$4.3 Million Prison Injury Award Reversed: The Assumption-of-Risk Doctrine Explained

Published August 10, 2011 · Verdicts & Settlements · Ohio Appeals Courts

Last September we wrote about an Ohio Court of Claims decision that held the state responsible for a Thanksgiving Day football game at the Mansfield Correctional Camp that left an inmate, Eric Schnetz, a quadriplegic. The court found the prison negligent for failing to stop a prohibited tackle game, cut the award in half for Mr. Schnetz's own fault, and entered judgment for roughly $4.3 million plus $80,000 for his three children.

Yesterday, the Tenth District Court of Appeals in Columbus threw that judgment out. Not reduced. Reversed. The reason is a legal doctrine called primary assumption of the risk, and anyone hurt while playing a sport, working out, or taking part in a recreational activity needs to understand how it works.

What the appeals court decided

The facts were not really in dispute. Institutional rules allowed flag football and forbade tackle football, but the inmates often played tackle when officers were not watching. On November 25, 2004, a flag game escalated into tackle. About 45 minutes in, Mr. Schnetz went to tackle another inmate, the two collided, and he suffered a spinal injury that left him paralyzed. The floater officer assigned to patrol the yard had checked it briefly and gone inside.

The Court of Claims had reasoned that a prison owes a special duty to supervise the people in its custody, and that this duty is fundamentally inconsistent with saying an inmate "assumed the risk" of being hurt. The appeals court rejected that view. In Schnetz v. Ohio Dept. of Rehab. & Corr., 195 Ohio App.3d 207 (10th Dist. 2011), the court held that the doctrine looks at the activity, not at who the defendant is. Quoting its own earlier decision, the court said that "primary assumption of [the] risk requires an examination of the activity itself and not plaintiff's conduct." If the activity is inherently dangerous and the risk cannot be eliminated, the defendant owes no duty to protect participants from that risk, whether the defendant is another player, a coach, a university, or a prison.

Because tackle football is a high-contact sport, and because colliding with another player is an ordinary danger of the game, the court found that the state owed Mr. Schnetz no duty to protect him from exactly the injury he suffered. It noted that he had only claimed the prison was negligent. He never argued that officers acted recklessly or intentionally, which is the one route that stays open when the doctrine applies. The appeals court also pointed out that the statute waiving the state's immunity, R.C. 2743.02, requires the Court of Claims to apply the same rules of law that would govern a suit between private parties, so the state gets the same defenses a private gym or league would get.

The three kinds of assumption of risk

Ohio recognizes three versions of this defense, and they do very different things. Knowing which one the defense is raising matters enormously.

Express assumption of risk is a signed waiver. You agreed in writing to release someone from liability. We discussed how Ohio courts treat those documents in our post on gym waivers and treadmill injuries.

Implied (or secondary) assumption of risk is what the Court of Claims applied to Mr. Schnetz. It means you knew about a danger and went ahead anyway. In Ohio this is treated as a form of comparative fault: it reduces your recovery by your share of the blame, but it does not wipe the claim out unless you were more than 50 percent at fault. Our earlier post explains how comparative negligence works in practice.

Primary assumption of risk is the dangerous one. It is not about your knowledge or your carelessness at all. It is a rule that certain activities carry risks so built in that the law treats participants as having accepted them, whether they understood them or not. When it applies, the defendant had no duty to begin with, and a negligence claim fails completely. There is no 50 percent reduction. There is nothing. That is how a $4.3 million judgment vanishes in a single opinion.

How the doctrine is applied

Ohio courts ask three questions: whether the danger is ordinary to the game or activity, whether it is common knowledge that the danger exists, and whether the injury happened because of that danger during the activity. If the answer to all three is yes, ordinary negligence is off the table.

The defendant does not have to be a fellow player. The Tenth District has applied the rule to a university sued over a cheerleading coach's decision, and to a scouting leader who organized an ice-skating relay. Now it has applied it to the State of Ohio.

What still works: the paths around the doctrine

The doctrine has limits, and they are where recoverable cases live. If you or a family member was seriously hurt in a sport or recreational activity, the questions a lawyer will ask are these:

• Was the conduct reckless or intentional? Primary assumption of risk shields only negligence. A coach who orders a dangerous drill after being warned, a league that lets a player with a known history of violence back on the field, or a facility operator who ignores a known hazard may have crossed from carelessness into recklessness. Mr. Schnetz never made that argument, and the court noted it.
• Was the risk really inherent, or was it added? The doctrine covers dangers that cannot be removed from the activity. It does not cover dangers someone introduced. A broken piece of equipment, a defective helmet, a hole in the field, a wet gym floor, a missing safety gate on a ride: none of those are "ordinary to the game."
• Did the injury actually arise from the inherent risk? Getting tackled is part of football. Being struck by a vehicle that drove onto the field is not.
• Were there rule violations that go beyond the sport itself? Every sport has fouls, and ordinary fouls are inherent risks. Conduct far outside the rules can be a different matter.

These distinctions turn on facts, and facts are gathered early or not at all. Equipment gets repaired or discarded. Incident reports are revised. Witnesses, especially in an institutional setting, become hard to find.

Claims against the state are harder, not impossible

This case is a reminder that suing the State of Ohio or a local government has its own set of rules. The Court of Claims is the only place a negligence claim against the state can be brought, and the state can raise every defense a private party could. We cover the basics on our page on claims against the government. Yesterday's reversal shows how quickly a Court of Claims win can disappear on appeal when the wrong legal theory carries the case.

What this means for you

If you were seriously injured while taking part in a sport, a fitness class, a league, a race, or any recreational activity, do not assume there is no case, and do not assume there is one. The outcome will turn on whether the defendant's conduct was reckless rather than merely careless, and on whether the danger that hurt you was part of the activity or something someone added to it. A negligence-only theory, as this case shows, can be fatal even after you have won at trial.