Who has not been injured in a recreational, athletic activity? Who has not accidentally injured someone else in the course of play? We all have ... an errant softball throw, a shanked iron, a bouncing horseshoe. We enjoy the sport, so we risk the injury and sometimes we hurt others.
But, when am I civilly liable for the "negligent" injuries caused to others?
The Tennessee Court of Appeals, in Crisp v. Nelms, Case No. E2017-01044-COA-R3-CV, decided March 28, 2018, dealt with the issues of civil liability in a wrongful death case arising out of a bicycling accident. Decedent was riding in a paceline when Defendant, who was in lead, allegedly and negligently slowed causing a serious accident. Prior to his death, Decedent, rendered quadriplegic by the wreck, dictated a note to Defendant, absolving him of all fault for the accident.
Notwithstanding the note, Decedent's widow brought suit; Defendant denied liability and asserted Decedent's comparative fault. The Trial Court granted the Defendant's summary judgment motion, analogizing the bunching and drafting of the bicyclists to NASCAR racing, and tactics of Dale Earnhardt, Jr., found that the risk of the accident and injury were foreseeable and that there was no way a jury could find either party negligent on the proximate cause of the accident ... and that Decedent was at least 50 percent (50%) of the cause of the incident.
The Court of Appeals reversed. Initially, it focused on the duty of care in paceline riding, noting that implied assumption of the risk has been removed as a complete bar to recovery in a negligence action in 1994, the Court noted prior case law that "everyone has a duty to exercise ordinary and reasonable care in light of the surrounding circumstances to refrain from conduct that could foreseeably injure others, and some locations and circumstances may require a higher degree of care than others." It noted Tennessee jurisprudence which refused to fashion a different standard of care for each sport.
The Court of Appeals rejected the Trial Court's implied resurrection of "implied assumption of the risk" as a defense and bar recovery. Risky or not, the sports participant has a duty of care to her fellow participants.
Resolving the issue of the participants' duties, the Court of Appeals easily found material issues of disputed fact as to the cause of the bicycling accident.
Now, if I hit this next pitch back up the middle, and the pitcher doesn't get out of the way ...
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