesion–spurs litigation.” 643 A.2d at 600. With the foregoing in mind, the Crawn court went on to adopt “the heightened recklessness standard,” recognizing this as a “commonsense distinction between excessively harmful conduct and the more routine rough-and-tumble of sports that should occur freely on the playing field and should not be second-guessed in courtrooms.” Id.

Apart from policy rationales, some courts have justified adoption of a recklessness or intentional standard of care on the grounds that a participant in a sports activity assumes the risks inherent in that activity. See, e.g., Knight, 834 P.2d at 712; Marchetti, 559 N.E.2d at 703-04; Turcotte, 502 N.E.2d at 967; Ross, 637 S.W.2d at 14. Assumption of risk can be applied in its primary or secondary sense. See Fowler V. [**18] Harper et al., The Law of Torts § 21.0 (3d ed. 1996). Secondary assumption of risk is applied according to a subjective standard. Therefore, “if the plaintiff knows, understands, and appreciates a risk and deliberately encounters it, he assumes that risk in the secondary sense.” Heidi C. Doerhoff, Penalty Box or Jury Box? Deciding Where Professional Sports Tough Guys Should Go, 64 Mo. L. Rev. 739, 751 (1999). Whether the plaintiff appreciated and was willing to encounter the particular risk is a “factual determination[] usually reserved to the jury.” Id.

Secondary assumption of risk has been subsumed by comparative fault in many jurisdictions and is no longer a defense. However, New York and California recognize primary assumption of risk as having survived enactment of their comparative negligence statutes. These two states have retained assumption of risk in the sports injury context by recasting it as a no-duty rule. Essentially, under the primary assumption of risk doctrine, a sports participant defendant owes no duty of care to a co-participant with respect to risks that are considered to be within the ordinary range of activity involved in the sport. [**19] See Knight, 834 P.2d at 711; Turcotte, 502 N.E.2d at 970. Because primary assumption of risk “is a policy-driven concept that flows from the legal relationship of the parties, not their subjective expectations,” it is applied according to an objective, rather than subjective, standard. Doerhoff, 64 Mo. L. Rev. at 751. Thus, for purposes of determining whether the doctrine negates a defendant’s duty of care, thereby barring a plaintiff’s action, the plaintiff’s “knowledge plays a role but [the] inherency [of the risks involved in the particular sport] is the sine qua non.” Morgan v. State, 90 N.Y.2d 471, 685 N.E.2d 202, 208, 662 N.Y.S.2d 421 (N.Y. 1997). Whether a duty of care attends the relationship between the parties “is a question of law reserved to the [*419] court.” Doerhoff, 64 Mo. L. Rev. at 751. If no such duty is found to exist, then an action for personal injury will be barred as a matter of law absent evidence of reckless or intentionally harmful conduct. Turcotte, 502 N.E.2d at 967.

Courts that have adopted the recklessness or intentional standard have also tended to hold rule violations as an inherent and anticipated [**20] part of the game. Burnstein, 71 U. Det. Mercy L. Rev. at 993. The Supreme Court of Connecticut has justified this tendency by reasoning that the “normal expectations of participants in contact team sports includes the potential for injuries resulting from conduct that violates the rules of sport.” Jaworski, 696 A.2d at 337. Thus, “Connecticut, like other jurisdictions that have adopted the reckless or intentional standard of care, allows a participant in a sporting event to escape liability when his conduct is ‘part of the game’ even though it violates [the] rules” of the sport. Mark M. Rembish, Liability for Personal Injuries Sustained in Sporting Events After Jaworski v. Kierney, 18 Quinnipiac L. Rev. 307, 341 (1998).

In sum, the majority of jurisdictions that have considered the issue of the appropriate standard of care between co-participants in sporting activities, have adopted a standard of care that exceeds negligent conduct. The rationale behind this heightened standard of care is the fear of a flood of litigation, the desire to encourage vigorous athletic competition and participation in sporting events, and the perception that risk of injury is a common [**21] and inherent aspect of sports and recreational activity.

C. Analysis

In determining the appropriate standard of care between co-participants in sporting activities in Indiana, we are mindful that in Indiana, as in the rest of the United States, participation in recreational sports has become an increasingly popular leisure time activity. Indeed, over the last decade, more Americans than ever before “have joined recreational softball, basketball, football [and] other types of sports leagues,” and there has also been a dramatic increase in participation in high school and college organized sports. Burnstein, 71 U. Det. Mercy L. Rev. at 993. Our legislature also emphasized and endorsed the growing importance of sporting and recreational activities in Indiana, when it enacted a statute specifically immunizing landowners from liability if they have opened their property for recreational use. See IND. CODE § 14-22-10-2. 4

4 [HN8] The Indiana Recreational Use Statute provides that the owner of premises used for recreational purposes, such as swimming, camping, hiking, and sightseeing, does not assume responsibility or incur liability, for personal injury or property damage caused by an action or failure to act of persons using the premises. I.C. § 14-22-10-2. Baseball and sledding are among the sporting activities that have been recognized as being covered by the Recreational Use Statute. See Cunningham v. Bakker Produce, Inc., 712 N.E.2d 1002 (Ind. Ct. App. 1999), trans. denied; Civils v. Stucker, 705 N.E.2d 524 (Ind. Ct. App. 1999).

[**22] After reviewing the decisions of other jurisdictions that have considered this issue, we are convinced that a negligence standard would be over-inclusive. Specifically, we believe that adopting a negligence standard would create the potential for mass litigation and may deter participation in sports because of fear of incurring liability for the injuries and mishaps incident to the particular activity. Further, we believe that the duty of care between co-participants in sports activities is sufficiently distinguishable from Indiana cases where a student athlete sues an educational institution or its representatives, to merit a heightened standard of care. Specifically, application of a negligence [*420] standard is justified where a student athlete sues a school or its representatives because there is a well-established duty on the part of such institutions and their personnel to exercise ordinary and reasonable care for the safety of those under their authority. See Beckett, 504 N.E.2d at 553. However, no such analogous authority or responsibility exists between co-participants in sporting events, and therefore, we are not compelled to adopt a similar standard in this context. [**23] 5 Finally, as a matter of policy, we prefer to avoid the need to hold a jury trial to determine whether the plaintiff incurred the risk of injury in every case involving a sports injury caused by a co-participant. We can prevent this necessity by adopting an objective primary assumption-of-risk doctrine and a standard of care greater than negligence.

5 Moreover, to the extent Duke’s GMC is inconsistent with this opinion it is disapproved.

Accordingly, we hold that [HN9] voluntary participants in sports activities assume the inherent and foreseeable dangers of the activity and cannot recover for injury unless it can be established that the other participant either intentionally caused injury or engaged in conduct so reckless as to be totally outside the range of ordinary activity involved in the sport. 6 [HN10] The plaintiff’s assumption of risk is primary in nature inasmuch as it flows from the legal relationship of the parties, is evaluated according to an objective standard rather than a subjective standard, and [**24] acts to bar recovery. Thus, it is a question of law for the determination of the court, whether the injury-causing event was an inherent or reasonably foreseeable part of the game, such that the plaintiff is considered to have assumed the risk. If the court determines that the plaintiff did assume the risk, then the plaintiff’s cause fails. If, on the other hand, the court determines that plaintiff did not assume the risk, then the cause proceeds to a jury to determine, as a question of fact, whether the co-participant intentionally or recklessly caused the injury.

6 This author has advanced the position before, in his concurring opinion in Lincke v. Long Beach Country Club, 702 N.E.2d 738, 741 (Ind. Ct. App. 1998), that co-participants in sporting activities should be considered to have assumed the inherent and foreseeable dangers of the activity as a matter of law. Specifically, this author stated that: “Any golfer in the rough of a hole which runs parallel to another should, as a matter of law, know the dangers of approaching golfers. To be surprised that approaching drivers hook or slice is akin to being surprised that not everyone shoots par. We have said often that ‘there comes a point where this Court should not be ignorant as judges of what we know as men [or women].’ This is a shining example of the application of that maxim.” Id. (quoting Willner v. State, 602 N.E.2d 507, 509 (Ind. 1992)).

[**25] In addition, because we recognize that rule infractions, deliberate or otherwise, are an inevitable part of many [HN11] sports, a co-participant’s violation of the rules of the game may be evidence of liability, but shall not per se establish reckless or intentional conduct. We share the Supreme Court of Connecticut’s recognition that:

In athletic competitions, the object obviously is to win. In games, particularly those . . . involving some degree of physical contact, it is reasonable to assume that the competitive spirit of the participants will result in some rules violations and injures. That is why there are penalty boxes, foul shots, free kicks, and yellow cards.

Jaworski, 696 A.2d at 337. Thus, while some injuries may result from rules violations, we believe such violations are nonetheless an accepted part of any competition and among the anticipated risks of participation in the game.

[*421] We are affording enhanced protection against liability to co-participants in sports events, in part, because we recognize that they are not in a position, practically speaking, to protect themselves from claims. Event organizers, sponsors, and the like, are able to safeguard [**26] themselves from liability by securing waivers. They usually accomplish this by requiring each participant to sign a waiver and assumption-of-risk form as a condition of competing in the event. 7 However, in most instances, it is simply infeasible for participants to protect themselves by similar means. Indeed, at large sporting events, participants would have to exchange many releases in order to avoid liability. 8 Under the common law system of contributory fault, application of the doctrine of incurred risk would have allowed the judiciary to protect parties who, as here, cannot take steps to legally protect themselves from liability. However, when our legislature abandoned contributory negligence as a total bar to recovery and established a comparative negligence regime, it did not account for situations where parties are unable to protect themselves from liability. Thus, there is a void in the law. We recognize that [HN12] one of the responsibilities of the judiciary is to fill such voids. Accordingly, we determine that, [HN13] as a matter of law, participants in sporting events will not be permitted to recover against their co-participants for injuries sustained as the result of the inherent [**27] or foreseeable dangers of the sport.

7 Indeed, in the case at bar Rebecca was required to sign an “Acknowledgment, Waiver and Release From Liability” form in order to participate in the Triathlon. R. at 71. The release provided, in part:

(c) I WAIVE, RELEASE, AND DISCHARGE from any and all claims, losses, or liabilities for death, personal injury, partial or permanent disability, property damage, medical or hospital bills, theft or damage of any kind, including economic losses which may in the future arise out of or relate to my participation in or my traveling to a USAT sanctioned event, THE FOLLOWING PERSONS OR ENTITIES: USAT, EVENT SPONSORS, RACE DIRECTORS, EVENT PRODUCERS, VOLUNTEERS, ALL STATES, CITIES, COUNTIES, OR LOCALITIES IN WHICH EVENTS OR SEGMENTS OF EVENTS ARE HELD, AND THE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES AND AGENTS OF ANY OF THE ABOVE EVEN IF SUCH CLAIMS, LOSSES, OR LIABILITIES ARE CAUSED BY NEGLIGENT ACTS OR OMISSIONS OF THE PERSONS I AM HEREBY RELEASING OR ARE CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OF ANY OTHER PERSON OR ENTITY. (d) . . . I also ASSUME ANY AND ALL OTHER RISKS associated with participating in USAT sanctioned events including but not limited to falls, contacts and/or effects with other participants . . . and I further acknowledge that these risks include risks that may be the result of the negligence of the persons or entities mentioned above in paragraph (c) or of other persons or entities.

R. at 71.

As is generally the case, the release form that Rebecca signed does not relieve Kyle from liability as co-participants are not listed among the specific entities or individuals released from liability according to the plain language of the document. See OEC-Diasonics, Inc. v. Major, 674 N.E.2d 1312, 1314 (Ind. 1996) (stating that [HN14] a “release document[] shall be interpreted in the same manner as any other contract document.” Thus, where the language is unambiguous, it should be interpreted as to its clear terms.).

[**28]

8 For example, there were “more than 23,000” participants in the 2000 Mini Marathon in Indianapolis. Indianapolis Life 500 Festival Mini Marathon and 500 Festival 5K, at http://www.500festival.com. (last visited Mar. 7, 2001). Had each of the 23,000 participants attempted to obtain a release from the other 22,999 participants, this would have required the execution and exchange of 52,897,700 release forms. This endeavor would have taken even longer than it would take for this author to complete the requisite 13.1 miles of the mini marathon.

[*422] The foregoing standard means, in essence, that [HN15] an action will lie in tort between co-participants in sports events “when players step outside of their roles as fellow competitors” and recklessly or intentionally inflict harm on another. Doerhoff, 64 Mo. L. Rev. at 744. A player will be considered to have acted in reckless disregard of the safety of another player if “he does an act, or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable person to realize, not only that [**29] his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.” Restatement (Second) of Torts § 500 (1965). A player acts intentionally when he desires to cause the consequences of his act, or when he believes that the consequences are substantially certain to result from it. Id. § 8a. Thus, [HN16] recklessness differs from intentional wrongdoing in that while the act must be intended by the actor in order to be considered reckless, the actor does not intend the harm that results from the act.

Applying the foregoing standard, liability will not lie where the injury causing action amounts to a tactical move that is an inherent or reasonably foreseeable part of the game and is undertaken to secure a competitive edge. Thus, where a baseball pitcher throws the ball near the batter to prevent him from crowding the home plate, and the ball ends up striking the batter and causing injury, the pitcher’s conduct would not be actionable. Similarly, there would be no tort liability where the defense in a football game strategically “blitzes” the opposing team’s quarterback resulting [**30] in injury, or where one basketball team is leading by a point and, seconds from the end of the game, a member of that team chooses to foul the opponent when he drives the lane for a “slam dunk,” thereby forcing him to try to win the game at the free throw line.

In contrast, if a co-participant vents his anger at another player by means of a physical attack, such conduct would be actionable. Instances of such tortious conduct would be where one boxer bites his opponent’s ear during a boxing match, 9 or where a soccer or football player punches another player after a tackle. Similarly, if a baseball batter in a fit of anger intentionally flips his bat towards the opposing team’s dugout and injures one of the players, liability might attach for such recklessness.

9 As one commentator has noted, “it is inconceivable that professional boxing or full contact karate matches could be conducted without some injury to one or both participants [as] causing bodily harm is the very essence of the match.” Daniel Lazaroff, Torts & Sports: Participant Liability to Co-participants for Injuries Sustained During Competition, 7 U. Miami Ent. & Sports L. Rev. 191, 194 (1990). However, while injury as the result of a “left hook” or “jab” is considered an inherent or reasonably foreseeable part of professional boxing, injury as the result of a bite is not.

[**31] In light of these examples, it is our view that adoption of the recklessness or intentional conduct standard preserves the fundamental nature of sports by encouraging, rather than inhibiting, competitive spirit, drive, and strategy. Moreover, this standard will avoid judicial review of the kind of risk-laden conduct that is inherent in sports and generally considered to be part of the game, while at the same time imposing liability for acts that are clearly unreasonable and beyond the realm of fair play. Further, we believe that adoption of this standard will not compromise Indiana’s status as the “Amateur Sports Capital of the World.” Tammy Lieber, 20 Years of [*423] Amateur Sports, Indianapolis Bus. J., Apr. 12, 1999, at 3A. 10

10 As a result of the Indiana Sports Corporation’s initiative to turn Indianapolis into the “Amateur Sports Capital of the World,” Indiana has hosted several major sporting events and enjoyed the attendant economic, cultural, and recreational benefits. Lieber, supra, at 41A. Some of the major sporting events that Indiana has hosted include the: Pan American Games; Indianapolis 500 Mile Race; Brickyard 400-NASCAR Winston Cup Series; World Championships in gymnastics, rowing, and track and field; Olympic trials for canoe/kayak, diving, rowing, swimming, track and field and wrestling; U.S. National Championships in diving, figure skating, gymnastics, rowing, and swimming; Hoosier Basketball Classic; Big Ten Men’s and Women’s Swimming and Diving Championships and Outdoor Track and Field Championships; and the International Race of Champions (IROC). In 2001 Indiana will host, among other events, the World Police and Fire Games, Hoosier State Games, Coca Cola Circle City Classic, Youthlinks Indiana Charity Golf Tournament, RCA Tennis Championships, Corporate Challenge, PeyBack Classic II, and the USA Judo National High School and Collegiate Championships. Other sporting events scheduled to take place in Indiana during the next few years include the 14th World Basketball Championship for Men in 2002, the 2003 World Gymnastics Championships, the 2004 World Swimming Championships, and the 2006 NCAA Men’s Final Four. Correspondence from the Indiana Sports Corporation (March 7, 2001) (on file with author).

[**32] D. Rebecca’s Claim

We now return to Rebecca’s contention that the trial court erred in granting summary judgment in favor of Kyle on Count I of her complaint, in which Rebecca alleged that Kyle acted negligently in causing her injuries. In light of our holding regarding the appropriate standard of care between co-participants in a sporting event, allegation or proof of negligent conduct is insufficient to create liability. Thus, Count I of Rebecca’s complaint must fail.

With regard to Count II, alleging that Kyle acted intentionally, recklessly and willfully in causing her injuries, the trial court must determine whether Kyle’s action was an inherent or reasonably foreseeable part of the sport, such that Rebecca assumed the risk of injury as a matter of law. In our view, it is reasonably foreseeable that a competitor in a cycling race may attempt to cut in front of co-participants in an effort to advance position. Thus, if Rebecca is unable to develop the facts beyond those presented at this juncture, we would conclude that Kyle’s action was an inherent risk in the event that Rebecca assumed as a matter of law, thereby precluding recovery.

CONCLUSION

[**33] We thus conclude that the trial court properly granted summary judgment in favor of Kyle as to Count I of Rebecca’s complaint. Accordingly, we affirm the trial court’s decision with respect to Count I. We also remand to the trial court for further proceedings on Count II consistent with this opinion, to determine whether, under the facts of this case as they develop, Rebecca assumed the risk of injury as a matter of law.

BROOK, J., and BARNES, J., concur.