“Dangers are inherent in the sport of Thoroughbred horse racing.”
— Santiago v. Clark (1978)
“Every permit holder shall at all times maintain its premises and race track in good condition.”
— Rules and Regulations of the Ohio State Racing Commission
It had been quite dry in Ottawa County in the summer of 1987. The lack of rain meant dry ground at the Ottawa County Fairgrounds. The trainers and riders who inspected the track at 3 p.m. had seen that kind of track before. They knew what it meant when horses and sulkies started whipping around the track. Despite the risk of clouds of dust though, the races were to go on.
At 4:15 p.m., the track was watered down in an attempt to limit the dust, but by the time the first race started a little before 5 p.m., it had dried out again. Raymond Sugg, a veteran of 35 years, would later testify that he knew it would make driving difficult during his fourth race. He also knew that the 2-year-old horse that he was riding had little or no prior racing experience and that it would therefore be prone to mistakes and falls.
Sugg took his place for the fourth race. According to his deposition testimony, he was mid-race and running about 10 feet behind the horse in front of him when, through the cloud of dust, he became aware that the lead horse had crashed when he saw its driver fly into the air. At the speeds the horses were traveling there was no time for any evasive action and Sugg slammed into the horse in front of him.
The following March, Sugg filed a lawsuit against the Ottawa County Agricultural Society claiming it was negligent in not watering the track and that its failure to do so caused him to be injured. Undaunted, the Ottawa County Ag Society countered that it was not at fault, but that even if it had been remiss in not watering the track, there was another defense available to them. Sugg, the Ag Society said, had taken his safety into his own hands when he decided to get up on that sulky and once he did so, they could not be held responsible for what happened in an inherently dangerous sport.
The society’s defense is one often called “assumption of the risk.” It is a defense that claims that there was no duty to exercise care rather than a claim that care was exercised. It is raised particularly in cases involving dangerous activity, risky endeavors and sporting events.
Never was this better demonstrated than the 1990 Ohio Supreme Court decision in Marchetti v. Kalish — a lawsuit between a 13 year old and a 15 year old over an injury sustained in that famously dangerous contact sport known as “kick the can.” The case is perhaps best read for its overly legal definition of the game. It’s not every day that a state supreme court justice gets to write phrases like, “the other participants run and hide while the designated ‘it’ looks for them.” (Nothing like legalese to take all the fun out of being a kid.)
In this particular game, Mr. Kalish was alleged to have run over Ms. Marchetti, causing her to fall and break her leg. After first concluding that they would treat cases involving children no differently than they would those involving adults, the Ohio Supreme Court then concluded that in order to succeed in a lawsuit involving injury sustained in a sporting event, the plaintiff would have to show reckless or intentional behavior — mere negligence would not be enough, since the plaintiff had assumed the risks inherent in the game.
Ms. Marchetti therefore lost her broken leg case, and Mr. Sugg met the same result in his suit against the Ottawa County Agricultural Society. Decisions like these are the same reason that a hockey player who gets in a fight (accepted risk inherent in the game) doesn’t sue for injuries but one who smashes his stick over another player’s head (intentional conduct beyond the assumed risk) may face legal action.
The late Chief Justice Moyer, lamenting that the kick the can case had to come before the court at all, recalled the words of Robert Louis Stevenson, “Youth is wholly experimental.” If you’ve never played kick the can, find the decision in Marchetti v. Kalish. It contains one appendix — step-by-step instructions on how to play — fully approved by a unanimous Supreme Court.
David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Court of Common Pleas, where he has served as magistrate, court administrator, and now judge, since 2003. He has written a weekly column on law and history for The Gazette since 2005.