Indiana: Injuries in Sports Drills Are Judged in Light of Sport as a Whole

by: Colin E. Flora

     In May, we briefly discussed a case from the Court of Appeals of Indiana called Megenity v. Dunn. In that discussion, we said:

Megenity was a case in which a woman was injured in a karate class when another participant chose to do a jump kick in a front kick exercise. The trial court granted summary judgment, applying the broad-reaching golf-injury case Pfenning v. Lineman, which held “that, in negligence claims against a participant in a sports activity, if the conduct of such participant is within the range of ordinary behavior of participants in the sport, the conduct is reasonable as a matter of law and does not constitute a breach of duty.” The majority (2–1 split), reversed the dismissal finding the action was outside the scope of the specific activity–the practice drill–and therefore summary judgment was improper. Interestingly, a distinguishing factor, though largely one of an evidentiary nature akin to whether expert testimony is needed for certain medical injuries, was “unlike baseball, football, basketball, or golf, as likely examples, karate is not a sport with which most Americans are familiar, either through personal participation or through enjoyment as a spectator.” The dissent thought the majority focused too narrowly on whether the jump kick was outside the scope of the particular drill as compared to whether the kick and resulting injury were outside the scope of karate as a whole.

Somewhat surprisingly, the court makes no mention of Clark v. Wiegand. Clark affirmed a jury verdict for an Indiana State student who suffered a knee injury in a judo class, finding the doctrine of incurred the risk did not bar the claim. Although Clark predates Pfenning by almost two decades, there is no indication in Pfenning–in fact, Pfenning cites Clark in passing–that Clark has been overruled, nor is there reason to think that Justice Brent Dickson, author of each, would have overruled his prior decision without mention. I think Clark distinguishable from Megenity, in that Megenity focuses on the act causing the injury being outside the scope of the activity, whereas Clark focuses on whether the specific injury was within the actual knowledge of the injured person. In fact, the dissent in Megenity goes so far as to say, “Even though no Indiana case has addressed sport injuries as a result of participating in karate, the sport is generally commonly understood as a high contact sport, involving throws, strikes, and other techniques encouraging physical contact between the participants.” In a technical sense, this is true–Clark was judo, not karate–but I think the words “martial arts” could just as easily be substituted into the dissent and express the author’s intent. My guess is that Clark was never argued by the parties and the panel was unaware of it. Like I said, I think it is distinguishable, but I am surprised to not see it mentioned.

     The Indiana Supreme Court granted transfer and has now issued an opinion reinstating the trial court’s grant of summary judgment. Consequently, today we turn our focus to the Supreme Court’s decision.

     The court summarized the facts:

For two years, Tresa Megenity faithfully attended karate classes at a studio in southern Indiana, climbing the ranks until she earned her black belt. One Saturday, she attended a sixty-person class, open to all belt levels, that focused on nunchucks, sticks, sparring, and kicking.

During the class, the students gathered to do a drill called “kicking-the-bag.” Three volunteers, standing thirty feet apart in a triangle, held the bags. The students lined up and took turns sprinting to each bag and practicing a certain kick. The first two bags were for side kicks, and the last bag was for flying kicks.

Megenity volunteered, as she had “countless” times before, to hold the flying-kick bag. To do a flying kick, one runs to the bag and kicks it with one foot while keeping the other foot grounded. Megenity later recounted that she would “obviously” feel an impact-indeed, even before her first class, she had acknowledged in a waiver that karate can be a “contact sport” involving a variety of physical strikes. So, she braced herself, gripping the bag and planting one foot firmly behind her.

Meanwhile, green-belt David Dunn-a lower-ranked classmate and stranger to Megenity-made his rounds among the bags. He did proper side kicks against the first two bags, then began sprinting to Megenity’s station. But instead of keeping one foot grounded during his kick, Dunn allowed both feet to leave the ground, executing what Megenity called a “jump kick.”

And although the jump kick hit the padded bag-not Megenity-the impact was “extreme,” sending Megenity flying and crashing to the floor, injuring her knee. Dunn promptly apologized, saying he “didn't mean to jump.” Megenity required surgery and months of physical therapy.

     After the trial court granted summary judgment finding as a matter of law that Megenity had incurred the risk of the injury by participating in Karate, the Court of Appeals (split 2–1) reversed. The Indiana Supreme Court then took the case on transfer, thereby vacating the decision of the Court of Appeals.

     The core issue in the case stemmed from a point left vague by a prior decision. In Pfenning, the court “held that, as a matter of law, a sports participant commits no breach by engaging in conduct ‘within the range of ordinary behavior of participants in the sport.” Thus, the question remained, “what does ‘in the sport’ mean?” In the context of Megenity the specific issue to be resolved was whether the meaning of “sport” was fixed to the specific drill or the sport as a whole–i.e., the flying-kick drill or karate in general. The court concluded that the proper analysis was to look at the sport as a whole, not narrowly at the drill:

Today we clarify that, under the reasoning of Pfenning, ordinary behavior turns on the sport generally–not the specific activity. Again, the issue in Pfenning was whether hitting an errant golf drive without yelling “fore” was “ordinary behavior.” . . .

The answer was “yes.” In golf, hitting errant shots without warning bystanders, though bad etiquette, is ordinary in the sport overall.

And that broad, sport-centric focus makes sense. Generally speaking, sports are imprecise and physically intense. And when Hoosiers play sports-performing activities ordinary in that context-they should not fear that judges will later armchair-quarterback their every movement. After all, judges are more likely to have general sports knowledge than specific sports expertise. We need not, and should not, parse nuances of the exact angle of entry of a soccer player’s slide tackle, the exact timing of a football player’s late hit-or the sensei’s exact instructions for a karate student’s kick-to determine whether they were “ordinary” sports conduct.

     Utilizing this analysis in the karate context, the court concluded that the jump kick was ordinary to karate despite exceeding the protocol of the drill. “Karate is a high-contact sport. It comprises a rich variety of punches, blocks, and kicks–including front kicks, back kicks, side kicks, and jump kicks. Indeed, even Megenity recognizes this, conceding that jump kicks are not just part of the sport, but necessary to advance in rank. We thus hold as a matter of law that Dunn did not breach a duty by simply executing a jump kick while engaged in karate.”

     The analysis did not end there. The question remained whether the jump kick was reckless. (There was no suggestion that it was an intentional tort.)

We therefore turn to the three elements of sports recklessness. First, to behave recklessly, the defendant sports participant must intentionally act or intentionally fail to act. Second, in doing so, the defendant must be consciously indifferent to the plaintiff’s safety. And third, the defendant’s particular conduct-including state of mind-must fall “totally outside the range of ordinary activity involved in the sport.” As with intent, this last element is crucial because some sports-like boxing and mixed martial arts-depend on actions that would be reckless in many other contexts.

Here, even if we assume for purposes of summary judgment that the first element is satisfied-that Dunn jump-kicked intentionally–the second and third elements are missing. True, Dunn failed to keep one foot grounded during the kick; he used “extreme” force against a padded bag; and he later apologized, saying he “didn’t mean to jump.” But none of that shows he consciously disregarded his classmate’s safety. And without such conscious disregard, nothing took Dunn’s jump kick totally outside the range of ordinary behavior in karate overall. Certainly, Indiana strongly prefers trials, even when a plaintiff’s evidence is dubious. Yet here, the evidence Megenity needs is not merely thin; it is absent.

     I think we need to examine the conclusions of Megenity. Let’s first look back to Clark. There,

During class on December 2, 1987, Jordan, attempting to apply a newly-taught technique, threw the plaintiff, resulting in a disabling injury to the central ligament of her left knee. The plaintiff testified that by December, 1987, she was aware of the possibility that she could have the wind knocked out of her in judo class but that it had not occurred to her that she could have a serious injury.

Because incurred risk requires “conscious, deliberate and intentional embarkation upon the course of conduct with knowledge of the circumstances[,]” the plaintiff did not assume the risk of a knee injury and was thereby permitted to bring her claim. Twenty years later, Pfenning was decided, which is the source of the Supreme Court’s decision in Megenity. Clark draws no mention in the opinion.

     Importantly, Clark was authored by then-Justice Brent Dickson. So too was Pfenning. Chief Justice Dickson recently retired from the court as the second longest tenured justice in Indiana history. Unquestionably, the focus of Pfenning is different from Clark. The focus in Clark was on assumption of the risk, while Pfenning altered the analysis slightly and determined that in the context of sports a participant does not owe a duty to another participant so long as his/her conduct “is within the range of ordinary behavior of participants in the sport, the conduct is reasonable as a matter of law and does not constitute a breach of duty.”

     I think Clark and Pfenning can work in harmony. Clark and Megenity, however, cannot. As I said in our prior discussion, I do not think Chief Justice Dickson would have overruled Clark–a case he cited in passing, and which he authored–through Pfenning without mention. The incurred/assumption of risk defense only applies if there is an actionable cause to begin with. Clark, then, still works in the confines of Pfenning, assuming that the injury-causing event in Clark was sufficient to overcome the no-duty rule. Under Pfenning, this would occur in one of three scenarios: the tortfeasor acted recklessly, intentionally, or outside the “range of ordinary behavior of participants in the sport.” Assuming, because nothing in Pfenning specifically indicates that Clark is overruled–the Indiana Supreme Court has reminded, “an appellate tribunal does not overrule precedent ‘unless the overruling opinion is so inconsistent with earlier opinion that both cannot stand together’”–that the two cases are in harmony, then Clark has remained guiding to this day.

     Clark and Megenity, however, cannot conceivably be harmonized, aside from acknowledging that Clark did not specifically consider the existence of a duty, but focused only on the doctrine of incurred risk. It cannot be argued that the tortfeasor in Clark conducted a maneuver that was wholly foreign to judo; he was “attempting to apply a newly[ ]taught technique.” Under Megenity, there would be no duty; the technique was part of the sport.

     Now let us consider the full extent of the holding of Megenity, which I think paints with far too broad a brush:

[A]djusting our focus to the sport of karate overall, we conclude that Dunn’s jump kick was ordinary, even if it was contrary to protocol for the kicking-the-bag drill. Karate is a high-contact sport. It comprises a rich variety of punches, blocks, and kicks-including front kicks, back kicks, side kicks, and jump kicks. Indeed, even Megenity recognizes this, conceding that jump kicks are not just part of the sport, but necessary to advance in rank. We thus hold as a matter of law that Dunn did not breach a duty by simply executing a jump kick while engaged in karate.

     My problem with the court’s analysis is that it seems to ignore a time and place component. Let us consider the sport of basketball, for example. Although well beyond my abilities, there can be no question that dunking a basketball is part of the sport. Further, it is not uncommon to see players plow through defenders in doing so. If that happens in a Pacers’ game, there can be no doubt that it is part of the game. Now let us consider a basketball camp run by Lebron James for middle-school players. If King James is playing a pickup game and, without thinking, goes into NBA mode, leading him to slam through some twelve-year-old, that cannot possibly be within the acceptable bounds of the sport. However, what James has done–dunking the basketball–is part of the game. Further, it is not reckless because he has not shown a “conscious disregard;” because there is no doubt he did not mean to and he would doubtlessly have apologized. His actions in the hypothetical would be totally instinctual. It appears that Megenity would apply to prohibit any liability, and would do so as a matter of law.

     Let us consider a more on-point and likely scenario. In the sport of football, big hits are part of the game, even in practice. However, there are hits made in pads and then there’s days without pads. If players are running a touch drill without pads and a big hit is leveled, is it truly ordinary within the sport? Sure, one could say that in the moment the players were no longer competing in the sport of football, but rather in touch football. But isn’t that then looking to the drill? It could as easily be said that Megenity was not in that moment competing in karate–there was clearly no intention of permitting striking of persons in the drill–during the drill. Instead, she and Dunn were competing in the practice of front kicking the bag. But that, of course, was not how the court looked at it. The court looked to whether being kicked was part of karate; and being tackled is part of football. Shouldn’t it matter that the blow occurred without pads, which are meant to protect the players? It is not reckless, remember, if the player did it unconsciously due to reflexes.

     Ultimately, I think my biggest concern with the decision is that it seamlessly blends drills with the sport at a competitive level. Everyone who has played any meaningful amount of competitive sports knows that there is a major difference between competition and practice. As Allen Iverson famously quipped, “I mean, listen, we’re talking about practice. Not a game! Not a game! Not a game! We’re talking about practice. Not a game; not the game that I go out there and die for and play every game like it’s my last, not the game, we’re talking about practice, man. I mean, how silly is that? We're talking about practice.”

     I fully respect the difficulty when it comes to liability for injuries in sports. I grew up playing sports and want to protect the institution. And there can be little question that Megenity helps to add clarity to liability in sports. But I have serious doubts as to whether the broad rule of Megenity was the best way to protect sports and the Hoosier who play them.

     Join us again next time for further discussion of developments in the law.

 

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*Disclaimer: The author is licensed to practice in the state of Indiana. The information contained above is provided for informational purposes only and should not be construed as legal advice on any subject matter. Laws vary by state and region. Furthermore, the law is constantly changing. Thus, the information above may no longer be accurate at this time. No reader of this content, clients or otherwise, should act or refrain from acting on the basis of any content included herein without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue.