It was the 12th inning of the 1970 MLB All-Star game. Ray Fosse was catching for the AL and Pete Rose (a “friend” to Fosse) had reached second base for the NL, looking to score the winning run. There was a (single) base hit to center field, and Rose raced toward home plate. It was less than certain that he could reach home from second base on a single. Close plays at home plate are common in such cases. Fosse stood in the base path on the third base side of home awaiting the long throw from short center. Rose turned the corner at third and saw Fosse blocking his path to home plate. Just as the ball was arriving to the beckoning glove of Fosse, he was bowled over by a charging Pete Rose in a collision that secured victory for the NL and which seriously injured Ray Fosse. This can happen in sports competition.

To my knowledge, Pete Rose never injured another player during training or during practice. Consider the violence of a football game. A defensive lineman or blitzing linebacker will dance and rejoice over the broken body of a sacked quarterback. Yet in practice drills contact with the quarterback is most often prohibited. So that which is ordinary conduct in a sport depends on the exercise in question. This nuance is generally comprehended by people who are not on the Indiana Supreme Court.

The case is Megenity v. Dunn. The unanimous Transfer Opinion was handed down by the SCOTSI on February 16, 2017. The sport is karate. The exercise in question was mere training or practice and not competition.

At a southern Indiana karate “studio” there was a large class (open to all belt levels). One of the several training drills was called “kicking the bag.” There was an array of three bags, each held by a single volunteer. The first two bags were for “side” kicks while the third bag, held by Tresa Megenity, was for “flying” kicks which (contrary to the name) involved one foot planted on the floor while the kick was made with the other foot. The impact of each type of kick (on the bag and on the holder) was fairly predictable. Tresa was experienced in being the “bag holder” for the so-called “flying” kicks. Then came participant David Dunn who charged Tresa’s bag and delivered a substantially more forceful “jump” kick that caused Tresa to fall back and to suffer a serious knee injury.

In the “kicking the bag drill” in question there was no place for a “jump” kick. Yet in karate as a whole jump kicks are within the ordinary activity. Mr. Dunn quickly apologized for his inappropriate kick, explaining that he “didn’t mean to jump.” How that could be true is beyond my understanding. From the observable circumstances it seems reasonably inferable that Mr. Dunn was “showing off” though his belt rank was a couple of colors below Tresa’s black belt.

Tresa sued David for breach of duty resulting in her injury. The trial court awarded Summary Judgment to David. A divided COA panel reversed in Megenity v. Dunn, 55 N.E.3d 367 (Ind.Ct.App. 2016). The COA acknowledged the rule of Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011) and its brave new holding of nonliability (within the realm of injuries to sport participants and bystanders) for activity “within the range of ordinary behavior” in the sport. The COA majority in Megenity reasoned that a jump kick at the third bag may have been outside the ordinary behavior of a participant in that drill or exercise. The CLB concurs.

The SCOTSI took Transfer to hold that there is only one standard of “ordinary” conduct for a given sport. If a “jump” kick is “ordinary” in karate competition, then (according to the SCOTSI) it is still “ordinary” in a limited training drill where its use was not allowed.¹

An exception to the sports immunity for “ordinary” conduct is the infliction of injury by intent or recklessness, neither of which was well-argued in Megenity. If the SCOTSI adheres to its ill-reasoned single standard approach for a given sport (regardless of the subject activity within that sport), the path toward reason may involve a rethinking of recklessness on the facts of Megenity. Even if “jump” kicks are “ordinary” within the sport of karate, how is it not reckless to use a jump kick in a limited drill of prescribed lesser kicks? If the CLB had tears, it would shed one or two over the SCOTSI’s Opinion and the lack of justice for Tresa Megenity.


¹According to all the CLB has learned about instruction in karate, discipline and respect are required. Accordingly, students should not “ordinarily” use a potentially dangerous kick that is not permitted in a given drill.



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