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Assumption of Risk in Polo
By Lisa Hollister, Esq.
During a match at the Willow Bend Polo and Hunt Club,
Alan Connell suffered injuries after Robert Payne, Jr.
swung a polo mallet striking Connell in the eye. At trial
the jury found in favor of defendants, Payne and Willow
Bend. Connell appealed, claiming that the trial court had
erred by refusing to submit jury questions on ordinary and
gross negligence.
During the trial all parties agreed that polo is a dangerous
game and it is common for injuries to occur even when the
players diligently follow the rules of the game.
The Facts
Connell and Payne were on opposite teams and during
a play, both of them rode to intercept the ball. Each player
tried to make a shot to beneft his team. Both players
simultaneously swung their mallet at the ball. Connell’s
mallet struck the ball and Payne’s mallet struck Connell
in the eye, causing Connell to lose his sight in that eye.
Connell sued both Payne and the club [Connel v.
Payne, 814 S.W.2d 486] for his injuries claiming that
Payne intentionally or recklessly caused his injury. He
also alleged that Payne had a reputation as a reckless
player and as a result of Willow Bend’s knowledge of
Payne’s reputation, the club was similarly negligent
when it allowed Payne to play. Connell also alleged that
Payne’s and Willow Bend’s negligence was the proximate
cause of his injury (proximate cause is when an injury
fows directly from the action of the defendant). The trial
court found that Payne neither intentionally or recklessly
caused Connell’s injury and as a result neither Willow
Bend or Payne was negligent.
Issue on Appeal
On appeal, the Texas court was presented with the issue
of whether there is a legal duty owed by one participant
to another in a competitive contact sport. Connell argued
that the proper standard for damages is negligence and
that to require him to prove recklessness holds him to an
unreasonably high burden of proof. It was his contention
that if a participant in a competitive contact sport violates a
safety rule, the plaintiff should only have to prove ordinary
Appeals Court Decision
The Appeals Court found that when one consents to
participate in a dangerous contact sport such as polo, the
participant assumes a risk of injury. The risks involved in
competing in a contact sport such as polo was the basis
for the Court’s reluctance to grant awards to the plaintiff
for the injuries received as a participant. The Court
explained that the only exception would have been if the
defendant/participant had deliberately injured the other
Assumption of Risk
The Appeals Court stated in its decision that at one
time, assumption of the risk completely barred recovery
in tort cases (a private wrong or injury other than a breach
of contract) but the Texas Supreme Court in the case of
Farley v. M M Cattle Co., 529 S.W. 2d 751, had already
abolished that defense in cases involving ordinary negligence.
Instead, the fact fnder in a negligence action is not to determine
the reasonableness of the actor’s conduct in confronting a risk
and to compare the responsibility. Reviewing the Farley case,
the Appeals Court found that the Texas State’s High Court did
so in response to TEX. CIV.PRAC.& REM.CODE ANN. Section
33.001-016, a law enacted by the Texas legislature under which
it adopted the legal concept of comparative negligence. Under
this law negligence can be apportioned between the parties
rather than fnd that a defendant is completely in the wrong and
thus fully responsible for all of the damages. The result was that
the Texas courts now no longer allow assumption of the risk to
be used as a complete bar to recovery in negligence cases.
In the Farley case, the Texas Supreme Court found that while
assumption of the risk can no longer be used as a complete
defense in cases involving negligence, it can be used as a
complete defense in cases involving strict liability (product
liability cases) and express consent cases (consent which
is directly given). Citing the Ohio Supreme Court case of
Marchetti v. Kalish, 53 Ohio St. 3d 95, the Court found that a
mere showing of negligence is not enough to allow recovery
in sport or recreational activity. Relying on the Ohio decision,
the Court in the Connell case found that a participant in a
competitive contract sport such as polo expressly consents to
and assumes the risk of the dangerous activity when he or she
voluntarily participates in the sport. The Court further went on to
hold that for a plaintiff in such a case to prevail in such an action
involving a competitive contact sport, the plaintiff must prove the
defendant acted “recklessly” or “intentionally”.
While the Texas legislature has limited the right to use
assumption of the risk as a complete defense protecting
defendants from liability when a defendant is faced with liability
in a negligence action, the reader should realize that not all
states have limited the defendant’s ability to utilize this defense.
As a result the ability to use this defense to protect a defendant
in such an action will depend upon the laws of the state in which
the case is brought. However as evidenced in this case, when
one is participating in a contact sport such as polo, the state laws
and prior court decision
may be such that even
if assumption of the risk
has been limited as a
defense in that state it
may still be possible for
a defendant to utilize this
legal defense.
Lisa Hollister is an
attorney practicing
in Cincinnati, Ohio.
Questions for Ms.
Hollister’s column
can be addressed to