David Cole, the primary appellant, was injured while catching during a father-son game of softball at a Cub Scout outing when a baserunner collided with him at home plate. As Wagner reached home plate, he collided with Cole, who had moved on top of the plate, thereby placing his body directly in the baseline. Wagner was running so fast that he was unable to stop or change directions in time to avoid Cole. Upon impact, Wagner flipped in the air and landed on a bat, breaking a rib. Cole suffered a closed head injury and was rendered semiconscious. He then began bleeding and went into convulsions. Cole had to be airlifted to Palmetto Richland Hospital where he spent two days in the intensive care unit. David Jr. witnessed the entire accident in fear that his father was going to die. He brought this action alleging negligence and recklessness against the baserunner and the sponsors of the game. The circuit court judge granted summary judgment to the baserunner, and affirmed by Supreme Court of South Carolina.
Appellants argue that the circuit court erred in finding Cole assumed the risk of his injury by engaging in a game of softball because Wagner’s conduct was outside the scope of the game. Specifically, Appellants argue Wagner’s behavior was inconsistent with the ordinary risks of softball because the game was intended to be noncompetitive, Wagner violated a rule of the game, and he acted recklessly.
“Primary implied assumption of risk arises when the plaintiff impliedly assumes those risks that are inherent in a particular activity.” Davenport v. Cotton Hope Plantation Horizontal Prop. Regime, 333 S.C. 71, 81, 508 S.E.2d 565, 570 (1998). The doctrine of primary implied assumption of risk “goes to the initial determination of whether the defendant’s legal duty encompasses the risk encountered by the plaintiff.” Id. To establish a claim for negligence, a plaintiff must first show that the defendant owed a duty of care to the plaintiff. Doe, 393 S.C. at 246, 711 S.E.2d at 911. Absent a legally recognized duty, the defendant in a negligence action is entitled to a judgment as matter of law. Hurst v. East Coast Hockey League, 371 S.C. 33, 37, 637 S.E.2d 560, 562 (2006).
The court held the likelihood of someone running too fast to stop or playing more aggressively than anticipated is part of the competitive atmosphere of athletics. Almost all contact sports, especially ones that require protective gear as part of their equipment, involve conduct that a reasonably prudent person would recognize may result in injury. To the extent these risks inhere in the sport involved, we hold some recklessness by coparticipants in a contact sport must be assumed as part of the game. Accordingly, a player assumes the risk of ordinary recklessness committed within the course of the game.
The court further emphasized that this holding is limited to recklessness committed within the scope of the game and does not include intentional conduct by a coparticipant of a sport, or conduct so reckless as to be outside the scope of the game. Even within the context of a contact sport, players owe reciprocal duties to not intentionally injure each other. Cole does not allege that Wagner’s conduct was intentional nor does he allege such recklessness as would fall outside the scope of the game of softball. Thus, Wagner’s conduct fell within the duty of care he owed to Cole as a coparticipant in the game.
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