NIC, NPC FILE JOIN AMICUS BRIEF IN TEXAS SUPREME COURT

Robert E. Manley, Manley & Burke

The Texas Supreme Court has before it the question of law as to the proper standard to be applied to a fraternity when it sponsors a competitive contact sport. It will be assisted in its decision making by an amicus curiae brief filed on behalf of the National Interfraternity Conference, Inc. and the National Panhellenic Conference, Inc.

Edward Moore sued the Texas Eta Chapter of Phi Delta Theta and Phi Delta Theta Fraternity because of the loss of vision in one eye during a competitive contact sport sponsored among two teams of Texas Eta pledges. The contact sport involved in this case was a “war game” where two teams of pledges shot at each other with paint balls. The winner of the game would be the team with a member who had not been hit by a paint ball. During play, a tree limb dislodged Mr. Moore’s protective goggles from his eyes. Instead of adjusting the goggles, he stopped to  shoot another round. While doing that, a paint ball hit him in the eye, blinding him in one eye.

The general rule is that participants in competitive contact sports are not liable for injuries unless the injury is caused intentionally or recklessly. The reason for the contact sports doctrine is “to encourage a vigorous and competitive spirit on the field of play.” Moore’s case was dismissed on a motion for summary judgment which means that there were no contested issues of fact and the law was against him. The basis for the dismissal was the competitive contact sports doctrine.

Moore had sued both the chapter and the general fraternity under a theory of negligence. One acts negligently when one behaves toward another in such a way that a reasonably  prudent  person  would  not  behave   and  that ca uses injury to the other person. It is easier to prove negligence than it is to prove an intentional injury or injury caused by recklessness.

Moore appealed to the Texas Court of Appeals which reversed and sent it back for a trial on the grounds that the contact sports doctrine does not apply to the sponsors of an event, in this case, the fraternity, but only to the people actually participating in the event.¹

There was a dissent by Justice Tim Taft who wrote: “Applying,the negligence standard of care to sports sponsors for injuries due to inherent dangers of a competitive contact sport is just as likely to chill vigorous and competitive participation as applying it to the participants. Indeed, it is likely to chill the opportunity to engage in such sports.” Justice Taft would extend the contact sports doctrine to the sponsors of events. He stated that: “The Panel opinion acknowledged Ohio cases as the genesis of the competitive sports doctrine. Appellees pointed out in their original brief, and on rehearing, that Ohio has applied the doctrine to nonparticipants. See Gallagher v. Cleveland Browns Football Co., 93 Ohio App.3d 449,638 N.E.2d 1082 (Ohio App. 1994); Kline v. OIE Assoc., Inc., 80 Ohio App.3d 393, 609 N.E.2d 564 (Ohio App. 1992).” Other states have also extended the competitive contact sports doctrine to the sponsors of events.

The NIC and NPC amicus curiae brief urges the Supreme Court of Texas to apply the competitive contact sports doctrine to sponsors of competitive sports as well as to participants. This would bring Texas in line with other states. Prior to this case, Texas had not considered the issue of the application of the competitive contact sports doctrine to sponsors of events.

While concentrating on the competitive contact sports doctrine, the Court of Appeals did not address the fact that there is a legal distinction between the general fraternity which operates internationally, and the local chapter. The local chapter was the sponsor of the event, not the general fraternity. Indeed, it is unlikely that the general fraternity even knew that the competition was planned. As a result, the general fraternity should have been dismissed from the case.

The collaboration of NIC and NPC to stand behind a chapter in Texas is the type of cooperation that builds a strong Greek system nationwide.

¹ Moore v. Phi Delta Theta Co. (1998), Tx. App. LEXIS 2676.