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Play at Your Own Risk' is Double-Edged Phrase

Participants in organized sports leagues are presumed to fully understand the inherent risks involved.

Participants in organized sports leagues are presumed to fully understand the inherent risks involved - and, as two recently adjudicated cases demonstrate, so are participants in loosely organized activities run by organizations that supervise sports programs secondarily. However, both cases show that "play at your own risk" is a double-edged phrase.

In Betts v. New Castle Youth Development Center [2009 U.S. Dist. LEXIS 81182 (W.D. Pa. Sept. 8, 2009)], a development center that runs a treatment program for individuals in the state's juvenile justice system successfully fended off a lawsuit filed by a program resident after he suffered catastrophic injuries in a collision with another resident during a supervised game of tackle football. Although residents played tackle football at the facility on a regular basis, they were not provided any protective padding to wear during that game, or any previous game. The case against the center and individual employees was dismissed after the court ruled that a) the defendants were protected by sovereign immunity; b) the plaintiffs failed to show that the defendants acted with deliberate indifference to a substantial risk of harm; and c) the defendants' conduct would likely not meet the requirement for negligence under the circumstances given that the injured plaintiff was not compelled to play and was aware of the risks inherent in the sport.

In Brown v. Ohio Department of Rehabilitation & Correction [2009 Ohio 4707 (Ct. Cl. 2009)], a prison inmate brought a negligence claim after he and other inmates were struck by lightning while participating in a softball game in the prison's recreation yard. Organized by the prison as part of a recreational softball league, it was one of two contests taking place simultaneously on the yard's two fields as weather conditions began to worsen. Witness testimony conflicted on the two fields; on one field, with light rain falling, inmate umpires claimed that they saw lightning and decided to stop the game. The prison employee supervising the game in which the plaintiff was injured was informed of that decision but did not stop the game on his field, because it was in extra innings and he had not personally witnessed any lightning. Furthermore, a corrections officer patrolling the yard testified that she heard no thunder while the games were occurring, and another officer stationed in a watch tower only saw lightning in the distance during the moments before the incident occurred. Meteorological data suggested that the storm that produced the lightning was isolated and difficult to predict, and that it was doubtful that lightning existed for an extended period of time or in an area close to the field prior to the incident. Entering judgment in favor of the defendant, the magistrate judge found that the decision made by the employee supervising the game was perfectly reasonable based on all the surrounding circumstances.

What is deliberate indifference? In another jurisdiction, a court could well determine that tackle football participants should be given protective padding. What is reasonable? A different magistrate judge could well hold that supervisors should err on the side of caution, or that the purchase of lightning detection equipment, which senses electrostatic changes before lightning is even visible, is a reasonable precaution to take.

Participants play at their own risk. Program supervisors play at theirs, too.

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