Brian K. Hanson is plaintiff-appellant herein and William Kynast is defendant-appellee.
On May 1, 1982, Hanson sustained paralyzing injuries while playing in a lacrosse game for Ohio State University ("OSU") against Ashland University. With some four minutes remaining in the game, at Ashland, Roger Allen, an OSU teammate of Hanson, intercepted a pass and scored a goal. As Allen was scoring, he was "body-checked" from behind by an Ashland defender, Kynast. Allen fell and Kynast allegedly lingered over Allen, taunting him. Hanson, apparently unobserved by Kynast, grabbed Kynast from the side or back and held him in a bear hug. Kynast immediately twisted and flipped Hanson over his (Kynast's) back, with Hanson's head striking the ground. The evidence is undisputed that appellant Hanson sustained his injury upon impact with the ground.
On December 13, 1983, Hanson filed an amended complaint in the Court of Common Pleas of Ashland County against Kynast, Ashland University, Bachrach-Rasin, Inc. and Stall Dean Manufacturing Company, Inc. (Hanson claimed these latter two parties were negligent in the design of lacrosse equipment. Neither of these two parties is part of the instant appeal.)
Ashland University filed a motion for summary judgment which was granted on November 16, 1984. The trial court held that no agency relationship existed between Kynast and Ashland University, and that the university did not have a legal duty to have an ambulance at the game. (It was alleged by Hanson that the failure of the university to provide timely medical attention to him contributed to his injury.)
In a split decision filed June 3, 1985, this court reversed the judgment of the trial court, stating that genuine issues of fact existed as to the university's potential liability. The Ohio Supreme Court reversed this court in a July 2, 1986 opinion, holding the trial court correctly granted summary judgment in favor of Ashland University. Hanson v. Kynast (1986), 24 Ohio St.3d 171, 24 OBR 403, 494 N.E.2d 1091.
Shortly after Ashland University filed for summary judgment, Kynast *Page 59 also did so. However, Kynast's motion was stayed pending resolution of the university's motion and the appeal resulting therefrom. On October 8, 1986, the trial court issued a lengthy opinion granting summary judgment to Kynast. The basis of the trial court's opinion was that Hanson had assumed the risk of any possible injury to himself when he grabbed Kynast, to wit:
"We would believe and so find from plaintiff's own testimony that his action in grabbing the defendant in the manner that he did precipitated and was the cause of his resultant injury. We would further find that there was no activity on the part of the defendant which would justify the grabbing of the defendant, as was done in this case, any more than the emptying of the benches in any of our national sports where the players, in the heat of the moment, become engulfed in fisticuffs when they believe a companion to [have been] dealt with unfairly, with the fists and arms flaying madly and people struck and wristled to the ground in groups, or otherwise." (Oct. 8, 1986 opinion of trial court at 2.)
The trial court journalized its order granting summary judgment in favor of Kynast by filing a judgment entry on October 23, 1986 in which it incorporated its October 8, 1986 opinion, as well as the extensive findings of fact and conclusions of law which were filed on November 6, 1984. In its entry of October 23, 1986, the trial court also stated "that there is no genuine issue of material fact as against the defendant, William Kynast" and "that this defendant is entitled to judgment as a matter of law."
Appellant Hanson now raises the following four assignments of error:
Assignment of Error No. I "The trial court committed prejudicial error by awarding summary judgment * * * [to] defendant-appellee based on the trial court's conclusion that no cause of action exists for injuries suffered during an athletic event."
Assignment of Error No. II "The court below committed prejudicial error by awarding summary judgment to defendant-appellee when a conflict of testimony exist[ed] as to all of the facts upon which the trial court relied in awarding said summary judgment and where the court clearly engaged in [a] weighing of [the] evidence in order to award said summary judgment, all contrary to * * * the law of Ohio as established by Ohio Rule of Civil Procedure 56(C) and the case law construing said rule."
Assignment of Error No. III "The trial court committed prejudicial error by incorporating by reference in its opinion and relying upon the findings of fact previously issued by that court on another party's motion for summary judgment."
Assignment of Error No. IV "The trial court committed prejudicial error in granting summary judgment for defendant-appellee Kynast, since the court recognized that a conflict existed in the record before the court but nevertheless granted summary judgment based only on one part of the tripartite test established by Ohio Rule of Civil Procedure 56(C)."
I Under this assigned error, appellant argues that the thrust of the trial court's opinion is that no cause of action exists when an individual participant in a sporting event is injured by another participant.
We believe that appellant seriously misreads the trial court's opinion. Here is the language in question, cited *Page 60 also by appellee in an effort to rebut appellant:
"* * * Understandably, this unique relationship [i.e., between sports and injuries sustained therein] should not extend its immunity to that player whose activity demonstrates a specific and perverse intent to cause physical injury to another separate and apart from the heat of the contest." (Oct. 8, 1986 opinion of trial court at 4.)
What the trial court is saying is that an athlete is not immune from liability for an intentional tort. That is what the court is describing when it states "a specific and perverse intent to cause physical injury."
Put another way, this court understands the trial court to be saying the duty not to commit an intentional tort against another remains intact, even in the heat of battle in a spirited body-contact sport such as lacrosse.
By his own characterization, as reflected in his appellate brief, appellant's first assigned error is "limited to the question of whether a cause of action exists as a matter of legal doctrine in Ohio where one participant in a sporting activity is injured by another."
We believe that a cause of action does exist in such a situation, but only for an intentional tort, i.e., an intentionally inflicted injury not arising out of the ongoing conduct of the sport itself, as herein. For example, if Kynast, five minutes after the game was over, had run across the field and thrown a body block at Hanson, or if Hanson had done the same to Kynast, then an obvious cause of action would exist. However, the facts as presented to the trial court show no element of intent to injure on the part of Kynast. Everyone agrees, including all three courts that have reviewed this tragic injury, that Kynast's action was reflexive and instinctive.
This assignment of error is not well-taken and it is overruled.
II Herein appellant Hanson disputes whether summary judgment was appropriately awarded to his adversary. In reviewing appellant's assigned errors, we believe this one is central to appellant's appeal. This is so because, as in all summary judgment appeals, it is an "all or nothing" decision on the part of this court, whether to allow summary judgment to stand or reverse for a trial on the merits.
Having already held that the only cause of action in the instant situation that can exist (and thus survive a summary judgment motion) is an intentional tort, we must necessarily conclude and rule that summary judgment was appropriate and proper in the case sub judice. Our holding is briefly this: Construing the evidence most strongly in Hanson's favor, we must conclude that no ascertainable duty was breached giving rise to a cause of action. The evidence is not sufficient to support a viable cause of action for an intentional tort and this assignment of error must be overruled.
III This assignment claims error on the part of the trial court in incorporating the findings of fact and conclusions of law rendered on November 6, 1984, with respect to Ashland University's motion for summary judgment, into the instant summary judgment entry. Although we admit this is an unorthodox approach, our ruling on this claim of error is that the incorporation of previous findings of fact and conclusions of law does not bear materially on the trial court's grant of summary judgment herein in favor of Kynast. The incorporation of certain findings of fact and conclusions of law relating to the university are merely superfluous. No prejudice is evident herein. Without their inclusion, the trial court still would have ruled *Page 61 correctly on granting summary judgment to Kynast.
The assignment of error is overruled.
IV By this assignment of error, appellant repeats his attack on the trial court's summary judgment in favor of appellee Kynast. We believe that the trial court found no genuine issue of material fact and said so both in its opinion and judgment entry. This court concurs with the lower court in that regard.
Also, we cannot improve on the statement in appellee's appellate brief that Hanson has been unable "to meet that burden (of showing breach of duty) on a factual basis and a review of the law pertinent to the manner in which this judgment was rendered would support the trial court's ruling unequivocally."
This assignment of error is overruled.
V For the above reasons all four of appellant's assignments of error are overruled and the judgment of the Court of Common Pleas of Ashland County is affirmed.
Judgment affirmed.
TURPIN, J., concurs.
MILLIGAN, P.J., concurs separately.