Direct Appeal, Fourth District, Utah County The Honorable
Derek P. Pullan No. 150401989
Leonard E. McGee, Peter R. Mifflin, Sandy, for appellant.
Sadé A. Turner, Karmen C. Schmid, Scarlet R. Smith,
Salt Lake City, for appelle.
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.
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 experienced this
phenomenon-an athletic competition acclaimed on some local
t-shirts as "the brawl that begins with prayer."
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.
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.
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. The referee
determined that the contact was not intentional and warranted
only a common foul. Nixon unfortunately sustained a serious
knee injury in the collision.
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.
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.
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.
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.
We affirm the district court's grant of summary
judgment.But we do so on a somewhat modified basis.
The "contact sports exception" endorsed by the
district court (and followed in a majority 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."
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
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.
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.
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 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 ...