Wolf v. Kaplan

[Cite as Wolf v. Kaplan, 

.]

                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA


MARY ELLEN WOLF,                                  :

                Plaintiff-Appellant,              :
                                                           No. 110104
                v.                                :

GREGORY KAPLAN,                                  :

                Defendant-Appellee.               :


                               JOURNAL ENTRY AND OPINION

                JUDGMENT: AFFIRMED
                RELEASED AND JOURNALIZED: July 15, 2021


            Civil Appeal from the Cuyahoga County Court of Common Pleas
                                Case No. CV-19-913778


                                            Appearances:

                Weston Hurd L.L.P., Shawn W. Maestle, and Victor T.
                DiMarco, for appellant.

                Ritzler, Coughlin & Paglia, Ltd., John A. Rubis, and
                Chloe C. Deangelis, for appellee.
SEAN C. GALLAGHER, J.:

              Plaintiff-appellant Mary Ellen Wolf appeals the decision of the trial

court that granted summary judgment in favor of defendant-appellee Gregory

Kaplan. Upon review, we affirm the trial court’s decision.

      Background

              On April 10, 2019, Wolf filed a complaint against Kaplan and asserted

claims for battery, assault, gross negligence, and negligence. The complaint stems

from an accident that occurred during the Cleveland Triathlon that was held on

August 11, 2018, in Cleveland, Ohio. This event was the 2018 USA Triathlon

Nationals. Wolf and Kaplan were participants in the triathlon competition, which

consisted of three segments involving swimming, bicycling, and running. The

triathlon was sanctioned by USA Triathlon. Wolf alleges that during the bicycling

portion of the triathlon race, Kaplan violated the drafting rules and caused Wolf to

crash and sustain physical injuries, including a concussion, a closed fracture of the

sacrum, two fractures of the left pubic bone, and multiple abrasions.

              During the course of the proceedings, Kaplan filed a motion for

summary judgment that was opposed by Wolf. Evidence in the matter reflected the

following.

              Wolf is an experienced triathlete who participated in prior triathlons

and had qualified for the USA Triathlon Nationals event. She also had become a

certified race director for USA Triathlon. She testified in her deposition that during

the Cleveland Triathlon, she completed the swim portion of the triathlon and was
just over a mile into the bicycling portion when the crash occurred. She was

rendered unconscious in the accident and has no personal recollection or memory

of the incident. She acknowledged the risk of injury involved in participating in a

triathlon and was aware that it is an inherently dangerous sport.             She also

acknowledged that competitors ride at different speeds and it sometimes becomes

necessary to pass another competitor on the bike course.

               In becoming a member of USA Triathlon, Wolf electronically signed

a Waiver and Release of Liability, Assumption of Risk and Indemnity Agreement,

under which she understood and acknowledged that triathlon events, including the

running, bicycling, and swimming portions of such events, “are inherently

dangerous” and that “participation involves risks and dangers which include,

without limitation, the potential for serious bodily injury, …; loss of or damage to

equipment/property; … accidents, contact or collision with other participants

….” Wolf further understood “that these Risks may be caused in whole or in part

by my own actions or inactions, the actions or inactions of others participating in

the Event, or the acts, inaction or negligence of the Released Parties,” who were

defined to include, among others, “other participants in the sanctioned event.” Wolf

agreed to release “claims for Liability caused in whole or in part by the negligence”

of any of the released parties. In her deposition, Wolf admitted reading and signing

the waiver and release form.

               Daniel Goldman, who witnessed the accident, testified that a cyclist

who was going faster than he was going passed him and then “30 to 100 meters in
front of me, I saw him very close, effectively right behind [Wolf] and passing her on

the left, and as he passed her, she fell over, and I’m confident that what I saw was

contact; that she didn’t just happen to fall over at the time he was passing her

because he was so close to her.” Although he “did not see the exact contact that was

made,” he testified “the bike was so close to [Wolf’s] bike that it’s impossible to think

that contact was not made.” Goldman also testified that the individual involved in

the collision had his name written on the back of his blue triathlon suit and that it

was “Kaplan.” Goldman stated that he and other participants yelled for Kaplan to

stop, but he continued riding. Goldman further indicated that Kaplan was “passing”

Wolf and that “when [Kaplan] got behind [Wolf], he was going to pass her fairly

quickly.” Goldman stated that it did not appear to be a case of “intentional drafting.”

Rather, it appeared Kaplan was “passing” Wolf in an “unsafe maneuver,” and that

he was “inadvertently drafting.”

               Kaplan maintained during his deposition that he did not have any

contact with another participant on the bike course and denied having any

knowledge another participant was in an accident. There was no physical evidence

to show contact between the bicycles that Kaplan and Wolf were riding. There was

no rule requiring Kaplan to stop, and he was not issued a penalty for any rule

violation.

               The USA Triathlon Competitive Rules (“Rules”) state that they “are

intended to provide for the orderly and consistent administration of events

sanctioned by USA Triathlon and are not designed to establish standards of care
for the safety of participants or other persons.” (Emphasis added.) Section 1.2 sets

forth the purpose of the rules, which “are designed to set forth a standard set of

parameters within which athletes can participate in triathlons and compete in a

positive atmosphere of equal opportunity” and are intended, among other purposes,

“to promote and maintain sportsmanship, equal opportunity and fair play” and “to

protect the health, safety, and well-being of participants[.]”

               Section 5.10 of the Rules sets forth position fouls relating to the

bicycling portion of a triathlon event.     Per Section 5.10, “a participant is not

permitted to position his bicycle in the proximity of another moving vehicle so as to

benefit from reduced air resistance.” A variable time penalty is to be imposed for

any violation of Section 5.10. “Drafting” is generally prohibited such that “while on

the cycling course, no participant shall permit his drafting zone to intersect with or

remain intersected with the drafting zone of a leading cyclist or that of a motor

vehicle.” Rules Section 5.10(a). The “drafting zone” is “a rectangular area seven (7)

meters long and two (2) meters wide surrounding each bicycle.” Rules Section

5.10(b). An exception exists under which “[a] participant may enter [another

cyclist’s] drafting zone without penalty … [w]hen entering the drafting zone from

the rear, closing the gap, and overtaking all within no more than 15 seconds.” Rule

Section 5.10(h)(1). However, when “passing” another cyclist, “[a] participant must

not attempt to pass another cyclist unless adequate space is available.” Rules

Section 5.10(e). Also, with regard to a “right-of-way,” the Rules require that “[w]hen

taking a position near another participant, however, a cyclist must not crowd the
other participant and shall allow reasonable space for the other participant to make

normal movement without making contact.” Rules Section 5.10(c). The Rules

recognize that a participant may be “overtaken” and that “[w]hen the leading edge

of the front wheel of one cyclist passes beyond the front wheel of another cyclist, the

second cyclist has been ‘overtaken’ … and [then] bears primary responsibility for

avoiding a position foul and must immediately move to the rear and out of the

drafting zone of the passing cyclist.” Rules Section 5.10(g). Pursuant to Section 5.5

of the Rules, any cyclist who “appears to present a danger to any participant shall be

disqualified.”

                 Upon considering the motions and evidence in the record, the trial

court granted Kaplan’s motion for summary judgment. The trial court concluded

that “the record is devoid of any evidence by which reasonable minds could conclude

that defendant intentionally or recklessly injured plaintiff.” In granting summary

judgment in favor of Kaplan, the trial court cited to this court’s decision in Barakat

v. Pordash, 

, 

, 

 (8th Dist.),

wherein this court recognized that being injured in the course of a hold or physical

maneuver is a risk that is “a foreseeable and customary risk” that is inherent in the

martial art sambo, that recovery was dependent upon whether the defendant’s

conduct was either reckless or intentional, and that summary judgment was

warranted when the record clearly showed the injury occurred when the instructor

was demonstrating a physical maneuver in the course of a sambo hold. Id. at ¶ 12-15.

                 Wolf timely filed this appeal.
      Law and Analysis

               Under her sole assignment of error, Wolf argues the trial court erred

in granting summary judgment. She claims the record contains questions of

material fact as to whether Kaplan’s actions involved reckless and/or intentional

conduct that was in violation of the Rules for the triathlon event, which she claims

caused the crash and her resulting injuries.

               Appellate review of summary judgment is de novo, governed by the

standard set forth in Civ.R. 56. Argabrite v. Neer, 

, 2016-Ohio-

8374, 

. Summary judgment is appropriate only when “[1] no

genuine issue of material fact remains to be litigated, [2] the moving party is entitled

to judgment as a matter of law, and, [3] viewing the evidence in the light most

favorable to the nonmoving party, reasonable minds can reach a conclusion only in

favor of the moving party.” 

 citing M.H. v. Cuyahoga Falls, 

,

, 

.

               There is no doubt an unfortunate accident occurred in this case.

However, simply because appellant’s counsel labels the conduct intentional and

reckless does not make it so under the law that is applied to recreational and sport

activities. Our review reflects that the alleged conduct was a foreseeable and

customary risk of the sport of triathlon, that the doctrine of primary assumption of

the risk applies, and that, as a matter of law, the alleged conduct cannot be found

intentional or reckless.
              It is well established that a participant in a recreational or sport

activity assumes the ordinary risks and cannot recover for an injury without showing

that the other participant’s action was either reckless or intentional. Gentry v.

Craycraft, 

, 

, 

, citing

Marchetti v. Kalish, 

, 

 (1990), paragraph one of the

syllabus; see also Thompson v. McNeill, 

, 

 (1990),

paragraphs one and two of the syllabus. This limitation is premised upon the

doctrine of primary assumption of the risk and is based on the rationale that a

participant in a sport or recreational activity assumes the inherent risks associated

with the sport or activity. See Gentry at ¶ 12. The underlying policy is to “‘strike a

balance between encouraging vigorous and free participation in recreational or

sports activities, while ensuring the safety of the players.’” Id. at ¶ 10, quoting

.

              “Thus, a [participant] who injures another [participant] in the course

of a sporting event by conduct that is a foreseeable, customary part of the sport

cannot be held liable for negligence because no duty is owed to protect the victim

from that conduct.” 

; compare Deutsch v. Birk, 

, 

, 

 (12th Dist.) (finding “the cause of

appellant’s injury, which was a collision with another cyclist on a bike trail where

cyclists ride at speeds in excess of 20 miles per hour, is a foreseeable and customary

risk inherent in this sport or recreational activity”), and Evans v. Wills, 10th Dist.
Franklin No. 01AP-422, 

, ¶ 10 (Dec. 27, 2001) (“being

struck by a bicycle rider is not a foreseeable or customary risk of walking”).

               However, liability may still exist where the conduct is intentional or

reckless within the context of a sport or recreational activity. See Gentry at syllabus.

An actor’s conduct is “intentional” when “the actor desires to cause consequences of

his act, or [when] he believes that the consequences are substantially certain to

result from it.’” 

, quoting Restatement of the Law 2d, Torts 15,

Section 8A (1965). “The conduct of an athlete who intentionally injures another

athlete in a way not authorized or anticipated by the customs and rules of the game

violates the duty not to commit an intentional tort.” (Emphasis added.) 

.

               With regard to recklessness, there are “differences between

recklessness as it is usually understood and recklessness in the context of a sporting

event,” that must be taken into account.” (Emphasis added.) See 

 “A participant

in a sporting event is reckless if he does or fails to do an act that it his duty to do,

when a reasonable person would know that his conduct (which must be more than

negligent) creates a risk of harm that is unreasonable under the circumstances of

the sport.” (Emphasis added.) Levine v. Gross, 

, 

 (9th Dist.1997), citing 

.              As explained in

Thompson,

      What constitutes an unreasonable risk under the circumstances of a
      sporting event must be delineated with reference to the way the
      particular game is played, i.e., the rules and customs that shape the
      participants’ ideas of foreseeable conduct in the course of a game.
      … But any conduct which is characterized by the strong probability
      of harm that recklessness entails, and which occurs outside the normal
      conduct and customs of the sport, may give rise to liability.

(Emphasis added.) 

.

              Additionally, courts have recognized that “there is an ‘inverse

relationship between duty and dangerousness’ in sports: ‘the standard of care rises

as the inherent danger of the sport falls.’” 

, quoting Thompson, 53

Ohio St.3d at 105-106, 

. “Recognition of the inverse relationship

between duty and dangerousness should enter into a court’s decision-making

process on a motion for summary judgment when the plaintiff alleges reckless or

intentional misconduct.”    

.       “A court should inquire more

specifically into … ‘the nature of the sport involved, the rules and regulations

which govern the sport, the customs and practices which are generally accepted and

which have evolved with the development of the sport, and the facts and

circumstances of the particular case.’” 

 quoting Hanson v. Kynast, 

, 

 (5th Dist.1987) (Milligan, P.J., concurring).

              Wolf improperly construes the law and argues that “where a

participant in a sporting event violates the sport’s defined or customary rules, that

participant’s conduct is deemed reckless as a matter of law.” However, a violation

of the rules of the sport does not amount to “per se reckless conduct” as argued by

Wolf and is not the only circumstance that is considered. See Kumar v. Sevastos,

8th Dist. Cuyahoga No. 109795, 

. Although the Rules for a
USA Triathlon event are designed, among other purposes, to promote

sportsmanship and fair play, as well as to protect the health, safety, and well-being

of participants, a violation does not, in itself, render conduct intentional or reckless

for liability purposes. When considering intentional conduct, we also consider

whether the conduct was not anticipated by the customs and practices of the sport;

and when considering reckless conduct, we also consider whether the alleged

conduct was foreseeable or occurred outside the normal conduct and customs of the

sport.     See 

.         Additionally, we consider the facts and

circumstances of the particular case. 

                 As this court recently recognized, a rule violation in itself is an

insufficient basis by which to attach liability because the determination of

recklessness also requires consideration of whether the alleged conduct was

foreseeable. 

, citing Doody v. Evans, 

, 2010-

Ohio-3523, 

 (10th Dist.). As explained in Kumar,

                 To prove that [defendant’s] rule violation which resulted in
         Kumar’s injury was reckless, Kumar was required to establish that it
         was not foreseeable. See Thompson v. McNeill, 

,
         

 (1990) (“[A]ny conduct which is characterized by the
         strong probability of harm that recklessness entails, and which occurs
         outside the normal conduct and customs of the sport, may give rise to
         liability.”). Kumar failed to do this. Slide tackling during an indoor
         soccer game is foreseeable. Compare 

 (“a collision
         between a base runner and a catcher is simply a foreseeable hazard of
         the game of softball [regardless of no-collision rule]”); and Bentley at
         192 (illegal slide tackle “two seconds after [plaintiff] chipped the ball
         away and took three running steps” that resulted in serious injury and
         game ejection was foreseeable), with Thompson v. McNeill, 

, 

 (1990) (“In the context of the game of
      golf, a player who hurls a club into the air in a moment of pique and
      injures another golfer should be held accountable.”).

.

              The conduct involved herein is not similar to a player who hurls a bat

or club into the air in a fit of anger and injures another player. Rather, it occurred

by a competitor who allegedly committed a rule infraction while passing another

cyclist to advance his position during the cycling portion of a triathlon competition.

Absent evidence that Wolf’s injury arose out of conduct that was not truly an

intrinsic part of the competitive sport of triathlon, there is no legal liability. See

.

              Furthermore, this is not a case of a recreational activity under which

physical contact might not be anticipated and a greater duty with regard to the safety

of others might be imposed. Also, the circumstances of this case are distinguishable

from the case of Huston v. Brookpark Skateland Social Club, Inc., 8th Dist.

Cuyahoga No. 108222, 

, which is relied on by Wolf and involved an

action against a roller-rink operator for failing to stop a skater from skating at

dangerous and excessive speeds that were observable by the skating-floor

supervisor. Instead, this case is akin to the circumstances in Kumar and the cases

cited therein, in which the injury resulted from conduct that was anticipated and

foreseeable contact occurring within an organized sporting event or competition and

for which individual liability may not be imposed.
               In this case, there is no question that triathlon is an inherently

dangerous sport and that participation involves foreseeable risks and dangers for

serious bodily injury that can arise from accidents, contact, or collision with other

participants. The accident occurred during the USA Triathlon Nationals event with

other participants competing on the course, some going at speeds of 25 miles per

hour. Wolf testified in her deposition to her knowledge of the risk that another

participant’s bicycle could collide with her bicycle and that she could crash and be

injured during the bicycle portion of a triathlon race. The Rules themselves permit

passing another participant within the drafting zone and provide for penalties that

may be imposed for rule violations, including for contact being made with other

participants. Although Kaplan allegedly passed Wolf in an “unsafe maneuver,” such

conduct is not outside the range of ordinary activity involved in the sport. The USA

Triathlon membership waiver form specifically provides that each portion of a

triathlon event, including the bicycling portion, is “inherently dangerous” and that

participation in a triathlon event involves an associated risk of “serious bodily

injury” and “accidents, contact or collision” that might be caused by other

participants.1 These are anticipated and foreseeable dangers associated with the

inherent risks of the sport.




      1 The release is relevant to the analysis of the inherent risks of the sport of triathlon.

We do not address the enforceability of the release, which was not determined by the trial
court.
               We are not the first court to recognize that a collision allegedly caused

by another participant in an organized bicycle event is not outside the range of

ordinary activity involved in the sport:

      Certain activities have been held not to be inherent in a sport and thus
      not subject to the primary assumption of risk doctrine. For example,
      drinking alcoholic beverages is not an activity inherent in the sport of
      skiing. … On the other hand, in various sports, going too fast, making
      sharp turns, not taking certain precautions, or proceeding beyond one’s
      abilities are actions held not to be totally outside the range of ordinary
      activities involved in those sports. …

      The analogies derived from the risks in other sports suggest that one
      cyclist riding alongside another cyclist and swerving into the latter is a
      risk that is inherent in a long-distance, recreational group bicycle ride.
      The release Moser signed warns of the risk of accidents caused by the
      participants, thus indicating that such accidents are an inherent risk of
      the activity. If liability attached to entanglements and collisions among
      600 bicycle riders, the recreational sport of an organized bicycle ride
      likely would be adversely affected.

      Ratinoff’s movements toward the right side of the road that caused her
      to collide with Moser may have been negligent, but they were not
      intentional, wanton or reckless or conduct “totally outside the range of
      ordinary activity involved in the sport.” … Therefore, the accident at
      issue in this case is within the assumed risks of the organized bicycle
      ride in which Moser and Ratinoff were engaged.

(Internal citations omitted.) Moser v. Ratinoff, 

,

 (2003).

               The same logic may be applied to the bicycling portion of a triathlon

event. See Mark v. Moser, 

 (Ind.App.2001) (recognizing

inherent risk in triathlon is that “it is reasonably foreseeable that a competitor in a

cycling race may attempt to cut in front of co-participants in an effort to advance

position.”). It is not outside of the range of ordinary activity involved in the sport of
triathlon that a participant vying for position on the cycling portion of the course

might come into close contact with another participant, collide with another

participant, or commit a rule infraction in an effort to advance their position. Such

conduct is anticipated by the customs and practices of the sport, is reasonably

foreseeable, and presents a risk of injury inherent in the sport. Additionally, there

is an absence of evidence demonstrating the injury arose out of conduct that was not

truly an intrinsic part of the competitive sport of triathlon.

               We also recognize that free and vigorous participation in the sport of

triathlon likely would be adversely affected if liability were imposed under these

circumstances. Although we can certainly sympathize with any athlete injured in

the course of competition, “there was nothing about the instant collision that is so

exceptional that the general rule of separation between sporting event and tort

action should be vitiated here.” Doody, 

, 

, 

.

               Accordingly, we find as a matter of law that the record fails to

demonstrate that Kaplan’s alleged conduct was intentional or reckless under the

facts and circumstances presented in this case.         We need not address other

arguments that are presented. We find that summary judgment in favor of Kaplan

is warranted on all claims. Wolf’s sole assignment of error is overruled.

               Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.
      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.


__________________________________
SEAN C. GALLAGHER, JUDGE

MARY J. BOYLE, A.J., and
LARRY A. JONES, SR., J., CONCUR