Sicard v. University of Dayton

The appropriate standard for recklessness in the context of an alleged personal injury tort during recreational activity is defined in Section 500 of the Restatement of Torts 2d.Marchetti v. Kalish (1990), 53 Ohio St.3d 95, 559 N.E.2d 699, syllabus. That section of the Restatement provides as follows:

"The actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do anact which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent." (Emphasis added.)

In the case before us, Bollwinkel's alleged sin was one of omission rather than commission. He failed to perform his alleged duty as a spotter for Sicard. Therefore, the portion of the definition of "reckless disregard" emphasized above is the relevant definition, and it requires that the failure to do the act be intentional.

The evidence in this case, even when viewed in a light most favorable to the plaintiff, would not, in my opinion, support a conclusion that Bollwinkel's failure to act as a spotter for Sicard, which appears at most to have been the result of momentary inattention, was intentional. Accordingly, it does not satisfy the approved test for reckless disregard, and would not permit recovery against Bollwinkel. Because the alleged liability of the University of Dayton is derived solely through the alleged liability of Bollwinkel, the university, also, was entitled to summary judgment on Sicard's claim.

I have some reservations whether this case fits the mold of the cases involving recreational sports injuries, where physical contact is expected and even encouraged. However, that is the way this case was pled in the trial court, and we must take the case as it was pled.

I would affirm the judgment of the trial court. In my view, Bollwinkel's alleged inattention to his duties as a spotter, while conversing with a third person, is classic negligence, not recklessness.