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A parent volunteering at softball practice hit a line drive that struck the ten-year-old pitcher in the mouth, knocking out at least four teeth. Her parents filed a lawsuit for medical expenses estimated at $25,000, but the Michigan Appeals Court ruled in favor of the man stating that he may have been negligent, but his conduct was not reckless.

Like many states, Michigan has adopted the recklessness standard; a more demanding burden of proof than the negligence standard. As a general rule, sports participants are only liable for recklessness which causes injury to another participant; there must be proof of disregard for the physical well-being of the other person. This standard recognizes that known risks associated with a contact sport, such as softball, are assumed by participants. When athletes step onto the playing field, they, as well as others involved, are, to a large degree, responsible for their own safety.

Clearly, batting is normal activity in the sport of softball and creates a risk of harm to participants. In this case, the plaintiff would need to demonstrate that the defendant was reckless; only then would liability be imposed for her injuries. There must be an intentional act on the part of the defendant and the act must be performed with reckless disregard to the health and safety of the injured party. Essentially, the injured party must show that the defendant’s conduct was so far outside the scope or rules of the games that the injured participant could not have assumed such a risk. This standard was not met by the proofs in this case.

When people engage in a recreational activity, have they voluntarily subjected themselves to certain risks inherent in that activity? Is it enough to discharge others from duty of care? Or, should participants who suffer injuries, some of which are quite serious, find relief in the courts? What do you think of the recklessness standard? Should it be modified to cover negligent acts? How about a “no-fault” standard that compensates for medical expenses, regardless of fault? What are your thoughts?

Mark Bello has thirty-three years experience as a trial lawyer and twelve years as an underwriter and situational analyst in the lawsuit funding industry. He is the owner and founder of Lawsuit Financial Corporation which helps provide legal finance cash flow solutions and consulting when necessities of life litigation funding is needed by plaintiffs involved in pending, personal injury litigation. Bello is a Justice Pac member of the American Association for Justice, Sustaining and Justice Pac member of the Michigan Association for Justice, Business Associate of the Florida, Tennessee, and Colorado Associations for Justice, a member of the American Bar Association as well as their ABA Advisory Committee, the State Bar of Michigan and the Injury Board.

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