Marchetti v. Kalish

559 N.E.2d 699 (1990)


The object of “kick the can” is to keep from being captured by the person designated as “it” and to free those players already caught. The game traditionally involves the use of a tin can, which indicates “home base.” The other participants run and hide while the designated “it” looks for them. When someone is spotted, the designated “it” runs to home base and calls out the spotted player’s name, followed by “kick the can .-one, two, three.” The player is then considered captured and must stay near home base. Other players can release any captured players by sneaking up on home base while the designated “it” is not there and kicking the can off home base. When “it” has captured all of the other players, the first player caught is the new “it.” P invited neighborhood friends over to her house, including d, age fifteen, to play a game called “kick the can.” Their variations included the use of a ball instead of a can, and the first player captured immediately became the new “it.” P was the person designated “it.” She spotted D and ran to home base. P placed her left foot on the ball and shouted D’s name. D was supposed to stop and in turn, become “it.” D continued to run towards P, colliding with her and kicking the ball out from under her foot. P's right leg was broken in two places. Five years later P sued D for negligence or for willfully, wantonly, and maliciously causing the injury. The court granted D’s motion for summary judgment. In P’s deposition, she admitted that she did not believe that D had intended to injure her during the game. The trial court held that as a voluntary participant in the game, P had assumed the risk of her injury. The court of appeals reversed and remanded the cause, holding that an issue of fact existed as to whether P consented to D's action through her participation in the game. The court then certified the case for review and final determination.