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Marchetti v. Kalish

559 N.E.2d 699 (1990)

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Marchetti v. Kalish

Ohio Supreme Court

559 N.E.2d 699 (1990)

Facts

When Angela Marchetti (plaintiff) was 13 years old, she and several friends played a modified version of “kick the can” at Marchetti’s house. They used a ball, rather than a can, for the game. One of the kids playing was Richard Kalish (defendant). While Marchetti stood with one foot on the ball, Kalish ran into Marchetti and knocked her over. This play was against the rules. Marchetti broke her leg in two places. Five years later, Marchetti sued Kalish for negligently injuring her. At trial, Marchetti testified that she did not believe that Kalish had intentionally injured her. Kalish filed a motion to dismiss. The trial court granted Kalish’s motion, holding that a person who participates in a recreational or sporting event can recover only for an intentional tort, and that Marchetti had assumed the risk of playing kick the can when she voluntarily participated in the game. Marchetti appealed. The court of appeals reversed and remanded. The court reasoned that Kalish could be liable for negligence if Marchetti did not consent to Kalish’s rough play despite her participation in the game. Believing that this holding conflicted with precedent, the trial court certified the case to the supreme court.

Rule of Law

Issue

Holding and Reasoning (Resnick, J.)

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