MARCHETTI V. KALISH, Supreme Ct. of OH, 1990, 559 N.E.2d 699 by JohnMValentine


MARCHETTI V. KALISH, Supreme Ct. of OH, 1990, 559 N.E.2d 699 History: Marchetti filed complaint alleging Kalish had negligently and or willfully, wantonly and maliciously caused injury; Trial court granted Kalish’s motion for summary judgment and held as a voluntary participant in the game, Marchetti had assumed the risk of her injury Court of appeals reversed trial court and remanded case b/c issue existed as to whether Marchetti consented to Kalish’s action through participation in the game Facts: June 1982, Plaintiff-Appellee Marchetti (13) had several friends, including Defendant-Appellant Kalish (15) over to play “kick the can”; modifications they used: using a ball instead of a can, 1st player captured immediately became “it”; Marchetti was it, she saw Kalish and ran to home base; Marchetti put her left foot on the ball and yelled Kalish’s name; under rules of the game, Kalish was supposed to stop and in turn become “it”; Kalish continued, however, to run towards Marchetti colliding w/her and kicking the ball out from under her foot; Marchetti fell to the ground and her right leg was broken in two places Issue(s): Whether a participant in a recreational or sporting activity can recover for personal injuries received during the course of activity w/out evidence of reckless or intentional conduct. Holding: Court of appeals reversed and trial court’s decision for Kalish reinstated Analysis: Courts generally allow a cause of action for injuries sustained in recreational or sports activities only under reckless or intentional tort theories Whether the activity is organized, unorganized, supervised, or unsupervised is not important to the standard of liability; There is not difference between adults’ and children’s recreational and sports activities; No reason to distinguish between children and adults; Needs to be a balance between encouraging participation while ensuring safety of players Before a party can proceed w/a cause of action involving injury resulting from a recreational or sports activity, reckless or intentional conduct must exist; Where individuals engage in recreational or sports activities, they assume the ordinary risks of the activity and cannot recover for any injury unless it can be shown the other participant’s actions were either “reckless” or “intentional”

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