Inherent Risk of a Sports Activity Is Not Always a Slam Dunk Defense

From the Desk of Jeff Eberhard:  

When a plaintiff alleges a negligence claim for an injury that arose out of the plaintiff’s voluntary participation in a sports activity, a defendant might want to argue that the injury arose from the known inherent risks of that sport and thus the defendant should not be held liable. While inherent risks can be considered by a court when determining a defendant’s negligence, they are not always a complete defense.

Claims Pointer:

The Oregon Court of Appeals examined an appeal by the Plaintiff who was injured during a basketball drill while on a recruitment visit to the University of Oregon. Defendants argued that because Plaintiff voluntarily participated in a sports activity, in which injury was an inherent risk, they could not be found liable. The Court of Appeals stated that if a sports injury occurs and the defendant’s conduct falls completely within the ordinary parameters of the sports activity, the Plaintiff has no claim. But if the injury occurs during some unusual sports activity, a jury must determine the fault of the parties.

Clark v. University of Oregon, 319 Or App 712 (2022).

Facts:

Plaintiff was a junior college basketball player on an official visit to the University of Oregon to see the school facilities and meet the basketball team and coaches. During the first night of Plaintiff’s visit Plaintiff was taken to dinner. At this dinner, the assistant coach Defendant Mennenga asked Plaintiff if he ever had any surgeries. Plaintiff told him that after the last basketball season he had both of his knees “scoped”. After dinner, Defendant Mennenga took Plaintiff back to his hotel and told Plaintiff that he would do a basketball workout the next morning.

That morning, Mennenga picked Plaintiff up and drove him to the basketball arena. There, Plaintiff spoke to the head coach, Defendant Altman, and told him that Defendant Mennenga wanted Plaintiff to do a workout. Defendant Altman did not object or interfere. Defendant Mennenga had Plaintiff do several basketball drills while Defendants Stubblefield, an assistant coach, and Jamieson, the Director of Basketball Operations, watched. During one drill, Defendant Mennenga instructed Plaintiff to drive the ball toward the basket, collide with Defendant Mennenga, continue to drive through the opposition, and go for a lay-up. Plaintiff did this drill a few times, but on the fourth repetition, when Plaintiff bumped into Defendant Mennenga’s chest, he was set off balance and tore his anterior cruciate ligament.

Defendants admitted that this workout violated the National Collegiate Athletic Association (NCAA) rules and the university intended to sanction Defendant Mennenga. Plaintiff brought a suit against the Defendants for negligence. Defendants moved for summary judgment contending that the physical contact that occurred during the drill was normal and inevitable, thus an inherent risk of playing basketball. The trial court granted the Defendants’ motion for summary judgment. Plaintiff appealed.

Law:

In 1987, Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 4, 734 P2d 1326 (1987), created a new framework for negligence claims that focused on foreseeability. Under this framework, the issue of liability depends on whether the conduct “unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff.” Id at 17.

The role of inherent risks of a sports activity in negligence actions was addressed by the Oregon Supreme Court in Blair v. Mt. Hood Meadows Development Corp., 291 Or 293, 630 P2d 827, modified on recons, 291 Or 703, 634 P2d 241 (1981). The Supreme Court in Blair held that a plaintiff’s voluntary engagement in an activity in which the harm or hazard is a known element of the activity is not a complete defense to a negligence claim, even when recategorized as a limitation on duty. However, the Court continued, a plaintiff’s voluntary engagement in the activity does not prohibit the jury or a court from considering the risks inherent in an activity as part of the duty or breach elements of a negligence claim.

Analysis:

The Oregon Court of Appeals stated that when a defendant’s conduct cannot be viewed as anything beyond ordinary participation in a sports activity, it may be that the defendant’s conduct is not unreasonable, as a matter of law.

Viewing the facts in the light most favorable to Plaintiff, the Court determined that the facts showed Defendants invited Plaintiff to visit the university, informed him he would participate in workouts, devised a series of drills for Plaintiff, participated in the drills with him, and performed the act that injured Plaintiff. Defendants did those acts despite knowing of Plaintiff’s previous knee surgery and despite that most of those acts violated NCAA rules.

 The Court found that the Defendants’ conduct went beyond the ordinary participation in a sports activity, thus the conduct is within the province of a jury to assess the reasonableness of the Defendants’ conduct and the foreseeability of the risk of harm to Plaintiff.

The Big Picture:

In evaluating negligence in the field of sports, the general rule is that if the conduct was an “ordinary game” of sports, then there is no claim for negligence, but if the game was “extraordinary” then there may be a question for the jury. Here, the Defendants’ conduct was beyond the ordinary parameters of sports participation, thus, the Defendants fouled out.