[Cite as Al-Jahmi v. Ohio Athletic Comm., 2020-Ohio-3487.]




ALI AL-JAHMI, etc.                                   Case No. 2017-00986JD

       Plaintiff/Counter Defendant                   Judge Patrick M. McGrath

       v.                                            DECISION

OHIO ATHLETIC COMMISSION

       Defendant/Counter Plaintiff
       {¶1} Before the court are plaintiff Ali Al-Jahmi’s (plaintiff) motion for summary
judgment and motion for reconsideration as well as defendant Ohio Athletic
Commission’s (defendant) motion for summary judgment. Plaintiff’s claims stem from
the death of Hamzah Al-Jahmi (Hamzah), who collapsed during a December 19, 2015
boxing match sanctioned by defendant, and died three days thereafter from his injuries.
In his complaint, plaintiff alleges defendant acted negligently and/or recklessly in
numerous ways including through the conduct of the referee and ringside physician
appointed by defendant. For the following reasons, the court denies plaintiff’s motion
for reconsideration and motion for summary judgment and grants defendant’s motion for
summary judgment.

Motion for Reconsideration
        {¶2} On September 4, 2018, the court granted defendant partial summary
judgment and dismissed plaintiff’s negligence claim based on both primary and express
assumption of risk.        As to the former, the court found boxing to be an inherently
dangerous sport from which the risk of head injury cannot be eliminated and, as to the
latter, the court found Hamzah executed a release and waiver which barred any
negligence claim. Plaintiff’s motion for reconsideration seeks reversal of the court’s
previous summary judgment decision.
        {¶3} As the court discussed in its previous decision, primary assumption of risk
does not depend on the injured person’s subjective consent or appreciation. Rather,
Case No. 2017-00986JD                       -2-                                 DECISION


the activity at issue is examined to determine if it is inherently dangerous such that risks
cannot be eliminated. Primary assumption of risks bars recovery absent recklessness
and participants in activities to which it applies are owed no duty to eliminate risks
inherent to the activity. The court again finds that boxing is an inherently dangerous
sport to which primary assumption of the risk applies.
        {¶4} Likewise, the court finds no reason to reverse its ruling that express
assumption of risk also applies. Hamzah executed a clear and unequivocal release of
“any and all actions, causes of action, suits * * * claims and demands whatsoever
known or unknown * * * against any and all of the persons or entities named in this
paragraph.” The release clearly applies to any negligence claim, whatever the basis,
that Hamzah may have had based on his participation in the December 19, 2015 fight.
        {¶5} The court DENIES plaintiff’s motion for reconsideration.        Plaintiff must
establish recklessness. The court now turns to the motions for summary judgment.

Facts
        {¶6} On December 19, 2015, Hamzah was 19 years old and fighting in his first
professional fight, an event titled “Seasons Beatings” held at the Ukrainian Hall in
Youngstown, Ohio. Defendant approved the fight and appointed the ringside physician,
fight inspector, and referee for the event. In the fourth round, Hamzah collapsed; he
died three days later from his injuries. Specifically, Hamzah suffered a concussion
during the first round and, after additional blows to the head, suffered from brain
swelling associated with second impact syndrome, a condition which plaintiff’s expert
analogizes to shaken baby syndrome. Had the fight been stopped in the first round,
Hamzah likely would have survived. Exhibits 4 and 5 to Plaintiff’s Motion for Summary
Judgment, Affidavits of James P. Kelley and Mayumi Prins.


        {¶7} Hamzah had been training as a boxer since he was 12 and had fought in
several amateur fights.    Deposition of Ali Al-Jahmi p. 20; 22-23; 26; Deposition of
Case No. 2017-00986JD                     -3-                               DECISION


Mohamed Hamood p. 33; 78; 83. Hamzah’s coach and trainer, Mohamed Hamood
(Coach Hamood), was in Hamzah’s corner on the night of the fight. Al-Jahmi depo.
p. 49; Hamood depo. p. 41.     For four years, he had worked with Hamzah Monday
through Friday about two hours a day and had also acted as Hamzah’s trainer for about
seven or eight of Hamzah’s amateur fights. Hamood depo. p. 21; 23; 26. Plaintiff,
Hamzah’s father, observed his son’s fight that night, standing about fifteen feet away.
Al-Jahmi depo. p. 38.
      {¶8} Rounds were three minutes with a one-minute rest period between rounds.
Deposition of Wilfredo Osorio p. 57.     During the first round, Hamzah’s opponent
knocked him down three times. Osorio depo. p. 96. Hamzah initially took a left hook to
the chin which knocked him down. Hamood depo. p. 96. As to this first knock down,
Coach Hamood testified Hamzah “got caught with a * * * left hook. Went down. Got
right back up.” Hamood depo. p. 42. As to the second knockdown, Coach Hamood
testified Hamzah “got back up and he was fixing his shorts * * * while the referee was
counting and that’s about it.” Hamood depo. p. 42. As to the third knockdown, Coach
Hamood testified it was not a true knockdown because Hamzah was pushed or shoved.
Hamood depo. p. 43-44.
      {¶9} Though plaintiff observed Hamzah’s “legs * * * wiggling” after the first
knockdown, he testified that Hamzah landed punches and defended himself throughout
the first round. Al-Jahmi depo. p. 40-42. Likewise, Coach Hamood also observed
Hamzah landing punches and defending himself during the first round. Hamood depo.
p. 42. Any concerns he had regarding Hamzah being knocked down were alleviated
when Hamzah got up, came to the corner and then responded to coaching. Hamood
depo. p. 74. Regarding Hamzah’s appearance during the first round, Coach Hamood
testified, “I think when he stood up once, he stepped to the side once, but that’s like
normal when you get knocked down.” He further testified nothing appeared abnormal
during the first round. Hamood depo. p. 43. In fact, Coach Hamood testified he would
Case No. 2017-00986JD                      -4-                               DECISION


have protested if the referee ended the fight during the first round “[b]ecause he wasn’t
really hurt in that way” and because Hamzah could land punches, defend himself and
had a chance to win the fight. Coach Hamood was not concerned for Hamzah’s safety
during the first round. Hamood depo. p. 68.
      {¶10} Coach Hamood described his interaction with Hamzah between the first
and second round:
      Yeah. He came back to the corner and I – I put the seat in. I jumped in
      the ropes. He said: What I do wrong, Coach? And he sat down. He was
      upset. I said: Okay. You got caught. Your right hand wasn’t up. You got
      to keep your right hand up and you got to move your feet laterally, side to
      side, don’t just back straight up. He said: Okay, Coach. And I was talking
      to him just like I’m talking to you now and he was talking right back to me.
      He said: Okay, Coach.      And he went back through and won the second,
      third, and fourth round.
      ***
      He did really well.
      ***
      As I was talking to him, he was understanding.        He said, yeah, okay
      Coach, you know, okay, Coach. Hamood depo. p. 44-45.
Hamzah maintained eye contact with Coach Hamood and made no complaints.
Hamood depo. p. 45. Coach Hamood testified that Hamzah was talking and acting as
he typically had between rounds during other fights. Hamood depo. p. 46. Based on
his interaction with Hamzah, Coach Hamood felt Hamzah could continue fighting.
Hamood depo. p. 100.
      {¶11} As he did during the first round, plaintiff continued to observe Hamzah fight
hard, land punches, and defend himself during the second and third round. Though
plaintiff testified that Hamzah’s legs were shaky, he indicated he believed it resulted
Case No. 2017-00986JD                     -5-                                  DECISION


from Hamzah being “a little shy or intimidated because of so many fans, embarrassed.”
Al-Jahmi depo. p. 46. Plaintiff also believed that Hamzah won both the second and
third rounds. Id. at 44-48.
       {¶12} Likewise, Coach Hamood testified that Hamzah “came back and * * * won
the [second] round and was moving well and * * * was punching well.” He defended
himself and incorporated Coach Hamood’s coaching instructions during the second
round. Hamood depo. p. 46. As in the first round, Coach Hamood did not believe the
fight should be stopped or have any other concern for Hamzah’s safety or well-being.
Id. at 48.
       {¶13} Between the second and third round, Coach Hamood again spoke to
Hamzah regarding Hamzah’s performance. He testified:
       Q. And how did you know he understood what you were saying?
       A. He would look me right in the eye. Okay, Coach. Okay, Coach. I got
       you. That’s his word, I got you.
       Id.
       {¶14} Coach Hamood observed nothing unusual in the third round and continued
to believe that there was no reason to stop the fight. Id. at 49. In fact, though Hamzah
lost rounds one and four and the overall fight, he did win rounds two and three. Id. at
100; Deposition of Bernie Profato p. 106-108.
       {¶15} Coach Hamood testified that, between the third and fourth round
       [i]t was the same. [Hamzah] was doing a great job at that point. You did a
       great job, Hamzah. In fact * * * he got up early * * * I said, Hamzah, sit
       down, you got- you got time. He said, no, I’m ready, Coach, I’m ready,
       Coach. And he looked over at his father, which was standing maybe 20
       feet away, 30 feet away. And he raised his hand to him, and he says, I’m
       ready, Coach, I’m ready to go. This is between the third and fourth round.
       Hamood depo. p. 50.
Case No. 2017-00986JD                        -6-                               DECISION


Even into the fourth round, Coach Hamood thought Hamzah was doing a good job, both
landing punches and defending himself, and observed nothing unusual. Id. at 51-52.
However, Hamzah went down without being hit near the end of the fourth round,
indicating that his knee was hurt before losing consciousness. Id. at 51-53.
       {¶16} Hamzah’s friend, Mohammed Yacoubi, also attended the fight. He testified
that Hamzah had “spaghetti legs for a second * * * he was kind of wobbling” after the
first two knockdowns in the first round. Deposition of Mohammed Yacoubi p. 18-19.
However, he also testified that during the second round Hamzah looked ‘okay. Like he
kind of * * * came back.” He also explained several times that Hamzah looked like he
tired himself out. Id. at 22-23; 26; 28; 29-30.
       {¶17} Emergency Medical Technicians sat ringside during the fight. One of them,
Danielle Horton, thought Hamzah looked “uneasy on his feet” and informed her partner
that Hamzah might need emergency services. Deposition of Danielle Horton p. 18-20.
However, she observed Hamzah continue to defend himself and land punches. Id. at
21-23. The other EMT, Stephanie Schiavone, contacted the pair’s dispatcher to request
an ambulance during the first round because Hamzah was losing the round badly.
Deposition of Stephanie Schiavone p.40; 43. After one of the knockdowns, she also
heard the referee ask Hamzah if he was okay, to which he replied yes. Id. at 47-48.
She also testified that she recommended to the ringside physician that Hamzah be
assessed at the end of the first round. Id. at 133.
       {¶18} Dr. James Armille (Dr. Armille), who is a dermatologist and a member of
the Ohio Athletic Commission, acted as the ringside physician. Deposition of James
Armille p. 7; 13. To become a ringside physician, Dr. Armille filled out an application
and provided proof that he was a physician. Id. at p. 18. He undertook self-study
regarding concussions. Id. at 37. He testified that his duty as a ringside physician is to
monitor the fighters. He does so, in part, through observing the fighters during the fight
to look for signs of injury. He testified that he is mindful of both brain injuries and
Case No. 2017-00986JD                        -7-                                DECISION


concussive impacts and is aware that signs of subdural hematoma may not manifest
until after a fight. Id. at p. 28-29; 59-60. In assessing whether a boxer has sustained a
concussion and/or brain injury, he looks at the boxer’s actions and movement including
whether the boxer is unsteady on his feet and/or could walk at an angle. He also notes
whether the boxer is aware of his surroundings. Id. at 57. He testified that, though
Hamzah was knocked down three times in the first round, he did not think Hamzah
appeared wobbly or unsteady on his feet and that he observed Hamzah look at the
referee after being knocked down. Id. at p. 25; 65-66. After Hamzah went down in the
fourth round, he entered the ring to provide medical attention. Id. at p. 28, 68.
       {¶19} Wilfredo Osorio (Mr. Osorio), the referee for the fight, had been refereeing
amateur contests since 2009. He had also acted as a professional referee before the
December 19, 2015 fight. Osorio deposition p. 15-16. However, Mr. Osorio could not
recall when he obtained his referee’s license. Id. at 16-17. He testified his job, as a
referee, was to implement the rules and to make sure the boxers were safe. Id. at
p. 35. As part of his amateur referee training, Mr. Osorio acted as a boxing judge for six
months, during which he learned the rules of boxing. Id. at p. 20. In training to act as a
professional referee, he worked with a veteran referee “one on one” learning how to
move around the ring. Id. at p. 21. Mr. Osorio had previously stopped fights due to
injury concerns. Id. at p. 32. However, he has never undergone training relative to
brain injuries in boxing. Id. at p. 32; 66-67.
       {¶20} He testified that, during the first round, Hamzah did not appear wobbly or
unsteady on his feet and the boxers exchanged blows. Id. at 95-97. During breaks
between rounds, Mr. Osorio indicated he would “look at the boxer, see if they’re hurt.
When their coach is talking, making sure that, you know, that they respond to their
coach.” He indicated he did so during the December 19, 2015 fight. Id. at p. 57. When
Hamzah was knocked down, Mr. Osorio undertook the required standing eight-count
before allowing the bout to continue. Id. at p. 63. Mr. Osorio has boxers walk toward
Case No. 2017-00986JD                        -8-                               DECISION


him after the standing eight-count to make sure the boxers are stable on their feet and
can continue fighting. Id. at p. 99. During the fight and after boxers take blows, he
checks to make sure “that the fighter’s able to fight,” looking at “body language,
eyesight, [if] he’s walking wobbly.” Id. at p. 59.
         {¶21} Bernie Profato has been the executive director of the OAC since 2004,
before which he acted as a professional referee for approximately 200 fights.
Deposition of Bernie Profato p. 11; 13-14. He attended the December 19, 2015 fight
and acted as the fight inspector. Id. at p. 15. He testified that Hamzah defended
himself throughout the first round and that he did not look wobbly. Id. at p. 91-92.
         {¶22} Mr. Profato testified regarding the licensing process. Prospective referees
complete license applications before shadowing licensed referees during actual fights at
least three times. The veteran referee, if and when appropriate, then recommends the
prospective referee for licensure.     After observing two to three events, prospective
referees work an event, during which they are evaluated. Mr. Profato testified “[t]hat’s
their final test. And they’re evaluated on that. And if they pass that, because they’ve
got that far, then they’re issued a license” after obtaining the OAC’s approval at a
commission meeting. Id. at pp. 17-20; 22; 24-25; 27-29. Defendant does not verify that
prospective referees possess knowledge of brain injuries when licensing them. Id. at
p. 41. He testified prospective ringside physicians must be licensed physicians and
normally must attend one event to observe how a ringside physician operates. Id. at
p. 31.
         {¶23} The court reviewed the available video, which depicts all four rounds. Both
boxers are easily discernible as are the three knockdowns in the first round and
numerous exchanges of blows between the boxers, both before and after these
knockdowns. After each knockdown, Hamzah rises unassisted. Mr. Osorio separates
Hamzah from his opponent and conducts the standing eight-count. Shortly after the
second knockdown, Hamzah causes his opponent to stumble.               The video depicts
Case No. 2017-00986JD                        -9-                                   DECISION


Hamzah move around the ring, dodge punches, block punches and land numerous
punches throughout the first, second, third and fourth round.         He also responds to
Mr. Osorio’s directions. As the fight stretches into the fourth round, both boxers appear
tired but Hamzah continues to attack and defend and to move around the ring before
falling into the ropes while dodging punches being thrown by his opponent.

Law and Analysis
       {¶24} Plaintiff’s amended complaint delineates 38 specific actions and/or
omissions of defendant that plaintiff asserts constitute negligence and/or recklessness.
On summary judgment, plaintiff narrows the basis of his claims. Plaintiff asserts that
Mr. Osorio and Dr. Armille were unqualified and that defendant acted recklessly in
appointing them for the Seasons Beatings event and in failing to disclose they were
unqualified. Plaintiff also asserts that defendant, through the inactions of Mr. Osorio
and/or Dr. Armille, acted recklessly in failing to stop the fight in the first round.
Defendant asserts two bases for summary judgment. Defendant asserts it is entitled to
discretionary immunity and that plaintiff cannot prove that it acted recklessly.
       {¶25} Civ.R. 56(C) states, in part, as follows:
       Summary judgment shall be rendered forthwith if the pleadings,
       depositions, answers to interrogatories, written admissions, affidavits,
       transcripts of evidence, and written stipulations of fact, if any, timely filed
       in the action, show that there is no genuine issue as to any material fact
       and that the moving party is entitled to judgment as a matter of law. No
       evidence or stipulation may be considered except as stated in this rule. A
       summary judgment shall not be rendered unless it appears from the
       evidence or stipulation, and only from the evidence or stipulation, that
       reasonable minds can come to but one conclusion and that conclusion is
       adverse to the party against whom the motion for summary judgment is
Case No. 2017-00986JD                       -10-                                  DECISION


       made, that party being entitled to have the evidence or stipulation
       construed most strongly in the party’s favor.
See also Dresher v. Burt, 1996-Ohio-107, 75 Ohio St.3d 280 (1996). In Dresher, the
Ohio Supreme Court held, “the moving party bears the initial responsibility of informing
the trial court of the basis for the motion, and identifying those portions of the record
before the trial court which demonstrate the absence of a genuine issue of fact on a
material element of the nonmoving party’s claim.” A “movant must be able to point to
evidentiary materials of the type listed in 56(C).” Id. at 292.
       {¶26} When the moving party has satisfied its initial burden, Civ.R. 56(E) imposes
a reciprocal burden on the nonmoving party. It states:
       Supporting and opposing affidavits shall be made on personal knowledge,
       shall set forth such facts as would be admissible in evidence, and shall
       show affirmatively that the affiant is competent to testify to the matters
       stated in the affidavit. Sworn or certified copies of all papers or parts of
       papers referred to in an affidavit shall be attached to or served with the
       affidavit. The court may permit affidavits to be supplemented or opposed
       by depositions or by further affidavits. When a motion for summary
       judgment is made and supported as provided in this rule, an adverse party
       may not rest upon mere allegations or denials of his pleadings, but the
       party’s response, by affidavit or as otherwise provided in this rule, must
       set forth specific facts showing that there is a genuine issue for trial. If the
       party does not so respond, summary judgment, if appropriate, shall be
       entered against the party. (Emphasis added).
In seeking and opposing summary judgment, parties must rely on admissible evidence.
Keaton v. Gordon Biersch Brewery Rest. Group, 10th Dist. No. 05AP-110, 2006-Ohio-
2438, 2006 Ohio App. Lexis 2287, ¶18. The court addresses the parties’ positions
Case No. 2017-00986JD                     -11-                                DECISION


collectively and relative to the bases upon which it finds summary judgment is
appropriate.

      -Discretionary immunity applies to defendant’s licensing, training and
      appointment of Mr. Osorio and Dr. Armille.
      {¶27} Defendant asserts discretionary immunity is a complete bar to plaintiff’s
claims.   In Reynolds v. State, 14 Ohio St.3d 68, ¶ 1 of syllabus (1984), the Ohio
Supreme Court held, “the state cannot be sued for its legislative or judicial functions or
the exercise of an executive or planning function involving the making of a basic policy
decision, which is characterized by the exercise of a high degree of official judgment or
discretion” but that “once the decision has been made to engage in a certain activity or
function, the state may be held liable, in the same manner as private parties, for the
negligence of the actions of its employees and agents in the performance of such
activities.” Stated another way, discretionary immunity applies when “the [state makes]
a decision but does not protect the state from culpable conduct in performing the
activities necessary to implement that decision.” Risner v. ODOT, 145 Ohio St.3d 55,
2015-Ohio-4443, ¶ 12-13.
      {¶28} Thus, in Reynolds, the Court held that, while the Adult Parole Authority’s
decision to furlough a prisoner was entitled to immunity, a claim against the state could
still be maintained based on the state’s failure to confine the prisoner during non-
working hours. Reynolds, 14 Ohio St.3d at p. 71. Likewise, in Risner, the Court held
the Ohio Department of Transportation is immune when making decisions “regarding
which portions of a highway it will improve and what type of improvement it will make.”
Id. at ¶ 1 of syllabus.    The Court reasoned that, in its previous decisions, it had
established that discretionary immunity applies to the decision “whether” to improve a
highway as well as the decision as to “what type of improvement to make.” Id. at ¶ 16.
In finding that ODOT’s decisions were entitled to immunity, the Court noted that ODOT,
acted with both expertise and statutory authorization, and that the judicial branch is
Case No. 2017-00986JD                      -12-                                 DECISION


prevented “from second-guessing ODOT’s decisions in this regard.”            However, the
Risner Court refused to extend immunity to “ODOT’s determination of how an
improvement is implemented” and stated that “the actions of the agents or employees *
* * are distinguishable from the original decision to take action and thus could be
actionable. Id. at p. 61-62.
       {¶29} Significantly, the 10th District has found discretionary immunity applies to
state activities analogous to those at issue here. In Lewis v. Ohio Dep’t of Health, 66
Ohio App.3d 761, 765 (10th Dist.1990), the 10th District affirmed this court’s decision
granting a 12(B)(6) motion to dismiss where the plaintiff sought recovery based on the
state’s alleged failure to comply with state and federal statutes governing nursing home
inspections.   Under the “any set of facts” standard and without discussing specific
statutory requirements or any compliance or lack of compliance therewith, the 10th
District found discretionary immunity applied to the “activity complained of” in Lewis, i.e.
the state’s inspection and/or licensing of nursing homes per state and/or federal
statutory requirements.
       {¶30} Discretionary immunity also applies to Disciplinary Counsel’s decision to
dismiss an attorney disciplinary complaint and to the Medical Board’s decisions
regarding the investigation and prosecution of doctor disciplinary complaints.         See
Robinson v. Office of Disciplinary Counsel, 10th Dist. Franklin No. 98AP-1431, 1999
Ohio App. LEXIS 3928 (Aug. 26, 1999); Schweisberger v. Med. Bd. of State of Ohio,
10th Dist. Franklin No. 92AP-1766, 1993 Ohio App. LEXIS 2024 (Apr. 8, 1993). It also
applies to the decision to grant or deny parole and to various decisions of the Ohio
Department of Rehabilitation and Correction including its decisions regarding inmate
placement, transfer and security classification as well as its decision to remove
seatbelts from transport vans. See Deavors v. Ohio Dept. of Rehab. & Corr., 10th Dist.
Franklin No. 98AP-1105, 1999 Ohio App. LEXIS 2338 (May 20, 1999); Allen v. ODRC,
10th Dist No. 19AP-729, 2020 Ohio App. Lexis 1054.
Case No. 2017-00986JD                         -13-                              DECISION


       {¶31} Portions of the statutory framework governing defendant and its regulation
of boxing are also relevant. R.C. 3773.34 and R.C. 119.01, et seq. empower defendant
to enact rules under which boxing matches are conducted, which are contained in Ohio
Administrative Code Chapter 3773. As to referees, R.C. 3773.42 provides that, upon
the filing of an application and the payment of the applicable fee, defendant “shall issue
the license to the applicant if it determines that the applicant is of good moral character,
is not likely to engage in acts detrimental to the fair and honest conduct of public boxing
matches or exhibitions, and is qualified to hold such a license by reason of the
applicant’s knowledge and experience.” The knowledge and experience component
requires that the applicant complete “such referee training requirements as the
commission prescribes by rule” and must possess “such experience requirements as
the commission prescribes by rule.” R.C. 3773.42(A-B). Until the legislature amended
it on September 29, 2015, the statute provided an additional condition in subsection (C).
Specifically, an applicant had to obtain:
       a passing grade on an examination administered by the commission and
       designed to test the examinee’s knowledge of the rules of the particular
       sport that the person seeks to referee, the commission’s rules applicable
       to the conduct of the matches and exhibitions in the particular sport that
       the person seeks to referee, and such other aspects of officiating as the
       commission determines appropriate to its determination as to whether the
       applicant possesses the qualifications and capabilities to act as a referee.
Ohio Adm. Code 3773-5-03 also addresses referee licensing and provides:
       (A)    A person shall not be determined to possess the knowledge and
       experience necessary to qualify them to hold a referee’s license unless all
       of the following conditions are met:
             (1) They are at least twenty-one years of age;
Case No. 2017-00986JD                       -14-                                 DECISION


             (2) They have experience as an amateur or professional referee; or
             have been evaluated by the executive director, inspector or person
             delegated by the commission;
             (3) They have a current Ohio license to referee.
Only the administrative code addresses ringside physicians. O.A.C. 3773-2-04 requires
that a ringside physician must be present “at all times” and “must be a licensed medical
doctor or a doctor of osteopathic medicine * * * legally authorized to practice medicine”
in Ohio.
       {¶32} The court finds that defendant’s decisions regarding the qualifications and
appointment of ringside physicians and referees are clearly legislative acts and/or the
kind of basic policy decisions that discretionary immunity protects.         Regarding the
appointment of Dr. Armille, Ohio Adm. Code 3773-2-04 requires only that ringside
physicians “be a licensed medical doctor or a doctor of osteopathic medicine * * * legally
authorized to practice medicine” in Ohio. It is undisputed that Dr. Armille met these
requirements. Plaintiff’s claims based on Dr. Armille’s appointment and his criticisms of
Dr. Armille, in effect, attack this regulation’s lack of additional requirements for
qualification as a ringside physician. Thus, Dr. Armille’s field of practice and his level of
individual study or training regarding boxing head injuries are immaterial. In the court’s
view, defendant’s decision whether to include additional qualification requirements in its
regulations and/or whether to appoint Dr. Armille as the ringside physician pursuant to
those regulations is just as much a policy decision as the decision whether to improve
one portion of highway over another or whether to initiate disciplinary proceedings
against an attorney.     The court will not second-guess these requirements, which
resulted from defendant’s basic policy decision regarding the regulations applicable to
boxing matches in Ohio, and finds that immunity bars any claim based on defendant’s
appointment of Dr. Armille.
Case No. 2017-00986JD                             -15-                                      DECISION


        {¶33} Turning to defendant’s appointment of Mr. Osorio, both the Revised Code
and the Administrative Code set forth qualifications for referees, none of which require
specific knowledge and/or training regarding head injuries.1 As for the contents of Ohio
Adm. Code 3773-5-03, the court finds defendant’s basic policy decision regarding the
qualifications for referees, which is set forth in this regulation, is entitled to immunity.
Thus, plaintiff’s suggestion that defendant is reckless because it did not follow the
Association of Boxing Commission standards for certifying referees and/or does not use
the ABC’s training program lacks merit.
        {¶34} Plaintiff also asserts that his claims are based on defendant’s
implementation of R.C. 3773.42 and/or Ohio Adm. Code 3773-05-03 because it failed to
assure Mr. Osorio had the “knowledge and experience” necessary to be a referee.
However, the court finds that defendant’s decisions, which the Revised Code empowers
it to make, as to “the training requirements” a prospective referee must complete and
the “experience requirements” a referee must possess are also policy decisions
protected by discretionary immunity as is the determination, pursuant to these
standards, whether an applicant possesses the knowledge and experience necessary to
obtain licensure. Thus, defendant cannot be liable for its decision to include or not
include head injury training as part of its “training requirements” or its decision as to
whether knowledge of head or brain injuries are necessary “experience requirements”
an applicant must possess to qualify as a referee. The same is true for defendant’s
decisions as to what type of evaluation process to utilize and/or whether to require or
ensure knowledge of head injuries as part of any evaluation or examination before
licensure. All are policy decisions. Thus, the court finds defendant’s decision that Mr.
Osorio was “qualified to hold a license by reason of [his] knowledge and experience” is
entitled to immunity.

        1Of course, the Ohio legislature enacts the Ohio Revised Code and there is no greater legislative
function than the legislature’s enactment of statutes. In addition to being entitled to immunity, the
decision embodied in R.C. 3773.42 is not one made by defendant who is the only party to this case.
Case No. 2017-00986JD                       -16-                                 DECISION


       {¶35} Further, despite plaintiff’s assertion otherwise, Mr. Osorio’s recollection of
his evaluation and licensing process does not create an issue of material fact, one that
would prevent the application of immunity. In Lewis, the 10th District held, based partly
on immunity, that similar activity, licensing and inspecting of nursing homes, failed to
state a claim without examining the requirements of the inspection statutes at issue or
the defendant’s conduct thereunder. The court cannot discern and finds no difference
between licensing and inspecting nursing homes and evaluating and licensing referees.
Schweisberger and Robinson are also instructive.           Like defendant’s regulation of
boxing, there is a statutory and regulatory framework that applies to disciplinary counsel
and/or the medical board’s investigation and prosecution of disciplinary complaints.
Discretionary decisions made by these administrative bodies whether to initiate
investigations or prosecutions, like decisions regarding the content of training or
qualifications or whether a prospective referee is qualified, are entitled to immunity.
       {¶36} Moreover, plaintiff’s expert’s opinions do not change the court’s conclusion.
Mr. Steele, is critical of defendant’s training of Mr. Osorio and specifically its failure to
assure Mr. Osorio possessed knowledge regarding head injuries and/or concussions.
Plaintiff’s assertion that defendant failed to assure knowledge of head injuries or that
any specific failing of knowledge is actionable is no different than attacking defendant
on the contents of the regulation itself. See Risner 145 Ohio St.3d at 62-63 (Argument
that ODOT’s implementation of policies did nothing to improve intersection sight
distance actually attacked the decision entitled to immunity itself).
       {¶37} There is no genuine issue of material fact that defendant is empowered by
and acts pursuant to both the Ohio Revised Code and the Ohio Administrative Code
and that its decisions relative to its basic function of licensing and appointing ringside
physicians and referees are basic policy decisions characterized by the exercise of a
high degree of official judgment or discretion.      Based on immunity, the court finds
Case No. 2017-00986JD                       -17-                                 DECISION


defendant is entitled to judgment as a matter of law as to any claims based on its
licensing and appointment of Dr. Armille and Mr. Osorio.

       -Defendant did not act recklessly in failing to stop the fight
       {¶38} In addition to asserting plaintiff acted recklessly in its appointment of Mr.
Osorio and Dr. Armille, plaintiff asserts that defendant acted recklessly through the
actions or omissions of both in failing to stop the fight in the first round. As noted above,
“actions of the agents or employees * * * are distinguishable from the original decision to
take action and thus [can] be actionable.” Risner at p. 61-62. Thus, the court finds
discretionary immunity does not apply to plaintiff’s claims regarding the failure to stop
the fight.
       {¶39} Demonstrating recklessness is an onerous burden. One acts recklessly
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 the 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.”      Thompson v. McNeill, 53 Ohio St. 3d 102, 104-105
(1990), abrogated on other grounds. Accord Anderson v. City of Massillon, 134 Ohio
St. 3d 380, 2012 Ohio 5711, ¶ 4 of syllabus (“Reckless conduct is characterized by the
conscious disregard of or indifference to a known or obvious risk of harm to another that
is unreasonable under the circumstances and is substantially greater than negligent
conduct”). Further, “[w]hile an act to be reckless must be intended by the actor, the
actor does not intend to cause the harm which results from it.” Thompson at 104-105.
In contrast, “the term “negligence” is synonymous with heedlessness, thoughtlessness,
inattention, inadvertence, and oversight, and conveys the idea of inadvertence as
distinguished from premeditated or formed intention, or a conscious purpose to do a
wrong act or to omit the performance of a duty.” Wolfe v. AmeriCheer, Inc., 10th Dist.
No. 11AP-550, 2012-Ohio-941, 2012 Ohio App. Lexis 827, ¶ 17.
Case No. 2017-00986JD                      -18-                                 DECISION


       {¶40} In holding that recovery, based on conduct in sports, requires intentional or
reckless conduct the Ohio Supreme Court indicated “our conclusion * * * must be
understood in the context of the rules of the sport” and that “[w]hat 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.” The
Court recognized the “inverse relationship” between duty and dangerousness in sports
which “should enter into a court’s decision-making process on a motion for summary
judgment when the plaintiff alleges reckless or intentional conduct.” Id. at 104-105.
       {¶41} As the court found in its first summary judgment decision, boxing is a sport
involving “the art of attack and defense with the fists.” It is not a contact sport; it is a
combat sport. Boxers attack their opponent through punches to the head and body. It
is customary for boxers to be knocked down and/or sustain injury and continue to fight.
Even after multiple knockdowns involving one or both boxers, fights often continue until
all rounds are concluded. When moving from the amateur to professional ranks, as
Hamzah did on December 19, 2015, boxers use smaller gloves, fight without headgear,
and fight for more rounds in addition to facing better competition. When asked about
the dangers to boxers when entering the ring, Coach Hamood testified, “I mean all
fighters going into the ring know this. It’s just a given rule. You’re getting punched in
the head. It’s not normal.” (Hamood depo. p. 71.)
       {¶42} Consequently, rules applicable to boxing matches in Ohio reflect boxing’s
violent nature.   The rules state that a knockout means “to defeat an opponent by
knocking them to the canvas for a count of ten.” One way to accomplish a knockout, of
course, is to strike an opponent in such a way as to render them unconscious. A
technical knockout requires not just that a fighter appear injured but that they be “too
badly injured to continue.” There is no three-knockdown rule in Ohio so boxers can
continue fighting even if they are knocked to the canvas by their opponent three or more
Case No. 2017-00986JD                       -19-                                DECISION


times in one round. After a knockdown, while the referee is counting to ten, a boxer can
rise, fall again and still fight so long as he is able to continue by the count of ten. The
rules even contemplate a boxer getting knocked out of the ring, re-entering the ring and
continuing to fight.     Judges score the fighters each round based on punches,
aggressiveness and defense. Admn. Code 3773-1-01(D; H-I; K-L; U).
       {¶43} Considering the above and given the inherent dangerousness of boxing,
the court finds that the duty owed to Hamzah was low. Accord Levine v. Gross, 123
Ohio App. 3d 326, 330-31 (9th Dist.1997) (As “[k]arate is a high-contact, inherently
dangerous sport where contact to the head, face, and other parts of the body is actually
encouraged by the rules * * * duty is low.”). In addition, the court finds injuries of all
sorts, including serious head injuries, are an intrinsic part of boxing.
       {¶44} Based on its review of the evidence presented by the parties including the
video evidence, the court finds that there is no genuine issue of material fact and that
defendant did not act recklessly in failing to stop the fight.             While the court
acknowledges that there is some variation in the testimony of the witnesses regarding
Hamzah’s condition during the fight, this testimony does not establish a genuine issue
of material fact regarding recklessness. The video, which represents objective evidence
of the December 19, 2015 fight contains no evidence of recklessness on the part of
Mr. Osorio, Dr. Armille or anyone else.
       {¶45} Further, there is no evidence that Mr. Osorio, Dr. Armille or anyone else
was aware that Hamzah suffered a brain injury or any other serious injury necessitating
that the fight be stopped during the first round. Mr. Osorio and Dr. Armille, both
experienced, testified that they are mindful of boxer safety and observe fighters for
signs of injury. Mr. Osorio testified that he would have stopped the fight if he had any
concern for Hamzah’s well-being and that he had stopped fights previously. (Osorio
depo. p. 56.)    Thus, plaintiff seeks recovery based on defendant’s failure to notice or
be aware of Hamzah’s injury.          Rather than exhibiting a conscious disregard or
Case No. 2017-00986JD                      -20-                                DECISION


indifference to a known risk, the evidence establishes, at most, thoughtlessness,
inadvertence, or oversight which speaks to negligence, not recklessness. See Wolfe v.
Americheer, 10th Dist. No. 11AP-550, 2012-Ohio-941, ¶ 20; 26, (Despite evidence that
spotters involved in a dangerous cheerleading maneuver were in incorrect positions, the
10th District found “[t]here is no evidence that the spotters themselves recognized any
facts that would lead them to believe that their conduct could or did create an
unreasonable risk of harm to another * * * At best, their actions could be considered
negligent.”)
       {¶46} Moreover, other undisputed facts support the court’s finding that
recklessness is absent. It is undisputed that both Hamzah and Coach Hamood were
experienced.      They had trained together for years and had participated together in
numerous amateur fights. It is undisputed that Hamzah fought and defended himself
well enough that defendant’s judges found he won rounds two and three. Even Coach
Hamood, who interacted with Hamzah during the minute between each round, failed to
notice his injury and did not believe, at the time, that the fight should have been
stopped.       In fact, he testified Hamzah seemed fine and responded well to his
instructions.
       {¶47} Further, the fact that repeated blows to the head and serious head injuries
are intrinsic to boxing bolsters the court’s conclusion that defendant did not act
recklessly. In Doody v. Evans, 186 Ohio App. 3d 479, 2010-Ohio-3523, a softball player
sued for injuries which resulted from a collision at home plate that violated league rules.
In upholding summary judgment, the 10th District found that the player’s injuries were
the result of a “foreseeable hazard of the game of softball.” While acknowledging that a
“fine line” sometimes exist between “sporting injuries that can and cannot be legally
remedied,” the court ultimately held that “[a]bsent evidence that appellant’s injury arose
out of conduct that was not truly an intrinsic part of the sport of competitive softball,
Case No. 2017-00986JD                       -21-                                DECISION


appellant’s cause of action cannot be sustained.” Id. at ¶ 33. The same is true here;
Hamzah’s injuries arose from conduct that is an intrinsic part of boxing.
         {¶48} As the court finds defendant did not act recklessly, defendant is entitled to
judgment as a matter of law based on plaintiff’s claims related to the failure to stop the
fight.

Conclusion
         {¶49} Based upon the foregoing, the court finds that there are no genuine issues
of material fact and that defendant is entitled to judgment as a matter of law. The court
denies plaintiff’s motion for summary judgment and grants defendant’s motion for
summary judgment.




                                            PATRICK M. MCGRATH
                                            Judge
[Cite as Al-Jahmi v. Ohio Athletic Comm., 2020-Ohio-3487.]




ALI AL-JAHMI, etc.                                   Case No. 2017-00986JD

        Plaintiff/Counter Defendant                  Judge Patrick M. McGrath

        v.                                           JUDGMENT ENTRY

OHIO ATHLETIC COMMISSION

        Defendant/Counter Plaintiff
        {¶50} A non-oral hearing was conducted in this case upon the parties’ motions for
summary judgment.               For the reasons set forth in the decision filed concurrently
herewith, plaintiff’s motion for summary judgment is DENIED and defendant’s motion for
summary judgment is GRANTED. 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
Filed May 13, 2020
Sent to S.C. Reporter 6/26/20
