Kumar v. Sevastos

[Cite as Kumar v. Sevastos, 2021-Ohio-1885.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

ZACHARY G. KUMAR, ET AL., :

Plaintiffs-Appellants, :
No. 109795
v. :

CONSTANTINE SEVASTOS, ET AL., :

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 3, 2021

Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-18-908930

Appearances:

Paulozzi Co. L.P.A., Todd O. Rosenberg and Joseph G.
Paulozzi, for appellant.

Collins, Roche, Utley & Garner, L.L.C., Ronald J. Ziehm
and Jaren B. Webster, for appellees Lost Nation Sports
Park, L.L.C. and Lost Nation Sports Park.

Law Offices of Craig S. Cobb and Craig S. Cobb, for
appellees Constantine Sevastos, Constantine Sevastos and
Christine A. Sevastos.
EILEEN A. GALLAGHER, J.:

Zachary Kumar appeals the judgments of the Cuyahoga County Court

of Common Pleas that granted summary judgment in favor of Constantine Sevastos,

his parents Constantine and Christine Sevastos and Lost Nation Sports Park, L.L.C.

Kumar alleged that during a January 2017 indoor soccer game at Lost Nation,

Sevastos the younger illegally slide tackled him, causing him to collide with what he

claimed was an improperly placed padded boundary wall, as a result of which he

sustained injuries. The trial court found that Kumar’s “trip and fall” were within the

inherent risks of the game, that Kumar assumed the risks and that Sevastos and his

parents were entitled to summary judgment. The court also found that because the

hazard was open and obvious, Lost Nation owed Kumar no duty. Additionally, the

trial court found Kumar’s claims against Lost Nation were precluded by his

assumption of the risk. Accordingly, the trial court granted Lost Nation summary

judgment. We affirm.

Assignments of Error

Kumar asserts two assignments of error:

1. Defendant-Appellee, Lost Nation Sports Park, L.L.C., Is Liable for
Defective/Reckless Design Of The Wall Given The Attendant
Circumstances Rendering The Wall Unsafe.

2. Primary Assumption Of Risk Does Not Apply To An Illegal Slide-
Tackle.

Background

Kumar began playing soccer when he was approximately three years

old, playing both indoors and outdoors. At the time of his deposition, he was 19
years old and preparing to begin his sophomore year in college after being recruited

to play collegiate soccer.

At the time of his January 2017 injury at Lost Nation, Kumar had been

playing indoor soccer for approximately ten years, having played at Lost Nation for

“about three or four” of them. Kumar was familiar with Lost Nation. He had played

there a “dozen” times. More specifically, Kumar was familiar with the particular

boundary wall with which he collided and sustained injury. The wall was padded

and located approximately four feet beyond the goal line. Kumar testified that he

personally had come into contact with this wall in the past and had observed other

players come into contact with it with force sufficient to cause them to hit the ground

after collision.

More generally, Kumar testified that soccer is a physical sport.

Players can suffer concussions and surgery-requiring injuries. It is common for

players to get kicked and it is common for them collide with both opponents, as well

as members of their own team, often in pursuit of the ball. Moreover, players use

their own bodies to shield the ball from opponents, further exposing themselves to

potential injury. Tripping and falling during gameplay frequently occurs. During

his deposition, Kumar could not recall a single game he played since high school

where he did not end up on the ground at least once and he agreed it is fair to assume

that at some point during a game, every player will end up on the ground for one

reason or another.
 Kumar explained that different kinds of tackles occur during

gameplay, including slide tackles, agreeing that they are “fairly common”

occurrences. He stated that it is “impossible” to avoid physical contact with another

player.

Kumar also testified that a “50-50 ball” occurs where “[t]wo players

going at a loose ball” and are “trying to battle, like physically contact each other, to

win the ball” and that this situation happens “[a] lot.”

Kumar explained what is meant by shielding:

You — you either try — you just try to shield the ball from the opponent,
like with your back facing towards him so he can’t get the ball, because
if he tries to go through you or anything it’s considered a foul.

Kumar agreed that when shielding happens “you’re going at a good pace, and the

other play is also running all-out.” Physical contact is inevitable. Kumar explained

that in a game he does this “[a]ll the time.”

Kumar stated that indoor soccer differs from outdoor soccer to the

extent that playing indoors involves “probably a little less of the physical aspect” and

“a lot less slide tackling.” Regarding slide tackling during indoor games, Kumar

testified that “we’re not allowed to do it much, the refs have yelled at us about it

before, I know, I can recall.” He confirmed that slide tackling nevertheless does

occur during indoor games and, moreover, he has witnessed it happen. More

specifically, Kumar stated that he has observed slide tackling during indoor games

prior to his January 2017 injury at Lost Nation, including during the very game in

which he was hurt.
 Kumar was asked whether he read any specific soccer rulebook and

he responded that he read “the FIFA, ten laws of the game” “like six, seven years

ago.” Kumar stated with regard to Lost Nation “I think they limit the slide tackling

because of the space of the wall. * * * Like slide tackling is not a big thing there

because of the walls. And then, they try to keep it on the safer side, because the area

is so tight, just anything that could potentially harm a player they try to keep limited,

like compared to outdoor soccer.” Kumar made no reference to rules of “Amateur

and Youth Indoor Soccer.” Kumar stated that he never read the US Indoor Soccer

Rules prior to the injury and that he had not read them subsequent to it. He stated

that he did read “the original ten laws of FIFA” and that he thought there was one of

the laws that pertained to tackling, but didn’t know which one, explaining, “I forget.”

Kumar confirmed that, before he was injured at Lost Nation, he knew

he was playing in close proximity to boundary walls and that he knew they were

padded “because of the risk of people running into the walls.”

As related more specifically to his injury, Kumar testified that he did

not previously know Sevastos and had not played against him. Kumar explained

that his injury occurred when the game was tied with approximately two minutes

remaining in the game at Lost Nation. Although Kumar generally described that

game as “rougher than usual” and stated that there was “a lot of fouls going around”

on both sides, prior to the injury, he did not remember having any physical contact

with Sevastos. There were no disagreeable words between the two and there was no

pushing or shoving. Nevertheless, Kumar recalled during the game observing slide
tackles involving other players in addition to players pushing each other and players

getting tripped and falling.

Kumar explained that in the leadup to his injury he was running

towards a loose ball that was between himself and the boundary wall. He attempted

to shield the ball and in so doing stepped in front of Sevastos, who was also

attempting to get the ball. Kumar stepped into Sevastos’ path of travel, putting

himself between the ball and Sevastos. Kumar described his recollection of the

events leading up to his collision with the boundary and subsequent injury:

[I]t was a 50-50 ball going to my goalkeeper, and I saw the — one of the
opponents, I didn’t know who it was exactly, but like running towards
him, so I started sprinting back and running, trying to beat him to that
50-50 ball, shield him from my goalkeeper so he could get it safely. But,
as I was slowing down, I felt like the side of a — side of a shoe,
something, clip my back heel, and then I just stumbled and rammed
my head straight into the wall.

Kumar clarified that he did not stumble into the wall, but rather “went

straight into it,” carried by his momentum. There was no foul called on the play.

Summary Judgment Standard

This court reviews a trial court’s ruling on a motion for summary

judgment de novo, applying the same standard as the trial court. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). We accord no deference

to the trial court’s decision and independently review the record to determine

whether summary judgment is appropriate.

Under Civ.R. 56, summary judgment is appropriate when no genuine

issue exists as to any material fact and, viewing the evidence most strongly in favor
of the nonmoving party, reasonable minds can reach only one conclusion that is

adverse to the nonmoving party, entitling the moving party to judgment as a matter

of law.

On a motion for summary judgment, the moving party carries an

initial burden of identifying specific facts in the record that demonstrate entitlement

to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d

264 (1996). If the moving party fails to meet this burden, summary judgment is not

appropriate; if the moving party meets this burden, the nonmoving party must then

point to evidence of specific facts in the record demonstrating the existence of a

genuine issue of material fact for trial. Id. at 293. If the nonmoving party fails to

meet this burden, summary judgment is appropriate. Id.

Sevastos Summary Judgment

It is well-established that a participant in a sport or recreational

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

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

Craycraft, 101 Ohio St.3d 141, 2004-Ohio-379, 802 N.E.2d 1116, ¶ 6; Thompson v.

McNeill, 53 Ohio St.3d 102, 559 N.E.2d 705 (1990); see also Barakat v. Pordash,

164 Ohio App.3d 328, 2005-Ohio-6095, 842 N.E.2d 120, ¶ 10 (8th Dist.) (“This rule

is premised upon the doctrine of primary assumption of the risk and is based on the

rationale that participant in a sport or recreational activity accepts the inherent risks

associated with the sport or activity.”). “Thus, a participant who injures another

participant in the course of a sporting activity 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.” Barakat at ¶ 11, citing Thompson at

104.

In this case, Kumar does not argue that Sevastos intentionally injured

him. Instead, he confines his arguments to the claim that Sevastos’ action was

reckless.

An actor’s conduct is “reckless” when “‘he does an act or intentionally

fails to do an act 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.’”

Marchetti v. Kalish, 53 Ohio St.3d 95, 96, 559 N.E.2d 699 (1990), fn. 2, quoting

Restatement of the Law 2d, Torts Section 500 (1965).

“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.” Thompson v. McNeill, 53 Ohio St.3d 102, 105, 559

N.E.2d 705 (1990). In Thompson, the Supreme Court further explained:

We cannot provide a single list of actions that will give rise to tort
liability for recklessness or intentional misconduct in every sport. The
issue can be resolved in each case only by recourse to the rules and
customs of the game and the facts of the incident. In general * * * the
quid pro quo of an “assumed greater risk” is a diminished duty. Thus,
participants in bodily contact games such as basketball (and lacrosse)
 owe a lesser duty to each other than do golfers and others involved in
non-physical contact sports.

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.

Id.

This court has previously observed that an ‘“inverse relationship

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

inherent danger of the sport falls.’” Barakat v. Pordash, 164 Ohio App.3d 328,

2005-Ohio-6095, 842 N.E.2d 120, ¶ 14 (8th Dist.), quoting Levine v. Gross, 123

Ohio App.3d 326, 330, 704 N.E.2d 262 (9th Dist. 1997). Moreover, multiple courts

have determined that soccer is a “high-contact sport.” Draut v. Van As, 12th Dist.

Butler No. CA99-07-131, 2000 Ohio App. LEXIS 2047, at *7 (May 15, 2000), citing

Nganga v. College of Wooster, 52 Ohio App.3d 70, 72, 557 N.E.2d 152 (9th Dist.

1989), and Bentley v. Cuyahoga Falls Bd. of Edn., 126 Ohio App.3d 186, 190-92,

709 N.E.2d 1241 (9th Dist.1998).

As previously discussed, Kumar was aware that soccer is a physical

sport and he knew that injuries, including serious injuries, could result. Further, as

Kumar testified, slide tackling does occur during indoor soccer games. Regardless

of whether slide tackling occurs more infrequently during indoor gameplay than it

does during outdoor gameplay and, despite a rule proscribing it, it nevertheless
occurs indoors and Kumar was aware of this. Moreover, Kumar observed slide

tackling during the game in which he was injured. As such, it was entirely

foreseeable that Kumar might get slide tackled. See Barakat v. Pordash, 164 Ohio

App.3d 328, 2005-Ohio-6095, 842 N.E.2d 120, ¶ 11 (8th Dist.) (“Thus, a participant

who injures another participant in the course of a sporting activity 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.”).

Here, as alleged by Kumar, Sevastos “slide tackled [him] in violation

of the rules of Amateur and Youth Indoor Soccer.” The gravamen of Kumar’s claim

against Sevastos is that Kumar’s slide tackle was reckless because it was the violation

of a safety rule.

Assuming this allegation is true, this rule violation,1 by itself, is an

insufficient basis by which to attach liability. See Draut at *6, citing Bentley at 192

(“Violation of a rule is only one part of the inquiry and a rule violation must be

analyzed as to whether such a penalty would be a foreseeable part of the particular

sport.”). Determining whether recklessness has occurred requires consideration of

whether the specific conduct was both within the rules and foreseeable. Doody v.

Evans, 188 Ohio App.3d 479, 2010-Ohio-3523, 935 N.E.2d 926, ¶ 25 (10th Dist.),

1We note that although Kumar alleges that slide tackling is barred by a specific
indoor rule and that it is a foul when it occurs, he does not allege that it constitutes
conduct grave enough to warrant serious consequences like ejection from the current
game or suspension from subsequent games. Moreover, we note that Kumar admitted
that there was no foul called on Sevastos for his conduct that resulted in Kumar’s injury.
quoting Bentley at 192 (“Ohio law has not abandoned an inquiry into

foreseeability.”).

To prove that Sevastos’ rule violation which resulted in Kumar’s

injury was reckless, Kumar was required to establish that it was not foreseeable. See

Thompson v. McNeill, 53 Ohio St.3d 102, 105, 559 N.E.2d 705 (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 Doody at ¶ 35 (“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, 53 Ohio St.3d 102, 105, 559 N.E.2d 705 (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.”).

We find Sevastos is entitled to summary judgment.

Lost Nation Summary Judgment

To establish actionable negligence, a plaintiff must show the existence

of a duty, a breach of that duty and resulting proximate injury. Mussivand v. David,

45 Ohio St.3d 314, 318, 544 N.E.2d 265 (1989). In the context of a negligence claim,

duty is the threshold issue. See Armstrong v. Best Buy Co., 99 Ohio St.3d 79, 2003-
Ohio-2573, 788 N.E.2d 1088, ¶ 13. Where there is no duty, there can be no

negligence.

Here, there is no dispute that Kumar was an invitee of Lost Nation.

An invitee is a person who enters another’s property by invitation, express or

implied, for a purpose beneficial to the property owner. Light v. Ohio Univ., 28 Ohio

St.3d 66, 68, 502 N.E.2d 611 (1986). The owner owes a duty to “exercise ordinary

care and to protect the invitee by maintaining the premises in a safe condition.” Id.,

citing Presley v. Norwood, 36 Ohio St.2d 29, 31, 303 N.E.2d 81 (1973); see also

Motes v. Cleveland Clinic Found., 8th Dist. Cuyahoga No. 97090, 2012-Ohio-928,

¶ 9 (“[I]n the absence of proof that the owner or its agents created the hazard, or that

the owner or its agents possessed actual or constructive knowledge of the hazard, no

liability may attach.”).

Nevertheless, under the open-and-obvious doctrine, an owner does

not owe invitees a duty to warn of dangers that are open and obvious and, when

applicable, operates as a complete bar to any negligence claims. Armstrong v. Best

Buy Co., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 5; see also Simmers

v. Bentley Constr. Co., 64 Ohio St.3d 642, 644, 1992-Ohio-42, 597 N.E.2d 504

(“[T]he open and obvious nature of the hazard itself serves as a warning.”). The

open-and-obvious doctrine emphasizes the nature of the dangerous condition itself,

rather than the nature of the plaintiff’s conduct in encountering it. Armstrong at

¶ 13. “[I]t is the fact that the condition itself is so obvious that it absolves the

property owner from taking any further action to protect the plaintiff.” Id.
 Here, assuming that the boundary wall with which Kumar collided

was a hazard, it was one that was open and obvious. Kumar makes no claim that the

wall was somehow not visible or otherwise obscured. To the contrary, Kumar, who

was admittedly familiar with Lost Nation, having played there a dozen times prior

to the injury, was acutely aware of this particular boundary wall. He previously

observed other players collide with the wall and had similarly done so himself. See

Scott v. Harrisburg Petro., L.L.C., 10th Dist. Franklin No. 19AP-413, 2020-Ohio-

3431, ¶ 7, quoting Freiburger v. Four Seasons Golf Ctr., L.L.C., 10th Dist. Franklin

No. 06AP-765, 2007-Ohio-2871, ¶ 11 (“The question is whether the material facts

demonstrate ‘whether the danger was free from obstruction and readily appreciated

by an ordinary person.’”). Because the boundary wall was open and obvious Lost

Nation did not owe Kumar any duty and Kumar’s claim against Lost Nation is

accordingly barred. See Armstrong at ¶ 5.

Kumar argues that the open-and-obvious doctrine does not apply

here because of the presence of attendant circumstances, i.e., “the distraction of the

slide[ ]tackle” and the boundary wall design and placement. “Attendant

circumstances can create an exception to the open and obvious doctrine and render

summary judgment inappropriate.” Hatto v. McLaughlin, 8th Dist. Cuyahoga No.

109307, 2020-Ohio-3374, ¶ 33, quoting Carter v. Forestview Terrace L.L.C., 2016-

Ohio-5229, 68 N.E.3d 1284, ¶ 18 (8th Dist.). Attendant circumstances include “‘any

significant distraction that would divert the attention of a reasonable person in the

same situation and thereby reduce the amount of care an ordinary person would
exercise to avoid an otherwise open and obvious hazard.’” Carter at ¶ 18, quoting

Haller v. Meijer, Inc., 10th Dist. Franklin No. 11AP-290, 2012-Ohio-670, ¶ 10; see

also Strevel v. Fresh Encounter, Inc., 4th Dist. Highland No. 15CA5, 2015-Ohio-

5004, ¶ 22, quoting Hudspath, v. Cafaro, Co., 11th Dist. Ashtabula No. 2004-A-

0073, 2005-Ohio-6911, ¶ 19 (“attendant circumstances include distractions that

divert an ordinary person’s attention and provide a justifiable reason for the failure

to perceive the otherwise open and obvious peril.”), but see Stewart v. AMF Bowling

Ctr., Inc., 3d Dist. Hancock No. 5-10-16, 2010-Ohio-5671, ¶ 15 (“[A]ttendant

circumstances do not include any circumstance existing at the moment of a fall,

unless the individual was distracted by an unusual circumstance created by the

property owner.”).

Sevastos’ slide tackle was not an attendant circumstance that created

an exception to the open-and-obvious doctrine. Kumar did not focus his attention

on the slide tackle rather than the boundary wall. See Carter, at ¶ 18. The slide

tackle did not divert Kumar’s attention or otherwise cause him to fail to perceive the

wall. See Strevel at ¶ 22. To the contrary, and as explained by Kumar, he was

running towards the wall, attempting to intercept the loose ball when he felt

Sevastos “clip the back of [his] heel,” which caused him to lose his balance and trip

and fall “straight into [the wall].” Sevastos’ slide tackle thus did not distract Kumar’s

attention away from the wall; but rather, it redirected the trajectory of Kumar’s body

into the wall.
 The padded boundary wall is not an attendant circumstance that

created an exception to the open-and-obvious doctrine. There is no evidence that

the wall was a distraction that would divert a reasonable person’s attention from

perceiving an otherwise open and obvious peril. See Hatto at ¶ 33. Moreover, there

is no indication that Kumar himself was distracted by the wall. To the contrary, as

reflected in Kumar’s testimony, he was instead focused on preventing his opponent

from gaining possession of the loose ball.

Kumar argues that the wall’s “negligent safety design” was an

attendant circumstance, claiming that the wall was “designed too close to the field

for safety.” Even assuming that this claim is true, the facts in this case nevertheless

fail to establish that the wall’s proximity to the playing field is an attendant

circumstance. See Carter at ¶ 18, quoting Haller at ¶ 10 (“An ‘attendant

circumstance’ is ‘any significant distraction that would divert the attention of a

reasonable person in the same situation and thereby reduce the amount of care an

ordinary person would exercise to avoid an otherwise open and obvious hazard.’”).

Accordingly, summary judgment for Lost Nation is warranted.

We overrule the assignments of error.

Judgment affirmed.

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

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said 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.

_________________________
EILEEN A. GALLAGHER, JUDGE

MARY J. BOYLE, A.J., and
LISA B. FORBES, J., CONCUR