Table of Edited Tort Cases


  1. Benejam v. Detroit Tigers
  2. Nabozny v. Barnhill
  3. Hackbart v. Cincinnati Bengals
  4. Townsley v. Cincinnati Gardens
  5. Bearman v. Notre Dame
  6. Eddy v. Syracuse
  7. DeMauro v. Tusculum College
  8. Kane v. North Colonie
  9. Caldwell v. Griffin Spalding
  10. Santopietro v. City of New Haven
  11. Georgia High v. Waddell
  12. Cramer v. Hoffman
  13. Kruger v. San Francisco Forty Niners
  14. Kleinknecht v. Gettysburg College
  15. Rensing v. Indiana State






July 10, 2001

No. 217727

LC No. 96-618356-NI

Michigan Court of Appeals


Before: Bandstra, C.J., and Zahra and Meter, JJ.




Plaintiff Alyssia, a young girl, attended a Tigers game with a friend and members of the friend’s family and was seated quite close to the playing field along the third baseline. The stadium was equipped with a net behind home plate which extended part of the way down the first and third baselines. Although Alyssia was behind the net, she was injured when a player’s bat broke and a fragment of it curved around the net.  There was no evidence, and plaintiffs do not contend, that the fragment of the bat went through the net, that there was a hole in the net, or that the net was otherwise defective.

Plaintiffs sued the Tigers claiming primarily that the net was insufficiently long and that warnings about the possibility of projectiles leaving the field were inadequate. The Tigers responded with motions before, during and after trial arguing that, as a matter of law, plaintiffs could not or did not present any viable legal claim. Those motions were all denied by the trial court. Alyssia suffered crushed fingers as a result of the accident and the jury awarded plaintiffs noneconomic damages (past and future) totaling $917,000, lost earning capacity of $56,700 and $35,000 for past and future medical expenses. Damages are not at issue on appeal.


Plaintiffs also sued the maker of the bat, Hillerich and Bradsby, but settled that claim before trial.

End Footnote


Defendant’s arguments concern the duty of care and duty to warn applicable in this case. Questions regarding the nature and extent of a tortfeasor’s duty are issues of law subject to de novo review. Groncki v Detroit Edison Co, 453 Mich 644, 649; 557 NW2d 289 (1996).


Defendant argues that although there is no Michigan law directly on point, other jurisdictions have balanced the safety benefits of providing a protective screen against the fact that such screening detracts from the allure of attending a live baseball game by placing an obstacle or insulation between fans and the playing field. The rule that emerges in these cases is that a stadium proprietor cannot be liable for spectator injuries if it has satisfied a "limited duty" – to erect a screen that will protect the most dangerous area of the spectator stands, behind home plate, and to provide a number of seats in this area sufficient to meet the ordinary demand for protected seats. In this case, there is no dispute that the Tigers constructed a protective screen behind home plate, and there was no evidence that the screen was insufficient to meet the ordinary demand for protected seating. Defendant argues the circuit court erred in failing to recognize the limited duty doctrine and in denying the Tigers’ motions for summary disposition, directed verdict, and judgment notwithstanding the verdict on the basis of that doctrine.

Plaintiffs argue against application of the limited duty doctrine and contend that, under usual principles of premises liability, the circuit court correctly concluded that a jury question was presented. Defendant (an invitor) had a duty to exercise ordinary care and prudence and maintain premises reasonably safe for invitees like Alyssia. Plaintiffs argue that the jury verdict was supported by sufficient evidence that the defendant failed to fulfill this duty because it did not provide a screen extending long enough along the third (and first) baselines.

There is no Michigan case law directly on point.  Our review of precedents from other jurisdictions finds overwhelming, if not universal, support for the limited duty rule that defendant advocates. See... Swagger v City of Crystal, 379 NW2d 183, 185 (Minn App, 1986); Rudnick v Golden West Broadcasters, 156 Cal App 3d 793, 796; 202 Cal Rptr 900 (1984)...

The logic of these precedents is that there is an inherent risk of objects leaving the playing field that people know about when they attend baseball games. See, e.g., Swagger, supra at 185 ("[n]o one of ordinary intelligence could see many innings of the ordinary league [baseball] game without coming to a full realization that batters cannot and do not control the direction of the ball"), quoting Brisson v Minneapolis Baseball & Athletic Ass’n, 185 Minn 507, 509-510; 240 NW 903, 904 (1932). Also, there is inherent value in having most seats unprotected by a screen because baseball patrons generally want to be involved with the game in an intimate way and are even hoping that they will come in contact with some projectile from the field (in the form of a souvenir baseball)... In other words, spectators know about the risk of being in the stands and, in fact, welcome that risk to a certain extent. On the other hand, the area behind home plate is especially dangerous and spectators who want protected seats should be able to find them in this area. Balancing all of these concerns, courts generally have adopted the limited duty doctrine that prevents liability if there are a sufficient number of protected seats behind home plate to meet the ordinary demand for that kind of seating. If that seating is provided, the baseball stadium owner has fulfilled its duty and there can be no liability for spectators who are injured by a projectile from the field...

 It seems axiomatic that baseball fans attend games knowing that, as a natural result of play, objects may leave the field with the potential of causing injury in the stands. It is equally clear that most spectators, nonetheless, prefer to be as "close to the play" as possible, without an insulating and obstructive screen between them and action. In contrast, a smaller number of spectators prefer the protection offered by screening. The most dangerous part of the spectator stands is the area in the lower deck behind home plate and along each of the baselines. Certainly home plate is the center of the most activity on the field. Most notably, it is there that pitched balls, traveling at great speeds in a line that would extend into the stands, are often deflected or squarely hit into those stands. Quite logically, the limited duty rule protects a stadium owner that provides screening for this most dangerous area and, in so doing, accommodates baseball patrons who seek protected seating. Because the limited duty rule is based on the desires of spectators, it further makes sense to define the extent of screening that should be provided behind home plate on the basis of consumer demand.

Plaintiffs do nothing to argue substantively against the limited duty rule, but merely argue that baseball stadium cases should be governed by usual invitor-invitee principles, not any special "baseball rule." Thus, plaintiffs argue that the jury properly determined that defendant failed to exercise "ordinary care" and failed to provide "reasonably safe" premises. However, the limited duty rule does not ignore or abrogate usual premises liability principles. Instead, it identifies the duty of baseball stadium proprietors with greater specificity than the usual "ordinary care/reasonably safe" standard provides... Applying the limited duty rule here, we conclude that plaintiffs have failed to provide any proof sufficient to find that liability could be imposed. Clearly, there was a screen behind home plate and there was no proof whatsoever that persons wanting seats protected by the screen could not be accommodated. To the contrary, uncontested testimony by Tigers ticket personnel established that protected seating is generally open and available to fans who want it. Accordingly, we conclude that the screening provided by defendant was sufficient under the limited duty doctrine applicable in this case.


Plaintiffs also argue that defendant failed to provide an adequate warning regarding the possibility that some object might come flying off of the field and cause injury in the stands. However, we conclude that defendant did not have any duty to warn regarding this well-known risk...

Having concluded that, under the facts of this case, defendant did not breach any duty to provide screening and was under no duty to provide a warning to plaintiffs regarding the risk of injury from objects leaving the field, we reverse the jury verdict and remand this matter for entry of an order finding no cause of action against defendant. We need not consider other arguments advanced by defendant in support of that result.

We reverse and remand. We do not retain jurisdiction.

/s/ Richard A. Bandstra
/s/ Brian K. Zahra
/s/ Patrick M. Meter

Julian Claudio Nabozny, a Minor, by His Father and Next Friend, Edward J. Nabozny, Plaintiff-Appellant, v. David Barnhill, Defendant-Appellee

No. 58120

Appellate Court of Illinois, First District, Fourth Division

31 Ill. App. 3d 212; 334 N.E.2d 258; 1975 Ill. App. LEXIS 2772; 77 A.L.R.3d 1294

July 23, 1975, Filed
JUDGES: Mr. JUSTICE ADESKO delivered the opinion of the court. DIERINGER, P. J.,and JOHNSON, J., concur.


OPINION: Plaintiff, Julian Claudio Nabozny, a minor, by Edward J. Nabozny, his father, commenced this action to recover damages for personal injuries allegedly caused by the negligence of defendant, David Barnhill. Trial was before a jury. At the close of plaintiff's case on motion of defendant, the trial court directed a verdict in favor of the defendant. Plaintiff appeals from the order granting the motion.

Plaintiff contends on appeal that the trial judge erred in granting defendant's motion for a directed verdict and that plaintiff's actions as a participant do not prohibit the establishment of a prima facie case of negligence. Defendant argues in support of the trial court's ruling that defendant was free from negligence as a matter of law (lacking a duty to plaintiff) and that plaintiff was contributorily negligent as a matter of law…

 A soccer match began between two amateur teams at Duke Child's Field in Winnetka, Illinois. Plaintiff was playing the position of goalkeeper for the Hansa team. Defendant was playing the position of forward for the Winnetka team. Members of both teams were of high-school age. Approximately 20 minutes after play had begun, a Winnetka player kicked the ball over the midfield line. Two players, Jim Gallos (for Hansa) and the defendant (for Winnetka) chased the free ball. Gallos reached the ball first. Since he was closely pursued by the defendant, Gallos passed the ball to the plaintiff, the Hansa goalkeeper. Gallos then turned away and prepared to receive a pass from the plaintiff. The plaintiff, in the meantime, went down on his left knee, received the pass, and pulled the ball to his chest. The defendant did not turn away when Gallos did, but continued to run in the direction of the plaintiff and kicked the left side of plaintiff's head causing plaintiff severe injuries.

All of the occurrence witnesses agreed that the defendant had time to avoid contact with plaintiff and that the plaintiff remained at all times within the "penalty area," a rectangular area between the 18th yard line and the goal. Four witnesses testified that they saw plaintiff in a crouched position on his left knee inside the penalty zone. Plaintiff testified that he actually had possession of the ball when he was struck by defendant. One witness, Marie Shekem, stated that plaintiff had the ball when he was kicked. All other occurrence witnesses stated that they thought plaintiff was in possession of the ball.

Plaintiff called three expert witnesses. Julius Roth, coach of the Hansa team, testified that the game in question was being played under "F.I.F.A." rules. The three experts agreed that those rules prohibited all players from making contact with the goalkeeper when he is in possession of the ball in the penalty area. Possession is defined in the Chicago area as referring to the goalkeeper having his hands on the ball. Under "F.I.F.A." rules, any contact with a goalkeeper in possession in the penalty area is an infraction of the rules, even if such contact is unintentional. The goalkeeper is the only member of a team who is allowed to touch a ball in play so long as he remains in the penalty area. The only legal contact permitted in soccer is shoulder to shoulder contact between players going for a ball within playing distance. The three experts agreed that the contact in question in this case should not have occurred. Additionally, goalkeeper head injuries are extremely rare in soccer. As a result of being struck, plaintiff suffered permanent damage to his skull and brain.

The initial question presented by this appeal is whether, under the facts in evidence, such a relationship existed between the parties that the court will impose a legal duty upon one for the benefit of the other. "[M]ore simply, whether the interest of the plaintiff which has suffered invasion was entitled to legal protection at the hands of the defendant." Prosser, Law of Torts § 37, at 206 (4th ed. 1971).

There is a dearth of case law involving organized athletic competition wherein one of the participants is charged with negligence. There [***5] are no such Illinois cases. A number of other jurisdictions prohibit recovery generally for reasons of public policy. (Eg., Gaspard v. Grain Dealers Mutual [*215] Insurance Co. (La. App. 1961), 131 So. 2d 831.) We can find no American cases dealing with the game of soccer.

This court believes that the law should not place unreasonable burdens on the free and vigorous participation in sports by our youth. However, we also believe that organized, athletic competition does not exist in a vacuum. Rather, some of the restraints of civilization must accompany every athlete on to the playing field. One of the educational benefits of organized athletic competition to our youth is the development of discipline and self-control.

Individual sports are advanced and competition enhanced by a comprehensive set of rules. Some rules secure the better playing of the game as a test of skill. Other rules are primarily designed to protect participants from serious injury. Restatement (Second) of Torts § 50, comment b (4th ed. 1971).

For these reasons, this court believes that when athletes are engaged in an athletic competition; all teams involved are trained and coached by knowledgeable personnel; a recognized set of rules governs the conduct of the competition; and a safety rule is contained therein which is primarily designed to protect players from serious injury, a player is then charged with a legal duty to every other player on the field to refrain from conduct proscribed by a safety rule. A reckless disregard for the safety of other players cannot be excused. To engage in such conduct is to create an intolerable and unreasonable risk of serious injury to other participants. We have carefully drawn the rule announced herein in order to control a new field of personal injury litigation. Under the facts presented in the case at bar, we find such a duty clearly arose. Plaintiff was entitled to legal protection at the hands of the defendant. The defendant contends he is immune from tort action for any injury to another player that happens during the course of a game, to which theory we do not subscribe.

It is our opinion that a player is liable for injury in a tort action if his conduct is such that it is either deliberate, wilful or with a reckless disregard for the safety of the other player so as to cause injury to that player, the same being a question of fact to be decided by a jury.

Defendant also asserts that plaintiff was contributorily negligent as a matter of law, and, therefore, the trial court's direction of a verdict in defendant's favor was correct. We do not agree. The evidence presented tended to show that plaintiff was in the exercise of ordinary care for his own safety. While playing his position, he remained in the penalty area and took possession of the ball in a proper manner. Plaintiff had no reason to know of the danger created by defendant. Without this knowledge, it cannot be said that plaintiff unreasonably exposed himself to such danger or failed to discover or appreciate the risk. The facts in evidence revealed that the play in question was of a kind commonly executed in this sport. Frank Longo, one of plaintiff's expert witnesses, testified that once the goalkeeper gets possession of the ball in the penalty area, "the instinct should be there [in an opposing player pursuing the ball] through training and knowledge of the rules to avoid contact [with the goalkeeper]." All of plaintiff's expert witnesses agreed that a player charging an opposition goaltender, under circumstances similar to those which existed during the play in question, should be able to avoid all contact. Furthermore, it is a violation of the rules for a player simply to kick at the ball when a goalkeeper has possession in the penalty area even if no contact is made with the goalkeeper.

Using the standard set out in Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504, for determining both freedom from negligence and contributory negligence as matters of law, we conclude that the trial court erred in directing a verdict in favor of defendant. It is a fact question for the jury.

This cause, therefore, is reversed and remanded to the Circuit Court of Cook County for a new trial consistent with the views expressed in this opinion.

Reversed and remanded.



Civil Action No. 75 M 437




435 F. Supp. 352; 1977 U.S. Dist. LEXIS 14408


August 18, 1977

 JUDGES: Matsch, Judge.




 ...The Incident

The incident which gave rise to this lawsuit occurred near the end of the first half of the game at a time when the Denver [Broncos football] team was leading by a score of 21 to 3. Dale Hackbart was playing a free safety position on the Broncos' defensive team and Charles Clark was playing fullback on the [Cincinnati] Bengals' offensive team. The Cincinnati team attempted a forward pass play during which Charles Clark ran into a corner of the north end zone as a prospective receiver. That took him into an area which was the defensive responsibility of Mr. Hackbart. The thrown pass was intercepted near the goal line by a Denver linebacker who then began to run the ball upfield. The interception reversed the offensive and defensive roles of the two teams. As a result of an attempt to block Charles Clark in the end zone, Dale Hackbart fell to the ground. He then turned and, with one knee on the ground and the other leg extended, watched the play continue upfield. Acting out of anger and frustration, but without a specific intent to injure, Charles Clark stepped forward and struck a blow with his right forearm to the back of the kneeling plaintiff's head with sufficient force to cause both players to fall forward to the ground. Both players arose and, without comment, went to their respective teams along the sidelines. They both returned to play during the second half of the game.

Because no official observed it, no foul was called on the disputed play and Dale Hackbart made no report of this incident to his coaches or to anyone else during the game. Mr. Hackbart experienced pain and soreness to the extent that he was unable to play golf as he had planned on the day after the game. He did not seek any medical attention and, although he continued to feel pain, he played on specialty team assignments for the Denver Broncos in games against the Chicago Bears and the San Francisco Forty-Niners on successive Sundays. The Denver Broncos then released Mr. Hackbart on waivers and he was not claimed by any other team. After losing his employment, Mr. Hackbart sought medical assistance, at which time it was discovered that he had a neck injury. When that information was given to the Denver Broncos Football Club, Mr. Hackbart received his full payment for the 1973 season pursuant to an injury clause in his contract...

Plaintiff's Theories of Liability

This case is controlled by the law of Colorado. While a theory of intentional misconduct is barred by the applicable statute of limitations, the plaintiff contends that Charles Clark's foul was so far outside of the rules of play and accepted practices of professional football that it should be characterized as reckless misconduct within the principles of Section 500 of the Restatement of Torts, 2d.   A reckless disregard for the safety of a goalkeeper in a schoolboy soccer game was the basis for recovery in Nabozny v. Barnhill, 31 Ill. App. 3rd 212, 334 N.E.2d 258 (1975).

Alternatively, the plaintiff claims that his injury was at least the result of a negligent act by the defendant. The difference in these contentions is but a difference in degree. Both theories are dependent upon a definition of a duty to the plaintiff and an objective standard of conduct based upon the hypothetical reasonably prudent person. Thus, the question is what would a reasonably prudent professional football player be expected to do under the circumstances confronting Charles Clark in this incident?

Two coaches testified at the trial of this case. Paul Brown has had 40 years of experience at all levels of organized football, with 20 years of coaching professional football. Both Mr. Brown and Mr. Ralston emphasized that the coaching and instructing of professional football players did not include any training with respect to a responsibility or even any regard for the safety of opposing players. They both said that aggressiveness was the primary attribute which they sought in the selection of players. Both emphasized the importance of emotional preparation of the teams. Mr. Brown said that flare-up fighting often occurred, even in practice sessions of his teams.

It is wholly incongruous to talk about a professional football player's duty of care for the safety of opposing players when he has been trained and motivated to be heedless of injury to himself. The character of NFL competition negates any notion that the playing conduct can be circumscribed by any standard of reasonableness.

Both theories of liability are also subject to the recognized defenses of consent and assumption of the risk. Here the question is what would a professional football player in the plaintiff's circumstances reasonably expect to encounter in a professional contest?

All of the witnesses with playing or coaching experience in the NFL agreed that players are urged to avoid penalties. The emphasis, however, is on the unfavorable effects of the loss of yardage, not the safety of the players. It is undisputed that no game is without penalties and that players frequently lose control in surges of emotion.

The conflict in the testimony is the difference in the witnesses' opinions as to whether Mr. Clark's act of striking the plaintiff on the back of the head in reaction to anger and frustration can be considered as "a part of the game." Several former players denounced this incident and said that Mr. Clark's conduct could not be considered customary or acceptable.

It is noteworthy that while this incident was clearly shown on the Denver Broncos' defensive game films, which were routinely reviewed by the defensive players and coaching staff, none of them made it a matter of special attention or concern.

Upon all of the evidence, my finding is that the level of violence and the frequency of emotional outbursts in NFL football games are such that Dale Hackbart must have recognized and accepted the risk that he would be injured by such an act as that committed by the defendant Clark on September 16, 1973. Accordingly, the plaintiff must be held to have assumed the risk of such an occurrence. Therefore, even if the defendant breached a duty which he owed to the plaintiff, there can be no recovery because of assumption of the risk.

The plaintiff has also claimed that he is a beneficiary of a contract made for his protection. That is based on a provision of the standard player contract whereby the player agrees to conform to the rules and regulations of the NFL. Thus, it is argued that the rules of play include safety rules for the benefit of opposing players. That is a strained interpretation of the contractual provisions. In context, the rules and regulations referred to are those relating to the employment relationship and not the conduct of play. To hold otherwise would create a potential for contract liability for every infraction of every playing rule.

The plaintiff asserts that Mr. Clark was guilty of outrageous conduct. That doctrine is inapplicable to this case. Outrageous conduct has been the basis for liability where severe emotional distress resulted from some behavior which was considered to be so extraordinary and so far from societal norms as to be regarded as atrocious and utterly intolerable...  Dale Hackbart did not suffer such emotional distress and Charles Clark's action was not outside applicable norms of NFL football.

Finally, plaintiff seeks recovery on a theory of an interference with contract. That tort was defined in Comtrol, Inc. v. Mountain States Telephone & Telegraph Co., 32 Colo.   App. 384, 513 P.2d 1082 (1973) to include an intent to cause a breach of contract and some action which does induce a breach as necessary elements. Neither is shown in the evidence in this case. The Denver Broncos fully performed the Hackbart contract and an intent to interfere with it was certainly not what caused the blow by Charles Clark.

Liability of the defendant Cincinnati Bengals, Inc. is based upon a contention that the Bengals failed to instruct and control their rookie fullback. The record, however, reflects that what he did is, unfortunately, an example of the excesses of violence which have become expectable as a result of the style of play in the NFL. The question of liability of the employer under the doctrine of respondeat superior is not presented because Charles Clark is not liable to the plaintiff...

 [T]he evidentiary record now before me clearly reveal the density of the thicket in which the courts would become entangled if they undertook the task of allocation of fault in professional football games. The NFL rules of play are so legalistic in their statement and so difficult of application because of the speed and violence of the play that the differences between violations which could fairly be called deliberate, reckless or outrageous and those which are "fair play" would be so small and subjective as to be incapable of articulation. The question of causation would be extremely difficult in view of the frequency of forceful collisions. The volume of such litigation would be enormous and it is reasonable to expect that the court systems of the many states in which NFL games are played would develop differing and conflicting principles of law. It is highly unlikely that the NFL could continue to produce anything like the present games under such multiple systems of overview by judges and juries. If there is to be any governmental involvement in this industry, it is a matter which can be best considered by the legislative branch.

My conclusion that the civil courts cannot be expected to control the violence in professional football is limited by the facts of the case before me. I have considered only a claim for an injury resulting from a blow, without weaponry, delivered emotionally without a specific intent to injure, in the course of regular play in a league-approved game involving adult, contract players. Football as a commercial enterprise is something quite different from athletics as an extension of the academic experience and what I have said here may have no applicability in other areas of physical competition.

Upon the foregoing findings of fact and conclusions of law, it is

ORDERED that judgment shall enter for the defendants, with costs to be taxed.


Richard P. Matsch, Judge United States District Court



DALE HACKBART, Plaintiff-Appellant, v. CINCINNATI BENGALS, INC., and CHARLES "BOOBY" CLARK, Defendants-Appellees.


No. 77-1812




601 F.2d 516; 1979 U.S. App. LEXIS 14111; 4 Fed. R. Evid. Serv. (Callaghan) 1042


March 13, 1979, Argued  
June 11, 1979, Decided

 JUDGES: Before DOYLE, McKAY and LOGAN, Circuit Judges.



 ...The evidence at the trial uniformly supported the proposition that the intentional striking of a player in the head from the rear is not an accepted part of either the playing rules or the general customs of the game of professional football. The trial court, however, believed that the unusual nature of the case called for the consideration of underlying policy which it defined as common law principles which have evolved as a result of the case to case process and which necessarily affect behavior in various contexts. From these considerations the belief was expressed that even Intentional injuries incurred in football games should be outside the framework of the law. The court recognized that the potential threat of legal liability has a significant deterrent effect, and further said that private civil actions constitute an important mechanism for societal control of human conduct. Due to the increase in severity of human conflicts, a need existed to expand the body of governing law more rapidly and with more certainty, but that this had to be accomplished by legislation and administrative regulation. The judge compared football to coal mining and railroading insofar as all are inherently hazardous. Judge Matsch said that in the case of football it was questionable whether social values would be improved by limiting the violence.

Thus the district court's assumption was that Clark had inflicted an intentional blow which would ordinarily generate civil liability and which might bring about a criminal sanction as well, but that since it had occurred in the course of a football game, it should not be subject to the restraints of the law; that if it were it would place unreasonable impediments and restraints on the activity. The judge also pointed out that courts are ill-suited to decide the different social questions and to administer conflicts on what is much like a battlefield where the restraints of civilization have been left on the sidelines.

We are forced to conclude that the result reached is not supported by evidence...

 Plaintiff, of course, maintains that tort law applicable to the injury in this case applies on the football field as well as in other places. On the other hand, plaintiff does not rely on the theory of negligence being applicable. This is in recognition of the fact that subjecting another to unreasonable risk of harm, the essence of negligence, is inherent in the game of football, for admittedly it is violent. Plaintiff maintains that in the area of contributory fault, a vacuum exists in relationship to intentional infliction of injury. Since negligence does not apply, contributory negligence is inapplicable. Intentional or reckless contributory fault could theoretically at least apply to infliction of injuries in reckless disregard of the rights of others. This has some similarity to contributory negligence and undoubtedly it would apply if the evidence would justify it. But it is highly questionable whether a professional football player consents or submits to injuries caused by conduct not within the rules, and there is no evidence which we have seen which shows this. However, the trial court did not consider this question and we are not deciding it.

Contrary to the position of the court then, there are no principles of law which  allow a court to rule out certain tortious conduct by reason of general roughness of the game or difficulty of administering it.

Indeed, the evidence shows that there are rules of the game which prohibit the intentional striking of blows. Thus, Article 1, Item 1, Subsection C, provides that:

All players are prohibited from striking on the head, face or neck with the heel, back or side of the hand, wrist, forearm, elbow or clasped hands.

Thus the very conduct which was present here is expressly prohibited by the rule which is quoted above.

The general customs of football do not approve the intentional punching or striking of others. That this is prohibited was supported by the testimony of all of the witnesses. They testified that the intentional striking of a player in the face or from the rear is prohibited by the playing rules as well as the general customs of the game. Punching or hitting with the arms is prohibited. Undoubtedly these restraints are intended to establish reasonable boundaries so that one football player cannot intentionally inflict a serious injury on another. Therefore, the notion is not correct that all reason has been abandoned, whereby the only possible remedy for the person who has been the victim of an unlawful blow is retaliation...
The Restatement of Torts Second, § 500, distinguishes between reckless and negligent misconduct. Reckless misconduct differs from negligence, according to the authors, in that negligence consists of mere inadvertence, lack of skillfulness or failure to take precautions; reckless misconduct, on the other hand, involves a choice or adoption of a course of action either with knowledge of the danger or with knowledge of facts which would disclose this danger to a reasonable man. Recklessness also differs in that it consists of intentionally doing an act with knowledge not only that it contains a risk of harm to others as does negligence, but that it actually involves a risk substantially greater in magnitude than is necessary in the case of negligence. The authors explain the difference, therefore, in the degree of risk by saying that the difference is so significant as to amount to a difference in kind.

Subsection (f) also distinguishes between reckless misconduct and intentional wrongdoing. To be reckless the Act must have been intended by the actor. At the same time, the actor does not intend to cause the harm which results from it. It is enough that he realized, or from the facts should have realized, that there was a strong probability that harm would result even though he may hope or expect that this conduct will prove harmless. Nevertheless, existence of probability is different from substantial certainty which is an ingredient of intent to cause the harm which results from the act.

Therefore, recklessness exists where a person knows that the act is harmful but fails to realize that it will produce the extreme harm which it did produce. It is in this respect that recklessness and intentional conduct differ in degree.

In the case at bar the defendant Clark admittedly acted impulsively and in the heat of anger, and even though it could be said from the admitted facts that he intended the act, it could also be said that he did not intend to inflict serious injury which resulted from the blow which he struck.

In ruling that recklessness is the appropriate standard and that assault and battery is not the exclusive one, we are saying that these two liability concepts are not necessarily opposed one to the other. Rather, recklessness under § 500 of the Restatement might be regarded, for the purpose of analysis at least, a lesser included act.

Assault and battery, having originated in a common law writ, is narrower than recklessness in its scope. In essence, two definitions enter into it. The assault is an attempt coupled with the present ability to commit a violent harm against another. Battery is the unprivileged or unlawful touching of another. Assault and battery then call for an intent, as does recklessness. But in recklessness the intent is to do the act, but without an intent to cause the particular harm. It is enough if the actor knows that there is a strong probability that harm will result. Thus, the definition fits perfectly the fact situation here. Surely, then, no reason exists to compel appellant to employ the assault and battery standard which does not comfortably apply fully in preference to the standard which meets this fact situation...

In sum, having concluded that the trial court did not limit the case to a trial of the evidence bearing on defendant's liability but rather determined that as a matter of social policy the game was so violent and unlawful that valid lines could not be drawn, we take the view that this was not a proper issue for determination and that plaintiff was entitled to have the case tried on an assessment of his rights and whether they had been violated.

The trial court has heard the evidence and has made findings. The findings of fact based on the evidence presented are not an issue on this appeal. Thus, it would not seem that the court would have to repeat the areas of evidence that have already been fully considered. The need is for a reconsideration of that evidence in the light of that which is taken up by this court in its opinion. We are not to be understood as limiting the trial court's consideration of supplemental evidence if it deems it necessary.

 [*527]  The cause is reversed and remanded for a new trial in accordance with the foregoing views.



No. 79-399.




444 U.S. 931; 100 S. Ct. 275; 62 L. Ed. 2d 188; 1979 U.S. LEXIS 3532


October 29, 1979


C.A. 10th Cir.

Reported below: 601 F. 2d 516.

OPINION: Certiorari denied.



No. C. A. 73147


Court of Appeals of Ohio, First Appellate District, Hamilton County


39 Ohio App. 2d 5; 314 N.E.2d 409; 1974 Ohio App. LEXIS 2669; 68 Ohio Op. 2d 72


January 14, 1974, Decided

 JUDGES: HOLMES, J. SHANNON and STRAUSBAUGH, JJ., concur. HOLMES and STRAUSBAUGH, JJ., of the Tenth Appellate District sitting by designation in the First Appellate District.


 ...The facts of the case in brief are that on November 2, 1969, the plaintiff Harry A. Townsley, a minor at such time, along with a friend, by the name of Gary Kasee, went to the Cincinnati Gardens in Cincinnati, Ohio, to view a performance of the Harlem Globetrotters. After purchasing their tickets, they went to their seats and remained there until about the third quarter of the exhibition basketball game, at which time the boys went to the concession stand in order to get some soft drinks.

Shortly therafter, Harry A. Townsley went to a nearby washroom upon such level of the Cincinnati Gardens, and while in such washroom he was approached by a young man who demanded money from him, whereupon the plaintiff informed the person that he had no money. Immediately thereafter, the person seeking money from the plaintiff was joined by other friends who thereupon set themselves upon the plaintiff and proceeded to assault him and beat him up. Such beating by his assailants resulted in the laceration of the face and lips of the plaintiff as well as the loss of two of his front teeth.

The plaintiff, a minor, and his father as next friend, brought an action in the Court of  Common Pleas of Hamilton County, Ohio, seeking damages by way of the injuries sustained by the young man, and also by way of the doctor and medical bills sustained by the father.

The case was tried before the court, the jury having been waived, and after testimony was taken on behalf of the plaintiffs and defendant, the matter was taken under advisement  by the trial court, and subsequently such court issued its decision, including its findings of fact and conclusions of law.

The trial court held, in effect, that where an incident such as the instant matter occurred in a large metropolitan sports arena with approximately 5,000 persons present; where such incident took place in an isolated, dimly-lighted public restroom; where, on the night of such incident, the security guard was made up of five patrolmen, specifically the captain and four others; where two of such patrolmen were stationed on the main level and; where the responsibilities of the other three included supervising the entire remainder of the Gardens, the defendant either knew, or, in the exercise of ordinary care, should have known, of the danger which victimized the plaintiff.

The court, thereupon, entered a judgment for the father in the sum of $ 381 for dental expenses, and for the son in the amount of $ 346 for future dental expenses, and the sum of $ 1,750 to reasonably compensate the plaintiff son for pain and suffering growing out of the injuries sustained in the incident.

The defendant appeals, alleging two assignments of error: one, that the trial court erred when it failed to grant defendant's motion to dismiss; two, that the trial court erred when it pronounced the judgment for the plaintiff, such being against the manifest weight of the evidence.

The defendant, to substantiate its position on this appeal, relies in the main upon the case of Howard v. Rogers (1969), 19 Ohio St. 2d 42. The second and third paragraphs of the syllabus of such case, which we feel are applicable to the matter before us, are as follows:

"2. An occupier of premises for business purposes is not an insurer of the safety of his business invitees while they are on those premises.

"3. Where an occupier of premises for business purposes does not, and could not in the exercise of ordinary care, know of a danger which causes injury to his business invitees, he is not liable therefor."  

We feel that the case of Howard v. Rogers presents the law on the subject as it remains today. It is that there  must appear from the facts and the circumstances of the case presented that the defendant had some prior knowledge or experience of the type of occurrence which occasioned the plaintiff's injuries, as alleged, or that the defendant should reasonably have known of or anticipated the type of danger or acts of third persons which resulted in the injuries sustained by the plaintiff.

Let us look at the facts in order to determine whether the defendant either knew, or, in the exercise of ordinary care, should have known of the danger which resulted in the injuries to this plaintiff. Plaintiff Harry Townsley stated that he had been in the Cincinnati Gardens on other occasions and had never seen any fights or anything of that nature in the Gardens before.

The plaintiff's friend testified that he saw what appeared to be mothers and fathers of children in attendance, and that he did not observe any fights or disturbances in the Gardens that evening.

Mr. Joseph Aldrich, who was the captain of the private police association that was employed to supply the police protection for Cincinnati Gardens at the time, testified that he had been associated in this private police association for some sixteen years and had participated in the planning for police protection for various events taking place in the Gardens. He stated that it was a common practice to patrol the halls and washrooms in the Gardens, to see that property was not damaged and patrons were safe. He stated that among the things taken into consideration in the type of protection provided and the numbers of men offering such protection was the nature of the event, which would determine the probability of any trouble as well as the anticipated attendance. He testified that he would anticipate a greater possibility of trouble during a rock-and-roll show, and wrestling or boxing matches, or that type of affair, rather than a family show such as the Globetrotters exhibition. He further testified that during such considerations he had determined that five men, being present for security duty, was ample protection for the evening.

There was some evidence of a few instances where patrons had been assaulted by other patrons in the Gardens while attending other types of shows but there was no specific evidence of any assaults in washrooms during which boys may have been seeking money, and upon being refused had beaten up the ones approached.

Although it might be true that, in general, courts may take judicial notice that crime has been on the increase in the last number of years, it does not follow that we may at this juncture take judicial notice that the numbers of crimes that have taken place in public washrooms of exhibition halls have markedly increased. Neither can we, as a matter of law, in the absence of clear evidence in support thereof, state that it is necessary for management to place any given number of security guards at certain locations for the care and safety of its invitees.

We hold that the case law pronounced in Howard v. Rogers, supra, is in fact applicable to the case that was before the trial court herein and before this court, even though the injury received by the plaintiff in Howard took place in a small town junior high school gymnasium where a dance was being conducted and an admission fee charged.

Further, the case of Mason v. Roberts (1973), 33 Ohio St. 2d 29, may, on the other hand, be distinguished from  [***8]  the instant case in that the fact situation in Roberts presented the issue of whether the proprietor, in continuing to sell a drunken patron drinks, knowing the propensity of such patron to be violent when inebriated, may be chargeable with a failure to use due care for the protection of his business invitees from physical injury as a result of the violent acts of third persons, when an injury or death occurs to another patron.

Mason v. Roberts presents an entirely different fact situation from the one before us at this time. The Supreme Court quite understandably held that such issues were ordinarily questions for the trier of the facts.

However, in the instant matter, there is no evidence in the record that would show that the defendant, because of prior activities upon the premises during any given performance, could have anticipated the act of the assailants in injuring the plaintiff herein. The law does not exact upon a business proprietor a degree of duty to anticipate that which could occur upon his premises to the distress or damage of his invitees, beyond that which could reasonably be foreseen.

It is true at this point in time that such an incident has taken place in the Cincinnati Gardens, and the proprietor has now become aware of the potential of such an incident; therefore, it may be that the necessity of adding additional security forces to protect the business invitees becomes a reality of life. However, it cannot be said that upon the state of the record as provided to the trial court, and to this court upon appeal, the defendant proprietor had knowledge of prior incidents which would have occasioned the necessity for having additional security forces stationed at the washrooms, or would have necessitated the making of rather frequent periodic visitations to such areas, in order to protect their business invitees.

Here, there being no evidence adduced from which reasonable minds could have concluded that the defendant Cincinnati Gardens knew of, or could reasonably have anticipated, the danger to this plaintiff, the trial court should have entered a judgment for the defendant. For the trial court not to have done so was manifestly against the weight of the evidence.

Based upon all of the foregoing, the judgment of the Common Pleas Court of Hamilton County is hereby reversed, and judgment is hereby entered for the defendant as such judgment should have been entered by the trial court.

Judgment reversed.

Document 1 of 1.


James BEARMAN & Christenna Bearman, Appellants-Plaintiffs, v. UNIVERSITY OF NOTRE DAME, Appellee-Defendant


No. 3-882 A 223


Court of Appeals of Indiana, Third District


453 N.E.2d 1196; 1983 Ind. App. LEXIS 3387


September 22, 1983, Filed

 JUDGES: Staton, J. Hoffman, P.J., concurs. Conover, P.J. (by designation) concurs.


OPINION:   Christenna Bearman suffered a broken leg when she was knocked down by a drunk as she was returning to her car after a Notre Dame football game. Bearman and her husband sued the University of Notre Dame for damages resulting from that injury. After the close of all evidence, the trial court granted Notre Dame's motion for judgment on the evidence. Bearman appeals, raising one issue:

Whether Notre Dame had a duty to protect Mrs. Bearman from injury caused by the acts of third persons.
Reversed and remanded.

The evidence and inferences most favorable to Bearman shows that on October 27, 1979, Mr. and Mrs. Bearman attended a football game at the University of Notre Dame. The Bearmans left the game shortly before it ended. As they were walking through a parking lot toward their car, they observed two men who appeared to be drunk. The men were fighting, one of them fell down, and then they walked away from each other. One of the men walked past the Bearmans. A few moments later, the man fell into Mrs. Bearman from behind, knocking her to the ground. Mrs. Bearman suffered a broken leg from the fall. There were no ushers or security people in the area when the incident occurred.

When the trial court considers a motion for judgment on the evidence, it must consider only the evidence most favorable to the non-moving party. The motion may be granted only if there is no substantial evidence, or reasonable inference to be drawn therefrom, which supports an essential element of the claim. If reasonable persons might differ as to the inferences to be drawn from the evidence, then judgment on the evidence is not proper…

Bearman argues that she was a business invitee of the University of Notre Dame; therefore, Notre Dame owed to her a duty to protect her from injury caused by the acts of other persons on the premises. On the other hand, Notre Dame argues that absent notice or knowledge of any particular danger to a patron, the University cannot be held liable for the acts of third persons.

 It is axiomatic that the conduct of a person will give rise to an action for negligence only if that person owed a duty to the plaintiff to conform his actions to the standard of care. The existence of such a duty is a question of law…

Generally, the operator of a place of public entertainment owes a duty to keep the premises safe for its invitees…  This duty includes a duty to provide a safe and suitable means of ingress and egress, and a duty to exercise ordinary and reasonable care to protect a patron from injury caused by third persons. However, the invitor is not the insuror of the invitee's safety.  Before liability may be imposed on the invitor, it must have actual or constructive knowledge of the danger.

The Restatement of Torts (Second) § 344 (1965) sets forth the applicable rule:

"A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to

"(a) discover that such acts are being done or are likely to be done, or

"(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it."

Comment (f) of this section is particularly pertinent to this case:

"f. Duty to police premises. Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor,  even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection."

The University is aware that alcoholic beverages are consumed on the premises before and during football games. The University is also aware that "tailgate" parties are held in the parking areas around the stadium. Thus, even though there was no showing that the University had reason to know of the particular danger posed by the drunk who injured Mrs. Bearman, it had reason to know that some people will become intoxicated and pose a general threat to the safety of other patrons. Therefore, Notre Dame is under a duty to take reasonable precautions to protect those who attend its football games from injury caused by the acts of third persons.

The questions whether the protective measures employed by Notre Dame were inadequate and, if so, whether such inadequacy contributed to Mrs. Bearman's injury are questions for the jury…  Therefore, we reverse the judgment of the trial court and remand this case for proceedings consistent with this opinion.

Reversed and remanded.

HOFFMAN, P.J., Concurs.

CONOVER, P.J. (by designation) Concurs.

Thomas H. Eddy, Respondent, v. Syracuse University, Appellant




Supreme Court of New York, Appellate Division, Fourth Department


78 A.D.2d 989; 433 N.Y.S.2d 923; 1980 N.Y. App. Div. LEXIS 13761


November 13, 1980

 JUDGES: Dillon, P. J., Schnepp, Callahan, Doerr and Witmer, JJ.

OPINION:   Judgment unanimously affirmed, with costs.   Memorandum: Defendant appeals from a judgment awarding damages for personal injuries sustained by plaintiff on March 27, 1977 in a gymnasium on defendant's campus. Defendant offered no proof at trial and argues here, as it did before the trial court, that as a matter of law the facts do not support a finding of negligence, and that plaintiff's assumption of risk in playing in the gymnasium in the manner he did was the proximate cause of the accident. Plaintiff, a student from Harpur College, was injured while playing in a game called "ultimate frisbee" between a Harpur team and one from Syracuse University. Ultimate frisbee, described as being much like soccer, is a running game in which team members attempt to pass the frisbee to one another, the object being to advance the frisbee over the opponent's goal line. The two teams were admitted to the gymnasium building by a person believed by plaintiff to have been the janitor. The players changed clothes in a locker room,  entered the gymnasium and thereupon established the game's playing area to run the length of the gymnasium, using as the goal lines the outermost sidelines of two basketball courts which were laid out across the width of the gymnasium. The west goal line thus established was located approximately five to eight feet from the gymnasium's west wall which was of masonary construction with glass doors in the center. Plaintiff, running toward the west wall and looking back over his shoulder for a thrown frisbee, was unable to stop before striking one of the doors. He turned and saw the door, however, in time to raise his right arm in an attempt to protect himself. His body struck the handlebar across the door but because the door was locked, it did not open. The glass shattered and as plaintiff's upper torso went through the door his right arm was severely lacerated. Plaintiff acknowledged that he was aware of the presence of the walls and the doors when he participated in the game. He also testified that such frisbee games are played on an "informal" basis; and there was no proof that the Syracuse team was officially recognized or sponsored by defendant. In support of its assertion that the evidence was insufficient to submit the case to the jury, defendant argues that it did not authorize the use of the gymnasium; had no foreknowledge of plaintiff's use; could not foresee the manner in which it would be used and, finally, that the gymnasium was not defective in its construction or design, nor was it unsuited for its ordinary purposes. Common-law classifications of the status of one injured when on the land of another are no longer determinative in assessing the duty of care owed by the landowner, and it is now well established that the duty owed is one of "reasonable care under the circumstances [with] foreseeability [as] a measure of liability" (Basso v Miller, 40 NY2d 233, 241). The injured party's status remains relevant, however, in assessing the foreseeability of his presence on the land and the probability that he might suffer injury (Basso v Miller, supra). In determining whether the evidence is sufficient to submit to the jury, the court must examine the facts to ascertain "whether the foreseeability of the presence of an entrant on land is too remote, given the nature of the risk and the burdens that would be imposed on the landowner to guard against it." (Quinlan v Cecchini, 41 NY2d 686, 689.) Additionally, the court should weigh "the probability of the harm, the gravity of the harm against the burden of precaution, and other relevant and material considerations from which it can determine whether reasonable persons can differ as to whether the defendant was negligent". It is only when the court concludes that there is no reasonable view of the evidence upon which to assess liability that the issue should be decided as one of law. Where varying inferences are possible, however, the issue is one for the jury (Paslgraf v Long Is. R. R. Co., 248 NY 339, 345). Applying those principles, we conclude that it was proper here for the court to submit the issue of negligence to the jury. Surely the jury could have concluded that defendant should reasonably have foreseen plaintiff's presence in the gymnasium, located as it is on the campus of a large university, and that some of its students, and their guests, might use the facility without express permission. Also properly left to the jury was the question of whether the glass doors, located as they were in a building intended to be used for strenuous physical activity, constituted a dangerous condition. The close proximity of the doors to the basketball court sideline could be found to present a danger to a player in a hotly contested basketball game. Their danger is enhanced, of course, with the playing of a running game employing the length of the gymnasium. Thus the question arises of whether defendant should have foreseen that students might use the gymnasium for the playing of games other than those for which the basketball courts had been laid out. Here again, because of the propensity of college students to engage in novel games, a jury question was presented, and if such foreseeability was found, the probability and gravity of harm was readily apparent. The jury could also reasonably have found that the risk presented by the glass doors could have been obviated without imposing an undue burden upon defendant. The obvious danger could have been protected against, for example, by replacement of the glass with a solid material, or by placing a metal grill or a strong wire mesh over the glass. The court properly presented the issues to the jury in a charge which was rendered without request or exception by either party. Implicit in the jury verdict is its finding that defendant had a duty to protect users of the gymnasium, including plaintiff, from the dangers of the glass and that the breach of that duty was the proximate cause of the accident (Leone v City of Utica, 66 AD2d 463, affd 49 NY2d 811). Finally, we note that the jury was correctly instructed on the law of comparative negligence and assumption of risk (CPLR 1411).

DONNA DeMAURO, Plaintiff-Appellant, v. TUSCULUM COLLEGE, INC., Defendant-Appellee




Supreme Court of Tennessee, at Knoxville


603 S.W.2d 115; 1980 Tenn. LEXIS 476


July 28, 1980

 JUDGES: Harbison, J. wrote the opinion. Brock, C.J., Fones and Cooper, JJ., concur.


OPINION:   This case involves an action by a student against a private college for personal injuries sustained while she was receiving instruction in a physical education class. Plaintiff, a freshman and a beginner at golf, was struck by a golf ball driven by a senior student who was majoring in physical education and who was taking a course designated as "Teaching Assistant."

The jury returned a verdict for the plaintiff, appellant here, which was approved by the trial judge. The Court of Appeals, in a split decision, reversed and dismissed, holding that there was no material evidence of causative negligence. The Court held that while the accident was "an unfortunate occurrence" it was, as a matter of law, one for which the educational institution could not be held responsible...

Plaintiff, Donna DeMauro, was eighteen years old at the time of the accident on March 31, 1977. She was entering the third quarter of her freshman year at Tusculum College, a private liberal arts college located near Greeneville, Tennessee. She was required to take courses in physical education during her first year, including one course each quarter in "Activities." During the spring quarter she had elected to take a course designated as Physical Education No. 171, entitled "Golf." This course was offered in the fall and spring quarters of each year, and the college provided a member of its staff, a Dr. Shasby, as the instructor for the course. Plaintiff had never played golf before, nor had she ever received any instruction in the sport. The college apparently does not have a golf course on its campus, but it had made arrangements for the students to play on a course operated by a local country club...
On Thursday, March 31, 1977, the students went to the golf course for the first time to engage in practice consisting of actual play on a regular course. Again the record is silent as to how many students went. Plaintiff was a member of a foursome, consisting of three other freshmen girls, only one of whom appears to have had any substantial previous playing experience. There is reference in the record to another group or groups of students, some of whom were accompanied by Dr. Shasby [instructor]. Dr. Shasby was not with the foursome which included the plaintiff at the time of the accident.

In his place and stead a senior student, James Hunter, accompanied the four girls. Hunter was attending Tusculum College on an athletic scholarship in basketball. Golf was not his major sport. He had taken an introductory course in golf at a junior college a few years previously and had occasionally played the game, but the jury could easily infer from the testimony that he was by no means an expert in the sport.

Hunter, who was twenty-two years of age, testified that he was majoring in physical education and that he took for credit during the spring quarter a course designated as Physical Education No. 400, entitled "Teaching Assistant." The college catalogue, which was introduced in evidence, described this course as follows:

"Offered as needed. Students will be expected to assist in all aspects of the instruction of an activity course and, on occasion, to conduct the class. Prerequisites: Senior or junior P. E. major status only, approval of the instructor and of the division chairperson."

Hunter described his duties as follows:

"Get the clubs, take over if Dr. Shasby wasn't there, and helping with the class."

Hunter was not paid for his services, and it is clear that these services were a part of his own course of instruction in becoming a physical education teacher. Although the phrase was not used in the record, at oral argument it was stated that he might be considered as a sort of "practice teacher." He had assisted in a tennis class during the previous quarter but had never before assisted in instruction in golf. He testified that he had not played "a lot of golf" on his own since taking freshman instruction in the sport as previously mentioned. Plaintiff testified that she was not aware that Hunter "had little or no experience," that she knew he was a "student assistant" and thought "Jim perhaps knew about the game."

Hunter accompanied plaintiff and three other freshmen girls to the No. 5 tee on the Twin Creeks Golf Course near Greeneville. This was a 425-yard hole, bordered on the left by a creek. The rules of the course stated that a stroke to the left of the creek was out of bounds. As one faced the fairway, the green was to the left around a "dog-leg." A large tree was situated at the turn in the fairway. It would have been possible for a person driving from the men's tee, as Hunter undertook to do, to drive to the left of this tree in a straight line toward the green. The usual method of playing the hole, however, was to drive straight down the center of the fairway to the right of the tree. It is unclear from the record which way Hunter intended to drive, although he thought that he probably meant to drive to the right of the tree.

Hunter was a left-handed golfer. He approached the men's tee with the girls standing at about a ninety-degree angle opposite him and several yards away. All of them testified that they had generally been instructed to stand in this position. An instruction book in golf, which the students purchased, generally confirmed that this was the correct area for players to stand and watch in safety, or at least the jury could so conclude from the evidence.

There is little testimony in the record as to the manner or method in which Hunter struck the ball or as to what he actually did, except that he apparently "shanked" the shot, striking the ball with the toe of his driver. The ball veered off at an angle of about ninety degrees from the fairway, and it struck the plaintiff in the face. She received severe and painful injuries from which she suffered extensive bleeding and for which she had to undergo at least two different surgical operations about a year apart. She was given immediate first aid and assistance by Hunter and other persons. The degree and extent of her injuries and the amount of the jury award are not involved in this appeal.

It appears from the evidence that plaintiff had not read the book of instructions issued to her when she enrolled in the course, nor had she been assigned any reading therein. Neither party offered expert testimony as to the standards or customs of instruction in the game of golf...

The record is silent as to the qualifications or experience of Dr. Shasby, the instructor assigned to teaching the course. The jury could infer from the evidence that Dr. Shasby had placed Hunter in charge of the group which included plaintiff. They could also have concluded that Hunter was acting as a golfing instructor, although he was admittedly an inexperienced player. Obviously he improperly struck the ball and injured one of the very persons whom he was supposed to be instructing in the game. It seems to us that reasonable persons might find that Dr. Shasby, and through him the college, was negligent in placing a person of Hunter's experience in a position of sole responsibility and that Hunter's lack of experience was at least a factor which made injury to one of the students foreseeable. Regardless of whether Hunter himself was or was not negligent in the way he struck the ball, we are of the opinion that the Court of Appeals was in error in directing a verdict for the defendant college. The jury could have found that the likelihood of accidental injury was enhanced by placing such an inexperienced person in charge of the instruction...

 The status of the student, Hunter, was ambiguous, and a trier of fact might, as the defendant insists, conclude that he was only a fellow student playing a few holes of golf with other adult students in a situation where the college had no legal responsibility. On the other hand, a trier of fact might conclude that the plaintiff, a beginner and a novice at the sport, was receiving instructions as to how golf should be played. She was observing Hunter as he attempted to drive the ball and was then expecting to drive for the first time under actual playing conditions. The regular instructor was absent, and the duty of supervision which the school legally owed under these circumstances had apparently been delegated to Hunter. A jury might conclude that the latter was the instructor or was standing in the place and stead of an instructor who had a non-delegable responsibility. Negligence could have been found, predicated not so much on Hunter's improperly addressing the ball, as upon breach of the duty of supervision and instruction which the school owed to the student.

It could be inferred from the proof that the defendant felt that some supervision and instruction in the game of golf were needed, at least for beginning players. The jury could have found that under the circumstances this was not merely an informal group game...  On the other hand, golf perhaps is not as high-risk sport as some others, and the reasonableness of the conduct of defendant commensurate with the risks involved, in our opinion, was for the trier of fact to determine. The case does not turn entirely, however, on whether Hunter's own stroke of the ball was or was not "a negligent act," as concluded by the Court of Appeals, nor solely upon whether he was or was not a servant of the college.

It is entirely possible that under proper instructions, a trier of fact would conclude that the accident was completely unavoidable, as insisted by appellee. Certain risks, obviously, inhere in any sport or physical educational activity. In connection with golf, such risks include that of a ball being driven upon an unintended path. There is testimony that plaintiff was aware of that risk, and we are of the opinion, as previously stated, that there was sufficient evidence to justify a charge to the jury on assumption of risk. Since the plaintiff was standing in an area where she had been instructed to stand, however, and in which the evidence indicates an observer properly should stand, she could not be said, as a matter of law, to have necessarily assumed the risk that her own instructor would strike the ball in such a way as to injure her. We are of the opinion that all of the issues, including that of unavoidable accident, should have been submitted to the jury under proper instructions and that these instructions should have delineated the nature of the duty of  a private school toward its students...

It is insisted by appellee that it would have had no duty or responsibility whatever to appellant had she simply been struck by a fellow student while engaged in a game of golf. Under some circumstances, of course, this may be correct. It is also true that participants in sporting activities occupy a somewhat different legal position from mere observers or passers-by... Where, however, students are novices and are receiving courses of instruction in sports held out and offered for credit by an educational institution, a duty of supervision and instruction arises from the relationship which is not terminated or abrogated merely by reason of the fact that one student participant injures another...
Each case of this nature turns upon all of the facts and circumstances. Hard and fast criteria are difficult to establish. Frequently expert testimony is helpful to show what the accepted standards and practices are in a particular sport. There may indeed be many instances where a directed verdict is proper. Where, however, different and varied conclusions could be drawn from the proof, a jury issue is usually presented. We are convinced that such is the present case and that neither party was entitled to a directed verdict on any issue upon the trial record. Of course a different situation may be presented upon re-trial.

The judgment of the Court of Appeals is reversed and the cause is remanded for a new trial under more complete and appropriate jury instructions consistent with the issues presented. Costs incident to this appeal will be taxed equally to the parties. All other costs will abide the results of a new trial.

Brock, C.J., Fones and Cooper, JJ., concur.

Patricia A. Kane, as Parent and Guardian of Emmalee Kane, an Infant, Appellant, v. North Colonie Central School District, Respondent.






273 A.D.2d 526; 708 N.Y.S.2d 203; 2000 N.Y. App. Div. LEXIS 6445


June 8, 2000, Decided  
June 8, 2000, Entered

 JUDGES: Carpinello, Mugglin, Rose and Lahtinen, JJ., concur.


 Spain, J. P.

Plaintiff commenced this action to recover damages arising out of an ankle injury sustained by her daughter, Emmalee Kane, who tripped and fell during an indoor track practice conducted in a hallway in defendant's high school building. After joinder of issue and discovery, defendant moved for summary judgment dismissing the complaint. Supreme Court concluded that, by voluntarily participating in the sport of indoor track, Kane assumed the risk of tripping and falling. Accordingly, the court granted the motion and dismissed the complaint, prompting this appeal by plaintiff.

 By voluntarily participating in an interscholastic sport, Kane is deemed to have assumed "those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation" (Morgan v State of New York, 90 NY2d 471, 484). Her assumption of those risks is not an absolute defense but a measure of defendant's duty of care (see, Benitez v New York City Bd. of Educ., 73 NY2d 650, 657). Accordingly, defendant was obligated to "exercise ordinary reasonable care to protect [Kane] from unassumed, concealed or unreasonably increased risks" (id., at 658).

It is undisputed that Kane was not engaged in a competitive track event when she was injured, but instead she and her teammates were engaged in an "easy run" practice in which they were directed by their coach, an employee of defendant, to run continuously for 30 minutes back and forth in the hallway. Nevertheless, the risk of contact with another runner and falling is inherent even in noncompetitive running in a confined space and there is evidence  that Kane, who was beginning her third year on the team, was aware of that risk. Plaintiff, however, submitted expert evidence to demonstrate that the risk of contact and falling is unreasonably increased where the runners do not maintain a safe and appropriate distance, typically at least a stride, from one another. Defendant was aware of this increased risk and, therefore, the coach established rules for running in the hallway, which included the requirement that runners maintain a safe distance and respect each other's running space. The coach supervised the practices, often repeating the rules, and if she saw the runners "bunch up" she would direct them to spread out.

Kane alleged that she fell when the runner behind her stepped on her heel and that the fall occurred immediately after the group of runners she was with had passed the coach. The coach alleged that on the day of Kane's injury, she observed no instances of runners "bunching up" and if she had she would have directed them to spread out. Plaintiff, however, submitted an affidavit in which Kane alleged that teammates were running only one foot behind her and that her group "had been running in this close fashion for almost all of the twenty minutes" preceding her fall. Plaintiff's expert opined that "[p]ermitting one runner to run approximately one foot behind another runner in a school hallway creates an unreasonable and dangerous risk of contact and physical injury between runners which is simply unnecessary in the context of an 'easy run', noncompetitive track practice." The allegations of Kane and the expert are, in our view, sufficient to raise a question of fact as to whether defendant's supervision was inadequate and resulted in the failure to exercise reasonable care to protect Kane from an unreasonably increased risk...

Defendant contends that Kane's affidavit contradicts her deposition testimony regarding the length of time that her group had been running in close proximity to one another. According to defendant, the affidavit was created solely for the purpose of defeating summary judgment. This Court has acknowledged that  a plaintiff cannot "avoid summary judgment by alleging issues of fact created by self-serving affidavits contradicting prior sworn deposition testimony..." Contrary to defendant's claim, however, Kane's deposition includes testimony that is consistent with the allegations in her affidavit. When asked how her group came to be so close together at the time of  her injury, she testified that "[w]e all started out together, and since we're all about the same speed we all stuck together." When asked whether they had been running that close for the entire 20 minutes prior to her fall, Kane testified that "[t]here may have been a point when somebody like stopped and then there would be a space, but we stayed about that close." Plaintiff submitted sufficient evidence to defeat defendant's motion for summary judgment and, therefore, Supreme Court's order must be reversed.

Carpinello, Mugglin, Rose and Lahtinen, JJ., concur.

Ordered that the order is reversed, on the law, with costs, and motion denied.







232 Ga. App. 892; 503 S.E.2d 43; 1998 Ga. App. LEXIS 808; 98 Fulton County DR 2320


June 2, 1998, Decided

 JUDGES: POPE, Presiding Judge. Beasley, J., concurs. Ruffin, J., concurs specially.



[The] evidence shows Antwan was a freshman who accompanied the football team to its 1994 annual summer camp at Troy State University in Alabama. According to affidavits provided by former football players, older players at each year's football camp traditionally "initiated" freshman players by "shaving [the] heads of first year players and general 'horseplaying,' such as trashing players' rooms." The evidence conflicts as to whether the coaching staff was aware of this tradition and implicitly condoned it, but no witness testified that the coaching staff or other school officials explicitly encouraged or approved this behavior. For the 1994 camp, players were housed in a dormitory with adult chaperones or coaches in rooms at the end of each hall. Bohannon testified that he warned the players that any horseplay would be punished. Nonetheless, during an afternoon break in activities  a group of players, their faces masked, attacked Antwan in an empty dormitory room and beat him severely, knocking him unconscious and requiring hospital care. Antwan testified that he had witnessed other initiations that week and had seen older players shave younger players' heads, spray them with shaving cream, and mess up their rooms, but had not seen anyone physically attacked. In fact, no witness testified that any prior initiation had involved physical beatings such as the one Antwan sustained.

Applying the standards set forth in Lau's Corp. v. Haskins, 261 Ga. 491 (405 S.E.2d 474) (1991), we affirm the grants of summary judgment. We first note that this case is one alleging the negligent failure of school officials to protect Antwan from an attack by other students. The appellate courts of this state have consistently held that the supervision of student safety is a discretionary function, the proper exercise of which entitles school officials to immunity….
Caldwell argues that a state criminal statute against hazing (O.C.G.A. § 16-5-61) transforms this discretionary policing function into a ministerial one and that Bohannon and White had a ministerial duty not to aid and abet the crime of hazing. A school official does not have legal discretion to participate in a crime or to allow students under his supervision to commit a crime. O.C.G.A. §§ 16-2-20 and 16-2-21.   Compliance with the law is mandatory, and in that sense arguably "ministerial." However, in this case there is no evidence that Bohannon and White were parties to a crime or allowed a crime to occur. Even assuming that the beating in this case amounted to criminal hazing, it is undisputed that this activity was  unknown to Bohannon and White before and at the time it occurred, and that nothing had happened on that trip or in prior years to make it foreseeable that such conduct would transpire. Bohannon and White, therefore, could not be aiders and abettors to the hazing in this instance. O.C.G.A. § 16-2-20…


Furthermore, no evidence in the record indicates Bohannon or White acted with "actual malice" towards Antwan. Caldwell's argument, at best,  is one of "implied malice": that by failing to stop the prior incidents involving shaved heads and shaving cream attacks, Bohannon and White exhibited a reckless disregard for the rights of students such as Antwan by creating a climate in which this attack could occur. Merrow rejected this theory of liability…  Considering the lack of any evidence showing that either defendant actively condoned, encouraged, or took part in any of these initiation rites, or the violent attack on Antwan, Caldwell's claim of actual malice must fail.

Judgment affirmed. Beasley, J., concurs. Ruffin, J., concurs specially.


CONCUR: RUFFIN, Judge, concurring specially.

I concur with the Court's judgment, but only because I am compelled to do so by Georgia law. Moreover, I write separately to highlight certain facts in the record and to suggest that the appellate courts and the legislature reconsider whether supervision of students should be considered a discretionary rather than a ministerial act.

From my review of the record it is clear that the football summer camp was a school-sponsored event and Bohannon, the high school football coach, was responsible for supervising the players, including Antwan Caldwell and his assailants. Four members of the football team provided affidavits, stating that "upperclassmen [were] allowed to haze first year football players," including Caldwell. All four members of the team stated that the "hazing consisted of incidents such as shaving heads of first year players and general 'horseplaying,' such as trashing players' rooms." One of the affiants stated that he was the target of the hazing and he informed Bohannon and other members of the coaching staff that he did not want to participate in this ritual. The three other affiants stated that "Coach Bohannon and the other members of the coaching staff were aware of these incidents and never attempted to stop them." One of the affiants added that he "was the recipient of this hazing on a couple of occasions and [he] was involved in a couple of fights as a result of these incidents."

Bohannon testified in a deposition that he had seen incidents where the players had  their hair cut, but other than that, he had never seen any incidents of hazing. Bohannon said that he investigated Caldwell's attack, but did not investigate whether hazing was a routine part of the summer camp. He also admitted that after the Caldwell attack, he did not discuss hazing with the football players. Furthermore, while Bohannon said that at the beginning of the camp a lecture was given about camp procedures, he never stated that he or any other camp official spoke to the players about hazing. According to Bohannon, he only spoke with the players after the Caldwell attack about horseplay among teammates.

Given the above, I believe there is sufficient evidence to conclude that Bohannon was aware of the incidents and condoned them, despite the potential for harm. However, Georgia law is clear that "the general task imposed on teachers to monitor, supervise, and control students has . . . been held to be a discretionary action which is protected by the doctrine of official immunity. [Cits.]" Wright v. Ashe, 220 Ga. App. 91, 94 (469 S.E.2d 268) (1996). And as the majority points out, when an action is based on a discretionary act of a public employee, actual malice, which does not include implied malice or reckless disregard, must be shown. See Ga. Const. 1983, Art. I, Sec. II, Par. IX (d); Merrow v. Hawkins, 266 Ga. 390 (467 S.E.2d 336) (1996). In this case, Bohannon's  conduct at most represents reckless disregard for the safety of his players; there is no evidence that Bohannon acted with the intent to harm Caldwell specifically. Accordingly, the majority is correct that under Georgia law Bohannon is entitled to official immunity….




Case No. S98C1610




1998 Ga. LEXIS 1173


November 20, 1998, Decided

PRIOR HISTORY:  [*1]  COURT OF APPEALS CASE NO. A98A0441. Original Opinion of June 2, 1998, Reported at: 1998 Ga. App. LEXIS 808.

JUDGES: All the Justices concur, except Sears, J., who dissents.

OPINION: The Supreme Court today denied the petition for certiorari in this case.

All the Justices concur, except Sears, J., who dissents.







239 Conn. 207; 682 A.2d 106; 1996 Conn. LEXIS 341


May 1, 1996, Argued  
August 27, 1996, officially released

JUDGES: Callahan, Borden, Berdon, and Palmer, Js. In this opinion the other justices concurred.


OPINION:   BORDEN, J. ...Certain facts are not in dispute. On October 16, 1988, the plaintiffs attended a softball game played at East Shore Park in New Haven by teams belonging to an organized league. The defendants David Brennan and Bruce Shepard served as the umpires for that game. The defendant Mark Piombino was a participant in the game.

The plaintiff Raymond Santopietro, Jr., observed the softball  game from a position behind the backstop and was not on the field of play. The plaintiff Raymond Santopietro, Sr., was approximately ten to fifteen feet from his son watching another game being played on an adjacent field.

In the sixth inning, Piombino came to bat in the game that Santopietro, Jr., was watching and hit a fly ball. In frustration, he intentionally flung his bat toward the backstop. Somehow the bat passed through the backstop and struck Santopietro, Jr., in the head. As a result,   Santopietro, Jr., suffered a fractured skull and other serious injuries.

 Both Santopietro, Jr., and Santopietro, Sr., n1 appeal n2 from the judgment of the trial court, Hon. John C. Flanagan, state trial referee, in favor of the defendants n3 rendered following the court's granting of a motion in limine [“in limine” motions are requests to make certain evidence inadmissible so that a jury will not be prejudiced] precluding the claim of Santopietro, Sr., for bystander emotional distress, and following a directed verdict in favor of Brennan and Shepard on Santopietro, Jr.'s claim of negligence. Thereafter, the jury rendered a verdict in favor of Santopietro, Jr., against Piombino. n4 The plaintiffs did not file a postverdict motion, either to set aside the directed verdict in favor of  [***4]  Brennan and Shepard, or in any way raising again the ruling of the court on the motion in limine regarding the claim of Santopietro, Sr., for bystander emotional distress. The trial court rendered judgment for Brennan and Shepard, and for Santopietro, Jr., against Piombino. This appeal followed.
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n1 Santopietro, Sr., died during the pendency of this action. Accordingly, Sandra Diane Santopietro, acting as executrix of his estate, was substituted as a party plaintiff for Santopietro, Sr. We refer to Santopietro, Sr., however, as the plaintiff.

n2 The plaintiffs appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c).

n3 The original defendants were: the city of New Haven, which owns East Shore Park; Robert Sheeley, the director of the department of parks, recreation and trees for the city of New Haven; Edward Candella, the assistant superintendent of parks for the city of New Haven; John Hiller, a foreman in the department of parks, recreation and trees for the city of New Haven; Caccone's Sunday Morning League; Brennan; Shepard; and Piombino.

The trial court, O'Keefe, J., granted a motion for summary judgment on behalf of the city of New Haven, Sheeley, Candella and Hiller. The plaintiffs do not appeal from the summary judgment rendered in favor of those defendants The plaintiffs withdrew their complaint against Caccone's Sunday Morning League prior to the commencement of the trial. The action was tried solely against Brennan, Shepard and Piombino.

n4 The judgment against Piombino is not involved in this appeal.
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Santopietro, Jr., claims that the trial court improperly directed a verdict for Brennan and Shepard on his claim against them. Santopietro, Sr., claims that the trial court improperly ruled against his claim for bystander emotional distress. We affirm the judgment of the trial court in both respects...

The plaintiffs first challenge the trial court's order directing a verdict in favor of Brennan and Shepard. The  plaintiffs argue that the evidence that they produced, viewed in the light most favorable to them, would have permitted a jury reasonably to conclude that Brennan and Shepard had breached a cognizable duty to the plaintiffs, causing them injury.

"The standard of review of directed verdicts is well settled. A directed verdict is justified if on the evidence the jury could not reasonably and legally have reached any other conclusion. . . . In reviewing the trial court's action in directing a verdict . . . we must consider the evidence in the light most favorable to the plaintiff. . . . This court has repeatedly stated that directed verdicts are not favored." (Citations omitted; internal quotations marks omitted.) Berry v. Loiseau, 223 Conn. 786, 819-20, 614 A.2d 414 (1992).

A review of the evidence in the light most favorable to the plaintiffs indicates that the jury might reasonably have found the following facts. During the course of the game that Santopietro, Jr., was watching when he was injured, there occurred several incidents of unruly behavior by players who were on the same team as Piombino. Some  players used vulgar language in a loud and angry manner. Players taunted members of the other team in an attempt to intimidate them. Players threw their gloves and kicked the dirt, and one player kicked a garbage can, upsetting its contents and creating a loud noise. After his turn at bat resulted in an out, another player angrily threw a bat along the ground in the direction of the bats not in use. Another player threw his glove from the pitcher's mound into the dugout. A player inside the dugout repeatedly banged a bat against the dugout, producing a loud noise. Furthermore, the jury could have inferred from the evidence presented that Brennan and Shepard were aware or reasonably should have been aware of these incidents.

After passing a written examination, Brennan and Shepard were both trained and approved to be softball  umpires by the Amateur Softball Association (association), a national organization that regulates  the conduct of organized amateur softball in the United States. Both Brennan and Shepard possessed years of experience and had umpired hundreds of games. Shepard had received an award honoring him for being the best umpire in New Haven. Brennan testified that, as an umpire, he possesses specialized knowledge about softball and softball rules that is greater than the average person's knowledge. Both Brennan and Shepard were familiar with the association's rules governing the conduct of umpires.

Brennan and Shepard testified that when they observed unsportsmanlike conduct, they would issue a warning and, if the warning was disregarded, they would eject the player from the game. Specifically, they testified that they would have taken such action if they had observed the disruptive behavior described by several witnesses, including taunting, loud swearing, kicking a garbage can, hitting the inside of the dugout with a bat, or throwing a glove from the pitcher's mound into the dugout.

Brennan and Shepard further testified that when they give a warning, it usually has the effect of stopping the disruptive behavior and preventing future improper acts. They testified that any player who  tosses a bat should be ejected immediately, and Brennan testified that if he had seen a player toss a bat as described by the witnesses, he would have ejected that player without warning. They testified that such disciplinary action is an effective means by which to control the actions of players.

Shepard testified that, as an umpire, he had the duty to maintain control of the game to prevent harm to spectators, and that warnings constitute the primary means by which to maintain that control. Moreover,   Brennan testified that umpires have the authority to suspend the game if necessary to keep order or to prevent harm to spectators.

Brennan and Shepard also testified that the decision of whether to impose discipline in any given instance of unruly behavior is a discretionary matter for the umpire. Brennan testified that the rule against unsportsmanlike conduct gives the umpire authority "at his discretion, to disqualify any player who exhibits unsportsmanlike conduct in the judgment of the umpire." He further testified that decisions whether to take disciplinary action in response to loud swearing, throwing a glove or kicking dirt "are umpire judgment or umpire discretion calls." Shepard  testified that the question of whether unruly behavior, such as using loud and abusive language, throwing a glove or kicking a garbage can, constitutes unsportsmanlike conduct will depend on the particular situation. Shepard further testified that the determination of whether unsportsmanlike conduct has occurred sometimes depends upon "the whole tenor of what is going on, the language, plus the gloves, plus whether it's considered taunting or not." Similarly, Brennan testified that "there are a lot of variables that go into" determining whether unsportsmanlike conduct has occurred. Brennan further testified concerning the subjective nature of the decision whether to discipline a player for unsportsmanlike conduct. Specifically, he stated that "the majority of the time you'll find that umpires are former players, and umpires will use the term unsportsmanlike conduct as some type of action which, had I been a player, I  wouldn't like done to me, I wouldn't let another group do it to another player."

We note that this testimony confirms what is the common understanding of the umpire's task. In the absence of exceptional circumstances, a softball umpire, when confronted with  unruly behavior by a  player that arguably constitutes unsportsmanlike conduct, faces a spectrum of discretionary options. At one end of the spectrum is taking no action; at the other end is ejection of the player or suspension of the game. In between are warnings and other appropriate disciplinary action. The umpire has discretion, within the spectrum, to respond to the offensive behavior in the manner that the umpire finds to be most appropriate in the given circumstances.

The trial court directed a verdict in favor of Brennan and Shepard reasoning, in part, that if a duty exists, expert testimony was required to establish a breach of that duty and that such a breach caused the harm to the plaintiffs. The trial court concluded further that the standard of care applicable to an umpire, whether that standard was breached, and whether that breach caused the plaintiffs' injuries are not matters of common knowledge. We conclude that the plaintiffs were required to establish by expert testimony that the failure of Brennan and Shepard to act in the present case constituted a breach of duty, and that the plaintiffs' evidence did not satisfy that burden...

We note that the plaintiffs' claims in the present case are akin to allegations of professional negligence or malpractice, which we have previously defined as "the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in  the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services." (Internal quotation marks omitted.) Davis v. Margolis, 215 Conn. 408, 415, 576 A.2d 489 (1990). As Brennan testified, he possesses specialized knowledge as an umpire that is greater than the average person's knowledge. An umpire obtains, through formal training and experience, a familiarity with the rules of the sport, a technical expertise in their application, and an understanding of the likely consequences  of officiating decisions. As a result, the umpire possesses knowledge of the standard of care to which an umpire reasonably may be held, and of what constitutes a violation of that standard, that is beyond the experience and ken of the ordinary fact finder. Moreover, the fact finder's lack, of expertise is exacerbated by the highly discretionary nature of the umpire's task. Thus, the fact finder must determine, not just whether in hindsight the umpire erred, but also whether the umpire's error constituted an abuse of his broad discretion. In such cases in which the fact finder's decision requires specialized  knowledge, expert testimony is necessary...
In the present case, the plaintiffs do not articulate clearly the umpire's duty upon which they base their claim. The plaintiffs principally rely upon the testimony of Shepard that an umpire's duty is "to maintain control on the field so it does not spill over to spectators."    Thus, the plaintiffs appear to postulate a duty owed by the umpires to maintain control of the game in such a way as to prevent harm to others. On appeal, Brennan and Shepard do not concede that such a duty exists, but argue that even if we were to assume its existence, the plaintiffs failed to define the duty. Our research indicates that no other jurisdiction has explicitly considered whether to impose or how to define such a legal duty...

Therefore, for the purposes of this appeal, we assume, without deciding, that umpires such as Brennan and Shepard have a duty, essentially as postulated  by the plaintiffs, to exercise reasonable judgment as umpires in order to maintain control of a game so as to prevent an unreasonable risk of injury to others. The breach of this  duty, however, must be proved, in the absence of exceptional circumstances, by expert testimony establishing that the allegedly negligent action or failure to act by the umpire constituted an abuse of the umpire's discretion to evaluate the particular circumstances and to take only such disciplinary action as the umpire deems appropriate. Moreover, the expert testimony must establish an abuse of that discretion sufficient to permit a jury to infer that the umpire's action or failure to act constituted such a loss of control of the game as to give rise to an unreasonable risk of injury to the plaintiff.

In fact, in the present case, the plaintiffs concede that expert testimony was required to establish whether the applicable standard of care was breached by Brennan and Shepard. The plaintiffs argue that, through the testimony of Brennan and Shepard, they presented sufficient positive evidence of an expert nature from which the jury could have reasonably concluded that Brennan and Shepard were negligent...

We conclude, in the present case, that the plaintiffs failed to produce sufficient evidence that Brennan and Shepard had breached the applicable standard of care. Brennan and Shepard testified that unsportsmanlike conduct is prohibited and  that it is appropriate for an umpire to take action to prevent or stop such conduct. They further testified that the umpire possesses the authority to warn players, eject them or suspend the game if necessary to deter unsportsmanlike conduct or to maintain control of a game. Moreover, when questioned about specific incidents that allegedly had occurred during the game at which Santopietro, Jr., was injured, Brennan and Shepard testified that if they had seen the incidents described by the witnesses, they would have taken some disciplinary action. They also testified, however, that the umpire possesses discretion in the application of the rule prohibiting unsportsmanlike conduct and that the decision whether to take some action against a player is made according to the judgment  of the umpire based on the specific circumstances. Neither Brennan nor Shepard testified that, in the specific circumstances of that game, a reasonable umpire would have been required to take action in response to those incidents, or that it would have been unreasonable for an umpire not to have taken such action. In other words, their testimony that, in the exercise of their discretion, they would have taken action does not establish that a failure to act constituted a breach of the standard of care.

The plaintiffs did present evidence that, arguably, would support the conclusion that  Brennan and Shepard improperly failed to act in response to two incidents. First, witnesses testified that a player tossed a bat toward other bats after an unsuccessful plate appearance. Brennan and Shepard testified that the local rule required them to eject immediately any player who throws a bat. Brennan further testified that the incident described by the witnesses would "merit an ejection." If we were to interpret this testimony to constitute an expert opinion that a reasonable umpire must have ejected the player in those circumstances, then this evidence would support the conclusion that Brennan and Shepard improperly failed to act with respect to that particular incident. Second, a witness testified that some players taunted members of the other team. Shepard testified that an umpire should take immediate action in response to taunting. Brennan and Shepard do not dispute the plaintiffs' evidence that they did not take any disciplinary action during the game.

The testimony of Brennan and  Shepard concerning these two incidents supports a possible conclusion that they failed to exercise their discretion in a reasonable manner on two occasions during the game. The plaintiffs do not contend, however, that these two incidents suffice to establish that Brennan and Shepard breached a duty, which we assume exists, to maintain control of  the game in order to prevent unreasonable risk of harm to others. The plaintiffs do not argue, and we do not assume, that Brennan and Shepard possess a duty to make every discretionary call that arises during the course of the game error free. Umpire liability, if it were to exist, must be predicated on facts sufficient to support the conclusion that their unreasonable actions or failure to act led to such a loss of control of the game as to imperil unreasonably the safety of others. We conclude, as a matter of law, that these two incidents of arguably negligent behavior are not sufficient to support such a conclusion.

We conclude, therefore, that the plaintiffs have failed to prove by expert testimony that Brennan and Shepard breached a duty of care to prevent an unreasonable risk of the injuries suffered by Santopietro, Jr. Because the jury  could not have reasonably and legally concluded that the plaintiffs had established the elements of a negligence cause of action, a directed verdict was properly granted...

 As a result of our conclusion that the plaintiffs did not establish negligence on the part of Brennan and Shepard, we do not reach the claim of Santopietro, Sr., that the trial court improperly precluded his claim for bystander emotional distress... The judgment is affirmed.

In this opinion the other justices concurred.



No. 38189


Supreme Court of Georgia


248 Ga. 542; 285 S.E.2d 7; 1981 Ga. LEXIS 1097


November 24, 1981, Decided

 JUDGES: All the Justices concur.

 OPINION:   On October 23, 1981, a football game was played between R. L. Osborne and Lithia Springs High Schools, members of region 5 AAAA established by the Georgia High School Association. The winner of this game would be in the play-offs, beginning with Campbell High School.

The score was 7 to 6 in favor of Osborne. With 7 minutes, 1 second, remaining in the game, Osborne had the ball on its 47 yard line, 4th down and 21 yards to go for a first down. Osborne punted but "roughing the kicker" was called on Lithia Springs. The referee officiating the game with the approval and sanction of the Georgia High School Association assessed the 15 yard penalty, placed the ball on the Lithia Springs 38 yard line, and declared it was 4th down and 6 yards to go.

The rules of the National Federation of State High School Associations provide that the penalty for roughing the kicker shall be 15 yards and 1st down. There is a dispute as to whether the Osborne coaches properly protested to the referee, before the ball was put in play, the error in the referee's failing to declare a 1st down.

From Lithia Springs' 38, Osborne punted again. Lithia Springs received the punt and drove down the field to score a field goal. Now 2 points behind, Osborne passed. Lithia Springs intercepted and scored again. The final score was Lithia Springs over Osborne, 16 to 7.

On October 26, Osborne filed a written protest with the Executive Secretary of the Georgia High School Association who is charged with making initial decisions of protests. The Executive Secretary conducted an investigation and denied the protest on November 5 on the ground that, notwithstanding the admitted error, no official protest was made to the referee by the Osborne coaches immediately following the play in question.

On appeal by Osborne to the Hardship Committee of GHSA, that committee approved the Executive Secretary's decision on November 8. On appeal, the state Executive Committee of GHSA approved the Hardship Committee's decision on November 11, 1981.

On November 12, suit was filed in the Superior Court of Cobb County by parents of Osborne players against  the GHSA. Hearing was held on November 13. The court found that it had jurisdiction, found that the referee erred in failing to declare an automatic first down, and found that a protest was lodged with the proper officials of GHSA. The court found that the plaintiffs have a property right in the game of football being played according to the rules and that the referee denied plaintiffs and their sons this property right and equal protection of the laws by failing to correctly apply the rules.

The court then entered its order on November 13 cancelling the play-off game between Lithia Springs and Campbell High School scheduled for 8 p.m. that evening and ordered ". . . that Lithia Springs High School and R. L. Osborne High School meet on the football field on November 14, 1981 at an agreed upon time between the parties and resume play at the Lithia Springs thirty eight yard line with the ball being in the possession of R. L. Osborne High School and it be first down and ten yards to go for a first down and that the clock be set at seven minutes one second to play and that the quarter be designated as the fourth quarter."

Asserting that the trial court's order was erroneous under Smith v. Crim, 240 Ga. 390 (240 SE2d 884) (1977), and would disrupt the play-off games not only between Lithia Springs and Campbell but succeeding play-offs, the GHSA filed a motion for supersedeas in this court on November 13, 1981, and the court entered its order suspending the trial court's order, pending further order of this court.

In Smith v. Crim, supra, we held that a high school football player has no right to participate in interscholastic sports and has no protectable property interest which would give rise to a due process claim. Pretermitting the question of "state action" which is the threshold of the 14th Amendment, we held that Smith was not denied equal protection by the rule of GHSA there involved. Similarly we find no denial of equal protection by the referee's error here. Were our decision to be otherwise, every error in the trial courts would constitute a denial of equal protection. We now go further and hold that courts of equity in this state are without authority to review decisions of football referees because those decisions do not present judicial controversies. The stay granted by this court on November 13, 1981, is hereby reaffirmed.

Richard CRAMER ET AL., Plaintiffs -Appellants, v. Ronald C. HOFFMAN ET AL., Defendants -Appellees


No. 31,733




390 F.2d 19; 1968 U.S. App. LEXIS 7971; 11 Fed. R. Serv. 2d (Callaghan) 274; 1968 Neg. Cas. 2d (CCH) P2803


February 21, 1968, Decided

 JUDGES: Lumbard, Chief Judge, Moore and Friendly, Circuit Judges.


OPINION:  [*21]  MOORE, Circuit Judge:

This is a diversity case in which plaintiff, Richard W. Cramer (Richard), seeks recovery on theories of negligence for personal injuries sustained by him during football practice. Plaintiff, Stanley W. Cramer, Richard's father, sues for expenses incurred and loss of Richard's services. From a jury verdict for defendants and a denial of plaintiffs' motion for a judgment notwithstanding the verdict, plaintiffs appeal.

In April 1958, Richard, a student at St. Lawrence University (hereinafter the University), was hospitalized with the German Measles. A few days after his release from the Edward John Noble Hospital (the Hospital), he was injured at football practice while making a tackle. He was removed from the field, taken by ambulance to the Hospital, and treated there. As a result of cervical injuries sustained, Richard is paralyzed from below the chest. The participation of the defendants in the events which led to this condition upon which plaintiffs would predicate liability are set forth in six causes of action in the complaint as amended.

For a first cause of action, Richard claims that on April 16, 1958, he was discharged from the Hospital "in an ill and physically weakened condition by the action of the defendant, Erich Schaefer, a physician and surgeon employed by the defendant hospital." Dr. Schaefer's supposed negligence consisted of both the discharge and a failure to advise the University that Richard was unfit to participate in football practice. Liability is imputed to the Hospital because Dr. Schaefer is alleged to be its agent and employee. The liability of defendant Ronald C. Hoffman, the University's football coach, is premised on his allowing Richard to engage in football practice. Liability is asserted against the University because of Hoffman's alleged agency.

The second cause of action is based upon events allegedly occurring after the accident and are based upon assertions of negligent lifting and carrying "in a rough, careless and negligent manner" by Hoffman, Sheldon (Assistant Coach) and Littlejohn (trainer), employees of the University, and of failure properly to immobilize the cervical spine, which worsened and aggravated Richard's condition.

The third cause of action alleges negligence in connection with the ambulance drive to the Hospital and adds the Lawrences, owners and operators of the ambulance, as defendants.

The fourth cause of action is against the Hospital, a radiologist, Blodgett, allegedly employed by the Hospital, and Dr. Schaefer for negligence in the taking and reading of the X rays.

The fifth cause of action alleges control by the Hospital of the ambulance and  [*22]  negligence by it and Dr. Schaefer in Richard's transfer to a second hospital in a neighboring town.

The sixth cause of action is for damages suffered by Richard's father for all expenses incurred and for loss of Richard's services.

At the beginning of trial in January 1967, as a result of settlement negotiations, this complaint was amended to delete the Hospital as a defendant and all references to Dr. Schaefer as the Hospital's agent. A few days later, plaintiffs amended their complaint  again; they now alleged that the University and its agents and employees were liable for the negligent transport of plaintiff from the Hospital to the neighboring town...
 [Plaintiffs] contend that the court erred in ruling, as a matter of law, that Dr. Schaefer's alleged negligence could not be imputed to the University. Again the question is academic, for the jury specifically found that the injury on the field was not aggravated.

Moreover, the New York rule is that an institution is not responsible for the negligence of physicians who are independent contractors exercising their own discretion...  In this case, there was no evidence that Dr. Schaefer did not use his discretion. The only evidence touching on his relationship to the University was a remark made by Dean Romodo, at the taking of a deposition, that Dr. Schaefer was "the college or contract physician." This statement alone is insufficient to take the independent contractor issue to the jury. "If the question of agency is not open to doubt, it is one for the court..."
 The trial judge acted properly in ruling that Dr. Schaefer's negligence could not be imputed to the University.

The jury's verdict was supported by the weight of the credible evidence.



CHARLES KRUEGER, Plaintiff and Appellant, v. SAN FRANCISCO FORTY NINERS et al., Defendants and Respondents.


No. A030656; Opinion certified for partial publication. n*

n* Pursuant to California Rules of Court, rule 976.1, the portion of the opinion certified for publication follows.


Court of Appeal of California, First Appellate District, Division One.


189 Cal. App. 3d 823; 1987 Cal. App. LEXIS 1411; 234 Cal. Rptr. 579


February 20, 1987



OPINION:  [**580]  NEWSOM, J.

On August 19, 1980, appellant filed a complaint for damages and declaratory relief against respondent San Francisco Forty Niners and other defendants not involved in this appeal. After a series of demurrers and amendments to the pleadings, the case proceeded to court trial on the sole cause of action for fraudulent concealment of medical information. The trial court found in favor of respondent and this appeal followed.

Appellant began playing professional football with the San Francisco Forty Niners (hereafter respondent or the 49'ers) in 1958. He was a defensive lineman for the 49'ers until retiring in 1973, missing only parts of two seasons due to injuries. During his career, however, appellant played despite suffering numerous injuries. He broke his arm and the ring finger on each hand, cracked or broke his nose 'innumerable times,' suffered multiple dislocations of the fingers and thumbs on both hands, incurred a 'blow-out' fracture of the right ocular orbit, developed an eye infection or 'pterygium' caused by a foreign substance becoming lodged in the eye, sprained his right knee, and developed hypertension, among other maladies.

The injuries and damages to appellant's left knee are the focus of the present suit. While in college in 1955, appellant had surgery on his left knee to repair a torn meniscus. Then, in October of 1963, he ruptured the medial collateral ligament in his left knee. Dr. Lloyd Taylor, a physician who treated 49'ers players, performed an operation on the knee which, appellant was told, effectuated a 'good repair.' Thereafter, appellant engaged in rehabilitative therapy with the team trainer and was given a knee brace which he later wore while playing until he removed it in 1967.

Dr. Taylor noted in his report of the operation that the anterior cruciate ligament--the function of which is to prevent the tibia from shifting forward on the femur--'appeared to be absent' from appellant's left knee. Such an injury can produce instability in the knee, particularly if combined with other injuries. According to appellant, he was not told that his left knee evidently lacked the anterior cruciate ligament.

In the spring of 1964, appellant began experiencing pain and considerable swelling in his left knee. He again received treatment from physicians retained by the 49'ers, specifically Dr. Taylor and Dr. Lloyd Milburn, which consisted of aspiration of bloody fluid from the knee by means of a syringe and contemporaneous injection of novocain and cortisone, a steroid compound. Appellant testified that he received approximately 50 such 'Kepplemann' treatments during 1964, and an average of 14 to 20 per year from 1964 to 1973. Dr. Milburn could not recall administering Kepplemann treatments with such frequency, and testified that his records indicated only seven such treatments. Appellant also testified that he was never advised by the 49'ers medical staff of the dangers associated with steroid injections in the knee, such as possible rupturing of tendons, weakening of joints and cartilage, and destruction of capillaries and blood vessels. He also offered expert medical testimony that the adverse effects of steroids were known at that time. The same medical expert also testified that the number of steroid injections appellant claimed to have undergone would have been inappropriate and quite 'unusual.'

Appellant's left knee continued to plague him during his football career, and in 1971 he underwent another operation performed by Dr. Taylor to remove 'loose bodies' in the knee resulting from chronic chondromalacia patella--thinning and loss of cartilage on the undersurface of the kneecap, a condition fully consistent with known adverse reaction to prolonged steroid use. X-rays taken between 1964 and 1971 revealed 'degenerative post-traumatic changes' in appellant's left knee joint. Appellant testified--without contradiction--that he was not told of either of these afflictions by the 49'ers medical staff.

Krueger also testified that he suffered a 'hit' on the outside of the knee during a game in 1970. He felt a piece of the knee break off. Notwithstanding the obvious severity of the injury, appellant was given Empirin codeine and directed to return to the game. For the remainder of the season, he could feel a 'considerable piece of substance' dislodged on the outside of his left knee joint; nevertheless, he played the remaining five games of the season. At no time did the team doctors ever advise him that he risked permanent injury by continuing to play without surgery. Krueger testified unequivocally that, had he been advised not to play, he would have followed that advice.

Dr. Milburn could not recall either specifically discussing appellant's X-rays with him or advising him about the chronic condition from which he was suffering. He testified generally--without specific reference to Krueger's case--that it was his custom, and that of Dr. Taylor, to be 'honest and thorough' with athletes.

Appellant retired from football following the 1973 season. In April of 1974, he entered St. Mary's Hospital for a rhinoplasty and complete physical examination which, however, did not include either X-raying or testing of his knees. Neither Dr. Milburn, who had arranged the physical, nor any other orthopedist examined him at that time.

Not until 1978 was appellant treated again for his injured knee. At that time, he received a Kepplemann treatment from Dr. Milburn, and X-rays were taken of both legs. According to appellant it was not until this visit to Dr. Milburn in 1978 that he was shown X-rays of his knees and advised for the first time that he suffered from chronic and permanent disability in the knee.

Defendant was referred to Dr. Taylor, who subsequently performed on him a tibial osteotomy, which is a shaving of planes from the leg bone followed by regrafting of the tendons and ligaments to the bone. The operation did nothing to alleviate appellant's severe discomfort, and in fact, he thereafter developed calcification in the knee and suffered greater pain than had been the case before the surgery. He presently suffers from traumatic arthritis and a crippling degenerative process in the left knee. He cannot stand up for prolonged periods, and cannot run. He is also unable to walk on stairs without severe pain. His condition is degenerative and irreversible.

On this appeal Krueger argues error in the trial court's finding that he failed to prove all of the elements of fraudulent concealment. Pivotally, the court found that appellant would have continued to play football even if he had been advised of the nature and extent of his injuries--a finding which negated the element of proximate cause...

Appellant's action was for fraud or deceit. Specifically, the claim is based upon Civil Code sections 1709 and 1710. Section 1709 provides that '[o]ne who willfully deceives another with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers.' Section 1710, subdivision 3 defines deceit as '[t]he suppression of a fact, by one who is bound to disclose it or who gives information of other facts which are likely to mislead for want of communication of that fact . . . .'

The elements of a cause of action for fraud or deceit are as follows: a misrepresentation or suppression of a material fact; knowledge of any falsity; intent to induce reliance; actual and justifiable reliance; and resulting damages... "'Deceit may be negative as well as affirmative; it may consist in suppression of that which it is one's duty to disclose, as well as in the declaration of that which is false.' ( Gillespie v. Ormsby, 126 Cal.App.2d 513, 527 [272 P.2d 949].)' ( Stevens v. Marco (1956) 147 Cal.App.2d 357, 379 [305 P.2d 669].) Under section 1710, the intentional concealment of a material fact is actionable fraud only if there is a fiduciary relationship giving rise to a duty to disclose it...   The relationship between physician and patient is fiduciary in nature and creates a duty to disclose...  

Respondent submits that the record fails to substantiate appellant's claim that material medical information was concealed from him. We disagree. Appellant testified unequivocally that the team's physicians never disclosed to him the adverse effects of steroid injections, or the true nature and extent of the damage to his left knee, particularly the dangers associated with the prolonged violent traumatic impact inherent in professional football. Nor, he testified, was he informed that X-rays taken of his legs revealed the severely degenerated condition of his left knee.

The evidence offered by respondent never directly contradicted appellant's testimony. Thus, Dr. Milburn was able to recall only that he customarily discussed and reviewed player's injuries with them, sometimes using anatomical models. Dr. Milburn was 'sure' that appellant was aware of 'the type of injury that he had,' and testified he had neither concealed information from appellant nor advised anyone else to do so. The testimony of other physicians and orthopedic consultants who  treated appellant was consistent with Dr. Milburn's.

If the case were simply one of conflicting evidence, we would of course affirm the judgment. As to the crucial issue of full disclosure, however, we find the evidence uncontradicted; as will appear, the requisite disclosure was never made. That the team physicians withheld no material information from Krueger is not, in our view, the proper focus of inquiry. The critical question is whether full disclosure of his medical condition was ever made to Krueger...
In our opinion, the duty of full disclosure within the context of a doctor-patient relationship defines the test for concealment or suppression of facts under Civil Code section 1710, subdivision 3. The failure to make such disclosure constitutes not only negligence, but--where the requisite intent is shown--fraud or concealment as well. A physician cannot avoid responsibility for failure to make full disclosure by simply claiming that information was not withheld.

The testimony that, following his knee surgery in 1963, Krueger was not advised of the adverse effects of steroid injections, or of the risks associated with the continued pursuit of his profession, was uncontradicted. That is, while respondent produced  testimony that the physicians treating appellant told him of the general nature of his injury, and did not conceal certain information from him, there is no evidence that appellant was ever informed of the continuing risks associated with his injuries. Hence, the requisite disclosure was never made.

The element of intent also must be established in all fraudulent concealment cases... While actual 'intent to deceive' need not be shown, a plaintiff must establish that at the time information was concealed defendant had the intent to induce plaintiff to adopt or abandon a course of action ( Peskin v. Squires (1957) 156 Cal.App.2d 240, 243 [319 P.2d 405])--in the present case, to induce him to continue playing football despite his injuries.

Dr. Milburn testified that he neither minimized nor concealed appellant's medical condition for the purpose of prolonging the latter's career. Nor, he testified, did he tell any of the other treating physicians to do so. Likewise, he testified, the 49'ers never advised him to suppress information regarding the condition of appellant's knee. Such testimony was corroborated by that of other involved medical personnel.

Nevertheless, we think the record unequivocally demonstrates that, in its desire to keep appellant on the playing field, respondent consciously failed to make full, meaningful disclosure to him respecting the magnitude of the risk he took in continuing to play a violent contact sport with a profoundly damaged left knee. The uncontradicted record shows that Krueger was in acute pain from 1963 on, that he was regularly anesthetized between and during games, and endured repeated, questionable steroid treatments administered by the team physician.  X-rays had been taken which fully depicted the extent of his degenerative condition, but he was never so informed. In 1970, part of his knee broke away and yet he was still not given an honest assessment of the seriousness of his condition. Respondent's claim of no concealment cannot be substituted for the professional warnings to which Krueger was at this point so clearly entitled. And it is in this palpable failure to disclose, viewed in the light of the 49'ers compelling obvious interest in prolonging appellant's career, that we find the intent requisite for a finding of fraudulent concealment.

 In addition to the novocain regularly injected in his knee, Krueger was directed by a team physician to use amphetamines during games.

Respecting the element of reliance, appellant's testimony was that he accepted and acted upon the medical advice of the physicians as provided by respondent. No contradictory evidence appears. "'[P]atients are generally persons unlearned in the medical sciences . . . ,'" and consequently are entitled to rely upon physicians for full disclosure of material medical information... Reliance is thus established.

Respondent contends that appellant was or should have been cognizant of the seriousness and permanent nature of the injury to his left knee, but we find no credible evidence supportive of this claim. Certainly, appellant knew that his injury was serious. He was entitled, however, to rely upon respondent's physicians for medical treatment and advice without consulting outside sources or undertaking independent investigation...

Turning to the issues of proximate cause and damages, we note the trial court's finding that appellant's desire to continue playing was so intense that he would have continued even had he been informed of the magnitude of the risk involved. This finding seems to us mere conjecture. Appellant demonstrated throughout his football career a courageous -- some might say foolhardy--willingness to endure pain and injuries for the sake of his team and employer, but no credible evidence suggests that he ever assessed and accepted the prospect of permanent disability. On the contrary, he testified that he would have retired had respondent's physicians recommended that course of action, and no contrary evidence was offered by respondent.

Accordingly, we conclude there is no substantial evidence to support the judgment entered by the trial court; and conversely, that appellant established all the elements of a fraudulent concealment case based upon nondisclosure of material medical information...

The judgment is reversed and the cause is remanded to the trial court, judgment to be entered in favor of appellant, with damages as established by the evidence upon retrial limited to that single issue. Costs to appellant...  Racanelli, P. J., and Elkington, J., concurred.


SUZANNE W. KLEINKNECHT, Personal Representative of the Estate of Drew R. Kleinknecht, Deceased; RICHARD P. KLEINKNECHT, Personal Representative of the Estate of Drew R. Kleinknecht, Deceased; SUZANNE W. KLEINKNECHT, in their own right; RICHARD P. KLEINKNECHT, in their own right v. GETTYSBURG COLLEGE, a corporation SUZANNE W. KLEINKNECHT and RICHARD P. KLEINKNECHT, Personal Representatives of the Estate of Drew R. Kleinknecht, Deceased; and SUZANNE W. KLEINKNECHT and RICHARD P. KLEINKNECHT, in their own right, Appellants


No. 92-7160




989 F.2d 1360; 1993 U.S. App. LEXIS 6609; 25 Fed. R. Serv. 3d (Callaghan) 65


September 24, 1992, Argued   
March 31, 1993, Filed

 JUDGES: PRESENT: HUTCHINSON and ALITO, Circuit Judges, FULLAM, District Judge * *
  Hon. John P. Fullam, District Judge of the United States District Court for the Eastern District of Pennsylvania, sitting by designation.


HUTCHINSON, Circuit Judge.

 In September 1988, Drew Kleinknecht was a twenty-year old sophomore student at [Gettysburg] College, which had recruited him for its Division III intercollegiate lacrosse team. The College is a private, four-year liberal arts school. In 1988, it had an enrollment of about two thousand students and supported twenty-one intercollegiate sports teams involving approximately 525 male and female athletes.
Lacrosse is a contact sport. In terms of sports-related injuries at the College, it ranked at least fourth behind football, basketball, and wrestling, respectively. Lacrosse players can typically suffer a variety of injuries, including unconsciousness, wooziness, concussions, being knocked to the ground, and having the wind knocked out of them. Before Drew died, however, no athlete at the College had experienced cardiac arrest while playing lacrosse or any other sport.

In September 1988, the College employed two full-time athletic trainers, Joseph Donolli and Gareth Biser. Both men were certified by the National Athletic Trainers Association, which requires, inter alia, current certification in both cardio-pulmonary resuscitation ("CPR") and standard first aid. In addition, twelve student trainers participated in the College's sports program. The trainers were stationed in the College's two training room facilities at Musselman Stadium and Plank Gymnasium.

Because lacrosse is a spring sport, daily practices were held during the spring semester in order to prepare for competition. Student trainers were assigned to cover both spring practices and games. Fall practice was held only  for the players to learn "skills and drills," and to become acquainted with the other team members. No student trainers were assigned to the fall practices.

Drew participated in a fall lacrosse practice on the afternoon of September 16, 1988. Coaches Janczyk and Anderson attended and supervised this practice. It was held on the softball fields outside Musselman Stadium. No trainers or student trainers were present. Neither coach had certification in CPR. Neither coach had a radio on the practice field. The nearest telephone was inside the training room at Musselman Stadium, roughly 200-250 yards away. The shortest route to this telephone required scaling an eight-foot high cyclone fence surrounding the stadium. According to Coach Janczyk, he and Coach Anderson had never discussed how they would handle an emergency during fall lacrosse practice.

The September 16, 1988 practice began at about 3:15 p.m. with jogging and stretching, some drills, and finally a "six on six" drill in which the team split into two groups at opposite ends of the field. Drew was a defenseman and was participating in one of the drills when he suffered a cardiac arrest. According to a teammate observing from the sidelines, Drew simply stepped away from the play and dropped to the ground. Another teammate on the sidelines stated that no person or object struck Drew prior to his collapse.

After Drew fell, his teammates and Coach Janczyk ran to his side. Coach Janczyk and some of the players noticed that Drew was lying so that his head appeared to be in an awkward position. No one knew precisely what had happened at that time, and at least some of those present suspected a spinal injury. Team captain Daniel Polizzotti testified that he heard a continuous "funny" "gurgling" noise coming from Drew, and knew from what he observed that something "major" was wrong. Other teammates testified that Drew's skin began quickly to change colors. One team member testified that by the time the coaches had arrived, "[Drew] was really blue..."

According to the College, Coach Janczyk acted in accordance with the school's emergency plan by first assessing Drew's condition, then dispatching players to get a trainer and call for an ambulance... Coach Janczyk himself then began to run toward Musselman Stadium to summon help.

The Kleinknechts dispute the College's version of the facts. They note that although Coach Janczyk claims to have told two players to run to Apple Hall, a nearby dormitory, for help, Coach Anderson did not recall Coach Janczyk's sending anyone for help. Even if Coach Janczyk did send the two players to Apple Hall, the Kleinknechts maintain, his action was inappropriate because Apple Hall was not the location of the nearest telephone. It is undisputed that two other team members ran for help, but the Kleinknechts contend that the team members did this on their own accord, without instruction from either coach.

The parties do not dispute that Polizzotti, the team captain, ran toward the stadium, where he knew a training room was located and a student trainer could be found. In doing so, Polizzotti scaled a chain link fence that surrounded the stadium and ran across the field, encountering student trainer Traci Moore outside the door to the training room. He told her that a lacrosse player was down and needed help. She ran toward the football stadium's main gate, managed to squeeze through a gap between one side of the locked gate and the brick pillar forming its support, and continued on to the practice field by foot until flagging a ride from a passing car. In the meantime, Polizzotti continued into the training room where he told the student trainers there what had happened. One of them phoned Plank Gymnasium and told Head Trainer Donolli about the emergency.

Contemporaneously with Polizzotti's dash to the stadium, Dave Kerney, another team member, ran toward the stadium for assistance. Upon seeing that Polizzotti was going to beat him there, Kerney concluded that it was pointless for both of them to arrive at the same destination and changed his course toward the College Union Building. He told the student at the front desk of the emergency on the practice field. The student called his supervisor on duty in the building, and she immediately telephoned for an ambulance.

Student trainer Moore was first to reach Drew. She saw Drew's breathing was labored, and the color of his complexion changed as she watched. Because Drew was breathing, she did not attempt CPR or any other first aid technique, but only monitored his condition, observing no visible bruises or lacerations.

By this time, Coach Janczyk had entered the stadium training room and learned that Donolli had been notified and an ambulance called.   Coach Janczyk returned to the practice field at the same time Donolli arrived in a golf cart. Donolli saw that Drew was not breathing, and turned him on his back to begin CPR with the help of a student band member who was certified as an emergency medical technician and had by chance arrived on the scene. The two of them performed CPR until two ambulances arrived at approximately 4:15 p.m. Drew was defibrillated and drugs were administered to strengthen his heart. He was placed in an ambulance and taken to the hospital, but despite repeated resuscitation efforts, Drew could not be revived. He was pronounced dead at 4:58 p.m.

As the district court observed, the parties vigorously dispute the amount of time that elapsed in connection with the events following Drew's collapse. The College maintains that "Coach Janczyk immediately ran to Drew's side, followed closely by assistant coach, Anderson...". Team captain Polizzotti estimated that it took him no more than thirty seconds to get from the practice field to the training room. The College contends that it took Moore no more than two minutes to get from the training room to Drew's side. In fact, the College maintains,   the lacrosse team was practicing on this particular field because of its close proximity to the training room and the student trainers. The College estimates that an ambulance was present within eight to ten minutes after Drew's collapse.

The Kleinknechts, on the other hand, assert that as much as a minute to a minute and a half passed before Coach Janczyk arrived at Drew's side... With the aid of an engineering firm, the Kleinknechts constructed a map for the district court showing the paths taken by Polizzotti and Kerney, including estimates of how long it took them to arrive at their respective destinations and relay their messages to those who could be of assistance. They estimate that it took Polizzotti a minute and a half to arrive at the stadium training room from the practice field, advise someone on duty, and have that person notify Donolli. The Kleinknechts also estimate that it took Kerney two minutes and thirteen seconds to arrive at the College Union Building, speak to the student at the desk, and then have the secretary telephone for an ambulance. They point to Donolli's deposition testimony indicating that it took him approximately three minutes and fifteen seconds to arrive at the scene. The Kleinknechts further maintain, and the College does not dispute, that at least five minutes elapsed from the time that Drew was first observed on the ground until Head Trainer Donolli began administering CPR. Thus, the Kleinknechts contend that evidence exists from which a jury could infer that as long as twelve minutes elapsed before CPR was administered. They also estimate that roughly ten more minutes passed before the first ambulance arrived on the scene.

Prior to his collapse on September 16, 1988, Drew had no medical history of heart problems. The Kleinknechts themselves describe him as "a healthy, physically active and vigorous young man" with no unusual medical history until his death... In January 1988, a College physician had examined Drew to determine his fitness to participate in sports and found him to be in excellent health. The Kleinknecht's family physician had also examined Drew in August 1987 and found him healthy and able to participate in physical activity.

Medical evidence indicated Drew died of cardiac arrest after a fatal attack of cardiac arrhythmia. Post-mortem examination could not detect the cause of Drew's fatal cardiac arrhythmia. An autopsy conducted the day after his death revealed no bruises or contusions on his body. This corroborated the statements by Drew's teammates that he was not in play when he suffered his cardiac arrest and dispelled the idea that contact with a ball or stick during the practice might have caused the arrhythmia. The National Institutes of Health examined Drew's heart as part of the autopsy but found no pathology. A later examination of the autopsy records by a different pathologist, and still further study by yet another physician after Drew's body was exhumed, also failed to reveal any heart abnormality which could have explained Drew's fatal heart attack...
 The Kleinknechts present three general issues on appeal. They first argue that the district court erred in determining that the College had no legal duty to implement preventive measures assuring prompt assistance and treatment in the event one of its student athletes suffered cardiac arrest while engaged in school-supervised intercollegiate athletic activity. Second, the Kleinknechts maintain that the district court erred in determining that the actions of school employees following Drew's collapse were reasonable and that the College therefore did not breach any duty of care. Finally, the Kleinknechts urge that the district court erred in determining that both Traci Moore and the College were entitled to immunity under the Pennsylvania Good Samaritan Act...

1. The Duty of Care Issue
 ...The Kleinknechts assert three different theories upon which they predicate the College's duty to establish preventive measures capable of providing treatment to student athletes in the event of a medical emergency such as Drew's cardiac arrest: (1) existence of a special relationship between the College and its student athletes; (2) foreseeability that a student athlete may suffer cardiac arrest while engaged in athletic activity; and (3) public policy. a. Special Relationship
The Kleinknechts argue that the College had a duty of care to Drew by virtue of his status as a member of an intercollegiate athletic team. The Supreme Court of Pennsylvania has stated that "duty, in any given situation, is predicated on the relationship existing between the parties at the relevant time . . . ." Morena, 462 A.2d at 684. The Kleinknechts argue that although the Supreme Court has not addressed this precise issue, it would conclude that a college or university owes a duty to its intercollegiate athletes to provide preventive measures in the event of a medical emergency...


Drew was not acting in his capacity as a private student when he collapsed. Indeed, the Kleinknechts concede that if he had been, they would have no recourse against the College. There is a distinction between a student injured while participating as an intercollegiate athlete in a sport for which he was recruited and a student injured at a college while pursuing his private interests, scholastic or otherwise. This distinction serves to limit the class of students to whom a college owes the duty of care that arises here. Had Drew been participating in a fraternity football game, for example, the College might not have owed him the same duty or perhaps any duty at all. There is, however, no need for us to reach or decide the duty question either in that context or in the context of whether a college would owe a duty towards students participating in intramural sports. On the other hand, the fact that Drew's cardiac arrest occurred during an athletic event involving an intercollegiate team of which he was a member does impose a duty of due care on a college that actively sought his participation in that sport. We cannot help but think that the College recruited Drew for its own benefit, probably thinking that his skill at lacrosse would bring favorable attention and so aid the College in attracting other students.

The case of Wissel v. Ohio High School Athletic Ass'n, 78 Ohio App. 3d 529, 605 N.E.2d 458 (Ohio Ct. App. 1992) is illustrative. There the appellant, a high school football player, was rendered a quadriplegic because of an allegedly defective football helmet... The trial court granted judgment to the appellee Athletic Association and two other defendants. Although the appellate court affirmed the order granting summary judgment, it did so because the appellant failed to "'identify sins of commission rather than omission'" necessary to prevail under a theory of increased risk of harm
In conclusion, we predict that the Supreme Court of Pennsylvania would hold that the College owed Drew a duty of care in his capacity as an intercollegiate athlete engaged in school-sponsored intercollegiate athletic activity for which he had been recruited.

b. Foreseeability
This does not end our inquiry, however. The determination that the College owes a duty of care to its intercollegiate athletes could merely define the class of persons to whom the duty extends, without determining the nature of the duty or demands it makes on the College.   Because it is foreseeable that student athletes may sustain severe and even life-threatening injuries while engaged in athletic activity, the Kleinknechts argue that the College's duty of care required it to be ready to respond swiftly and adequately to a medical emergency. See Blake v. Fried, 173 Pa. Super. 27, 95 A.2d 360, 364 (Pa. Super. 1953) (requiring risk "reasonably to be perceived" in order to impose duty).

Foreseeability is a legal requirement before recovery can be had...   "'The test of negligence is whether the wrongdoer could have anticipated and foreseen the likelihood of harm to the injured person, resulting from his act.'" Id. (quoting Dahlstrom v. Shrum, 368 Pa. 423, 84 A.2d 289, 290-91 (Pa. 1951)).

The type of foreseeability that determines a duty of care, as opposed to proximate cause, is not dependent on the foreseeability of a specific event. See, e.g., Moran v. Valley Forge Drive-in Theater, Inc., 431 Pa. 432, 246 A.2d 875, 878 (Pa. 1968) (upholding verdict for plaintiff who lost hearing when firecrackers exploded in restroom of defendant's movie theater). Instead, in the context of duty, "the concept of foreseeability means the likelihood of the occurrence of a general type of risk rather than the likelihood of the occurrence of the precise chain of events leading to the injury..."If a duty is to be imposed, the foreseeable risk of harm must be unreasonable. Griggs, 981 F.2d at 1435. The classic risk-utility analysis used to determine whether a risk is unreasonable "balances 'the risk, in light of the social value of the interest threatened, and the probability and extent of the harm, against the value of the interest which the actor is seeking to protect, and the expedience of the course pursued.'" Id. at 1435-36 (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 31, at 173 (5th ed. 1984) (footnotes omitted)).

No person can be expected to guard against harm from events which arenot reasonably to be anticipated at all, or are so unlikely to occur that the risk, although recognizable, would commonly be disregarded. . . . On the other hand, if the risk is an appreciable one, and the possible consequences are serious, the question is not one of mathematical probability alone. . . . As the gravity of the possible harm increases, the apparent likelihood of its occurrence need be correspondingly less to generate a duty of precaution.

Id. (quoting Prosser and Keeton, supra § 31, at 170-71 (footnotes omitted)).

Although the district court correctly determined that the Kleinknechts had presented evidence establishing that the occurrence of severe and life-threatening injuries is not out of the ordinary during contact sports, it held that the College had no duty because the cardiac arrest suffered by Drew, a twenty-year old athlete with no history of any severe medical problems, was not reasonably foreseeable. Its definition of foreseeability is too narrow. Although it is true that a defendant is not required to guard against every possible risk, he must take reasonable steps to guard against hazards which are generally foreseeable   Though the specific risk that a person like Drew would suffer a cardiac arrest may be unforeseeable, the Kleinknechts produced ample evidence that a life-threatening injury occurring during participation in an athletic event like lacrosse was reasonably foreseeable. In addition to the testimony of numerous medical and athletic experts, Coach Janczyk, Head Trainer Donolli, and student trainer Moore all testified that they were aware of instances in which athletes had died during athletic competitions. The foreseeability of a life-threatening injury to Drew was not hidden from the College's view. Therefore, the College did owe Drew a duty to take reasonable precautions against the risk of death while Drew was taking part in the College's intercollegiate lacrosse program.

Having determined that it is foreseeable that a member of the College's interscholastic lacrosse team could suffer a serious injury during an athletic event, it becomes evident that the College's failure to protect against such a risk is not reasonable. The magnitude of the foreseeable harm--irreparable injury or death to one of its student athletes as a result of inadequate preventive emergency measures--is indisputable.   With regard to the offsetting cost of protecting against such risk, the College prophesied that if this Court accepts that the College owed the asserted duty, then it will be required "to have a CPR certified trainer on site at each and every athletic practice whether in-season or off-season, formal or informal, strenuous or light," and to provide similar cardiac protection to "intramural, club sports and gym class." This "slippery slope" prediction reflects an unwarranted extension of the holding in this case. First, the recognition of a duty here is limited to intercollegiate athletes. No other scenario is presented, so the question whether any of the other broad classes of events and students posited by the College merit similar protection is not subject to resolution. Second, the determination whether the College has breached this duty at all is a question of fact for the jury...

 Our holding is narrow. It predicts only that a court applying Pennsylvania law would conclude that the College had a duty to provide prompt and adequate emergency medical services to Drew, one of its intercollegiate athletes, while he was engaged in a school-sponsored athletic activity for which he had been recruited. Whether the College breached that duty is a question of fact
c. Public Policy
Finally, the Kleinknechts argue that the College owed a duty of care to Drew based on public policy considerations. The Supreme Court of Pennsylvania has recently announced that

In determining the existence of a duty of care, it must be remembered that the  concept of duty amounts to no more than "the sum total of those considerations of policy which led the law to say that the particular plaintiff is entitled to protection" from the harm suffered. Leong v. Takasaki, 55 Haw. 398, 520 P.2d 758, 764 (1974). . . . "In the decision whether or not there is a duty, many factors interplay: The hand of history, our ideas of morals and justice, the convenience of administration of the rule, and our social ideas as to where the loss should fall. In the end the court will decide whether there is a duty on the basis of the mores of the community, 'always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind.'"

Gardner v. Consolidated Rail Corp., 524 Pa. 445, 573 A.2d 1016, 1020 (Pa. 1990) (quoting Sinn v. Burd, 486 Pa. 146, 404 A.2d 672, 681 (Pa. 1979)). Seizing upon this language, the district court held that the College had no  [**37]  duty "to anticipate . . . and guard against" the "possibility of a healthy, physically active, young" athlete having a heart attack while engaged in intercollegiate athletic activity, "candidly admitting that [this] conclusion shades off into these broad areas of policy concern." Kleinknecht, 786 F. Supp. at 454.

Again, we believe this determination fails to distinguish duty from legal cause. It also fails to appreciate the full import of the very language upon which the district court says it relied. As already explained, two distinct theories establish that the College owed a duty of care to Drew as an intercollegiate athlete. A special relationship existed between the College and Drew in his capacity as a school athlete. His medical emergency was within a reasonably foreseeable class of unfortunate events that could arise from participation in an intercollegiate contact sport. If, as the Supreme Court of Pennsylvania has stated, the concept of duty "amounts to no more than 'the sum total of those considerations of policy which led the law to say that the particular plaintiff is entitled to protection,'" then it strengthens our belief that that Court would hold that the policies supporting these two theories are themselves sufficient to require the College to adopt preventive measures reasonably designed to avoid possible death from a life-threatening injury a recruited athlete suffers during an intercollegiate athletic activity.

Under the facts of this case, the College owed a duty to Drew to have reasonable measures in place at the practice on the afternoon of September 16, 1988 to provide prompt treatment in the event that he or any other member of the lacrosse team suffered a life-threatening injury. The determination whether the College in fact breached this duty is a question of fact for the jury...

2. The Reasonableness of the College's Actions
On the duty question, it remains only for us to address the district court's second holding that the conduct of the College's agents in providing Drew with medical assistance and treatment following his cardiac arrest was reasonable. n9 The court based this determination in part, if not in whole, on its conclusion that the College had no duty to consider what emergency assistance measures would be necessary were one of its student athletes to suffer a cardiac arrest during athletic activity:
The plaintiffs' argument was stronger when they could still assert that there was a duty of care to protect Drew from the risk of cardiac arrest but, since we have decided that it had no such duty, the actions of its agents and students subsequent to Drew's collapse were reasonable.

Kleinknecht, 786 F. Supp. at 456. Thus, its holding that the College did not breach any duty was dependent, at least in part, on its holding that the College had no duty to Drew to guard against emergencies occasioned by injuries the kind students participating in lacrosse might be expected to suffer.   The question of breach must be reconsidered on remand in light of this Court's holding that the College did owe Drew a duty of care to provide prompt and adequate emergency medical assistance to Drew while participating as one of its intercollegiate athletes in a school-sponsored athletic activity.

Moreover, on remand, we think the district court should be careful not to infringe on the province of the factfinder by prematurely deciding whether the College breached its duty. A district court should grant a motion for summary judgment only when the plaintiff's evidence, together with all reasonable inferences of fact arising therefrom viewed in the light most favorable to the plaintiff, is insufficient to make out a prima facie case of negligence...
3. The Immunity Issue
Finally, we address the College's argument that Pennsylvania's Good Samaritan law provides immunity to both the College and its personnel who rendered emergency care to Drew. This statute provides in pertinent part:

(a) General rule.--
Any person who renders emergency care, first aid or rescue at the scene of an emergency . . . shall not be liable to such person for any civil damages as a result of any acts or omissions in rendering the emergency care, first aid or rescue . . . except any acts or omissions intentionally designed to harm or any grossly negligent acts or omissions which result in harm to the person receiving the emergency care, first aid, or rescue . . . .

(b) Exceptions.--

* * *

(2) In order for any person to receive the benefit of the exemption from civil liability provided for in subsection (a), he shall be, at the time of rendering the emergency care, first aid or rescue . . . the holder of a current certificate evidencing the successful completion of a course in first aid, advanced life saving or basic life support sponsored by the American National Red Cross or the American Heart Association or an equivalent course of instruction approved by the Department of Health . . . and must be performing techniques and employing procedures consistent with the nature and level of the training for which the certificate has been issued.

42 Pa. Cons. Stat. Ann. § 8332(a), (b)(2) (1982)...

The parties do not dispute the district court's determination that neither Coach Janczyk nor Coach Anderson is entitled to immunity. The College, however, argues that it too is entitled to immunity because it is a "person" within the terms of the statute. In general, Pennsylvania statutory law defines the term "person" as including corporations, partnerships, and associations unless the statutory context indicates otherwise. 1 Pa. Cons. Stat. Ann. § 1991 (Supp. 1992). Section 8332, however, requires a person who seeks immunity to hold certification in an approved first aid, advanced life saving, or basic life support course. We think it is unlikely that the Pennsylvania General Assembly intended that corporations could achieve the requisite certification and receive immunity. As the Kleinknechts note, the statute encourages rescue and lending assistance at the scene of an emergency. These measures can only be taken by a natural person.  Therefore, we reject the College's argument and predict that the Supreme Court of Pennsylvania will not hold that a corporation is entitled to immunity under the Pennsylvania Good Samaritan law.

Moreover, even if an agent such as Traci Moore is immune, the principal can still be vicariously liable...  Thus, the College may not claim immunity either in its own right or derivatively from Moore, regardless of whether she falls within the provisions of the statute.
The district court's holding that the College's duty of care to Drew as an intercollegiate athlete did not include, prior to his collapse, a duty to provide prompt emergency medical service while he was engaged in school-sponsored athletic activity will be reversed. The district court's holding that the College acted reasonably and therefore did not breach any duty owed to Drew following his collapse will likewise be reversed. We will remand this matter to the district court for further proceedings consistent with this opinion. We will reverse the district court's conclusion that the College is entitled to immunity under the Good Samaritan law.


ALITO, Circuit Judge, dissenting.

I respectfully dissent. Essentially for the reasons set out by the district court, I would hold that the facts upon which the plaintiffs relied were insufficient to establish a breach of Gettysburg College's duty to participants in its intercollegiate athletic program. See Kleinknecht v. Gettysburg College, 786 F. Supp. 449 (M.D. Pa. 1992).


Fred RENSING, Plaintiff-Appellant v. INDIANA STATE UNIVERSITY BOARD OF TRUSTEES, Defendants-Appellees


No. 2-680 A 206


Court of Appeals of Indiana, Fourth District


437 N.E.2d 78; 1982 Ind. App. LEXIS 1262


June 16, 1982, Filed


Rehearing Denied August 4, 1982; Transfer Granted, Opinion Vacated February 9, 1983.

Appeal from the Full Industrial Board of Indiana Application No. 82799.

DISPOSITION: Reversed and remanded.


JUDGES: Miller, P.J. Shields, J. (sitting by designation) concurs. Young, J. dissents with opinion.



The undisputed testimony reveals the Trustees, through their agent Thomas Harp (the University's  Head Football Coach), on February 4, 1974 offered Rensing a scholarship or "educational grant" to play football at the University. In essence, the financial aid agreement, which was renewable each year for a total of four years provided that in return for Rensing's active participation in football competition he would receive free tuition, room, board, laboratory fees, a book allowance, tutoring and a limited number of football tickets per game for family and friends. The "agreement" provided, inter alia, the aid would continue even if Rensing suffered an injury during supervised play which would make it inadvisable, in the opinion of the doctor-director of the student health service, "to continue to participate," although in that event the University would require other assistance to the extent of his ability...

The trustees extended this scholarship to Rensing for the 1974-75 academic year in the form of a "Tender of Financial Assistance.  Rensing accepted the Trustees' first  tender and signed it (as did his parents) on April 29, 1974. At the end of Rensing's first academic year the Trustees' extended a second "Tender of Financial Assistance" for the 1975-76 academic year, which tender was substantially the same as the first and provided the same financial assistance to Rensing for his continued participation in the University's football program. Rensing and his father signed this second tender on June 24, 1975. It is not contested the monetary value of this assistance to Rensing for the 1975-76 academic year was $2,374, and that the "scholarship" was in effect when Rensing's injuries occurred...

According to Dr. Richard G. Landini, President of the University, it offered various grants to prospective students based on their respective athletic or scholastic talents. The basis for awarding an athletic  scholarship was a recommendation by the University's Athletic Director (based upon the advice of the head coach and his assistants) made to Dr. Landini. In turn Dr. Landini forwarded the recommendations to the Trustees who then officially acted upon the recommendation. Dr. Landini emphasized that ultimate responsibility for awarding any scholarship rested with the Trustees. Significantly, Dr. Landini acknowledged that the University's increase in its student enrollment was attributable (to some degree) to the success of its athletic programs and that one justification for an athletic scholarship program was that such a program benefited the whole University.

Rensing testified he suffered a knee injury during his first year (1974-75) of competition which prevented him from actively participating in the football program, during which time he continued to receive his scholarship as well as free treatment for his knee injury. The only requirement imposed by the Trustees (through Coach Harp) upon Rensing was attendance at his classes and reporting daily to the football stadium for free whirlpool and ultrasonic treatments for his injured knee. Although the Trustees (through Coach Harp)   did not require Rensing to assist the coaching staff in conducting the football program in order to fulfill his obligations under the financial assistance agreement (either after his knee injury  [*82]  or the accident causing his quadriplegia), the uncontradicted evidence demonstrated Coach Harp could have required Rensing to assist the football coaches. As noted above, the financial aid agreement provided that in the event of an injury of such severity that it prevented continued athletic participation, "Indiana State University will ask you to assist in the conduct of the athletic program within the limits of your physical capabilities" in order to continue receiving aid. The sole assistance actually asked of Rensing was to entertain prospective football recruits when they visited the University's Terre Haute campus.

During the 1975 football season Rensing participated on the University's football team. In the spring of 1976 he partook in the team's annual three week spring practice when, on April 24, he was injured while he tackled a teammate during a punting drill. Coach Harp described the accident as follows:

"We were working on punt coverage and Fred was  covering a punt. The ball was caught right at the time Fred arrived at that point, and in attempting to make the tackle, hit with his head the shoulder pad of the receiver, . . . ., and went under and sustained the injury."

Harp further described this particular play as a "severe tackle, it was one that you heard very seldom, it was heard all over the [football] stadium and [was] observed by the entire squad as a very hard tackle, [a] very hard hit."

The specific injury suffered by Rensing was a fractured dislocation of the cervical spine at the level of 4-5 vertebrae. Rensing's initial treatment consisted of traction and eventually a spinal fusion. During this period he developed pneumonia for which he had to have a tracheostomy. Eventually, Rensing was transferred to the Rehabilitation Department of the Barnes Hospital complex in St. Louis. According to Rensing's doctor at Barnes Hospital, one Franz U. Steinberg, Rensing's paralysis was caused by the April 24, 1976 football injury leaving him 95-100% disabled. The undisputed testimony revealed Rensing's expenses for medical care and treatment totaled $120,449.26, some of which amount was paid by the University's  [**9]  insurer.

After reviewing the above evidence received at hearings on February 15 and 16, 1979, the Industrial Board's Hearing Member issued his findings... [O]n April 24, 1976 at the time  [**11]  of Plaintiff's said accidental injury, Plaintiff was not in the employ of the Defendant herein; that the relationship of employer-employee within the meaning of the Indiana Workmen's Compensation Act [IC 22-3-1-1 et seq.] is contractual in character; that the relationship of the employer-employee always arises out of a contract, either express or implied; that one seeking recovery under the Act must bring themselves within its terms; that recovery of compensation depends upon the existence of the relation of the employer and employee; that the burden of proving by competent evidence of probative value the various essential elements of the Plaintiff's case before the Industrial Board of Indiana, including the establishment of the relationship of the employer and employee within the meaning of the Indiana Workmen's Compensation Act, rests solely upon the employee; that the Plaintiff failed to sustain his burden in establishing the necessary relationship of employer and employee within the meaning of the Indiana Workmen's Compensation Act...
 IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED by the Industrial Board of Indiana that the Plaintiff shall take nothing by his Form 9 Application for the Adjustment of Claim for Compensation, filed on the 22nd day of August, 1977...

Rensing appealed to the full Industrial Board which on June 6, 1980 adopted in full the Hearing Member's above findings and award.

Based on the above facts Rensing appeals to this Court raising the previously stated issues.


The Trustees concede some manner  of contract existed between them and Rensing. However, the Trustees argue, and the Industrial Board concluded, there was no contract for hire or employment within the meaning of the Workmen's Compensation Act. Conversely, Rensing appeals from this conclusion, arguing that his agreement to play football (or, if he were injured, to otherwise help the football program in return for financial assistance) was a contract within the Act. We agree with Rensing...


While Rensing, as the claimant appealing a negative award, has the burden to prove his right to compensation, Burton v. General Motors Corp., supra, 172 Ind. App. 263, 360 N.E.2d 36, we note that our Workmen's Compensation statute is to be interpreted liberally. Prater v. Indiana Briquetting Corp., (1969) 253 Ind. 83, 251 N.E.2d 810.   Consequently, in applying the statutory definition of "employee" to particular fact situations, a measure of liberality should be indulged in by this Court to the end that in doubtful cases an injured workman or his dependents will not be deprived of the benefits of the humane provisions of our workmen's compensation law. Schraner v. State Department of Correction, (1963) 135 Ind.App. 504, 189 N.E.2d 119.

Our determination that the requisite employer-employee relationship existed between Rensing and the Trustees, initially focuses on the definitions of "employer" and "employee" found in the Workmen's Compensation Act. n5 In this regard, IC 22-3-6-1(a) defines "employer" to include:

"the state and any political division, any municipal corporation within the state, any individual, firm, association or corporation or the receiver or trustee of the same, or the legal representatives of a deceased person, using the services of another for pay. If the employer is insured it shall include his insurer so far as applicable."

"Employee" is defined at Ind. Code 22-3-6-1(b) as encompassing "every person, including a minor, in the service of another, under any contract  of hire or apprenticeship, written or implied, except one whose employment is both casual and not in the usual course of the trade, business, occupation or profession of the employer." (Emphasis added.) By express exclusion, the Act's coverage does not apply to railroad employees or certain employees of municipal corporations, IC 22-3-2-2, nor does it apply to casual laborers, farm or agricultural employees, domestic servants, or the employers of such persons. IC 22-3-2-9.
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n5 Although the Act was amended subsequent to the occurrence of Rensing's injury, none of these modifications are pertinent to our discussion here.
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In applying our Workmen's Compensation Act it is assumed that the Legislature's exclusion from the Act of certain employees indicates the Legislature's intent to include all other employees under the doctrine of "expressio unius est exclusio alterius" (the enumeration of certain things in a statute implies the exclusion of all other things)...   This fundamental principle of statutory analysis has been specifically applied to the Workmen's Compensation Act. See In re Boyer, (1917) 65 Ind.App. 408, 410, 117 N.E. 507, 508.

Thus, in the instant case the central question is not whether our Legislature has specifically excluded college sports participants from the coverage of the Act, since it is apparent the Legislature has not expressed such an intention, but rather  whether there was a "written or implied" employment contract within the meaning of the Act which obligated Rensing to play football in return for the scholarship he received...

Viewing the facts adduced in the case at bar, the conclusion is inescapable the Trustees did contract with Rensing to play football, regardless of whether one views the various documents submitted to Rensing and signed by him as constituting an express contract, or merely as evidence of the parties' understanding in support of an implied contractual relationship. In this regard, we note the settled law that "any benefit, commonly the subject of pecuniary compensation, which one, not intending it as a gift, confers on another, who accepts it, is adequate foundation for a legally implied or created promise to render back its value." 6 I.L.E. Contracts § 6 at 73 (1958), citing cases. The parties' financial aid "agreement," noted above, clearly anticipated not only that Rensing would play football in return for his scholarship, but also provided that in the event Rensing suffered an injury during supervised play that would make him "unable to continue to participate" in the opinion of the University doctor, the Trustees would ask him to assist in other tasks to the extent of his ability. The benefits would continue so long as Rensing was "otherwise eligible to compete." In light of such uncontradicted evidence, we can find no merit in the Trustees' suggestion Rensing's benefits were only a gift or "grant" intended to further the young man's education, particularly in light of the fact our Legislature has expressly recognized that scholarships or similar benefits may be viewed as pay pursuant to a "contract of hire" in the analogous context of unemployment benefits. See Ind. Code 22-4-6-2 which provides:  

"For the purpose of determining the liability of an employing unit for the payment of contributions and the number of individuals performing services for remuneration, or under any contract of hire, there shall be included all individuals attending an established school, college, university, hospital or training course, who, in lieu of remuneration for such services, receive either meals, lodging, books, tuition or other education facilities." (Emphasis added.)

Additionally, the Trustees also retained their right to terminate their agreement for Rensing's services under certain prescribed conditions, a factor tending to distinguish his grant from an outright gift and which has previously been noted by this Court as a significant indicia of an employer-employee or master-servant relationship...  Each of the tender offers specified as part of the bargained-for exchange that the University could reduce or terminate Rensing's award if he:

1) failed to satisfy the University's and the NCAA's academic requirements for scholarships  or grants-in-aid;

2) voluntarily rendered himself ineligible for inter-collegiate competition;

3) fraudulently misrepresented any information on his application, letter of intent or tender; or

4) engaged in serious misconduct warranting substantial disciplinary penalty by the appropriate University committee or agency. n6

In this regard, we find especially significant the fact that Rensing's scholarship could be terminated if he misrepresented his intention to enroll (and by implication, play football) at the University. A football "letter of intent" signed by Rensing on March 6, 1974 required him to certify his intention to enroll at the University and further specified that if he elected to attend various other participating institutions, his athletic  eligibility at the institution of his choice could be restricted.
 From these facts, the conclusion is compelling that Rensing and the Trustees bargained for an exchange in the manner of employer and employee of Rensing's football talents for certain scholarship benefits. Admittedly, the issue we resolve herein is novel to Indiana. In fact, our research of the appropriate law throughout the country reveals only three cases which are particularly relevant. In Van Horn v. Industrial Accident Commission, (1963) 219 Cal.App.2d 457, 33 Cal.Rptr. 169, the California Court of Appeals held that the widow and minor children of a college football team member, who was killed in a plane crash while returning with squad members from a game, were entitled to his death benefits since he had received an athletic scholarship plus a job and, therefore, was rendering services within the meaning of the California Workmen's Compensation Act. The sole question before the Court was whether the decedent was an employee of the college within the meaning of the California's Workmen's Compensation Act so as to render the college liable thereunder for the death benefits to his dependents. In ruling affirmatively for the widow and her children the Court noted that "the only inference to be drawn from the evidence is that the decedent received the 'scholarship' because of his athletic prowess and participation. The form of remuneration is immaterial. A court will look through form to determine whether consideration has been paid for services." (Citations omitted). Id. at 466, 33 Cal.Rptr. at 174. 
The Colorado Supreme Court has addressed the issue considered herein on two separate occasions reaching different results   (with the same analysis) on these occasions. In State Compensation Insurance Fund v. Industrial Comm., (1957) 135 Colo. 570, 314 P.2d 288, a college student who had received an athletic scholarship for his tuition plus a part-time job was fatally injured while playing in a college football game. The Colorado Supreme Court denied his beneficiaries' claims for death benefits under the Colorado Workmen's Compensation Act holding that the evidence failed to establish that at the time of injury he was under a contract of hire to play football. Rather, his scholarship and part-time job were not based upon his athletic ability or participation on the football team. Lacking such a contract, the Colorado Supreme Court held there was no basis for a compensation claim. "Since the evidence does not disclose any contractual obligation to play football, then the employer-employee relationship does not exist and there is no contract which supports a claim for compensation under the [Colorado Workmen's Compensation Act.]"
The Colorado Supreme Court used the same analysis to find in favor of the student-athlete in University of Denver v. Nemeth,   (1953) 127 Colo. 385, 257 P.2d 423. In Nemeth, the Court held a college student could be compensated under Colorado's Workmen's Compensation Act for injuries sustained during the spring football practice because in that case the student's employment by the University of Denver as the manager of its tennis courts was contingent upon his participation on the football team. In reaching this result, the Court emphasized that a contract existed requiring the University of Denver to employ Nemeth as long as he was on the football team and further noted the testimony of one witness who stated that "the man who produced in football would get the meals and a job." Since Nemeth's employment by the University was dependent on his playing football and he could not retain his job without playing football, the Court held Nemeth was an employee of the University. Thus, his injury during spring practice was an incident of his employment, and therefore, was compensable under the Colorado Workmen's Compensation Act.

While the facts of Van Horn and Nemeth are distinguishable from the case at bar to the degree that Rensing did not receive a non-athletic  job in return for his football prowess, we feel such a distinction is not significant in view of the language of our statute discussed supra. The evidence presented in those two cases is comparable to that introduced before the Industrial Board in the case at bar in that in all three cases the "student-athlete" received benefits from a university solely because of his athletic ability and participation on a football team. If that ability declined and he did not make the team or if he quit the team for some other reason, the benefits he received would be terminated. As noted above, the evidence in the case at bar clearly demonstrates that the benefits received by Rensing were conditioned upon his athletic ability and team participation. Consequently, the scholarship constituted a contract for hire within IC 22-3-6-1(b) and created an employer-employee relationship between the Trustees and Rensing.

Having decided that Rensing was an "employee" for pay within the meaning of IC 22-3-6-1(b), supra, this Court must now determine whether his employment by the Trustees was "casual and not in the usual course of the trade, business, occupation or profession of the employer"  so as to bring it outside the coverage of that statute.. We conclude that it was not...


In defining "casual" employment, the infrequency of employment or its duration is immaterial; in each case, the analysis is concerned with the service rendered or the work done, rather than with the casual nature of the employment contract... Moreover, our Courts have recognized there is no "hard and fast rule by which it can clearly and unfailingly be determined where to draw the line between employments which are casual and those which are not..." Each case must rest, in the final analysis, upon its own facts and circumstances. Id.

Applying the above standard to the facts most favorable to the Trustees, it is apparent that Rensing's employment was not casual, since it clearly was "periodically  regular," although not permanent... The uncontradicted evidence revealed that for the team members football is a daily routine for 16 weeks each year. Additionally, during the "off-season" the "student-athlete" must daily work out to maintain his physical skills and attributes, thereby enhancing his eligibility for the team which is the basis for his scholarship. The University fields a major college football team and participates in a major college conference, The Missouri Valley Conference. In addition, the Trustees employ a large athletic department to administer the University's intercollegiate athletic program (in addition to physical education classes) and a sizable football coaching staff whose primary responsibility is to produce  the best possible team so as to generate the largest possible income and whose teaching responsibilities to the general student body are, at best, of secondary importance. With regard to Rensing specifically, Coach Harp actively recruited him - his appearance at the University was not happenstance, liable to chance or an accident. In light of these facts Rensing's employment by the University was not  "casual."

The second element of the exception stated at IC 22-3-6-1(b) which the Trustees were also required to prove was that Rensing's employment was not in the usual course of the Trustee's business, trade, occupation or profession. This has been defined as meaning "employment on any work in connection with and reasonably necessary to the employer's business..." Significantly, our Courts have also recognized an employer may have more than one business, trade or profession, and that the Act's coverage is not limited to the employer's principal activities. Such a restrictive argument was advanced in Scott v. Rhoads,, 51 N.E.2d at 91, where it was contended the principal occupation of an oil well owner was farming...

It is manifest from the record in the case at bar that maintaining a football team is an important aspect of the University's overall business or profession of educating students, even if it may not be said such athletic endeavors themselves are the University's "principal" occupation. Suffice it to say, it was uncontroverted that football specifically and athletes generally play a beneficial role in creating the desired educational environment at  the University, as evidenced by increased enrollments over the last few years as the University has prospered athletically through nationally-recognized intercollegiate athletic teams. Although we need not reach the question because of our conclusion that Rensing's employment was not "casual," we believe football competition must properly be viewed as an aspect of the University's overall occupation.

While we hold Rensing is entitled to workmen's compensation benefits, we note that despite uncontradicted evidence on the amount of benefits he seeks, the Industrial Board failed to enter any findings or conclusions on this question. Consequently we must remand this cause to it for further proceedings to establish the benefits Rensing will receive.

Reversed and remanded.

SHIELDS, J. (sitting by designation) CONCURS.





No. 283 S 45




444 N.E.2d 1170; 1983 Ind. LEXIS 740


February 9, 1983, Filed


Rehearing Denied May 10, 1983.

Appeal from the full Industrial Board of Indiana Application No. 82799.

 JUDGES: Hunter, J. Givan, C.J., and DeBruler, Prentice and Pivarnik, JJ., concur.


 ...The Court of Appeals found that there was enough evidence in the instant case to support a finding that a contract of employment did exist here. We disagree.

 It is clear that while a determination of the existence of an employee-employer relationship is a complex matter involving many factors, the primary consideration is that there was an intent that a contract of employment, either express or implied, did exist. In other words, there must be a mutual belief that an employer-employee relationship did exist...It is evident from the documents which formed the  agreement in this case that there was no intent to enter into an employee-employer relationship at the time the parties entered into the agreement.

In this case, the National Collegiate Athletic Association's (NCAA) constitution and bylaws were incorporated by reference into the agreements. n1  A fundamental policy of the NCAA, which is stated in its constitution, is that intercollegiate sports are viewed as part of the educational system and are clearly distinguished from the professional sports business. The NCAA has strict rules against "taking pay" for sports or sporting activities. Any student who does accept pay is ineligible for further play at an NCAA member school in the sport for which he takes pay. Furthermore, an institution cannot, in any way, condition financial aid on a student's ability as an athlete. NCAA Constitution, Sec. 3-1-(a)-(1); Sec. 3-1-(g)-(2). The fundamental concerns behind the policies of the NCAA are that intercollegiate athletics must be maintained as a part of the educational program and student-athletes are integral parts of the institution's student body. An athlete receiving financial aid is still first and foremost a student. All of these  NCAA requirements designed to prohibit student-athletes from receiving pay for participation in their sport were incorporated into the financial aid agreements Rensing and his parents signed.
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n1 Both the Tender of Financial Assistance signed by Rensing and his parents in 1974 and the one signed by Rensing and his father in 1975 contained the following paragraph:

"This is to advise you that the committee on student financial aid has awarded you an Athletic Grant-In-Aid as described below to continue your education at this institution. The award is made in accordance with the rules of this institution and the applicable provisions of the Constitution and By Laws of the National Collegiate Athletic Association (NCAA). Your acceptance means that you also accept these provisions and agree to abide by them."

The agreement also contained a summary of the applicable rules of the NCAA.
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Furthermore, there is evidence that the financial aid which Rensing received was not considered by the parties involved  to be pay or income. Rensing was given free tuition, room, board, laboratory fees and a book allowance. These benefits were not considered to be "pay" by the University or by the NCAA since they did not affect Rensing's or the University's eligibility status under NCAA rules. Rensing did not consider the benefits as income as he did not report them for income tax purposes. The Internal Revenue Service has ruled that scholarship recipients are not taxed on their scholarship proceeds and there is no distinction made between athletic and academic scholarships.Rev. Rul. 77-263, 1977-31 I.R.B. 8.

As far as scholarships are concerned, we find that our Indiana General Assembly clearly has recognized a distinction between the power to award financial aid to students and the power to hire employees since the former power was specifically granted to the Boards of Trustees of state educational institutions with the specific limitation that the award be reasonably related to the educational purposes and objectives of the institution and in the best interests of the institution and the state. Ind. Code § 20-12-1-2(h) (Burns 1975).

Furthermore, we find that Ind. Code § 22-4-6-2 (Burns 1974)   is not applicable to scholarship benefits. In that statute, which deals with contributions by employers to unemployment insurance, employers are directed to include "all individuals attending an established school . . . . who, in lieu of remuneration for such services, receive  either meals, lodging, books, tuition or other education facilities." Here, Rensing was not working at a regular job for the University. The scholarship benefits he received were not given him in lieu of pay for remuneration for his services in playing football any more than academic scholarship benefits were given to other students for their high scores on tests or class assignments. Rather, in both cases, the students received benefits based upon their past demonstrated ability in various areas to enable them to pursue opportunities for higher education as well as to further progress in their own fields of endeavor.

Scholarships are given to students in a wide range of artistic, academic and athletic areas. None of these recipients is covered under Ind. Code § 22-4-6-2, supra, unless the student holds a regular job for the institution in addition to the scholarship. The statute would  apply to students who work for the University and perform services not integrally connected with the institution's educational program and for which, if the student were not available, the University would have to hire outsiders, e.g., workers in the laundry, bookstore, etc. Scholarship recipients are considered to be students seeking advanced educational opportunities and are not considered to be professional athletes, musicians or artists employed by the University for their skills in their respective areas.

In addition to finding that the University, the NCAA, the IRS and Rensing, himself, did not consider the scholarship benefits to be income, we also agree with Judge Young's [dissenting Judge in previous decision] conclusion that Rensing was not "in the service of" the University. As Judge Young stated:

"Furthermore, I do not believe that Rensing was 'in the service of' the Trustees. Rensing's participation in football may well have benefited the university in a very general way. That does not mean that Rensing was in the service of the Trustees. If a student wins a Rhodes scholarship or if the debate team wins a national award that undoubtedly benefits the school, but does not mean that the student  and the team are in the service of the school. Rensing performed no duties that would place him in the service of the university."

Courts in other jurisdictions have generally found that such individuals as student athletes, student leaders in student government associations and student resident-hall assistants are not "employees" for purposes of workmen's compensation laws unless they are also employed in a university job in addition to receiving scholarship benefits...

All of the above facts show that in this case, Rensing did not receive "pay" for playing football at the University within the meaning of the Workmen's Compensation Act; therefore, an essential element of the employer-employee relationship was missing in addition to the lack of intent. Furthermore, under the applicable  rules of the NCAA, Rensing's benefits could not be reduced or withdrawn because of his athletic ability or his contribution to the team's success. Thus, the ordinary employer's right to discharge on the basis of performance was also missing. While there was an agreement between Rensing and the Trustees which established certain obligations for both parties, the agreement was not a contract of employment. Since at least three important factors indicative of an employee-employer relationship are absent in this case, we find it is not necessary to consider other factors which may or may not be present
 We find that the evidence here shows that Rensing enrolled at Indiana State University as a full-time student seeking advanced educational opportunities. He was not considered to be a professional athlete who was being paid for his athletic ability. In fact, the benefits Rensing received were subject to strict regulations by the NCAA which were designed to protect his amateur status. Rensing held no other job with the University and therefore cannot be considered an "employee" of the University within the meaning of the Workmen's Compensation Act.

It is our conclusion of law, under the facts here, including all rules and regulations of the University and the NCAA governing student athletes, that the appellant shall be considered only as a student athlete and not as an employee within the meaning of the Workmen's Compensation Act. Accordingly, we find that there is substantial evidence to support the finding of the Industrial Board that there was no employee-employer relationship between Rensing and the Trustees, and their finding must be upheld.

For all of the foregoing reasons, transfer is granted; the opinion of the Court of Appeals is vacated and the Industrial  Board is in all things affirmed.

The judgment and determination of the Industrial Board are affirmed.