Karen Cole & Ors v Boy Scouts of America & Ors (2011) H&FLR 2014-24

Supreme Court of South Carolina

5 December 2011

Coram: Toal CJ, Beatty, Kittredge, Hearn and Pleicones JJ.

Appearing for the Appellant: Arthur K Aiken (of Aiken & Hightower PA)
Appearing for the Respondent: John M Grantland, Alice P Adams and Ashley B Stratton (of Murphy & Grantland)

Catchwords: South Carolina – Cub Scout function – softball – unscored – collision between players – contact sport – assumption of risk – nature of sport – breach of rules – recklessness

Facts: At a Cub Scout function, David Cole Sr and David Cole Jr participated in an unscored father-son softball game.  Cole Sr was playing in the catcher’s position and, during a play, moved to stand on top of home plate.  A father on the opposing team – Wagner – ran towards home plate in an attempt to score.  He collided with Cole Sr, causing significant injuries.  The incident was witnessed by Cole Jr.

Cole Sr, his wife Karen Cole and Cole Jr brought proceedings against (among others) Wagner and the organisers of the game.  Wagner sought summary judgment which the trial court granted.  The plaintiffs appealed.

Held: Dismissing the appeal, per Toal CJ, Beatty, Kittredge and Hearn JJ –

1.  A person who chooses to take part in a contact sport (which includes softball) assumes the risks inherent in the sport, and a defendant is not obliged to protect the person from those risks.  The key factor is the nature of the sport involved, and not whether the sport is professional or amateur, organised or unorganised, or supervised or unsupervised.

Hurst v East Coast Hockey League, 673 SE.2d 560 (SC 2006); Marchetti v Kalish, 559 NE.2d 699 (Ohio 1990); Keller v Mols, 509 NE.2d 584 (Ill. App. Ct. 1994), followed.

2.  Although Wagner may have breached the rules of softball by running into the catcher, the risk of a breach of the rules of a game is one of the risks taken when engaging in a sport.  In addition, some recklessness by players as to the risk of injury to others is inherent to contact sports.  However, intentional conduct causing injury, or alternatively very reckless conduct, is or may be outside the scope of the game.

Landrum v Gonzales, 629 NE.2d 710 (Ill. App. Ct. 1994), considered.

3.  Semble, that the standard of care is not affected by the expectations of the participants of the game.

Landrum v Gonzales, 629 NE.2d 710 (Ill. App. Ct. 1994), approved.

4.  Obiter, that a player can still owe a duty of care to a spectator of a game, and this duty will be greater than that owed to another player.

Per Pleicones J, that Wagner owed no duty to Cole based on the doctrine of implied primary assumption of risk.  However, quaere whether softball is a contact sport.

Judgment

The Court’s judgment is available here.