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Recreation Law Center: Sports, Negligence, and Inherent Risks–Who Owes What Duty to Whom?

Reb Gregg
Catherine Hansen-Stamp
Topics: Legal Issues
Source: Recreation Law Center
Article Date:  April 3, 2016

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All material from the OutdoorEd Recreation Law Center are for general reference and are not intended as legal advice. Recreation and adventure providers should work with experienced legal counsel, including counsel licensed in their jurisdiction, to advise them on how developing case law or legal issues may impact matters specific to their operation and applicable state laws.

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Cassie E. Pfenning  v. Joseph E. Lineman, et al, 2011 Ind. LEXIS 376.

Cassie Pfenning, 16 years of age, was hit by a golf ball as she sat in a golf cart, assisting in providing beverages to golfers and other guests at a sponsored golf event.  The variety of relationships among the parties to the suit and their different relationships to the accident make for a helpful tutorial on the issue of duties owed and defenses available to a claim based on a violation of those duties.

The event was the annual Whitey’s 31 Club Scramble, attended by patrons and friends of the tavern. Whitey’s handled the registration, promotion and most of the details, including providing signs, golf carts and beverages for the golfers. The event was held at a golf course operated by the Marion Elks Country Club Lodge #195 (“Country Club”).  Cassie’s grandfather had volunteered to drive a beverage cart and asked Cassie, with her mother’s consent, to join him “for company.” The cart had no windshield and may not have had a roof. At some point, the grandfather left the cart and joined the golfers, leaving Cassie with another family member. That person, too, left Cassie to join others and was replaced by an employee of Whitey’s, who proceeded to serve the beverages while Cassie drove the cart. After several hours of driving, Cassie was approaching the 18th tee when she was hit by a “low drive” (with, we are advised, a severe hook) from the 16th tee, approximately 80 yards away. The golfer who hit the ball shouted “fore,” but neither Cassie nor her companion on the cart heard the warning. Cassie suffered injuries to her mouth, jaw and teeth.

Cassie sued the golfer who struck the ball, the country club, Whitey’s, and her grandfather, asserting that these parties had violated a variety of duties of care owed to her, including negligent supervision, failure to instruct in the operation of the golf cart, premises liability, and “golfer liability due to the absence of incurred (assumed) risk.”

The defendants filed individual motions for summary judgment, arguing, for different reasons, and based on their respective relationships to Cassie and the accident, that they owed no duty of care. The trial court granted each defendant’s motion for summary judgment and Cassie appealed.  Because the Indiana Supreme Court had not previously ruled on the matter of sports participants’ duties to others, the Supreme Court agreed to hear the appeal, by-passing the intermediate Court of Appeals.

The Supreme Court discussed the claims against each defendant separately, beginning with Cassie’s claim against Joseph Lineman, the golfer whose ball struck her.

In addressing the claims against Lineman, the Court discussed the history of Indiana law regarding a sports participant’s liability to others. At the outset, the Court rejected the fairly common doctrine that such a participant owes no duty to others to protect them from the inherent risks of the sport—the Primary Assumption of Risks (PAR) doctrine (sometimes referred to as the “no duty” rule or the “inherent risk” doctrine).  In some states, this doctrine has been extended to forgive a sports participant’s negligent (but not reckless) behavior—what we have termed “enhanced” PAR.  We have discussed this PAR doctrine in some detail in previous case summaries (see “Negligence as an Inherent Risk? What’s Going on Here?”Crace v. Kent State Univ. – Recreation and Adventure Law Center publication, May, 2010; “Inherent Risk “No Duty Rule” Made Simple. Finally! —Alfred Guerin v. IcePro, LLC – Recreation and Adventure Law Center publication, March, 2011). The Court noted that past Indiana Court of Appeals (not Supreme Court) opinions had found a sports participant had no duty to protect a co-participant for injuries resulting from the inherent risks of the sport and was therefore not liable for losses arising from those risks.  The Supreme Court rejected or distinguished these opinions, finding that Indiana’s Comparative Fault Act prohibited this approach.

Interestingly the Court came to the same result that other courts have taken in applying the enhanced PAR doctrine—but by another route. The Court began by outlining the basic scope of a negligence claim.

The Court explained that a defendant’s duty of care is the keystone of a negligence claim (the other elements being a breach of that duty and a loss caused by the breach). One’s duty of care is generally described, including by this Court, as protecting another from unreasonable risks of harm—acting reasonably, in other words.

The Court declared that, in Indiana at least, a balancing of three factors decides whether or not a duty of care exists: 1) the relationship between the parties, 2) the reasonable foreseeability of harm to the person injured and 3) public policy concerns. Considering these factors, and accommodating what it saw as the limitations imposed by Indiana’s Comparative Fault Act, the Court analyzed the claim against Mr. Lineman’s as follows:

Apparently satisfied that Lineman owed Cassie a duty of care (an element not discussed by the Court), the Court focused on the defendant player’s breach of that duty.  It announced a new rule for cases involving sports injuries; one which allows a court to decide, by summary judgment for example, the reasonableness of the defendant’s (sports participant’s) conduct.  Specifically, the Court held: “…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 Court concluded that Mr. Lineman’s conduct in hitting an errant golf ball was “clearly within the range of ordinary behavior of golfers and thus reasonable as a matter of law and does not establish the element of breach required for a negligence action.”  The Court further found that a sports participant’s intentional or reckless conduct would be unreasonable as a matter of law, thus arriving at the equivalent of the enhanced PAR “no duty” result. The Court accordingly upheld Lineman’s motion for summary judgment and dismissed Cassie’s negligence claims against him.

The Court then turned to the claim against the Country Club.  [The Court noted that the golf club was not a sports participant, and thus could not benefit from its “new formulation” in determining the defined “breach” of duty applied to sports participants (“the blanket protection from liability embodied in the new formulation does not extend to persons or entities other than the athlete whose conduct allegedly caused a claimed injury.”)].  Cassie’s claim against the Club was based on the Club’s premises liability, as owner of the grounds. An owner or occupier of land owes to persons coming onto that land a duty which varies with the nature of the visit. In Indiana, a landowner owes a business visitor (invitee) or social guest (like Cassie) a duty to exercise reasonable care for those individuals’ protection, while they are on the landowner’s premises. Considering the acts of the defendant Country Club (and citing to Restatement  (Second) of Torts Section 343), the Court found no evidence that the Club should have expected that Cassie would fail to understand the danger of an errant ball or fail to protect herself from it. Consistent with that conclusion, the Court found that the risk of an errant ball was not an unreasonable risk—and thus not one the landowner should be expected to guard against. Bottom line, the Court found that the Club could reasonably expect that “persons present on its golf course would realize the risk of being hit by an errant golf ball and take appropriate precautions.” The Club’s motion, like Lineman’s, was allowed to stand and Cassie’s claim against the Club was therefore dismissed.

Cassie had asserted claims of premises liability and negligent instruction, warning and/or supervision against Whitey’s, the sponsor. The Supreme Court disposed quickly of the premises liability claim, finding that the undisputed facts showed that Whitey’s did not own or control the course, even though it had arranged the event. It thus upheld the motion granted to Whitey’s on that point.

The issue of Whitey’s negligence in instructing, warning or supervising Cassie was a bit more complicated. The Court ruled that its new formulation of sports participants’ liability law did not extend to sponsors. Whitey’s, therefore, like the Club, did not have the protection given to Lineman, the golfer who hit Cassie. Instead, the Court examined the basis for determining whether Whitey’s owed a duty of care to Cassie. The Court found that Whitey’s did have a relationship to Cassie that arguably created a duty to her. The evidence reflected that she was distributing beverages for Whitey’s (at the request of her grandfather, a volunteer for the event), and Whitey’s—who had many representatives present—knew or should have known that Cassie was acting on its behalf throughout the afternoon. And, the Court determined, Whitey’s could have foreseen the dangers to Cassie. Was there any evidence that the duty was breached by Whitey’s? Cassie claimed she was not properly instructed in her duties, including safety precautions, and was given an unsafe golf cart. She also claimed that Whitey’s cart was roofless and had no windshield, and thus did not protect her from injury resulting from the errant ball. In this regard, the Court noted that Whitey’s could be held vicariously responsible for the grandfather and the Whitey’s employee both of whom allowed Cassie to drive the cart. Ultimately, the Court found that the existing evidence raised questions of fact regarding the existence of a duty, as well as Whitey’s breach of a duty. As a result, the Court reversed the lower court’s grant of summary judgment in Whitey’s favor.

Finally, the Court considered the motion for summary judgment granted to Cassie’s grandfather, denying her negligent supervision claim against him. The Court denied the grandfather (as it had denied Whitey’s and the Club) the protection of its “new rule” concerning sports participants’ liability. He was not a sports participant and could thus not benefit from that new formulation. Cassie’s negligent supervision claim against her grandfather was premised on her allegation that he exposed her to the dangers of the event, including driving the cart without instruction.  The Court found that the grandfather did in fact have a duty to supervise Cassie—reminding us of a persistent body of law that “persons entrusted with children…who may do somewhat unreasonable things, have a special responsibility to supervise their charges.” (citing numerous Indiana cases). The issues around the breach of that duty were some of those discussed by the Court in addressing Cassie’s claim against Whitey’s, including the safety of the golf cart and Cassie’s lack of familiarity with golf or the risks of golf. In addressing the grandfather’s alleged duties and breach, the Court emphasized Cassie’s age and inexperience with the game of golf, and concluded: “…whether it was reasonable for him to subject her to such risks depends on genuine issues of fact for determination at trial.” As a result, the Court reversed the lower court’s grant of summary judgment in favor of the grandfather and, like the similar claims against Whitey’s, sent those back to the trial court for resolution at trial.


  1. As we have noted, Cassie’s claims of duty and breach of duty varied from defendant to defendant.  Part of the value of this case to our readers is its message that the duty of care owed to another is fluid and depends on the nature of the activity and the relationships of the parties to it.  Even in the course of a one-day hike, a camp semester, or a visit to a climbing gym, for example, the duty of a service provider to a participant can change many times.
  2. The rationale articulated by the Indiana Supreme Court in its new ‘breach of duty’ rule is similar to that articulated by courts applying the enhanced PAR doctrine: to hold sports participants to an ordinary duty of care would chill active participation in the sport. Not infrequently, the doctrine is extended to others not directly participating in the activity, including observers or bystanders. Clearly Cassie was not playing golf. She was in the zone of danger normally associated with the game only in the sense that she was moving about where she might be hit by a ball, as another golfer might. Does she deserve to be subject to the doctrine, and be required to show more than mere negligence on the part of the golfer who hit her? Are the interests of the game—public policy considerations or otherwise—served by so limiting Cassie’s right to recover?
  3. The “new rule” of the Indiana Supreme Court feels very much like the enhanced PAR doctrine, doesn’t it? (“If it quacks like a duck….”).  But, handcuffed by the state’s Comparative Fault Act, the Indiana Court believed it had to avoid any approach that allowed assumption of risk to survive outside of a comparative fault analysis. On the other hand, the Court wanted a rule that would pre-empt a jury determination of comparative fault. It thus went to the “reasonableness” of the defendant’s conduct. Finding that conduct “within the range of ordinary behavior” (not unlike popular definitions of “inherent”) the Court ruled that there was no breach, and no liability. Complicated, but sound. Any court inclined toward the PAR doctrine could take the same path. These analytical gymnastics, remember, are driven by the Court’s effort to conform to Indiana’s Comparative Fault Act, which, in the Court’s view, does not allow for the existence of a “no duty” inherent risk rule.  And so, we see the Court working with the second prong of negligence cause of action—the breach of a duty of care—and finding none, because the risk encountered, the Court found, was not an unreasonable risk.  This conclusion allowed the Court an alternative way to dismiss plaintiff’s negligence claim before trial.

Many states in the U.S. have adopted comparative fault laws, but, unlike the Indiana Supreme Court and some other courts, don’t regard those laws as impediments to the continued application of the PAR inherent risk “no duty” rule. Instead, they distinguish that another form of assumption of risk – secondary assumption of risks—is the doctrine impacted by comparative fault laws.  See our discussion of these concepts in our Crace case summary, mentioned above.

More Cases at the Recreation Law Center

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