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Monday, September 04, 2006
Indiana Appeals Court’s Latest Co-Participant Tort Liability Opinion

Indiana’s Courts of Appeals have offered some of the most analytical “sports tort” cases in recent years, such as Mark v. Moser, which attempted to “clearly define the standard of care one competitor owes another in a sporting event” and has found its way into one of the leading sports law casebooks, as well as more recent cases limiting the Mark rule, such as the one I discussed in this post.

On Thursday, the court published Bowman ex rel. Bowman v. McNary, 2006 WL 2506680 (Ind. Ct. App. Aug. 31 2006). One member of a high school girls’ golf team sued a teammate after the teammate unintentionally struck her in the head with a golf club during a driving-range practice (leading to blindness). In a footnote, the court notes “an increase in golf-related head injuries in recent years, particularly in children under age nineteen, as participation in the sport has increased, with those injuries being caused by mis-swung clubs, errant balls, and golf cart accidents.”

The Bowman court reaffirmed its commitment to the principle articulated in Mark v. Moser, namely that “as a matter of law, participants in sporting events will not be permitted to recover against their co-participants for injuries sustained as the result of the inherent or foreseeable dangers of the sport.” However, the court acknowledges that its “rationale for the rule originally stated in Mark has not been constant.” Sometimes the court has focused on the doctrine of “assumption of risk”, sometimes on the “absences of a legal duty”, and other on its concern to avoid chilling vigorous participation in recreational and competitive athletics.

The opinion offers a nice tour of Indiana law on this issue.


The second edition of the Cozzillio & Levinstein book, which will be out in the next few months from Carolina Academic Press, will also contain a substantial discussion of the issues of co-participant liability (as well as supervisor liability etc., etc.) and excerpts from Moser and several other cases.

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