In football there is a fifteen-yard penalty for unnecessary roughness, in hockey the penalty box, in basketball technical/intentional fouls, and in soccer a yellow or even red card. But what happens when an act within a sporting event causes damages outside of the sporting area?

One option is to sue. These cases are comparatively rare in Texas jurisprudence, but they do happen. The standard of care, however, remains an unsettled area of law.

The most recent case on this, Orville Paul Dunagan v. Bryan Patrick Coleman, issued by the Dallas Court of Appeals tried to bring some harmony to the issue. 427 S.W.3d 552 (Tex. App. – Dallas 2014, no pet.)

This case concerned an injury that occurred in a warm-up to a slow pitch softball game. As Coleman and Dunagan warmed up, Dunagan threw a series of underhanded pitches which Coleman caught and threw back. Dunagan then pitched a couple of overhand curve balls. After a few more pitches, Coleman testified that, Dunagan then threw a hard rising fast ball that hit Coleman in the mouth and caused significant injuries.

Coleman brought this suit against Dunagan alleging negligence and gross negligence. Dunagan sought traditional summary judgment on Coleman’s claim for negligence contending the ordinary care standard did not apply to the inherent risks associated with playing sports. Dunagan also moved for a no evidence summary judgment on Coleman’s claim for gross negligence arguing there was no evidence of an extreme degree of risk or that he acted with an awareness of an extreme degree of risk and proceeded with a conscious indifference to Coleman’s rights, safety, or welfare. The trial court granted summary judgment in favor of Dunagan as to Coleman’s gross negligence claim.

Connell v. Chrismon

Prior to the Dunagan decision, Connell and Chrismon provided dueling standards for the duty of care for injuries that occur during a sporting event.

In describing these two cases in Dunagan, the Dallas Court of Appeals wrote:

In Connell v. Payne, this Court held that a mere showing of negligence was insufficient to allow recovery for an injury occurring as a result of participation in a sports activity. See Connell v. Payne, 814 S.W.2d 486, 488 (Tex.App.-Dallas 1991, writ denied). We held that, to prevail, the plaintiff must prove the defendant acted “recklessly” or “intentionally” as those terms are defined by the Restatement of Torts. Id. at 489. The rationale supporting this alternative standard is that the ordinary negligence standard of care cannot apply without placing an unreasonable burden on free and vigorous participation in sports. See Moore, 10 S.W.3d at 660. After Connell, many other Texas appellate courts adopted the same “reckless or intentional” standard. See Monk v. Phillips, 983 S.W.2d 323, 325 (Tex.App.-Fort Worth 1998, pet. denied); Moore v. Phi Delta Theta Co., 976 S.W.2d 738, 743 (Tex.App.-Houston [1st Dist.] 1998, pet. denied); Greer v. Davis, 921 S.W.2d 325, 327 (Tex.App.-Corpus Christi 1996, writ denied); Hathaway v. Tacosa Country Club, Inc., 846 S.W.2d 614, 617 (Tex.App.-Amarillo 1993, no writ); Allen v. Donath, 875 S.W.2d 438, 440 (Tex.App.-Waco 1994, writ denied).

In 2007, the 14th District Court of Appeals in Houston issued its opinion in Chrismon v. Brown, 246 S.W.3d 102 (Tex.App.-Houston [14th Dist.] 2007, no pet.) adopting the inherent risk standard suggested in 1999 by Justice Enoch. See Moore, 10 S.W.3d 658. The court concluded that the Connell standard was overly broad because it appeared to eliminate the duty of ordinary care even as to conduct that created risks not inherent in the sport. Id. at 111. The court then set out its own standard stating that, if the risk that resulted in the plaintiff’s injury was “inherent in the nature of the sport in which the plaintiff chose to participate,” then the participant-defendant owed the plaintiff “no negligence duty.” Id. If, however, the risk that resulted in plaintiff’s injury was not inherent in the nature of the sport in question, then the defendant owed the plaintiff an ordinary “negligence duty.” Id. at 112. Finally, the court stated that, regardless of whether the risk was inherent in the sport, the defendant owed the plaintiff a duty “not to engage in gross negligence or intentional conduct causing injury.” Id.

The facts of the Dunagan case did not require the Dallas Court of Appeals to resolve the issue. Instead, because the injury occurred within the scope of the game, the Dallas Court of Appeals wrote:

Because the Connell standard applies only to risks that are “involved in,” or “built into” the sport at issue, there is no distinction between Chrismon and Connell with respect to the scope of conduct and risks covered. For those risks, and those risks only, there is no duty of ordinary care.

Accordingly, the Dunagan decision has clarified that there is no duty of ordinary care for injuries that are “involved in” or “built into” the specific sport.

In an overlooked part of this opinion, the Court held “that being struck by a ball thrown by a fellow participant while engaging in the sport of softball is, from an objective standpoint, an inherent risk of the game.” In other words, the cause of Coleman’s injury was not the overhanded fastball thrown to a player warming up for a slow-pitch underhanded softball game. Instead, Coleman was merely struck by a ball thrown by a fellow player. The result of the Dunagan decision is likely to be that cases such as this one will be decided on the issue of whether the injury-producing event was “built into” or even more problematically “involved in” the underlying sport.  This means that such cases will now likely require expert testimony about whether the injury was “involved in” or “built into” the sport.