Honeycutt v Meridian Sports Club LLC (2014) H&FLR 2014-64

Tanya Honeycutt v Meridian Sports Club LLC (2014) H&FLR 2014-64

California Court of Appeal (Second Appellate District)

21 October 2014

Coram: Mosk PJ, Kriegler and Goodman JJ

Appearing for the Plaintiff: Marilyn H. Nelson and Abram Charles Zukor (of Zukor & Nelson)
Appearing for the Defendant: Anthony J Ellrod and Ladell Hulet Muhlestein (of Manning & Kass, Ellrod, Ramirez, Trester)

Catchwords: California – negligence – kickboxing – assumption of risk – waiver – instructor – inherent risk

Facts: The plaintiff attended a kickboxing class at the defendant’s premises taught by instructor Hakeem Alexander.  Before the class the plaintiff signed an assumption of risk agreement and waiver of liability for injury. While assisting the plaintiff to perform properly a roundhouse kick, Alexander grabbed her right ankle between the ankle and knee and instructed her to ‘rotate’ without providing further direction.  She rotated her left knee, suffering a significant knee injury.

The plaintiff sought compensation for personal injury caused by negligence and gross negligence.  The trial court granted the defendant’s application for summary judgment based on the waiver signed by the plaintiff: Honeycutt v Meridian Sports Club LLC (Los Angeles County Superior Court, Cotton J, 7 January 2014, unreported). The plaintiff appealed.

Held: Dismissing the appeal, that –

1.  Primary assumption of risk arises when a defendant owes no duty to protect a plaintiff from a particular harm. It precludes liability for injuries arising from risks inherent in a sport.

Avila v Citrus Community College District (2006) 38 Cal.4th 148, followed.

2.  Coaches and instructors have a duty not to increase the risks inherent in sports participation, and breach their duty of care to a student or athlete if they intentionally injure the athlete or engage in conduct that is ‘reckless’ (that is, wholly outside the range of the ordinary activity involved in teaching or coaching the sport.

Kahn v East Side Union High School District (2003) 31 Cal.4th 990, followed.

3.  Injuries to shoulders, hands and knees are inherent risks in a vigourous physical activity like kickboxing.  In this case the plaintiff’s injury was squarely within the doctrine of primary assumption of risk.  The coaches actions did not increase the inherent risks.

4.  Gross negligence (which if found would avoid the waiver) is a “want of even scant care” or “an extreme departure from the ordinary standard of conduct”. That another instructor would have acted differently is not evidence of cross negligence

City of Santa Barbara v Superior Court (2007) 41 Cal.4th 747, followed.
Decker v City of Imperial Beach (1989) 209 Cal.App.3d 349, considered.


The Court’s judgment is available here.

Coomer v Kansas City Royals (2014) H&FLR 2014-41

John Coomer v Kansas City Royals Baseball Corporation (2014) H&FLR 2014-41

Supreme Court of Missouri

24 June 2014

Coram: Court en banc (Judgment by Wilson J)

Appearing for the Appellant: Robert Tormohlen (of Lewis, Rice & Fingersh)
Appearing for the Respondent: Scott D. Hofer (of Foland, Wickens, Eisfelder, Roper & Hofer, PC )

Catchwords: Missouri – baseball – mascot – hotdog toss – baseball rule – injury – negligence – assumption of risk – inherent risk

Facts: On 8 September 2009 the plaintiff attended a baseball game at Kauffman Stadium between the Kansas City Royals and the Detroit Tigers. Since 2000 a feature of Royals’ home games has been the practice of their mascott (“Sluggerrr“)* tossing hotdogs to members of the crowd. The plaintiff saw Sluggerrr commence throwing hotdogs. He turned to look at the scoreboard and at that moment was hit in the face by a hotdog, causing injury to his left eye.

He commenced proceedings against the defendant alleging negligence and battery. A jury in the trial court returned a finding of no negligence: Coomer v Kansas City Royals Baseball Corporation (2011), The Pitch Blog, 9 March 2011. The plaintiff appealed.

Held: Allowing the appeal –

1. An implied primary assumption of risk by a plaintiff can be identified from their conduct and the surrounding circumstances, including whether a risk is inherent to the activity. Where this has occurred, a plaintiff who knowingly and voluntarily encounters that risk is barred from seeking compensation for resulting injuries. This defence is not affected by the acceptance in law of the principle of comparative fault

Krause v US Truck Co Inc, 787 SW.2d 708 (Mo. 1990), followed.
Gustafson v Benda, 661 SW.2d 11 (Mo. 1983), considered.

2. The “baseball rule”, whereby a ballpark owner is not considered negligent for failing to protect all seats in the park with wire netting and failing to warn a plaintiff about obvious hazards incidental to baseball, is an example of the principle of applied primary assumption of risk.**

Hudson v Kansas City Baseball Club, 164 SW.2d 318 (Mo. 1942); Anderson v Kansas City Baseball Club, 231 SW.2d 170 (Mo. 1950), considered.

3. Where a plaintiff’s injury results from a risk that is not an inherent part of watching baseball, or if the defendant’s negligence has increased the inherent risks and caused the injury, negligence may be found.

Lowe v California League of Professional Baseball, 56 Cal.App.4th 112 (1997), followed.

4. Whether a risk is ‘inherent’ for the purposes of implied primary assumption of risk is a question of law and not of fact. A risk is inherent if it is so intertwined with the relevant activity that it cannot be controlled or limited without abandoning the activity altogether. In this case the risk if injury from the ‘hotdog toss’ was not an inherent part of watching the Royals play baseball, and a risk which the plaintiff assumed by attending the game.

Loughran v The Phillies, 888 A.2d 872 (Pa. 2005); Cohen v Stirling Mets LP, 17 Misc.3d 218 (NY Sup. Ct. 2007), distinguished.


The Court’s judgment is available here.

* Properly, one John Byron Shores.
** South Shore Baseball LLC v DeJesus (2014) H&FLR 2014-39.

Dunagan v Coleman (2014) H&FLR 2014-2

Dunagan v Coleman (2014) H&FLR 2014-2

Texas Court of Appeals (Fifth District)

7 April 2014

Coram: Moseley, FitzGerald and Evans JJ

Appearing for the Appellant (Defendant): Gregory Ave and Jay Harris (inst. Walters, Balido & Craine)

Appearing for the Respondent (Plaintiff): Niles Illich (inst. Law Office of Ben Abbott)

Catchwords: Texas – softball – negligence – inherent risk – recklessness

Facts: The parties were teammates on a slow pitch softball team and had played together many times. Prior to the first game of the season the defendant asked the plaintiff to catch a few pitches from him to assist him (the defendant) to focus his pitches. The defendant threw a rising fastball which the plaintiff failed to catch. The ball hit the plaintiff in the mouth causing significant injuries.

The plaintiff sued, alleging both negligence and gross negligence. A jury in the 134th Judicial District Court found that the defendant had been negligent and awarded significant damages.

Held: That the verdict ought be reversed. It is an inherent risk of softball that a ball will hit a participant and cause injury. The plaintiff’s injuries resulted from a risk inherent in the sport he was playing. As such, the defendant was not at fault based on ordinary negligence. A defendant will be found liable, however, if his conduct was grossly negligent, intentional (1) or reckless. Recklessness in this context would have taken the form of the defendant knowing or having reason to know that his pitch resulted in an unreasonable risk of physical harm, and that the risk of such harm was substantially greater than that which would be classed as “mere negligence”.

The Court observed that the fact that the incident occurred during a warm up rather than a game was not relevant: the inherent risks of a sport did not change depending on whether the conduct in issue occurred in practice or in competition.

(1) The court did not explore liability for harms caused by intentional conduct in cases where intentional and forceful contact is part of the sporting activity.


 The Court’s judgment is available here.