                 This opinion is subject to revision before final
                      publication in the Pacific Reporter

                                 2019 UT 32


                                    IN THE

       SUPREME COURT OF THE STATE OF UTAH

                                JUDD NIXON,
                                  Appellant,
                                       v.
                              EDWARD CLAY,
                                Appellee.

                               No. 20170532
                            Filed July 11, 2019

                            On Direct Appeal

                    Fourth District, Utah County
                   The Honorable Derek P. Pullan
                           No. 150401989

                                 Attorneys:
      Leonard E. McGee, Peter R. Mifflin, Sandy, for appellant
Sadé A. Turner, Karmen C. Schmid, Scarlet R. Smith, Salt Lake City,
                          for appellee

 ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
 which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE,
                  and JUSTICE PETERSEN joined.

   ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
   ¶1 At the outset of the oral argument in our court in this case,
counsel for the appellee presented a quote from the late Senator John
McCain. The quote alludes to the sport of mixed martial arts as a
“dangerous and brutal exercise,” while then warning of a “sport,
more vicious and cold-blooded, that takes place in Mormon
meetinghouses across this great nation of ours”—“LDS Church
Basketball.” This quote, sadly, appears to be a matter of internet
apocrypha. We can find it attributed to a McCain floor speech on
various pages of the world-wide web, but no such quote appears in
the pages of the Congressional Record. Yet the apocryphal quote
conveys an accepted view of “church ball” among many who have
                             NIXON v. CLAY
                          Opinion of the Court


experienced this phenomenon—an athletic competition acclaimed on
some local t-shirts as “the brawl that begins with prayer.”
    ¶2 At least one of the parties to this case seems to see it that
way. Judd Nixon is the plaintiff in a tort suit that arose out of a
basketball game at a meetinghouse of the Church of Jesus Christ of
Latter-day Saints. Nixon sought to recover damages from the player
he viewed as responsible for his injuries—Edward Clay. The issue on
appeal is whether the district court erred in adopting a “contact
sports exception” in the law of torts. The district court held that “in
bodily contact games . . . participants are liable for injuries in [a] tort
action only if [their] conduct is such that it is either willful or with a
reckless disregard for the safety of the other player.” Applying this
“contact sports exception” to the facts of this case, the district court
determined that Nixon’s injury arose out of conduct that was not
willful or reckless but was inherent in the game of basketball. On
that basis the district court held that Clay owed no duty to Nixon.
And it granted summary judgment to Clay.
   ¶3 We affirm but on a slightly modified basis. We endorse the
idea of an exception to liability arising out of sports injuries. But we
do not think the exception should turn on the defendant’s state of
mind, or be limited just to contact sports. We instead hold that
participants in any sport are not liable for injuries caused by their
conduct if their conduct was inherent in the sport. Applying this
exception to the facts of this case, we conclude that Clay’s conduct
was inherent in the game of basketball. And we affirm the district
court’s grant of summary judgment on this basis.
                                     I
    ¶4 Judd Nixon and Edward Clay were playing on opposite
teams in a church-sponsored recreational basketball game. Nixon
dribbled the ball down the court to take a shot. Clay pursued Nixon
to try to contest the shot. As Clay approached Nixon’s right side he
extended his right arm over Nixon’s shoulder to reach for the ball.
Nixon came to a “jump stop” at the foul line and began his shooting
motion. When Nixon came to this sudden stop, Clay’s arm made
contact with Nixon’s right shoulder. Nixon then felt his left knee
pop. Both men fell to the ground.1 The referee determined that the

_____________________________________________________________
   1Nixon gave varied explanations of how he ended up on the
ground. At one point he claimed that Clay “tackled” him. Elsewhere
                                                    (continued . . .)
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contact was not intentional and warranted only a common foul.
Nixon unfortunately sustained a serious knee injury in the collision.
    ¶5 Three years later Nixon filed a complaint alleging that Clay’s
negligence caused his knee injury. Clay filed a motion for summary
judgment two years into the litigation. Clay asked the district court
to adopt a “contact sports exception” recognized in many
jurisdictions. And he argued in the alternative that no jury could find
that he acted negligently based on the undisputed facts.
    ¶6 The district court granted Clay’s motion for summary
judgment on both grounds. It adopted a “contact sports exception”
that provides that participants in bodily contact sports are liable for
injuries only when the injuries are the result of conduct that
demonstrates a “willful” or “reckless disregard for the safety of the
other player.” Applying this test, the court first determined that
basketball is a contact sport. Then it determined that Nixon’s injury
was not the result of “willful” or “reckless” conduct, but conduct
inherent and foreseeable in the game of basketball. And it held that
the contact sports exception thus shielded Clay from liability.
    ¶7 The court also applied the test articulated in B.R. ex rel. Jeffs
v. West, 2012 UT 11, 275 P.3d 228. And it held, in the alternative, that
no reasonable jury could find that Clay acted negligently.
    ¶8 Nixon now appeals, asking us to reverse the district court’s
ruling. He first contests the adoption of a contact sports exception.
Second, he contends that the district court misapplied the summary
judgment standard when it concluded that Clay’s alleged “tackle”
was common and foreseeable and that Clay accordingly owed Nixon
no duty under Jeffs.
                                   II
   ¶9 We affirm the district court’s grant of summary judgment.2
But we do so on a somewhat modified basis. The “contact sports
exception” endorsed by the district court (and followed in a majority


he stated that it was possible that Clay wrapped his arms around
him to try to stop him from falling. And at one point he admitted
that Clay’s intentions were not necessarily to take him to the ground
or to cause him injury.
   2  We review the district court’s legal conclusions—and in this
case the adoption of a new legal rule—for correctness. See Massey v.
Griffiths, 2007 UT 10, ¶ 8, 152 P.3d 312.


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of jurisdictions) provides that a “participant in a contact sport owes a
duty [to a co-participant] only if his or her conduct is willful or done
with reckless disregard for the safety of another player.” To apply
this exception, a court must pursue a two-step inquiry. First, the
court asks whether the sport at issue is a contact sport. If so, the court
must then consider whether the alleged tortfeasor’s conduct was
“willful or done with reckless disregard for the safety of another
player.” If the alleged tortfeasor did not act willfully or recklessly he
“owes no duty under a standard of ordinary negligence.”
    ¶10 We affirm the establishment of an exception to tort liability
for injuries arising out of sports. But we do not fully embrace the
majority rule. We instead establish a simpler framework that avoids
the complicated line-drawing problems associated with the
assessment of a tortfeasor’s state of mind and with the decision on
whether a sport qualifies as a contact sport. We instead hold that
participants in sports generally have no duty to avoid conduct that is
inherent in the sport. And we clarify that the tortfeasor’s state of
mind may be relevant, but is not a necessary element of the
exception.
     ¶11 Though we reject the specific exception adopted by the
district court, we nonetheless affirm its grant of summary judgment.
It is undisputed that Nixon was injured when Clay “reached in” and
“swiped at the basketball,” incidentally making contact with Nixon’s
shoulder. And the undisputed evidence (including photos of the
foul) shows that these actions are inherent in the game of basketball.
Applying the exception we adopt today to the undisputed facts, we
hold that Clay had no duty to avoid the contact that allegedly caused
Nixon’s injury. And we affirm on that basis.
    ¶12 In the paragraphs below we first describe the basis for our
conclusion that voluntary participants in sports owe no duty to
avoid contact that is inherent in the activity. We explain our decision
to depart from the majority rule and offer some commentary aimed
at aiding our courts in the application of our holding. Second, we
apply our standard to the undisputed facts of this case. We affirm
the grant of summary judgment on the ground that it is undisputed
that Nixon’s injury arose out of conduct inherent in the game of
basketball.
                                    A
    ¶13 Our cases have established a framework for the
establishment of a duty of care in the law of torts. We have
announced a “general rule” that “we all have a duty to exercise care

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when engaging in affirmative conduct that creates a risk of physical
harm to others.” B.R. ex rel. Jeffs v. West, 2012 UT 11, ¶ 21, 275 P.3d
228. And we have also explained that “[t]here are exceptions to the
rule . . . in categories of cases implicating unique policy concerns that
justify eliminating the duty of care for a class of defendants.” Id. In
deciding whether to endorse an exception, we have looked to certain
“‘minus’ factors” that may weigh against the imposition of a duty of
care. Id. Those factors include “the foreseeability or likelihood of
injury,” “public policy as to which party can best bear the loss
occasioned by the injury,” and “other general policy considerations.”
Id. (citations omitted) (internal quotation marks omitted).
    ¶14 Nixon asks us to uphold a duty of care of a participant in a
basketball game under this framework. Where such a participant
undertakes an affirmative act, Nixon says that the risk of injury is
foreseeable and the actor is in the best position to avoid an ensuing
injury. Clay challenges these arguments on their own terms. Yet he
also seeks a categorical exception that avoids the duty analysis under
the foreseeability and loss-avoidance factors identified in Jeffs—a
“contact sports” exception recognized in other jurisdictions.
    ¶15 We do not endorse the precise terms and conditions of this
exception as framed in a majority of other jurisdictions. But we do
conclude that voluntary participants in sports owe no duty to avoid
contact that is inherent in the activity they are engaged in. This
conclusion fits fairly within the framework established in Jeffs, which
leaves room for “general policy considerations” as a basis for an
exception to the general rule that we all owe a duty to exercise care
in engaging in affirmative conduct. Id. As explained below, our
holding is also consistent with the doctrine of primary assumption of
risk, which establishes that a defendant has no duty to avoid dangers
that are “inherent” in a given activity.3


_____________________________________________________________
   3  See Rutherford v. Talisker, 2019 UT 27, ¶¶ 45–46, --- P.3d ---
(describing the doctrine of primary assumption of risk; explaining
that it forecloses a duty in tort for conduct inherent in a voluntary
activity); 57B AM. JUR. 2d Negligence § 763 (“An essential element of
primary assumption of risk is that the plaintiff consciously and
voluntarily agreed that the defendant would not have a duty to
protect against a particular danger inherent in their dealing . . . .”);
Kent Feuerhelm et al., From Wright to Sunday and Beyond: Is the Law
Keeping Up With the Skiers?, 1985 UTAH L. REV. 885, 886 (“Primary
                                                       (continued . . .)
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                            NIXON v. CLAY
                         Opinion of the Court


    ¶16 We explain the basis of our holding in the paragraphs below.
We first outline the principles and policies endorsed in other
jurisdictions. Then we set forth the standard that we establish.
                                       1
    ¶17 The Restatement (Second) of Torts states that a decision to
“[t]ak[e] part in a game manifests a willingness to submit to such
bodily contacts or restrictions of liberty as are permitted by its rules
or usages.” RESTATEMENT (SECOND) OF TORTS § 50 cmt. b (1965). With
this in mind, “[t]he majority of jurisdictions which have considered
this issue have concluded that personal injury cases arising out of an
athletic event must be predicated on reckless disregard of safety.”
Gauvin v. Clark, 537 N.E.2d 94, 97 (Mass. 1989).4
    ¶18 The majority rule establishes that a participant in a sport
“breaches a legal duty of care to other participants—i.e., engages in
conduct that properly may subject him or her to financial liability—
only if the participant intentionally injures another player or engages
in conduct that is so reckless as to be totally outside the range of the
ordinary activity involved in the sport.” Knight v. Jewett, 834 P.2d
696, 711 (Cal. 1992).5 The courts that endorse this rule have identified

assumption of risk bars a plaintiff from recovering for injuries
caused by dangers inherent in the activity.”).
   4 See also Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516, 524
(10th Cir. 1979); Nabozny v. Barnhill, 334 N.E.2d 258, 261 (Ill. App. Ct.
1975); Ross v. Clouser, 637 S.W.2d 11, 14 (Mo. 1982) (en banc); Kabella
v. Bouschelle, 672 P.2d 290, 294 (N.M. Ct. App. 1983); RESTATEMENT
(SECOND) OF TORTS § 500 cmts. e & g (1965).
   5  See also Gauvin v. Clark, 537 N.E.2d 94, 96–97 (Mass. 1989)
(plaintiff hockey player was injured when hit with hockey stick by
opposing player; court held defendant’s liability should be
determined by whether he acted with “reckless disregard of safety”);
Ross, 637 S.W.2d at 13–14 (“[A] cause of action for personal injuries
incurred during athletic competition must be predicated on
recklessness, not mere negligence.”); Kabella, 672 P.2d at 294 (plaintiff
injured in informal tackle football game; court held that “a cause of
action for personal injuries between participants incurred during
athletic competition must be predicated upon recklessness or
intentional conduct, ‘not mere negligence’” (citation omitted));
Marchetti v. Kalish, 559 N.E.2d 699, 703–04 (Ohio 1990) (“Thus, we
join the weight of authority set forth above and require that before a
                                                        (continued . . .)
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a series of policy rationales in support of this rule. We find these
policy rationales quite persuasive.
    ¶19 Voluntary participants in sports “manifest[] a willingness to
submit to . . . bodily contacts . . . permitted by its rules.”
RESTATEMENT (SECOND) OF TORTS § 50 cmt. b. They also submit to
some bodily contact not permitted by the rules because “rule[]
infractions and mishaps are virtually inevitable” in sports where
bodily contact is inherent. Leonard ex rel. Meyers v. Behrens, 601
N.W.2d 76, 81 (Iowa 1999). Contact, both permitted by the rules and
sometimes contrary to the rules, is a known and accepted risk of
many sports. And “it is inapposite to the competitiveness of contact
sports to impose a duty on participants to protect coparticipants
from . . . known and accepted risks.” Ludman v. Davenport Assumption
High Sch., 895 N.W.2d 902, 911 (Iowa 2017) (emphasis removed)
(citation omitted).
     ¶20 If participants faced liability every time contact with another
player resulted in an injury, a “flood of litigation” would ensue. See
Crawn v. Campo, 643 A.2d 600, 604 (N.J. 1994) (asserting that one
reason to adopt a contact sports exception is to “avoid a flood of
litigation”). “[V]igorous participation in athletic activities” would be
deterred. Id. Athletic competition “as we know it would not be
played.” Pfister v. Shusta, 657 N.E.2d 1013, 1018 (Ill. 1995) (citation
omitted). And our society would be worse off as a result.
                                   2
   ¶21 For these reasons we think it appropriate to establish an
exception to tort liability for certain injuries arising out of voluntary
participation in sports. But we do not deem it appropriate to require
proof that a defendant’s conduct was reckless or intentional. Nor do
we think it is necessary to limit the exception to an arbitrary
subcategory of “contact” sports. Instead we hold that voluntary
participants in a sport cannot be held liable for injuries arising out of
any contact that is “inherent” in the sport. Under our rule,
participants in voluntary sports activities retain “a duty to use due
care not to increase the risks to a participant over and above those
inherent in the sport.” Knight, 834 P.2d at 708. But there is no duty to
lower or eliminate risks that are inherent in an activity.


party may proceed with a cause of action involving injury resulting
from a recreational or sports activity, reckless or intentional conduct
must exist.”).


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                          Opinion of the Court


    ¶22 We depart from the majority rule in part because we find the
“intentional or reckless” conduct standard unnecessary and
potentially problematic as applied to some sports. Under the
majority rule, sport “participant[s] [are] liable for injuries . . . if the
participant’s conduct was ‘either deliberate, willful or with a reckless
disregard for safety of the other player.’” Pfister, 657 N.E.2d at 1015
(citation omitted). In applying this standard most jurisdictions
endorse the Restatement definition of recklessness:
       [An] actor’s conduct is in reckless disregard of the
       safety of another if he does an act . . . knowing or
       having reason to know of facts which would lead a
       reasonable man to realize, not only that his 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.
RESTATEMENT (SECOND) OF TORTS § 500. This standard seems
problematic in at least some sports. In sports like football, rugby, ice
hockey, and other high-contact sports, contact between players is
often simultaneously intentional or reckless and inherent in the
game. Even contact technically prohibited by the rules, like a
personal foul in the game of basketball, is rather routinely initiated
intentionally as an element of game strategy. See Pfister, 657 N.E.2d
at 1018 (“[In] [b]asketball, hockey, and soccer . . . players regularly
commit contact beyond that which is permitted by the rules even as
applied.” (citation omitted)). And some conduct in high-contact
sports will at least sometimes be the kind of conduct that is in
“reckless disregard of the safety of another”—at least in the sense
that there is a known, high risk of physical harm to another player.
    ¶23 In high-contact sports—where intentional conduct is
expected and even encouraged—the majority rule could impose
liability on players for simply playing the game as it is designed and
expected to be played. Injuries arising out of such contact are of
course unfortunate. But they do not warrant tort liability.
    ¶24 Some jurisdictions couch their recklessness exception in
terms that incorporate an inherency inquiry—creating liability only
when a player “intentionally injures another player or engages in
conduct that is so reckless as to be totally outside the range of the
ordinary activity involved in the sport.” Knight, 834 P.2d at 711
(emphasis added). This seems to create a two-part inquiry where
both the defendant’s mental state and the inherency of the contact

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must be determined in order to apply the exception. But the first step
seems unnecessary.
    ¶25 If a defendant’s actions are inherent in a sport, the defendant
should not face liability. And if the defendant causes injury through
conduct not inherent in the sport, he or she should face liability
under ordinary tort principles. A participant’s state of mind may be
relevant to the inherency inquiry; but a showing of intentional or
reckless conduct is not necessary. If a participant in a sport initiated
contact for the sole purpose of injuring a co-participant, for example,
and not for a purpose that is strategic to or inherent in the game, that
may suggest that the contact was not inherent. And merely negligent
acts, on the other hand, may more often be seen as inherent. But
again the key question is whether any given contact is inherent in the
sport. The defendant’s state of mind is at most a factor of
circumstantial relevance.
   ¶26 The inherency inquiry is an outgrowth of our longstanding
doctrine of primary assumption of risk.6 This doctrine is rooted in a
principle of implied consent—that participants implicitly consent to
dangers that are inherent in the activity they voluntarily participate



_____________________________________________________________
   6 This doctrine is to be distinguished from what our cases refer to
as secondary assumption of risk. Secondary assumption of risk is an
affirmative defense that applies when a person “unreasonab[ly]
encounter[s] . . . a known and appreciated risk.” Moore v. Burton
Lumber & Hardware Co., 631 P.2d 865, 870 (Utah 1981); see also
Rutherford, 2019 UT 27, ¶ 47 (discussing secondary assumption of
risk). This doctrine was abrogated by the Utah Comparative
Negligence Act, 1973 Utah Laws 710–12. See Jacobsen Constr. Co. v.
Structo-Lite Eng’g, Inc., 619 P.2d 306, 309 (Utah 1980). Primary
assumption of risk is different. It involves a policy determination
(based on implied consent) that there is no basis for the imposition of
a duty in tort. See Rutherford, 2019 UT 27, ¶ 46. And this doctrine is
alive and well in our law. See Fordham v. Oldroyd, 2007 UT 74, ¶ 13,
171 P.3d 411 (“[W]e do not violate principles of comparative
negligence when we evaluate the presence or absence of duty under
what had previously been denominated as primary assumption of
the risk.”); Hale v. Beckstead, 2005 UT 24, ¶ 24, 116 P.3d 263 (“Where
there is no duty, there is no fault to compare or distribute under the
comparative fault scheme.”).


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                         Opinion of the Court


in.7 For such dangers, the doctrine of primary assumption of risk
provides that there is no duty, and thus no liability, in tort.
   ¶27 The inherency inquiry will depend on the facts of a
particular case and the characteristics of a particular sport. We adopt
no uniform standard that will easily resolve all cases. But we outline
below a few guiding principles to aid in the application of this
exception.
   ¶28 Contact that is permitted and anticipated by the rules of a
sport is clearly inherent.8 But inherency should not be based solely
on what is permitted or prohibited by the rules of the game.
       [Many sports] permit some bodily contact and, in
       actual practice, more contact is permitted than a
       reading of the rules would indicate. . . . [P]layers

_____________________________________________________________
   7 See Rutherford, 2019 UT 27, ¶¶ 45–46 (explaining that “primary
express assumption of risk” is rooted in contract, while noting that
“primary implied assumption of risk” extends to risks inherent in an
activity voluntarily entered into); 57B AM. JUR. 2D Negligence § 763
(“An essential element of primary assumption of risk is that the
plaintiff consciously and voluntarily agreed that the defendant
would not have a duty to protect against a particular danger
inherent in their dealing . . . .”); Kent Feuerhelm et al., From Wright
to Sunday and Beyond: Is the Law Keeping Up With the Skiers?, 1985
UTAH L. REV. 885, 886 (“Primary assumption of risk bars a plaintiff
from recovering for injuries caused by dangers inherent in the
activity.”); see also Morgan v. State, 685 N.E.2d 202, 207 (N.Y. 1997)
(“[B]y engaging in a sport . . . a participant consents to those
commonly appreciated risks which are inherent in and arise out of
the nature of the sport generally . . . .”); Turcotte v. Fell, 502 N.E.2d
964, 968 (N.Y. 1986) (“As a general rule, participants properly may
be held to have consented, by their participation, to those
injury-causing events which are known, apparent or reasonably
foreseeable consequences of the participation.” (citation omitted)).
   8  A few of the many possible examples of this type of
rule-permitted contact include: boxing out in basketball, tackling the
ball-carrier in football, punching an opponent in the face in a boxing
match, or hitting another player with the ball in a dodgeball game.
This contact would fall squarely within inherent contact foreseen
and permitted by the rules.


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       regularly commit contact beyond that which is
       permitted by the rules even as applied. In basketball,
       such an illegal contact is described as a foul for which
       a sanction is imposed. Sometimes the player fouled is
       injured. This is to be expected.
Pfister, 657 N.E.2d at 1018 (citation omitted). Because conduct
outside the scope of the rules is often expected, we warn against
inherency inquiries that are focused only on the technical rules of the
game.
    ¶29 When determining whether contact, prohibited or not by the
rules, is an inherent risk of the sport, courts should consider factors
like the frequency at which this type of contact occurs, the
circumstances in which it occurred, whether the contact is an aspect
of the regular strategy of the game, and the severity of the sanction
imposed by game officials.9 These inquiries, and others that may be
_____________________________________________________________
   9  This inquiry may leave some difficult cases at the margins. But
there will also be easy cases at opposite ends of the spectrum. A
common personal foul involving a routine basketball move (like an
attempt at the ball that results in a hack across the arm), for example,
is easily classified as inherent in the game of basketball, as it is
frequent, results only in a minor sanction, and is obviously strategic.
See NBA OFFICIAL, Rule No. 12: Fouls and Penalties,
https://official.nba.com/rule-no-12-fouls-and-penalties/             (last
visited July 10, 2019) (explaining that many routine personal fouls
may result in a free throw or the ball being taken out of bounds and
inbounded by the other team). An example of non-inherent contact
in basketball, by contrast, might involve a bench-clearing brawl in
which punches are thrown at an opponent. This is unfortunately not
unheard of. But it is infrequent, not a matter of the regular strategy
of basketball, and results in severe sanctions (ejection and even
suspension and fines). NBA OFFICIAL, Rule No. 12: Fouls and Penalties,
Section VI—Fighting Fouls https://official.nba.com/rule-no-12-fouls-
and-penalties/#fightingfouls (last visited July 10, 2019) (explaining
that players are immediately ejected and fines and suspensions can
be levied against players who fight during a game); 3 NBA stars
suspended after Lakers-Rockets fight, alleged spitting, CBS NEWS (Oct. 22,
2018, 6:36 AM), https://www.cbsnews.com/news/lakers-rockets-
brawl-nba-suspends-brandon-ingram-rajon-rondo-chris-paul/
(discussing the suspension of three NBA players after a fight during
a basketball game).
                                                         (continued . . .)
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added as our caselaw unfolds, may be aided by expert testimony
and other evidence—such as photographs, video, and eyewitness
testimony.10
    ¶30 Courts should use this evidence to help resolve the
dispositive question—whether the contact that caused the injury was
either an essential or inherent part of participation in a sport
voluntarily engaged in by the parties. And that inquiry should be
rooted in the implied consent basis for the doctrine of primary
assumption of risk. The ultimate question, in other words, is whether
the contact that caused the injury was sufficiently frequent and
strategic that a person engaging in the activity could be said to have
impliedly consented to the contact.
    ¶31 We depart from the majority rule in one additional way. The
exception we create is not a “contact sports exception” with
application only to those sports that courts deem “contact sports.”
The “contact sport” inquiry has led to some rather arbitrary
line-drawing, typically hinging on how much contact is anticipated



    This latter example also highlights the danger in attributing too
much significance to the “strategic” nature of an act. A player could
conceivably find some strategic value in throwing a punch at a star
player from the other team—in an attempt to prompt a fight or
otherwise take him out of the game. But that sort of move is not part
of the regular strategy of basketball. And it would not be inherent in
basketball because it is (thankfully) sufficiently infrequent that no
reasonable basketball player would be seen as impliedly consenting
to this kind of contact.
   10  This inquiry grows even more difficult when the “sport” at
issue is an unorganized pickup game or a non-traditional sport. See,
e.g., Pfister, 657 N.E.2d 1013 (applying contact sports exception to a
pickup game of kick the can). But the relevant inquiry should not be
whether “the sport was formally organized or coached.” Id. at 1017.
Recreational or competitive, formal or informal, the relevant inquiry
remains whether the contact at issue was an inherent part of the
game the participants voluntarily engaged in. When faced with non-
traditional sports or pick-up games courts should do their best to
discern what is inherent in the activity voluntarily engaged in by the
participants, relying on the same evidence and considerations as in
an organized or traditional sport.


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by the sport as a whole.11 Such line-drawing seems unnecessary.
Even “non-contact sports”—sports that anticipate only incidental or
infrequent contact between co-participants—should be subject to the
protections of the exception outlined above.
    ¶32 An example may be helpful. The game of tennis does not
involve frequent bodily contact among participants in the sport. For
that reason this sport conceivably might not qualify as a “contact
sport.” But there are obvious risks of injurious contact in tennis.
Players may anticipate getting hit with a tennis ball or colliding with
a teammate during a doubles match. And tennis players in these
situations should be exposed to no more liability for injuries caused
by their contact than a basketball player who collided with another
player during a game. The amount and degree of contact inherent in
a sport is not the key inquiry; the key question is whether the contact
that did occur is inherent in the sport.
   ¶33 For the reasons stated above, we endorse a simpler sports
exception that focuses solely on the inherency of the conduct causing
the injury. We believe that this approach alleviates the confusion and
unnecessary inquiries required by the majority rule.
                                  B
   ¶34 Though we decline to endorse the exact “contact sports
exception” adopted by the district court, we nonetheless affirm its
grant of summary judgment. On appeal, we review the decision to
grant summary judgment for correctness. Bahr v. Imus, 2011 UT 19,
¶ 15, 250 P.3d 56. “An appellate court . . . make[s] its own decision
on the correctness of summary judgment, reviewing the same paper
record that was before the trial court to decide whether there are
genuine issues of material fact and whether the moving party is
entitled to judgment as a matter of law.” Id. ¶ 17. A grant of
summary judgment is proper when “there is no genuine dispute as
_____________________________________________________________
   11 See, e.g., Pfister, 657 N.E.2d at 1017–18 (determining whether or
not a unorganized game of kick the can qualified as a contact sport);
Feld v. Borkowski, 790 N.W.2d 72, 79 (Iowa 2010) (reasoning that
softball was a contact sport by looking at the contact anticipated by
the sport as a whole); Noffke ex rel. Swenson v. Bakke, 760 N.W.2d 156,
161–63 (Wis. 2009) (discussing whether or not the legislatively
created “contact sports exception” applied to cheerleading by
determining whether cheerleading as a whole could be considered a
contact sport).


                                  13
                            NIXON v. CLAY
                         Opinion of the Court


to any material fact and the moving party is entitled to judgment as a
matter of law.” UTAH R. CIV. P. 56(a). In reviewing the evidence
before the court on summary judgment, the “facts and all reasonable
inferences drawn therefrom [are viewed] in the light most favorable
to the nonmoving party.” Massey v. Griffiths, 2007 UT 10, ¶ 8, 152
P.3d 312 (alteration in original) (citation omitted) (internal quotation
marks omitted).
   ¶35 We affirm the entry of summary judgment under the above
standard. The undisputed facts demonstrate that Nixon’s injury was
caused by contact inherent in the game of basketball. And the sport
exception that we establish forecloses the imposition of liability
when an alleged tortfeasor’s conduct is inherent in the sport.
   ¶36 Nixon concedes that he was injured when Clay initially
made contact with his right shoulder.12 The testimony and
photographs presented on appeal indicate that this initial contact
occurred when Clay attempted to “reach in” and “swipe at the
basketball” to prevent Nixon from making a shot. And it is
undisputed that reaching in for the ball and swiping at the ball are
common basketball moves.13 It is likewise undisputed that fouls,
both accidental and intentional, are a part of the game of
_____________________________________________________________
   12 Nixon was asked: “[C]an you tell me when it is that you believe
that your knee was injured in this incident?” He responded, “I
remember feeling my knee pop as I was contacted.” The attorney
then clarified, “[B]efore you were on the ground; is that correct?” To
which Nixon responded, “Correct.” In a later question on the same
topic, Nixon was asked, “When he put his right arm around your
right shoulder and when he made that contact, you felt your left
knee pop?” Nixon said, “Yes.” The attorney then again clarified, “[I]t
is your belief that the injury happened before you were even on the
ground?” To which Nixon again answered, “Yes.”
   13 The head of the recreational basketball league in which Nixon
and Clay played testified that “[b]asketball is a contact sport” and
that “[f]ouls happen.” He explained that “when someone is driving
with the ball, it’s very common for the opposing player to take a
swipe at the ball and miss and hit their arms or sometimes their
body.” Rick Camp, the referee of the game at issue, testified that “a
player going for the ball, but missing and hitting the body of the
player in control of the ball [is] . . . a common foul.” Nixon does not
contest these statements.


                                  14
                          Cite as: 2019 UT 32
                         Opinion of the Court

basketball—so much so that each player is permitted five fouls per
game. In this case, spectators at the game and the referee testified
that Clay’s contact was properly classified as a common foul.
    ¶37 Nixon does not contest the proposition that “reaching in”
and “swiping at the ball” are inherent in the game of basketball. And
he points to no disputed facts on this question. Instead he just asserts
that Clay did more than just reach in and swipe at the ball. He
alleges that Clay “tackled” him. And “tackling,” Nixon argues, is not
inherent in the game of basketball. This is insufficient, however,
because Nixon’s allegation of tackling is immaterial. Nixon concedes,
after all, that his injury happened during Clay’s swipe and not as a
result of the alleged “tackle.” And because the parties agree that the
injury did not occur during the “tackle,” we need not decide whether
some form of “tackling” is inherent in the game of basketball.
    ¶38 To survive summary judgment, Nixon would have to
demonstrate that there is a dispute as to whether the contact giving
rise to the injury was inherent in the sport. And we have no such
dispute here. Clay did not owe Nixon a duty to avoid “reaching in”
and “swiping at the ball” because such conduct is inherent in the
game of basketball. And absent such a duty, there can be no liability.
See Rocky Mountain Thrift Stores, Inc. v. Salt Lake City Corp., 887 P.2d
848, 852 (Utah 1994) (“Without a duty, there can be no negligence as
a matter of law, and summary judgment is appropriate.”). We affirm
the decision granting summary judgment to Clay on this basis.
                                  III
    ¶39 We reject the “contact sports exception” endorsed by the
district court and established in a majority of other courts—an
exception that turns on a defendant’s state of mind and on whether
an activity qualifies as a “contact sport.” We instead decide that
voluntary participants in sports have no duty of care to avoid contact
that is inherent in the activity. Applying this exception to the
undisputed facts, we conclude that Clay’s conduct—“reaching in”
and “swiping at the basketball”—was inherent in the game of
basketball. And we affirm the district court’s grant of summary
judgment on this basis.




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