## Facts

- Thirteen-year-old Angela Marchetti invited neighborhood children, including fifteen-year-old Richard Kalish, to play an informal game of “kick the can” at her home.
- The group modified the game by using a ball as “home base” and by making the first captured player immediately become the new “it.”
- While Marchetti was “it,” she spotted Kalish, ran to the ball, placed her foot on it, and called out his name, which under the modified rules meant Kalish should stop and become “it.”
- Kalish instead kept running, collided with Marchetti, and kicked the ball out from under her foot.
- Marchetti fell and broke her right leg in two places.
- Marchetti sued, alleging Kalish caused her injuries negligently and/or willfully, wantonly, and maliciously.
- In deposition, Marchetti admitted she did not believe Kalish intended to injure her.

## Issues

1. Whether a participant in a recreational or sporting activity may recover for injuries caused by another participant’s conduct absent proof of reckless or intentional misconduct.
2. Whether proof of negligence alone is sufficient to impose liability between co-participants in an informal recreational game.

## Decision

- The Ohio Supreme Court reversed the court of appeals and reinstated summary judgment for Kalish.
- The court held that participants in recreational or sports activities assume the ordinary risks of the activity.
- A participant cannot recover for injuries caused by another participant unless the defendant’s conduct was reckless or intentional (as defined by Restatement (Second) of Torts §§ 500 and 8A).
- The record contained no evidence that Kalish acted intentionally, and his conduct did not meet the recklessness standard; therefore, Marchetti’s claim failed as a matter of law.

## Legal Principles

- Voluntary participants in recreational or sports activities assume the ordinary risks inherent in the activity.
- Co-participants owe each other a duty to refrain from reckless or intentional conduct; ordinary negligence is not enough for liability for injuries occurring during play.
- “Intent” requires a desire to cause the consequences or belief they are substantially certain to occur (Restatement (Second) of Torts § 8A).
- “Recklessness” requires knowing or having reason to know of facts creating an unreasonable risk of physical harm that is substantially greater than negligence (Restatement (Second) of Torts § 500).
- Where the evidentiary record lacks facts supporting recklessness or intent, summary judgment for the defendant co-participant is proper.

## Conclusion

The court limited tort recovery between co-participants in recreational activities to cases involving reckless or intentional misconduct, holding that voluntary participants assume ordinary risks of play and cannot recover for injuries caused by mere negligence.


Marchetti v. Kalish, 559 N.E.2d 699 (Ohio 1990)