concurring in part and dissenting in part.
{¶ 50} I concur in the majority’s disposition of appellant’s first assignment of error: no cause of action for negligence is possible in this case. However, based on the decision of the Supreme Court of Ohio in Topola v. Wisniewski (1990), 55 Ohio St.3d 30, 562 N.E.2d 891, reversing that of the Eighth District Court of Appeals in Topola v. Wisniewski (Apr. 5, 1990), 8th Dist. No. 56735, 1990 WL 40268, I would affirm the trial court on the second assignment of error.
{¶ 51} In Topola, the appellant, the catcher, and his wife brought an action for personal injuries and loss of consortium based on alleged recklessness of appellee (the base runner) during a company league softball game. Id. at *1-3. The legally significant facts are indistinguishable from those presented by the case before us:
{¶ 52} “The plaintiff testified that he was the catcher for his team during the game. His injury occurred during a play at the plate with the defendant who was a base runner advancing from third base on an apparent sacrifice fly ball. The plaintiff testified that on the play the batter hit to right field. The right fielder threw the ball to the plaintiff and the defendant then headed for home plate. The plaintiff testified that the defendant was approximately 30 feet from home plate when he caught the ball. He stated that he caught the ball two feet from home plate on the third base side and then straddled the base line in order to tag the runner out. The plaintiff claimed that the defendant, rather than slowing down, accelerated his pace. A couple of feet from the plaintiff, the defendant leaped into the air feet first, and with a karate-kick like motion, drove his feet into the plaintiffs left leg, striking and breaking it between his ankle and knee. The plaintiff claimed that although the defendant struck him feet first, the defendant was not attempting to slide when the contact occurred. He further claimed that league rules required base runners to slide under these circumstances or they would be out.” Topola, 1990 WL 40268, at *1.
{¶ 53} Based on the foregoing facts, the trial court granted the appellee summary judgment on the appellant’s recklessness claim. Topola at *1. The Eighth District reversed and remanded on the authority of the Ninth District Court of Appeal’s decision in Marchetti v. Kalish (June 21, 1989), 9th Dist. No. 13890, 1989 WL 69726: the case underlying the Supreme Court of Ohio’s decision in Marchetti, 53 Ohio St.3d 95, 559 N.E.2d 699. Topola at *3. It held that there was a genuine issue of material fact as to whether the appellee’s alleged failure to follow the league rule prohibiting running into a catcher, rather than sliding into him or her, was reckless. Id. at *3.
{¶ 54} The Supreme Court of Ohio granted a motion to certify the record in Topola, 1990 WL 40268, and reversed the judgment of the Eighth District on the authority of Marchetti, 53 Ohio St.3d 95, 559 N.E.2d 699, and Thompson, 53 Ohio *697St.3d 102, 559 N.E.2d 705. Topola v. Wisniewski, 55 Ohio St.3d 30, 562 N.E.2d 891.
{¶ 55} In this case, as in the Topola matter, a base runner allegedly failed to observe a rule of the game by running into, rather than sliding into, a catcher already holding the ball for a tag. I would find the decision of the Supreme Court of Ohio in Topola, 55 Ohio St.3d 30, 562 N.E.2d 891, controlling and would hold that appellant failed to state a cause of action for recklessness.
{¶ 56} I respectfully dissent.