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Tort/Negligence – Personal Injury – Softball Game – Home-Plate Collision – Assumption of Risk

By: S.C. Lawyers Weekly staff//December 6, 2011

Tort/Negligence – Personal Injury – Softball Game – Home-Plate Collision – Assumption of Risk

By: S.C. Lawyers Weekly staff//December 6, 2011

Cole v. Boy Scouts of America, Indian Waters Council, Pack 48 (Lawyers Weekly No. 010-173-11, 5 pp.) (Kaye G. Hearn, J.) (Costa M. Pleicones, J., concurring) Appealed from Richland County Circuit Court. (G. Thomas Cooper Jr., J.) S.C. S. Ct. Click here for the full-text opinion.

Holding: By playing softball, plaintiff assumed the risk of being injured in a contact sport, including the risk of a collision at home plate.

We affirm summary judgment for defendant Wagner.


During a Cub Scout outing, fathers and sons played a softball game. Plaintiff was catching, and defendant Wagner was a base runner on second. When the batter hit a double, Wagner tried to score.

Plaintiff stood on home plate. Wagner was running so fast that he couldn’t stop or change directions in time to avoid plaintiff.

Upon impact, Wagner flipped in the air and landed on a bat, breaking a rib. Plaintiff suffered a closed head injury and was rendered semiconscious. He started bleeding and went into convulsions. Plaintiff had to be airlifted to the hospital, where he spent two days in intensive care.

Assumption of Risk

In Hurst v. East Coast Hockey League, 371 S.C. 33, 637 S.E.2d 560 (2006), we considered the application of assumption of risk in a sports context.  The plaintiff was injured when a hockey puck struck him in the face while he was watching a professional hockey game.

The plaintiff sued the hockey team for negligence, and we affirmed summary judgment for the team, finding that “a flying puck is inherent to the game of hockey and is also a common, expected, and frequent risk of hockey.” We held that, by attending the hockey game, the plaintiff implicitly assumed the risks inherent in the sport and the defendant had no duty to protect him from those risks.

The duty owed by a player to a spectator may differ in form to a duty owed to a co-participant in a sport, but only because a duty owed to a spectator would be greater. Thus, if anything, by playing the game, the plaintiff here assumed a greater risk than the plaintiff in Hurst who was a mere spectator.

Furthermore, it is legally inconsequential that Hurst involved a professional sport. The critical fact is not the level of play but the nature of the sport itself.

While plaintiff was playing a casual game in which the teams did not even keep score, he was still playing softball, which is a contact sport. When a person chooses to participate in a contact sport, whatever the level of play, he assumes the risks inherent in that sport, including – in the case of softball — the risk of a collision at home plate.

Plaintiffs contend that Wagner violated a rule of softball by “running over the catcher during a play at home plate,” and therefore his conduct was outside the scope of the game. However, the risk of someone violating a rule of the game is one of the risks taken when engaging in a sport.

Collisions at home plate are common, mainly because catchers often attempt to keep a runner from scoring by blocking the plate. Even if a rule prohibits running into the catcher, that fact alone is insufficient to show the injury resulting from the violation of the rule was not inherent in the sport.

Even assuming, arguendo, that Wagner’s conduct could be characterized as reckless, it was not so reckless as to involve risks outside the scope of softball. Almost all contact sports involve conduct that a reasonably prudent person would recognize may result in injury. To the extent these risks inhere in the sport involved, some recklessness by co-participants in a contact sport must be assumed as part of the game. Accordingly, a player assumes the risk of ordinary recklessness committed within the course of the game.

We emphasize that this holding does not include intentional conduct or conduct so reckless as to be outside the scope of the game. Plaintiff does not allege that Wagner’s conduct was intentional, nor does he allege such recklessness as would fall outside the scope of the game of softball. Thus, Wagner’s conduct fell within the duty of care he owed to plaintiff as a co-participant in the game.



(Pleicones, J.) Although I am not convinced that a game of pick-up softball is a contact support, I concur because I find that Wagner owed no duty to plaintiff under these circumstances, relying on the doctrine of implied primary assumption of the risk.

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