Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 5. Plaintiffs’ Conduct
3. Amateur or “pick-up” sports. Primary assumption of risk is a comprehensive doctrine
that applies not only to spectators at professional sporting events, but also to players in amateur or
even “pick-up” games. The Indiana Court of Appeals recently stated the doctrine as follows:
A participant in a sporting event, including any person who is part of the sporting
event or practice involved such as players and coaches, does not have a duty to
fellow participants to refrain from conduct which is inherent and foreseeable in the
play of the game, even though such conduct may be negligent and may result in
injury absent evidence that the other participant either intentionally caused injury
or engaged in conduct so reckless as to be totally outside the range of ordinary
activity.
Geiersbach v. Frieje, 807 N.E.2d 114 (Ind. Ct. App. 2004) (emphasis added).
In Maddox, the court reasoned that “a higher degree of awareness will be imputed to a
professional than to one with less than professional experience in the particular sport.” But the
Geiersbach court suggests that any person participating in a sporting game, regardless of its level
of professionalism or lack thereof, is deemed to have assumed risk inherent and foreseeable in the
particular sport. Which is the better approach?
4. So far the cases we have seen have been primary assumption of the risk cases in which the
doctrine of assumption of the risk is a different way of saying that the defendant did not breach a
duty to the plaintiff. What about the next case: is this a case in which the defendant was not
negligent? Or is this a case about the plaintiff’s behavior creating a defense for a defendant
whose conduct might have made it liable under other circumstances?
Landings Association, Inc. v. Williams, 728 S.E.2d 577 (Ga. 2012)
MELTON, J.
[T]he Court of Appeals held that the trial court properly denied in part motions for
summary judgment brought by The Landings Association, Inc., . . . finding that a question of fact
remained as to whether The Landings . . . failed, pursuant to the law of premises liability, to take
reasonable steps to protect Gwyneth Williams from being attacked and killed by an alligator in the
planned residential community and golf club owned and/or managed by The Landings . . . .
As is relevant to our holding, the facts, in the light most favorable to Williams, show that,
at the time of the alligator attack, Williams was house-sitting for her daughter and son-in-law at
The Landings, a planned residential development with a golf course located on Skidaway Island
off the Georgia coast. Before The Landings was developed, the land within and surrounding its
boundaries was largely marsh, where indigenous alligators lived and thrived. In order to develop
the property, The Landings entities installed a lagoon system which allowed enough drainage to
create an area suitable for a residential development. After the project was completed in the
1970s, the indigenous alligators subsequently began to move in and out of The Landings through
its lagoon systems.
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