[Cite as Cameron v. Univ. of Toledo, 2016-Ohio-8142.]




KYLE CAMERON                                            Case No. 2015-00580

       Plaintiff                                        Judge Patrick M. McGrath

       v.                                               DECISION

UNIVERSITY OF TOLEDO

       Defendant



        {¶1} Plaintiff brought this action for personal injuries alleged against the
University of Toledo claiming negligence as well as a violation of R.C. 2307.44, Ohio’s
civil anti-hazing statute. The court denied both parties’ motions for summary judgment.
The case proceeded to trial on June 27-29, 2016. At trial, the parties presented 11 live-
witnesses as well as 4 witnesses by way of deposition and also submitted multiple
documents into evidence.

Statement of Facts
        {¶2} Plaintiff was a freshman football player, recruited and given a scholarship, in
2011, to play for the University of Toledo. As part of an early conditioning process, all
players (freshmen and upperclassmen) reported in June 2011 to the football stadium
and locker facilities for summer conditioning sessions. Additionally, plaintiff was taking
an introductory psychology course and an introduction to collegiate learning course.
The summer sessions included weight training, conditioning drills/running, and
skills/conditioning drills referred to as “metabolics.” These sessions were voluntary, in
that players were not required to attend, as such a requirement would violate NCAA
regulations. Also, as required by the regulations, no coaching staff was present during
the conditioning/skills or “metabolics.”           The freshman players stayed in dormitories
during these summer conditioning sessions. The weight training included all players
Case No. 2015-00580                         -2-                                DECISION


which consisted of over 100 or more, separated into two groups by class year; an early
morning session and a late morning session followed by a lunch break. Later, the
players would go out onto the football field for running/conditioning which was followed
by “metabolics” that were supervised and coordinated by upperclassmen. At the end of
“metabolics” all players left for the day with the exception of some offensive linemen
who lingered after for what has been described in the evidence as “The O-Line
Challenge”; or the “Freshman Olympics.” These “Olympics” were an unscripted series
of contests run by some offensive line upperclassmen for the freshman offensive
linemen (4-6 players), for the purpose of team building, camaraderie, and developing
offensive line unity. They were designed to be fun, comical, and silly in the sense that
the rather large offensive linemen would compete in games that in many ways
resembled children’s play activities all done with accompanying laughter, chiding, and
calling-out by the upperclassmen reacting to the performance, or lack thereof, of the
participants. The games included such things as a dance competition, wheelbarrow
race, bear crawl, worm crawl, the gauntlet, kick a bag, tackle a bag, and a goal post
crossbar dunk.
       {¶3} It is during plaintiff’s attempt to dunk a football over the goal post crossbar
that he received his injuries. Plaintiff did not simply jump up and attempt to reach the
crossbar. He decided to get a running start and step up onto another player’s back and
then leap for the crossbar. He succeeded in catching the crossbar but slipped off,
falling backward to the ground, hitting his head.

Plaintiff’s First Cause of Action: Hazing
       {¶4} Plaintiff’s hazing claim is based on Ohio’s anti-hazing statute, R.C. 2307.44,
which states, in part:

       Any person who is subjected to hazing, as defined in division (A) of
       section 2903.31 of the Revised Code, may commence a civil action for
Case No. 2015-00580                          -3-                                 DECISION


       injury or damages, including mental and physical pain and suffering, that
       result from the hazing.

       * * * If the hazing involves students in a * * * university * * * an action may
       also be brought against any administrator, employee, or faculty member of
       the * * * university * * * who knew or reasonably should have known of
       the hazing and who did not make reasonable attempts to prevent it and
       against the * * * university * * *. (Emphasis added).

       Pursuant to R.C. 2903.31, hazing is defined as:

       * * * [D]oing any act or coercing another, including the victim, to do any
       act of initiation in any student or other organization that causes or
       creates a substantial risk of causing physical harm to any person.
       (Emphasis added).

Affirmative Defense
       {¶5} Under R.C. 2307.44, as applied to University defendants, “it is an affirmative
defense that the * * * university * * * was actively enforcing a policy against hazing at the
time the cause of action arose.”
       {¶6} Defendant asserted the affirmative defense, arguing that it was actively
enforcing an anti-hazing policy at the time of Mr. Cameron’s injury.          It was clearly
established during trial by testimony and submitted exhibits that the University of Toledo
had an anti-hazing policy in effect at the time of the incident and that at least the
upperclassmen involved in the “Olympics” should have been aware of the policy.
       {¶7} Because the existence of an anti-hazing policy would be determinative of
plaintiff’s claim based on the anti-hazing statute, the court first will address the evidence
presented as to that issue.
       {¶8} Michelle Martinez Solis, the Dean of Students at the time of the incident,
testified that there was an anti-hazing policy in effect at the time of the injury. She
testified that members of the football team, as student-athletes, are subject to the
University of Toledo’s Student Code of Conduct and therefore could face discipline
should they violate the student’s anti-hazing policy.
Case No. 2015-00580                           -4-                                 DECISION


        {¶9} The 2010-2011 Student-Athlete Handbook (Defendant’s Ex. F) was
distributed to the football players sometime in early fall of 2011, at the beginning of the
school year. This is demonstrated by Defendant’s Ex. G which contains the signatures
of the players, including plaintiff, acknowledging they received the handbook.           The
“Code of Ethics” found on page 9 of the 2010-2011 Student-Athlete Handbook states
that “Hazing will not be tolerated.” The handbook goes on to define hazing as “the
performing of an act or insisting that another perform an act for initiation which may
cause or create an unnecessary risk to physical or mental health.” The handbook
states that “[s]tudent organizations found in violation of the University hazing policy shall
be subject to the range of sanctions available to the University as outlined in the
Student handbook.”          Further, Article IV, Rule 16 of The Student Code of Conduct
(Defendant’s Ex. H) specifically prohibits “[h]azing or the commission of any act that
causes or creates a substantial risk of causing physical or mental harm to another.”
        {¶10} Plaintiff attempted to refute the defendant’s position that it was enforcing its
anti-hazing policy at the time of the injury through the testimony of several players who
participated in the “Olympics,” including plaintiff. None of the freshman participants
were aware of the school’s anti-hazing policy at the time of plaintiff’s injury.         This
testimony is consistent with the fact that they did not receive the student handbook until
after the injury. Brian Lutz, Associate Athletic Director, confirmed this fact when he
testified that the specific anti-hazing policy with an effective date of February 2011 was
not communicated to students until the beginning of the school year in August 2011,
after plaintiff’s injury.
        {¶11} However, the upperclassmen involved in the “Olympics,” including A.J.
Lindeman and Mike VanDerMeulen, should have been aware of the existence of the
school’s anti-hazing policy.       A year before plaintiff’s injury, these student-athletes
received the 2009-2010 Student-Athlete Handbook (Defendant’s Ex. B) as evidenced by
their signatures. (Defendant’s Ex. C, pg. 135). A.J. Lindeman testified that he was not
Case No. 2015-00580                         -5-                                 DECISION


aware of the existence of an anti-hazing policy at the time of plaintiff’s injury. (Lindeman
Dep., pg. 27). However, the court finds that given his signature acknowledging receipt
of the handbook, he should have been aware. Even if he did not read the handbook,
the school distributed the materials, and also took other measures to ensure that
students were aware of the policy, as explained below. The 2009-2010 Handbook
contained the same anti-hazing policy as the 2010-2011 edition.
       {¶12} Moreover, Ms. Martinez Solis testified that there were several additional
measures the school took to inform the student body about issues related to hazing,
including: an email to the entire student body at the beginning of the school year
explaining what hazing is; an anti-hazing week on campus, and a “myths of hazing”
document used during that week. She addressed the football team directly in the fall
semester. Although she did not specifically speak of hazing or the school’s anti-hazing
policy, she did discuss the Student Code of Conduct and possible repercussions for
violations.
       {¶13} Regarding enforcement of the policy, Ms. Martinez Solis testified that she
took a personal, active role in enforcing the University’s anti-hazing policy, including
three particular incidents (among others that she did not describe in detail) in which she
actively investigated allegations, including the personal investigation of an off-campus
incident that occurred after midnight. She explained that she would come to hear of
alleged incidents of hazing by word-of-mouth, or sometimes by way of a police report.
When she received notice of possible hazing she conducted thorough investigations,
which sometimes resulted in disciplinary measures for individuals and/or organizations.
She testified that she never received any reports of alleged hazing on the football team
or any other sports team. She stated that hazing is not restricted to Greek life and can
occur on sports teams.
       {¶14} The legislature offers little guidance regarding what it means to actively
enforce an anti-hazing policy and there is little case law related to claims brought
Case No. 2015-00580                          -6-                                 DECISION


pursuant to R.C. 2307.44. However, there is a substantial amount of evidence that
defendant actively took steps to inform students, including football players, about hazing
and the possible repercussions of hazing. The affirmative defense only requires the
existence and active enforcement of a policy. The fact that the information regarding
the policy distributed at the beginning of the school year and thus, after plaintiff’s injury
does not mean that the policy did not exist or was not being enforced. As established
by the evidence, the upper classmen were informed of the policy and reasonably should
have known of its existence. It is certainly not unreasonable to distribute the Student
Handbook at the beginning of the school year on an annual basis.                 In light of
Ms. Martinez Solis’ testimony about her personal efforts to investigate claims of hazing
and punish those found to have committed hazing, as well as a number of documents
distributed to students regarding hazing, the court finds that the University of Toledo
had an anti-hazing policy and was enforcing it in the summer of 2011. Therefore, the
court finds that the affirmative defense applies in this case.
       {¶15} Even if the court found that the affirmative defense did not apply, plaintiff
has failed to establish that he was subjected to hazing as defined by R.C. 2903.31, as
explained below. As stated above, the definition of hazing set forth in R.C. 2903.31
refers to any act “coercing” another * * * to do any act of “initiation” in any student or
other organization that causes or creates a substantial risk of causing physical harm to
any person. The evidence did not establish coercion.

Coercion
       {¶16} Coercion is not defined by the statute, nor does the statute cite to a
definition in another section of the Revised Code. However, since the definition of
hazing comes from R.C. 2903.31, a criminal statute, the court will consider the definition
for coercion found in another criminal statute.
       {¶17} Pursuant to R.C. 2905.12, coercion includes the following: “threatening to
commit any offense; threatening calumny; threatening to expose a matter tending to
Case No. 2015-00580                          -7-                                 DECISION


subject a person to hatred, contempt, ridicule, or to damage their reputation; threatening
criminal proceedings; and/or threatening to take or withhold official action.”
       {¶18} Coercion is also commonly defined as:

       “Compulsion by physical force or threat of physical force.” Coercion,
       Black’s Law Dictionary, Seventh Edition (1999);

       “To force to act or think in a given way by pressure, threats, or
       intimidation; To dominate or retrain forcibly; To bring about by force.”
       Coerce, Webster’s II New College Dictionary (1999).

       {¶19} There is no evidence that the upperclassmen who organized and led the
“Olympics” used any of the above-mentioned tactics to ensure participation from
freshman players. There is no evidence of a threat of any kind made towards the
plaintiff or any other player prior to or during the “Olympics.” Also, none of the player-
witnesses, including plaintiff, could cite to any specific repercussions for missing
summer sessions, for instance, a decrease in playing time, revocation of scholarship,
removal from team, or loss of any other potential benefit.              The only possible
repercussion suggested by plaintiff was that players had to do extra running if they
missed the conditioning portion. However, that was not a punishment. Rather, it was to
ensure the player did not fall behind as the other players’ physical fitness improved.
       {¶20} One player, Chris Castillo, testified that on one occasion he told the
upperclassmen that he could not perform the wheelbarrow race because his arms were
too tired from lifting. He said the upperclassmen told him to do it, and so he ultimately
decided to participate. However, he did not testify that the upperclassmen threatened
him in any way in order to force him against his will to participate, nor did he testify that
he would be subject to any repercussion if he did not compete in the wheelbarrow race.
       {¶21} Similarly, Robert Lisowski, a red-shirt freshman offensive lineman in 2011,
testified that when he was a true freshman he chose not to perform the worm crawl and
he suffered no consequences for choosing to sit out for that challenge. Also, he did not
Case No. 2015-00580                           -8-                                  DECISION


believe the “Olympics” were hazing or that the “Olympics” or “metabolics” were
mandatory. He said that the offensive line was a close-knit group like a family and the
“Olympics” were simply created to instill that closeness, which would lead to better
performance as a group.
         {¶22} Plaintiff and his friends and roommates that he called as witnesses,
testified that they felt pressured into participating in the “Olympics” and that they felt like
they did not have a choice. The court finds that the peer pressure or teasing they
described is not likely what the legislators intended when using the word “coercion” in
the definition of hazing.    They also testified that the rest of the summer activities,
including weight training, conditioning, and “metabolics” were something that they had
to do.
         {¶23} Contrary to the testimony of plaintiff and his friends, all other witnesses
testified that the above-mentioned summer activities were 100% voluntary.              In fact,
pursuant to NCAA bylaws, collegiate football teams cannot mandate participation during
summer, before the official start of the pre-season.         (Defendant’s Ex. A).      Plaintiff
presented the position that the summer sessions were not voluntary because
attendance was taken. Several witnesses presented unrebutted testimony that Rudy
Wade, the strength and conditioning coach, and/or members of his staff took
attendance during weight training/conditioning, and “metabolics.” He also kept daily
progress charts for student-athletes in the weight room. Rudy Wade testified that he
was present during “metabolics” to ensure the players “stayed on task.” Plaintiff asserts
that this indicates participation in “metabolics” was mandatory. Plaintiff also testified
that Rudy Wade would sometimes “get after” players, often using expletives in an
intimidating manner if they were not staying on task during “metabolics.” The court
finds, by a preponderance of the evidence, that all of the summer activities, including
“metabolics” were voluntary, as there was no evidence of meaningful repercussions for
not attending.
Case No. 2015-00580                           -9-                              DECISION


       {¶24} Even if the court found that weight lifting/conditioning and “metabolics”
were mandatory, there was no evidence that attendance was taken during the
“Olympics,” or that Rudy Wade “got after” the players while they competed in the
“Olympics.”   The injury did not occur during “metabolics”; it happened during the
unplanned, player-organized “Olympics” and there is simply no evidence that any
upperclassmen or Rudy Wade forced plaintiff to compete in the games.
       {¶25} Plaintiff also maintains that the summer activities were not voluntary
because the players followed a “script” of scheduled activities provided to the
upperclassmen by the coaching staff and that “metabolics” were substantially similar to
the activities performed during official practices supervised by coaches. (Plaintiff’s Ex.
1-7). Essentially, he argues that there was little to no difference between “metabolics”
which the university considered voluntary and fall pre-season practices which were
mandatory. However, according to the athletic trainer, Jonathan Walters, “full contact”
practice during the official season significantly differed from “metabolics” in that
practices were mandatory, led by coaches, required pads/helmets, and also involved
substantially increased physical intensity.
       {¶26} Plaintiff also testified that he did not want to participate in the “Olympics”
because he believed that the “Olympics” were not football activities and did not enhance
the players’ football careers, nor was it fun to compete in the games. He testified that
he performed them because he was told he had to. He was told they were tradition and
had gone on for at least five years or so. He recalled another freshman player, Chris
Castillo, telling the upperclassmen that he did not want to participate one evening and
the seniors goaded him into participating. He testified that he felt that new players had
to go along with what the upperclassmen told them and since Rudy Wade was
watching, the activities must be permitted and safe. He felt compelled to participate
because he was an 18-year-old trying to fit in with 20-year-olds.
Case No. 2015-00580                          -10-                                DECISION


       {¶27} Contrary to plaintiff’s testimony regarding the purpose of the “Olympics”
and the demeanor of the players involved, several student-athletes testified that the
“Olympics” were fun, team-building exercises that helped to strengthen the relationship
of the offensive line into a cohesive unit. Two other freshman players, Chase Nelson
and Robert Lisowski testified in affidavits and on the stand that the “Olympics” were all
about having fun. In fact, they specifically testified that plaintiff was laughing and having
fun throughout the “Olympics.” (Plaintiff’s Ex. 27, 28).
       {¶28} Some of the most convincing evidence that the “Olympics” did not involve
coercion and were not hazing is found in the deposition of then-upperclassman,
A.J. Lindeman. When asked if he was required to stay after “metabolics” finished, he
said that “Nobody was forced * * * [or] required to be there. We all decided to stay
after.” (Lindeman Dep., pg. 14). He later explained, “It is how football works. A lot of
people stay after to perfect your craft.” (Lindeman Dep., pg. 16). When asked to
describe everyone’s demeanor during the games, he stated that, “they were games * * *
they were all meant to be fun. From what I remember all the games were fun and
everybody laughed.”       (Lindeman Dep., pg. 18-19).        He explained that when he
competed in the games as a freshman he found them to be fun and in no way
demeaning or humiliating. (Lindeman Dep., pg. 19).
       {¶29} Another player, Chase Nelson, transferred to the team in 2011 and was
therefore considered a new player. He testified that he participated in the “Olympics”
because he was told he had to because they were a tradition. Even though he testified
that players would be teased or ribbed for not competing in the “Olympics,” he ultimately
considered the “Olympics” to be fun, team-building exercises.
       {¶30} Likewise, Collin Perchinske, plaintiff’s roommate, testified that even though
he felt some pressure to participate because the freshmen before him had done so, he
admitted that he competed in the “Olympics” (and the rest of the voluntary summer
activities) to fit in and to become a better player.
Case No. 2015-00580                                 -11-                                        DECISION


        {¶31} If the players, including the freshmen, were actively competing in the
activities and were coerced into doing so, as plaintiff asserts, it seems highly improbable
that they would later describe the “Olympics” as fun, team-building activities. Therefore,
considering the overwhelming testimony describing the “Olympics” as voluntary and fun
games, the court finds by a preponderance of the evidence that plaintiff was not
coerced into participating.

Initiation
        {¶32} Again, initiation into an organization is not defined by the statute.
Defendant asserts that plaintiff could not have possibly been initiated into the football
team by way of performing the “Olympics” because he was already an official member
of the team. The evidence is clear that plaintiff signed his letter of intent in early spring
of 2011 and became an official member of the team at that time. (Defendant’s Ex. M).
        {¶33} Initiation is commonly defined as:

        “The rites, ceremonies, ordeals, or instructions with which one is made a
        member of a sect, or society (esp., a secret society), a participant of
        mysteries, or esoteric teachings, or is invested with a particular function or
        status * * *” Initiation, Merriam-Webster.com. Merriam-Webster, n.d. Web.
        23 Aug. 2016.1

        {¶34} Even though plaintiff was already an official member of the team, the
testimony is clear that he did not yet earn a spot in a particular position on the offensive
line, or a starting role for that matter. Moreover, it was also well-established that the
upperclassmen who ran the “Olympics” had no authority regarding a player’s playing
time, position, or status as a member of the team. Only the coaching staff had any
authority regarding plaintiff’s ability to play in a particular position on the offensive line or


          1On page five of the June 7, 2016 decision regarding motions for summary judgment, the court

addressed plaintiff’s interpretation of the definition of initiation. Plaintiff argued that Rudy Wade admitted
that the “Olympics” were hazing. However, the court found that Mr. Wade merely agreed that, based on
plaintiff’s counsel’s vague and amorphous standard, the “Olympics” might be considered hazing.
Case No. 2015-00580                        -12-                                 DECISION


obtain a starting position. There was absolutely no evidence that plaintiff’s participation,
or lack thereof, in the “Olympics” could somehow impact the coaches’ decisions.
Mr. Cameron was promised a chance to try out for a starting role on the offensive line.
There is no evidence that any member of the coaching staff told him he had to
participate in the “Olympics” in order to earn the starting center position, or in order to
obtain any role on the offensive line as a starter or backup.
       {¶35} If the act of initiation was interpreted as broadly as plaintiff envisions,
essentially any time a member of any team moves to a new position, becomes a
captain, or advances from one grade of accomplishment to another it could be
considered an act of initiation.
       {¶36} The court finds that the “Olympics” were not acts of initiation as plaintiff
was already a member of the team.           He was already exercising and practicing
separately with the offensive line and there is no evidence that his participation in the
“Olympics” had any effect whatsoever on his status as a team member or offensive
lineman. Moreover, plaintiff has failed to establish other more material aspects of his
hazing claim.

Defendant’s Knowledge of the Alleged Hazing
       {¶37} There is no question that Rudy Wade knew that the members of the
offensive line were participating in the “Olympics” as he admitted he observed the
players competing.     Based on Coach Beckman’s deposition and an abundance of
testimony that the “Olympics” were occurring for years prior to Plaintiff’s injury, the
coaching staff was likely aware of their occurrence. Also, Peggy Cameron, plaintiff’s
mother, testified that Coach Beckman told her he and the offensive line coach were
aware of the “Olympics” and that after plaintiff’s injury, the team would put a stop to
them. At the very least, Rudy Wade was certainly aware. However, plaintiff failed to
establish that Mr. Wade, or any other employee of defendant knew or reasonably
should have known that the “Olympics” involved hazing.
Case No. 2015-00580                                -13-                                      DECISION


        {¶38} Plaintiff admitted that he never told anyone that he thought he was being
hazed by upperclassmen during the first few days of the “Olympics” or at any time after
his injury. There is no evidence that any University employee was ever made aware of
any alleged hazing on the football team at any time, related to the “Olympics,” or
otherwise. There is no evidence from which this court can infer that Rudy Wade, or any
other member of the coaching staff, reasonably should have known that “Olympics”
were a form of hazing. The “Olympics” were referred to by members of the coaching
staff as well as both freshman and upper-class participants as merely fun, team-building
exercises.
        {¶39} There is no evidence that any University employee ever witnessed
anything that could be described as coercion, or witnessed any upperclassmen forcing
a freshman to participate in the “Olympics” against their will. From a non-participant’s
perspective, it would be nearly impossible to distinguish the “Olympics,” as alleged
hazing, from any other activity on the field during “metabolics.” That is, the “Olympics”
would appear to be activities performed by specific members of the team to establish
camaraderie and team building before the official season begins.
        {¶40} Plaintiff attempted to establish a culture of hazing on the University of
Toledo football team.          Players testified that freshmen had to carry the bags of
upperclassmen and clean up the field. There was also testimony about the all-in club,
in which awards were presented for 100% participation and 100% attendance.2 There
was testimony about freshman striping, in which freshman players had stripes on their
helmets to designate them as freshmen, until coaches and player-mentors determined
the player, based on performance, deserved to have their stripe removed. The mentor
(an upperclassman) would then remove the stripe and give them a t-shirt which


        2The court notes that the fact that an award was presented for 100% attendance does not weigh

in favor of the summer sessions being mandatory, as plaintiff argues. Rather, the existence of an
incentive and awarding the behavior seems to indicate the voluntary nature of the participation. If players
were required to be there, awarding them for doing so would be pointless.
Case No. 2015-00580                          -14-                                DECISION


emphasized camaraderie and achievement. The court finds that there is no evidence of
a culture of hazing on the University of Toledo football team at the time of plaintiff’s
injury.      Singling out freshmen to perform certain somewhat menial tasks or
distinguishing them from upperclassmen by placing stripes on their helmets does not
meet the definition of hazing as set forth in R.C. 2903.31.
          {¶41} The court is fully aware that hazing may exist at high school and collegiate
levels and understands the purpose and need for Ohio’s anti-hazing statue. Therefore,
the court does not wish to mitigate the seriousness of hazing, nor does the court wish
for this decision to be misconstrued as an acceptance of hazing. In the court’s view, the
games in the “Olympics” and the above-mentioned freshman-only activities were simply
not hazing. The “Olympics,” the all-in club, the striping ceremony, and the freshman-
only activities were nothing more than aspects of team-building activities.         If these
activities are considered hazing then nearly every university in this state may be found
in violation of Ohio’s Anti-Hazing Statute for condoning similar conduct in regular
practices and drills even though said activities are intended to produce nothing more
than successful, close-knit collegiate sports teams.

Substantial Risk of Harm
          {¶42} It is clear that most of the activities performed during the “Olympics” posed
little to no threat of harm to the participants. Certainly, the wheelbarrow race, dance
competition, bear crawl, and worm crawl are not dangerous activities. In fact, they likely
posed a lesser risk of harm to plaintiff than full-contact practice or game scenarios.
          {¶43} That being said, plaintiff contends that the goal post dunk was a dangerous
activity. This assertion is somewhat corroborated by the testimony of Rudy Wade who
stated in his deposition that the goal post dunk was a dangerous activity. However, it is
not clear from the deposition whether Mr. Wade considered a goal post dunk in general
to be a dangerous activity or only a dunk as performed by plaintiff, wherein the player
runs and jumps off the back of another player launching themselves into the air in order
Case No. 2015-00580                               -15-                                      DECISION


to reach the 10-foot height necessary to dunk the football over the crossbar.3 Likewise,
Jonathan Walters, the athletic trainer, testified that the goal post dunk was dangerous
and had he seen the players competing in the goal post dunk game he would have
stopped them. Again, it is not clear if Mr. Walters meant that he would have stopped
the players if he saw them jumping off the backs of other players or if he considered a
typical goal post dunk a dangerous enough activity to warrant intervention. Brian Lutz,
Associate Athletic Director, was more specific in his testimony that a 300-pound lineman
running and jumping off of the back of another player to reach the height of the goal
post is a dangerous activity. The court finds that the specific manner in which plaintiff
decided to perform the goal post dunk by running and leaping off of another player’s
back creates a potentially dangerous situation.
        {¶44} Mr. Cameron could not recall any specifics regarding the moments that
lead up to his injury, for instance whether or not he was told to jump off of another
player’s back. According to testimony from upperclassman and freshman participants,
no one told Mr. Cameron that he had to jump off of a fellow player’s back to perform the
dunk. The decision was his alone. There was testimony that Mr. Cameron may not
have been the first player who chose to jump off of another player’s back. However,
there is no evidence that the other player was told he had to do so. Therefore, as
further explained below in the section on assumption of the risk, the dangerous nature
of the goal post dunk can be attributed to Mr. Cameron’s decision to dunk in the
particular manner he chose. There was no evidence that the manner in which plaintiff
chose to perform the dunk was a requirement of the event.




        3While other members of the coaching were likely aware of the “Olympics,” there is no evidence
that they knew that the “Olympics” involved the goal post dunk, and more to the point, that the dunk could
be accomplished by running and jumping off another’s players back.
Case No. 2015-00580                          -16-                                 DECISION


Conclusion
       {¶45} The court finds that plaintiff failed to establish any of the required elements
of hazing as set forth in the anti-hazing statute. He failed to demonstrate that he was
coerced into participating in an act of initiation which posed a substantial risk of physical
harm and that the University of Toledo had knowledge of the occurrence of hazing.

Plaintiff’s Second Cause of Action: Negligence
       {¶46} Plaintiff’s second claim is based on, 1) Rudy Wade’s failure to appropriately
supervise and stop the “Olympics” in order to prevent plaintiff’s injuries; 2) Jonathan
Walter’s failure to be present on the field at the time of the injury and also to stop the
“Olympics”; and 3) defendant’s failure to provide him with a helmet.
       {¶47} To assert an actionable claim of negligence, plaintiff must prove, by a
preponderance of the evidence, that defendant owed him a duty, that it breached that
duty, and that defendant’s breach proximately caused his injuries. Armstrong v. Best
Buy Co., Inc., 99 Ohio St. 3d 79, 2003-Ohio-2573, 788 N.E. 2d 1088, ¶ 8, citing Menifee
v. Ohio Welding Prods., Inc., 15 Ohio St. 3d 75, 77, 472 N.E. 2d 707 (1984).

Duty and Breach
       {¶48} The duty element may be established by common law, statute, or by the
particular circumstances in the case. Chambers v. St. Mary’s Sch., 82 Ohio St.3d 563,
1998-Ohio-184, 697 N.E.2d 198.
       {¶49} In an effort to establish a duty owed to plaintiff by Rudy Wade, plaintiff
submitted Rudy Wade’s employment contract with the University of Toledo.               In his
position summary, the document states that one of Mr. Wade’s duties is to “ensure the
safety of our student athletes.” (Plaintiff’s Ex. 39, p. 2).
       {¶50} John Walters had a similar duty regarding the safety of athletes in his
contract, including protecting them from injury and illness. (Plaintiff’s Ex. 10, p. 15).
Case No. 2015-00580                         -17-                                  DECISION


       {¶51} However, plaintiff has failed to establish that he was an intended
beneficiary with enforceable rights in the contractual relationships between either Rudy
Wade or John Walters. See Hill v. Sonitrol of Sw. Ohio, Inc., 36 Ohio St.3d 36, 521
N.E.2d 780 (1988); State ex rel. DeWine v. Mastergard, 10th Dist. Franklin No. 14AP-
1024, 2016-Ohio-660.
       {¶52} Even if plaintiff had established that he had enforceable rights in the
contacts, a breach of those contract does not inherently give rise to a negligence claim.
“A breach of contract claim does not create a tort claim, and a tort claim based upon the
same actions as those upon which a breach of contract claim is based exists only if the
breaching party also breaches a duty owed separately from that duty created by the
contract, that is, a duty owed even if no contract existed.” Prater v. Three-C Body Shop,
Inc., 10th Dist. Franklin No. 01AP-950, 2002-Ohio-1458
       {¶53} Additionally, plaintiff submitted NCAA bylaws which he believes establish,
or at least should be considered as evidence of a duty owed to players. Mr. Waters, as
the head athletic trainer for the football team, is granted “unchallenged authority,”
pursuant to NCAA bylaws, “to cancel or modify the workout for health and safety
reasons.” (Plaintiff’s Ex. 19, p. 6).
       {¶54} However, NCAA bylaws do not create a duty of care for negligence claims.
Pandey v. Banachowski, 10th Dist. Franklin No. 11AP-459, 2011-Ohio-6830 (finding
that a similar agreement between members of a voluntary organization, the realtor
“code of ethics,” does not establish duty for negligence claims).
       {¶55} Even if NCAA bylaws did create a legal duty, such duty would only exist
during the official, scheduled portions of the training, i.e. the weight training/conditioning
and “metabolics.” It is uncontested that the scheduled activities had ended for the day.
Therefore, if such a duty existed, it did not apply to the “Olympics” which were
organized by the upperclassman participants and not the NCAA member university.
Case No. 2015-00580                        -18-                                 DECISION


       {¶56} The duty of care, therefore, is not established by the employment contracts
or NCAA bylaws. Likewise, there is no statute which relates to the standard of care
owed to student-athletes.
       {¶57} There is also very little case law establishing a common law duty of care for
coaches to their respective players. This is likely due to the consistent application of the
affirmative defense of primary assumption of risk. As stated above, the specific facts of
the case may give rise to a duty of care. Rudy Wade admitted that he witnessed the
players participating in the “Olympics,” that he watched the offensive linemen dunking
the ball over the goal post, and that he witnessed plaintiff run, jump off of another’s
players back and jump up to dunk the ball. He also admitted that this activity was
dangerous and created a substantial risk of harm to plaintiff. Yet, he did nothing to stop
the activity.
       {¶58} As noted above, John Walters agreed with Mr. Wade’s assessment and
took it one step further; if he would have witnessed the players performing the goal post
dunk, he would have stopped them. Rudy Wade could not recall seeing any other
player jump off of another’s players back to dunk the ball. He testified that the first
person he saw perform the dunk in that manner was plaintiff.
       {¶59} It is not clear when Mr. Wade developed the opinion that the goal post
dunk was a dangerous activity, i.e. if he believed it was dangerous at any time prior to
plaintiff’s injury. However, the court finds by a preponderance of the evidence that the
goal post dunk as performed by plaintiff was a dangerous activity and in light of the fact
that Mr. Wade was the only representative of defendant present at the time, he was the
only representative of defendant who could stop the activity.
       {¶60} That being said, the court finds that the goal post dunk was only dangerous
in the manner performed by plaintiff. The only time Mr. Wade saw it performed in that
way was the time plaintiff got hurt. There is no evidence that Mr. Wade saw another
player jump off of the back of a fellow athlete to dunk the ball. Mr. Wade saw the dunk
Case No. 2015-00580                        -19-                                 DECISION


occurring in this dangerous manner as he stood on the sideline, not within close
proximity to the players. There was not a sufficient amount of time between the time the
dangerous condition arose and the injury occurred for Mr. Wade to have stopped the
activity and prevented the injury. Therefore, even if a duty arose momentarily, the court
finds that Mr. Wade’s failure to prevent the injury was not unreasonable considering the
circumstances.
       {¶61} Also, as explained below, even if plaintiff established duty and breach, he
did not establish that defendant’s breach proximately caused his injuries.

Causation
       {¶62} As mentioned above, plaintiff claims that the University of Toledo was
negligent for failing to provide him with a helmet, which would have mitigated or
prevented his injuries. However, this allegation is not consistent with that evidence
presented at trial.
       {¶63} Defendant’s expert, Douglas E. Morr, P.E., offered unrebutted testimony
that wearing a helmet would not have mitigated plaintiff’s injuries. His testimony was
very clear and based on a significant background in research involving the efficacy of
helmets in reducing injuries. This research overwhelming suggests that while helmets
play a significant role in preventing injuries, such as concussions, they have little to no
effect on injuries caused by rotational-acceleration.      It is the significant rotational-
acceleration forces upon plaintiff’s brain that caused his injuries. In fact, using computer
simulation, Mr. Morr determined that plaintiff experienced forces far greater than
anything he would experience during normal football play. Mr. Morr testified that the
forces are not effected by how high plaintiff jumped, or the speed at which he ran during
his approach, they are effected by the height of his outreached arm (at least 10 feet),
the angle of his body in relation to the ground, his weight, and gravity (which is a
constant). Therefore, no other factors effect Mr. Morr’s decision, such as whether he
held onto the goal post, and/or Mr. Morr’s analysis of the ER doctor’s notes or the notes
Case No. 2015-00580                          -20-                                   DECISION


of the University physician who saw plaintiff after his injury. Consequently, even if
plaintiff were wearing a helmet, it would not have prevented his injuries and due to the
inherent limitations of helmets it could not have prevented the injuries caused by
rotational-acceleration.
       {¶64} The court finds Mr. Morr’s testimony credible and agrees with the
conclusion he reached based on the forces at play during plaintiff’s fall and the limitation
on helmets in general to prevent rotational-acceleration injuries. Plaintiff has failed to
establish the element of causation as it pertains to his claim that the University’s failure
to provide him with a helmet caused his injuries.
       {¶65} Likewise, plaintiff has failed to establish that the lack of a trainer on the field
at the time of the injury was a proximate cause of said injury or that his injuries would
have been mitigated had an athletic trainer been present. Jonathan Walters testified
that he was not required to be present on the field by contract or by NCCA regulations.
Even so, he was in the training room at the time, approximately 15 yards away from the
field, and was on the scene just moments after plaintiff’s fall. He immediately assessed
the situation and determined that EMS was necessary and an ambulance was called to
the field to take plaintiff to the emergency room.
       {¶66} The court finds that the proximate cause of plaintiff’s injuries was his
decision to jump off of the back of another player, something which according to
defendant’s expert substantially increased the forces acting on his body when he fell
and struck the playing surface. It was ultimately the height plaintiff achieved by using
another player’s back as a springboard, coupled with the angle at which he grasped the
goal post crossbar, that caused his injuries. As noted above, no player or coach told
Mr. Cameron that he needed to jump off of another player’s back to perform the goal
post dunk, nor did any agent of the university tell him he had to participate in the
“Olympics.”

Primary Assumption of the Risk
Case No. 2015-00580                        -21-                                 DECISION


      {¶67} Participation in sporting and recreational activities involve a risk of injury.
Under, the doctrine of primary assumption of the risk, a participant is held to have
assumed the ordinary risks inherent in the respective activity. Schnetz, supra; Morgan
v. Kent State Univ., 10th Dist. Franklin No. 15AP-685, 2016-Ohio-3303; Crace v. Kent
State Univ., 85 Ohio App.3d 534, 2009-Ohio-6898, 924 N.E.2d 906 (10th Dist.).
      {¶68} When a plaintiff is found to have made a primary assumption of risk in a
particular situation, that plaintiff is totally barred from recovery, as a matter of law.
Horvath v. Ish, 134 Ohio St.3d 48, 2012-Ohio-5333, 979 N.E.2d 1246.
      {¶69} “To be covered under the [primary-assumption-of-the-risk] doctrine, the risk
must be one that is so inherent to the sport or activity that it cannot be eliminated.”
Morgan, at ¶ 13. Where the risk at issue is not inherent, then a negligence standard
applies. Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 1996-Ohio-
320, 659 N.E.2d 1232.
      {¶70} Primary assumption of risk is a “defense of extraordinary strength * * *.
Because a successful primary assumption of the risk defense means that the duty
element of negligence is not established as a matter of law, the defense prevents
plaintiff from even making a prima facie case.” Gallagher v. Cleveland Browns Football
Co., 74 Ohio St.3d 427, 431-432, 1996-Ohio-320, 659 N.E.2d 1232
      {¶71} Plaintiff’s position is that when he signed up to play football, he did not sign
up to participate in the “Olympics,” activities he viewed as having very little to do with
becoming a better football player. However, it was well-established during trial that the
“Olympics” were team-building activities meant to develop camaraderie. The activities
may not have been a scheduled activity for the day and may not have led directly to any
increased physical capacity related to the players’ on-field performance.        However,
since they served a function related to the success of the offensive line and the team,
the court finds that the “Olympics” are football activities. Accordingly, when plaintiff
voluntarily chose to participate, more specifically, when he chose to run and jump off of
Case No. 2015-00580                           -22-                              DECISION


the back of another player to dunk the football over the goal post, he assumed the
inherent risks associated with that choice.
Conclusion
       {¶72} As it relates to his negligence claim, the court finds that plaintiff assumed
the risk of injury associated with playing the sport of football and therefore, as a matter
of law, he is prevented from recovering damages related to an injury sustained while
participating in a football related activity.        As explained above, even if primary
assumption of the risk did not apply in this case, plaintiff has failed to establish that
defendant’s actions or inaction proximately resulted in his injury.
       {¶73} Regarding his hazing claim, the court finds that defendant had an anti-
hazing policy in effect at the time of the injury and it was actively enforcing said policy.
Therefore, plaintiff’s claim that he was allegedly hazed is barred by defendant’s
affirmative defense. Even if the court found that the affirmative defense does not apply,
plaintiff has failed to establish that he was subjected to hazing as defined by
R.C. 2903.31.
       {¶74} Accordingly, judgment shall be rendered in favor of defendant.




                                                 PATRICK M. MCGRATH
                                                 Judge
[Cite as Cameron v. Univ. of Toledo, 2016-Ohio-8142.]




KYLE CAMERON                                            Case No. 2015-00580

       Plaintiff                                        Judge Patrick M. McGrath

       v.                                               JUDGMENT ENTRY

UNIVERSITY OF TOLEDO

       Defendant



        {¶75} This case was tried to the court on the issue of liability. The court has
considered the evidence and, for the reasons set forth in the decision filed concurrently
herewith, judgment is rendered in favor of defendant. Court costs are assessed against
plaintiff. The clerk shall serve upon all parties notice of this judgment and its date of
entry upon the journal.




                                                         PATRICK M. MCGRATH
                                                         Judge

cc:
Guy T. Barone                                           Christopher P. Conomy
405 Madison Avenue, Suite 1000                          Emily Simmons Tapocsi
Toledo, Ohio 43604                                      Assistant Attorneys General
                                                        150 East Gay Street, 18th Floor
                                                        Columbus, Ohio 43215-3130

Filed November 1, 2016
Sent to S.C. Reporter 12/15/16
