Recreational Activities Defense Still Applies to Children Under the Age of 7

The recreational activities doctrine has long held that individuals engaging in recreational or sports activities assume the ordinary risks of the activity and cannot recover for any injury unless it can be shown that the defendant’s actions were either reckless or intentional.

In Drury v. Blackston, Ohio’s Third District Court of Appeals addressed whether the recreational activities doctrine still applies when the party assuming the risk is a child under the age of seven.

In Drury, Defendants had offered to supervise the four year old Plaintiff and his sister while Plaintiff’s parents went shopping. At some point, Plaintiff took off his “arm floaties” and entered Defendants’ pool. Not surprisingly, the young child suffered a non-life threatening injury when he went under the water and required hospitalization.

Plaintiffs argued that the recreational activities defense should not apply to children under the age of seven since young children cannot appreciate the risk of swimming in a swimming pool. The court upheld the trial court’s granting of summary judgment, finding that the age of the person injured is immaterial to the application of the recreational activities doctrine. Recovery under the doctrine is dependent only on whether the defendant’s conduct was intentional or reckless. Plaintiffs also argued that the attractive nuisance doctrine should apply to create a higher duty of care.  However, since Plaintiff was not a trespasser, but a social guest at Defendants’ property and negligence could not be established, the court ruled that attractive nuisance doctrine did not apply.

After Drury it is unlikely that a host will be held liable for basic negligence if a child is injured while engaged in a recreational activity. As the court noted, the attractive nuisance doctrine can only apply when the child is trespassing on the property. Even if a child is hurt while engaged in a recreational activity under the supervision of an adult, that adult can only be liable for negligence if it can be shown that he or she acted intentionally or recklessly. This higher burden of proof protects people from being found to be negligent while children engage in normal everyday recreational activities that sometimes result in injury.

For more information, please contact Mansour Gavin’s Civil Litigation Group.

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