[Cite as Austin v. Miami Univ., 2013-Ohio-5925.]



                                                        Court of Claims of Ohio
                                                                                       The Ohio Judicial Center
                                                                              65 South Front Street, Third Floor
                                                                                          Columbus, OH 43215
                                                                           {¶1} 614.387.9800 or 1.800.824.8263
                                                                                      {¶2} www.cco.state.oh.us




EMILY AUSTIN

       Plaintiff

       v.

MIAMI UNIVERSITY

     Defendant
Case No. 2013-00078-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                         FINDINGS OF FACT
        {¶1}    1)       On November 9, 2012 at approximately 7:00 p.m., plaintiff, Emily
Austin, suffered personal injury during pre-game warm ups prior to an intercollegiate
hockey game at the ice arena located on the campus of defendant, Miami University
(“M.U.”). Plaintiff stated during pre-game warm ups “a puck left the ice and struck her in
the head.”
        {¶2}    2)       Plaintiff contended defendant should bear liability for the medical
expenses she incurred after being struck by a hockey puck during the pre-game warm
ups prior to a game at the M. U. Ice Arena.                         Also, in the complaint plaintiff
acknowledges she maintains health insurance with a $200.00 deductible provision and
admitted she has received $600.00 from her insurer1 “as a result of the described

        1
            R.C. 2743.02(D) states:
          “(D) Recoveries against the state shall be reduced by the aggregate of insurance proceeds,
disability award, or other collateral recovery received by the claimant. This division does not apply to civil
actions in the court of claims against a state university or college under the circumstances described in
section 3345.40 of the Revised Code. The collateral benefits provisions of division (B)(2) of that section
Case No. 2013-00078-AD                              -2-                   MEMORANDUM DECISION



incident above.” The filing fee was paid.
        {¶3}     3)       Defendant denied liability in this claim based on the contention
plaintiff assumed the risk of being struck by a hockey puck when she attended the
November 9, 2012 hockey game, thereby constituting a complete bar to recovery as a
matter of law.
        {¶4}     4)       Defendant noted that M.U.’s “hockey arena is protected by 8'
boards and end zone nets equal to or greater than the standard hockey arenas.” Also,
defendant “makes public announcements during hockey games warning spectators to
remain alert for flying pucks.” Finally, M.U. asserted the plaintiff assumed the risk by
attending the hockey game and any injury she suffered was not due to the negligence of
defendant.
        {¶5}     5)       Plaintiff filed a response to defendant’s investigation report stating
her injury occurred during warm ups prior to the game.
                                            CONCLUSIONS OF LAW
        {¶6}     1)       Primary assumption of the risk is a defense generally applied in
cases where there is a lack of duty owed by the defendant to plaintiff and is a complete


apply under those circumstances.”
          R.C. 3345.40(B)(2) states:
          “(B) Notwithstanding any other provision of the Revised Code or rules of a court to the contrary, in
an action against a state university or college to recover damages for injury, death, or loss to persons or
property caused by an act or omission of the state university or college itself, by an act or omission of any
trustee, officer, or employee of the state university or college while acting within the scope of his
employment or official responsibilities, or by an act or omission of any other person authorized to act on
behalf of the state university or college that occurred while he was engaged in activities at the request or
direction, or for the benefit, of the state university or college, the following rules shall apply:
          “(2) If a plaintiff receives or is entitled to receive benefits for injuries or loss allegedly incurred
from a policy or policies of insurance or any other source, the benefits shall be disclosed to the court, and
the amount of the benefits shall be deducted from any award against the state university or college
recovered by the plaintiff. No insurer or other person is entitled to bring a civil action under a subrogation
provision in an insurance or other contract against a state university or college with respect to such
benefits. Nothing in this division affects or shall be construed to limit the rights of a beneficiary under a
life insurance policy or the rights of sureties under fidelity or surety bonds.”
Case No. 2013-00078-AD                   -3-                MEMORANDUM DECISION



bar to recovery. Anderson v. Ceccardi, 6 Ohio St. 3d 110, 114, 45 N.E. 2d 780 (1983).
“In that form, while there is a knowledge of the danger and acquiescence in it on the
part of plaintiff, there is also no duty owed by defendant to plaintiff.” Willoughby v.
Harrison Radiator Div. of General Motors Corp., 2nd Dist. No. 11225 (May 11, 1989).
This type of assumption of the risk is typified by the baseball cases where a plaintiff is
injured when a baseball is hit into the stands.      Anderson, at 114, citing Cincinnati
Baseball Club Co. v. Eno, 112 Ohio St. 175, 147 N.E. 86 (1925).
       {¶7}   2)     Also, it has been determined, under the doctrine of primary
assumption of the risk, that an individual injured while engaged in a recreational activity
is generally barred from recovery because she is presumed to have assumed the
ordinary risks of that activity unless it can be proved another individual acted recklessly
or intentionally in causing the injury claimed. Marchetti v. Kalish, 53 Ohio St. 3d 95, 559
N.E. 2d 699 (1990); Gentry v. Craycraft, 101 Ohio St. 3d 141, 2004-Ohio-379, 802 N.E.
2d 1116. The doctrine of primary assumption of the risk serves to remove liability for
mere negligence under the circumstances involving recreational activity injuries. The
trial court applied a three-part test for primary assumption of the risk set forth in
Gallagher v. Cleveland Browns Football Co., Inc., 93 Ohio App. 3d 449, 638 N.E. 2d
1082 (8th Dist. 1994), reversed on other grounds, 74 Ohio St. 3d 427, 1996-Ohio-320,
659 N.E. 2d 1232. The test requires that: 1) the danger is ordinary to the game; 2) it is
common knowledge that the danger exists; and 3) the injury occurs as a result of the
danger during the course of the game.
       {¶8}   3)     It is well settled that spectators attending baseball games who are
injured by batted balls flying into the stands are denied recovery based on the primary
assumption of the risk doctrine. The following standard was enunciated in Cincinnati
Baseball Club Co., in regard to the spectators assumption of the risk at a baseball
game. “The consensus of *** opinions is to the effect that it is common knowledge that
Case No. 2013-00078-AD                     -4-                 MEMORANDUM DECISION



in baseball games hard balls are thrown and batted with great swiftness, that they are
liable to be thrown or batted outside the limits of the diamond, and that spectators in
positions which may be reached by such balls assume the risk thereof” at 180-181.
Furthermore, in Borchers v. Winzler Excavating Co., 83 Ohio App. 3d 268, 273, 614
N.E. 2d 1065 (2nd Dist. 1992), the court stated:        “In baseball games, management
performs its duty towards spectators when it provides screened seats in the grandstand
and gives spectators the opportunity of occupying them.” Cincinnati Baseball Club.
       {¶9}   4)     “The nature of the sporting activity is highly relevant in defining the
duty of care owed by a particular defendant: ‘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
participant’s ideas of foreseeable conduct in the course of the game.’” Bundschu v.
Naffah, 147 Ohio App. 3d 105, 112, 2002-Ohio-607, 768 N.E. 2d 1215 (citation omitted).
Any analysis of primary assumption of the risk turns on whether or not the injured
spectator was subjected to risk or hazards that a reasonable participant would or would
not expect to encounter in the particular sporting activity.
       {¶10} 5)      In reference to the instant claim, the court can find no different
between baseball and hockey when applying the doctrine of primary assumption of the
risk to spectators who are injured by flying objects leaving the area of play and entering
the stands. Whether the spectator is hit by a flying puck or a flying baseball, the
situations are analogous when applying the law. There is no obligation on the part of
the operator of a hockey game such as M.U. to protect a spectator against being hit by
a flying puck, a danger incident to the entertainment, which any reasonable spectator
could and did foresee. Evidence has shown defendant did take measures by erecting
glass and boards around the perimeter of the Ice Arena to provide some safety to
spectators from errant pucks. Nevertheless, pucks do enter the stands; an inherent risk
Case No. 2013-00078-AD                 -5-              MEMORANDUM DECISION



in the game of hockey, which is common, expected, and frequent. The baseball rule of
primary assumption of the risk is applicable to hockey.      See Nungester v. Risk
Management, 2007-03196-AD, 2008-Ohio-1214.         The facts of the instant action
establish the danger of flying pucks was so open and obvious to plaintiff that she
assumed the risk of injury therefrom. Consequently, plaintiff’s claim is denied since
defendant owed her no duty to protect her from the known danger presented.
[Cite as Austin v. Miami Univ., 2013-Ohio-5925.]


                                                   Court of Claims of Ohio
                                                                          The Ohio Judicial Center
                                                                  65 South Front Street, Third Floor
                                                                             Columbus, OH 43215
                                                                   614.387.9800 or 1.800.824.8263
                                                                              www.cco.state.oh.us




EMILY AUSTIN

        Plaintiff

        v.

MIAMI UNIVERSITY

        Defendant

Case No. 2013-00078-AD

Deputy Clerk Daniel R. Borchert


ENTRY OF ADMINISTRATIVE DETERMINATION


        Having considered all the evidence in the claim file and, for the reasons set forth
in the memorandum decision filed concurrently herewith, judgment is rendered in favor
of defendant. Court costs are assessed against plaintiff.



                                                    ________________________________
                                                    DANIEL R. BORCHERT
                                                    Deputy Clerk

Entry cc:

Emily Austin                                        David K. Creamer, Vice President for
215 Jeniford Road                                   Finance and Business Services
Fairfield, Connecticut 06824                        Miami University
                                                    218 Roudebush Hall
                                                    Oxford, Ohio 45056
DRB/laa
filed 8/13/13
sent to S.C. Reporter 1/30/14
