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

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.


The Court’s judgment is available here.

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.