[Cite as Al-Jahmi v. Ohio Athletic Comm., 2020-Ohio-3487.]

{¶1} Before the court are plaintiff Ali Al-Jahmi’s (plaintiff) motion for summary 

judgment and motion for reconsideration as well as defendant Ohio Athletic 

Commission’s (defendant) motion for summary judgment. Plaintiff’s claims stem from 

the death of Hamzah Al-Jahmi (Hamzah), who collapsed during a December 19, 2015 

boxing match sanctioned by defendant, and died three days thereafter from his injuries. 

In his complaint, plaintiff alleges defendant acted negligently and/or recklessly in 

numerous ways including through the conduct of the referee and ringside physician 

appointed by defendant. For the following reasons, the court denies plaintiff’s motion 

for reconsideration and motion for summary judgment and grants defendant’s motion for 

summary judgment. 

Motion for Reconsideration 

{¶2} On September 4, 2018, the court granted defendant partial summary 

judgment and dismissed plaintiff’s negligence claim based on both primary and express 

assumption of risk. As to the former, the court found boxing to be an inherently 

dangerous sport from which the risk of head injury cannot be eliminated and, as to the 

latter, the court found Hamzah executed a release and waiver which barred any 

negligence claim. Plaintiff’s motion for reconsideration seeks reversal of the court’s 

previous summary judgment decision. 

{¶3} As the court discussed in its previous decision, primary assumption of risk 

does not depend on the injured person’s subjective consent or appreciation. Rather, 

ALI AL-JAHMI, etc. 

 Plaintiff/Counter Defendant 

 v. 

OHIO ATHLETIC COMMISSION 

 Defendant/Counter Plaintiff 

Case No. 2017-00986JD 

Judge Patrick M. McGrath 

DECISION 
Case No. 2017-00986JD -2- DECISION 

the activity at issue is examined to determine if it is inherently dangerous such that risks 

cannot be eliminated. Primary assumption of risks bars recovery absent recklessness 

and participants in activities to which it applies are owed no duty to eliminate risks 

inherent to the activity. The court again finds that boxing is an inherently dangerous 

sport to which primary assumption of the risk applies. 

{¶4} Likewise, the court finds no reason to reverse its ruling that express 

assumption of risk also applies. Hamzah executed a clear and unequivocal release of 

“any and all actions, causes of action, suits * * * claims and demands whatsoever 

known or unknown * * * against any and all of the persons or entities named in this 

paragraph.” The release clearly applies to any negligence claim, whatever the basis, 

that Hamzah may have had based on his participation in the December 19, 2015 fight. 

{¶5} The court DENIES plaintiff’s motion for reconsideration. Plaintiff must 

establish recklessness. The court now turns to the motions for summary judgment. 

Facts 

{¶6} On December 19, 2015, Hamzah was 19 years old and fighting in his first 

professional fight, an event titled “Seasons Beatings” held at the Ukrainian Hall in 

Youngstown, Ohio. Defendant approved the fight and appointed the ringside physician, 

fight inspector, and referee for the event. In the fourth round, Hamzah collapsed; he 

died three days later from his injuries. Specifically, Hamzah suffered a concussion 

during the first round and, after additional blows to the head, suffered from brain 

swelling associated with second impact syndrome, a condition which plaintiff’s expert 

analogizes to shaken baby syndrome. Had the fight been stopped in the first round, 

Hamzah likely would have survived. Exhibits 4 and 5 to Plaintiff’s Motion for Summary 

Judgment, Affidavits of James P. Kelley and Mayumi Prins. 

{¶7} Hamzah had been training as a boxer since he was 12 and had fought in 

several amateur fights. Deposition of Ali Al-Jahmi p. 20; 22-23; 26; Deposition of 
Case No. 2017-00986JD -3- DECISION 

Mohamed Hamood p. 33; 78; 83. Hamzah’s coach and trainer, Mohamed Hamood 

(Coach Hamood), was in Hamzah’s corner on the night of the fight. Al-Jahmi depo. 

p. 49; Hamood depo. p. 41. For four years, he had worked with Hamzah Monday 

through Friday about two hours a day and had also acted as Hamzah’s trainer for about 

seven or eight of Hamzah’s amateur fights. Hamood depo. p. 21; 23; 26. Plaintiff, 

Hamzah’s father, observed his son’s fight that night, standing about fifteen feet away. 

Al-Jahmi depo. p. 38. 

{¶8} Rounds were three minutes with a one-minute rest period between rounds. 

Deposition of Wilfredo Osorio p. 57. During the first round, Hamzah’s opponent 

knocked him down three times. Osorio depo. p. 96. Hamzah initially took a left hook to 

the chin which knocked him down. Hamood depo. p. 96. As to this first knock down, 

Coach Hamood testified Hamzah “got caught with a * * * left hook. Went down. Got 

right back up.” Hamood depo. p. 42. As to the second knockdown, Coach Hamood 

testified Hamzah “got back up and he was fixing his shorts * * * while the referee was 

counting and that’s about it.” Hamood depo. p. 42. As to the third knockdown, Coach 

Hamood testified it was not a true knockdown because Hamzah was pushed or shoved. 

Hamood depo. p. 43-44. 

{¶9} Though plaintiff observed Hamzah’s “legs * * * wiggling” after the first 

knockdown, he testified that Hamzah landed punches and defended himself throughout 

the first round. Al-Jahmi depo. p. 40-42. Likewise, Coach Hamood also observed 

Hamzah landing punches and defending himself during the first round. Hamood depo. 

p. 42. Any concerns he had regarding Hamzah being knocked down were alleviated 

when Hamzah got up, came to the corner and then responded to coaching. Hamood 

depo. p. 74. Regarding Hamzah’s appearance during the first round, Coach Hamood 

testified, “I think when he stood up once, he stepped to the side once, but that’s like 

normal when you get knocked down.” He further testified nothing appeared abnormal 

during the first round. Hamood depo. p. 43. In fact, Coach Hamood testified he would 
Case No. 2017-00986JD -4- DECISION 

have protested if the referee ended the fight during the first round “[b]ecause he wasn’t 

really hurt in that way” and because Hamzah could land punches, defend himself and 

had a chance to win the fight. Coach Hamood was not concerned for Hamzah’s safety 

during the first round. Hamood depo. p. 68. 

{¶10} Coach Hamood described his interaction with Hamzah between the first 

and second round: 

Yeah. He came back to the corner and I – I put the seat in. I jumped in 

the ropes. He said: What I do wrong, Coach? And he sat down. He was 

upset. I said: Okay. You got caught. Your right hand wasn’t up. You got 

to keep your right hand up and you got to move your feet laterally, side to 

side, don’t just back straight up. He said: Okay, Coach. And I was talking 

to him just like I’m talking to you now and he was talking right back to me. 

He said: Okay, Coach. And he went back through and won the second, 

third, and fourth round. 

* * * 

He did really well. 

* * * 

As I was talking to him, he was understanding. He said, yeah, okay 

Coach, you know, okay, Coach. Hamood depo. p. 44-45. 

Hamzah maintained eye contact with Coach Hamood and made no complaints. 

Hamood depo. p. 45. Coach Hamood testified that Hamzah was talking and acting as 

he typically had between rounds during other fights. Hamood depo. p. 46. Based on 

his interaction with Hamzah, Coach Hamood felt Hamzah could continue fighting. 

Hamood depo. p. 100. 

{¶11} As he did during the first round, plaintiff continued to observe Hamzah fight 

hard, land punches, and defend himself during the second and third round. Though 

plaintiff testified that Hamzah’s legs were shaky, he indicated he believed it resulted 
Case No. 2017-00986JD -5- DECISION 

from Hamzah being “a little shy or intimidated because of so many fans, embarrassed.” 

Al-Jahmi depo. p. 46. Plaintiff also believed that Hamzah won both the second and 

third rounds. Id. at 44-48. 

{¶12} Likewise, Coach Hamood testified that Hamzah “came back and * * * won 

the [second] round and was moving well and * * * was punching well.” He defended 

himself and incorporated Coach Hamood’s coaching instructions during the second 

round. Hamood depo. p. 46. As in the first round, Coach Hamood did not believe the 

fight should be stopped or have any other concern for Hamzah’s safety or well-being. 

Id. at 48. 

{¶13} Between the second and third round, Coach Hamood again spoke to

Hamzah regarding Hamzah’s performance. He testified: 

Q. And how did you know he understood what you were saying? 

A. He would look me right in the eye. Okay, Coach. Okay, Coach. I got 

you. That’s his word, I got you. 

Id. 

{¶14} Coach Hamood observed nothing unusual in the third round and continued 

to believe that there was no reason to stop the fight. Id. at 49. In fact, though Hamzah 

lost rounds one and four and the overall fight, he did win rounds two and three. Id. at 

100; Deposition of Bernie Profato p. 106-108. 

{¶15} Coach Hamood testified that, between the third and fourth round

[i]t was the same. [Hamzah] was doing a great job at that point. You did a 

great job, Hamzah. In fact * * * he got up early * * * I said, Hamzah, sit 

down, you got- you got time. He said, no, I’m ready, Coach, I’m ready, 

Coach. And he looked over at his father, which was standing maybe 20 

feet away, 30 feet away. And he raised his hand to him, and he says, I’m 

ready, Coach, I’m ready to go. This is between the third and fourth round. 

Hamood depo. p. 50. 
Case No. 2017-00986JD -6- DECISION 

Even into the fourth round, Coach Hamood thought Hamzah was doing a good job, both 

landing punches and defending himself, and observed nothing unusual. Id. at 51-52. 

However, Hamzah went down without being hit near the end of the fourth round, 

indicating that his knee was hurt before losing consciousness. Id. at 51-53. 

{¶16} Hamzah’s friend, Mohammed Yacoubi, also attended the fight. He testified 

that Hamzah had “spaghetti legs for a second * * * he was kind of wobbling” after the 

first two knockdowns in the first round. Deposition of Mohammed Yacoubi p. 18-19. 

However, he also testified that during the second round Hamzah looked ‘okay. Like he 

kind of * * * came back.” He also explained several times that Hamzah looked like he 

tired himself out. Id. at 22-23; 26; 28; 29-30. 

{¶17} Emergency Medical Technicians sat ringside during the fight. One of them, 

Danielle Horton, thought Hamzah looked “uneasy on his feet” and informed her partner 

that Hamzah might need emergency services. Deposition of Danielle Horton p. 18-20. 

However, she observed Hamzah continue to defend himself and land punches. Id. at 

21-23. The other EMT, Stephanie Schiavone, contacted the pair’s dispatcher to request 

an ambulance during the first round because Hamzah was losing the round badly. 

Deposition of Stephanie Schiavone p.40; 43. After one of the knockdowns, she also 

heard the referee ask Hamzah if he was okay, to which he replied yes. Id. at 47-48. 

She also testified that she recommended to the ringside physician that Hamzah be 

assessed at the end of the first round. Id. at 133. 

{¶18} Dr. James Armille (Dr. Armille), who is a dermatologist and a member of 

the Ohio Athletic Commission, acted as the ringside physician. Deposition of James 

Armille p. 7; 13. To become a ringside physician, Dr. Armille filled out an application 

and provided proof that he was a physician. Id. at p. 18. He undertook self-study 

regarding concussions. Id. at 37. He testified that his duty as a ringside physician is to 

monitor the fighters. He does so, in part, through observing the fighters during the fight 

to look for signs of injury. He testified that he is mindful of both brain injuries and 
Case No. 2017-00986JD -7- DECISION 

concussive impacts and is aware that signs of subdural hematoma may not manifest 

until after a fight. Id. at p. 28-29; 59-60. In assessing whether a boxer has sustained a 

concussion and/or brain injury, he looks at the boxer’s actions and movement including 

whether the boxer is unsteady on his feet and/or could walk at an angle. He also notes 

whether the boxer is aware of his surroundings. Id. at 57. He testified that, though 

Hamzah was knocked down three times in the first round, he did not think Hamzah 

appeared wobbly or unsteady on his feet and that he observed Hamzah look at the 

referee after being knocked down. Id. at p. 25; 65-66. After Hamzah went down in the 

fourth round, he entered the ring to provide medical attention. Id. at p. 28, 68. 

{¶19} Wilfredo Osorio (Mr. Osorio), the referee for the fight, had been refereeing 

amateur contests since 2009. He had also acted as a professional referee before the 

December 19, 2015 fight. Osorio deposition p. 15-16. However, Mr. Osorio could not 

recall when he obtained his referee’s license. Id. at 16-17. He testified his job, as a 

referee, was to implement the rules and to make sure the boxers were safe. Id. at 

p. 35. As part of his amateur referee training, Mr. Osorio acted as a boxing judge for six 

months, during which he learned the rules of boxing. Id. at p. 20. In training to act as a 

professional referee, he worked with a veteran referee “one on one” learning how to 

move around the ring. Id. at p. 21. Mr. Osorio had previously stopped fights due to 

injury concerns. Id. at p. 32. However, he has never undergone training relative to

brain injuries in boxing. Id. at p. 32; 66-67. 

{¶20} He testified that, during the first round, Hamzah did not appear wobbly or 

unsteady on his feet and the boxers exchanged blows. Id. at 95-97. During breaks 

between rounds, Mr. Osorio indicated he would “look at the boxer, see if they’re hurt. 

When their coach is talking, making sure that, you know, that they respond to their 

coach.” He indicated he did so during the December 19, 2015 fight. Id. at p. 57. When 

Hamzah was knocked down, Mr. Osorio undertook the required standing eight-count 

before allowing the bout to continue. Id. at p. 63. Mr. Osorio has boxers walk toward 
Case No. 2017-00986JD -8- DECISION 

him after the standing eight-count to make sure the boxers are stable on their feet and 

can continue fighting. Id. at p. 99. During the fight and after boxers take blows, he 

checks to make sure “that the fighter’s able to fight,” looking at “body language, 

eyesight, [if] he’s walking wobbly.” Id. at p. 59. 

{¶21} Bernie Profato has been the executive director of the OAC since 2004, 

before which he acted as a professional referee for approximately 200 fights. 

Deposition of Bernie Profato p. 11; 13-14. He attended the December 19, 2015 fight 

and acted as the fight inspector. Id. at p. 15. He testified that Hamzah defended 

himself throughout the first round and that he did not look wobbly. Id. at p. 91-92. 

{¶22} Mr. Profato testified regarding the licensing process. Prospective referees 

complete license applications before shadowing licensed referees during actual fights at 

least three times. The veteran referee, if and when appropriate, then recommends the 

prospective referee for licensure. After observing two to three events, prospective 

referees work an event, during which they are evaluated. Mr. Profato testified “[t]hat’s 

their final test. And they’re evaluated on that. And if they pass that, because they’ve 

got that far, then they’re issued a license” after obtaining the OAC’s approval at a 

commission meeting. Id. at pp. 17-20; 22; 24-25; 27-29. Defendant does not verify that

prospective referees possess knowledge of brain injuries when licensing them. Id. at 

p. 41. He testified prospective ringside physicians must be licensed physicians and 

normally must attend one event to observe how a ringside physician operates. Id. at 

p. 31. 

{¶23} The court reviewed the available video, which depicts all four rounds. Both 

boxers are easily discernible as are the three knockdowns in the first round and 

numerous exchanges of blows between the boxers, both before and after these 

knockdowns. After each knockdown, Hamzah rises unassisted. Mr. Osorio separates 

Hamzah from his opponent and conducts the standing eight-count. Shortly after the 

second knockdown, Hamzah causes his opponent to stumble. The video depicts 
Case No. 2017-00986JD -9- DECISION 

Hamzah move around the ring, dodge punches, block punches and land numerous 

punches throughout the first, second, third and fourth round. He also responds to 

Mr. Osorio’s directions. As the fight stretches into the fourth round, both boxers appear 

tired but Hamzah continues to attack and defend and to move around the ring before 

falling into the ropes while dodging punches being thrown by his opponent. 

Law and Analysis 

{¶24} Plaintiff’s amended complaint delineates 38 specific actions and/or 

omissions of defendant that plaintiff asserts constitute negligence and/or recklessness. 

On summary judgment, plaintiff narrows the basis of his claims. Plaintiff asserts that 

Mr. Osorio and Dr. Armille were unqualified and that defendant acted recklessly in 

appointing them for the Seasons Beatings event and in failing to disclose they were 

unqualified. Plaintiff also asserts that defendant, through the inactions of Mr. Osorio 

and/or Dr. Armille, acted recklessly in failing to stop the fight in the first round. 

Defendant asserts two bases for summary judgment. Defendant asserts it is entitled to 

discretionary immunity and that plaintiff cannot prove that it acted recklessly. 

{¶25} Civ.R. 56(C) states, in part, as follows: 

Summary judgment shall be rendered forthwith if the pleadings, 

depositions, answers to interrogatories, written admissions, affidavits, 

transcripts of evidence, and written stipulations of fact, if any, timely filed 

in the action, show that there is no genuine issue as to any material fact 

and that the moving party is entitled to judgment as a matter of law. No 

evidence or stipulation may be considered except as stated in this rule. A 

summary judgment shall not be rendered unless it appears from the 

evidence or stipulation, and only from the evidence or stipulation, that 

reasonable minds can come to but one conclusion and that conclusion is 

adverse to the party against whom the motion for summary judgment is 
Case No. 2017-00986JD -10- DECISION 

made, that party being entitled to have the evidence or stipulation 

construed most strongly in the party’s favor. 

See also Dresher v. Burt, 1996-Ohio-107, 75 Ohio St.3d 280 (1996). In Dresher, the 

Ohio Supreme Court held, “the moving party bears the initial responsibility of informing 

the trial court of the basis for the motion, and identifying those portions of the record 

before the trial court which demonstrate the absence of a genuine issue of fact on a 

material element of the nonmoving party’s claim.” A “movant must be able to point to 

evidentiary materials of the type listed in 56(C).” Id. at 292. 

{¶26} When the moving party has satisfied its initial burden, Civ.R. 56(E) imposes 

a reciprocal burden on the nonmoving party. It states: 

Supporting and opposing affidavits shall be made on personal knowledge, 

shall set forth such facts as would be admissible in evidence, and shall 

show affirmatively that the affiant is competent to testify to the matters 

stated in the affidavit. Sworn or certified copies of all papers or parts of 

papers referred to in an affidavit shall be attached to or served with the 

affidavit. The court may permit affidavits to be supplemented or opposed 

by depositions or by further affidavits. When a motion for summary 

judgment is made and supported as provided in this rule, an adverse party 

may not rest upon mere allegations or denials of his pleadings, but the 

party’s response, by affidavit or as otherwise provided in this rule, must 

set forth specific facts showing that there is a genuine issue for trial. If the 

party does not so respond, summary judgment, if appropriate, shall be 

entered against the party. (Emphasis added). 

In seeking and opposing summary judgment, parties must rely on admissible evidence. 

Keaton v. Gordon Biersch Brewery Rest. Group, 10th Dist. No. 05AP-110, 2006-Ohio2438, 2006 Ohio App. Lexis 2287, ¶18. The court addresses the parties’ positions 
Case No. 2017-00986JD -11- DECISION 

collectively and relative to the bases upon which it finds summary judgment is 

appropriate. 

 -Discretionary immunity applies to defendant’s licensing, training and 

 appointment of Mr. Osorio and Dr. Armille.

{¶27} Defendant asserts discretionary immunity is a complete bar to plaintiff’s 

claims. In Reynolds v. State, 14 Ohio St.3d 68, ¶ 1 of syllabus (1984), the Ohio 

Supreme Court held, “the state cannot be sued for its legislative or judicial functions or 

the exercise of an executive or planning function involving the making of a basic policy 

decision, which is characterized by the exercise of a high degree of official judgment or 

discretion” but that “once the decision has been made to engage in a certain activity or 

function, the state may be held liable, in the same manner as private parties, for the 

negligence of the actions of its employees and agents in the performance of such 

activities.” Stated another way, discretionary immunity applies when “the [state makes] 

a decision but does not protect the state from culpable conduct in performing the 

activities necessary to implement that decision.” Risner v. ODOT, 145 Ohio St.3d 55, 

2015-Ohio-4443, ¶ 12-13. 

{¶28} Thus, in Reynolds, the Court held that, while the Adult Parole Authority’s 

decision to furlough a prisoner was entitled to immunity, a claim against the state could 

still be maintained based on the state’s failure to confine the prisoner during nonworking hours. Reynolds, 14 Ohio St.3d at p. 71. Likewise, in Risner, the Court held 

the Ohio Department of Transportation is immune when making decisions “regarding 

which portions of a highway it will improve and what type of improvement it will make.” 

Id. at ¶ 1 of syllabus. The Court reasoned that, in its previous decisions, it had 

established that discretionary immunity applies to the decision “whether” to improve a 

highway as well as the decision as to “what type of improvement to make.” Id. at ¶ 16. 

In finding that ODOT’s decisions were entitled to immunity, the Court noted that ODOT, 

acted with both expertise and statutory authorization, and that the judicial branch is 
Case No. 2017-00986JD -12- DECISION 

prevented “from second-guessing ODOT’s decisions in this regard.” However, the 

Risner Court refused to extend immunity to “ODOT’s determination of how an 

improvement is implemented” and stated that “the actions of the agents or employees * 

* * are distinguishable from the original decision to take action and thus could be 

actionable. Id. at p. 61-62.

{¶29} Significantly, the 10th District has found discretionary immunity applies to 

state activities analogous to those at issue here. In Lewis v. Ohio Dep’t of Health, 66 

Ohio App.3d 761, 765 (10th Dist.1990), the 10th District affirmed this court’s decision 

granting a 12(B)(6) motion to dismiss where the plaintiff sought recovery based on the 

state’s alleged failure to comply with state and federal statutes governing nursing home 

inspections. Under the “any set of facts” standard and without discussing specific 

statutory requirements or any compliance or lack of compliance therewith, the 10th 

District found discretionary immunity applied to the “activity complained of” in Lewis, i.e. 

the state’s inspection and/or licensing of nursing homes per state and/or federal 

statutory requirements.

{¶30} Discretionary immunity also applies to Disciplinary Counsel’s decision to 

dismiss an attorney disciplinary complaint and to the Medical Board’s decisions 

regarding the investigation and prosecution of doctor disciplinary complaints. See 

Robinson v. Office of Disciplinary Counsel, 10th Dist. Franklin No. 98AP-1431, 1999 

Ohio App. LEXIS 3928 (Aug. 26, 1999); Schweisberger v. Med. Bd. of State of Ohio, 

10th Dist. Franklin No. 92AP-1766, 1993 Ohio App. LEXIS 2024 (Apr. 8, 1993). It also 

applies to the decision to grant or deny parole and to various decisions of the Ohio 

Department of Rehabilitation and Correction including its decisions regarding inmate 

placement, transfer and security classification as well as its decision to remove 

seatbelts from transport vans. See Deavors v. Ohio Dept. of Rehab. & Corr., 10th Dist. 

Franklin No. 98AP-1105, 1999 Ohio App. LEXIS 2338 (May 20, 1999); Allen v. ODRC, 

10th Dist No. 19AP-729, 2020 Ohio App. Lexis 1054. 
Case No. 2017-00986JD -13- DECISION 

{¶31} Portions of the statutory framework governing defendant and its regulation 

of boxing are also relevant. R.C. 3773.34 and R.C. 119.01, et seq. empower defendant 

to enact rules under which boxing matches are conducted, which are contained in Ohio 

Administrative Code Chapter 3773. As to referees, R.C. 3773.42 provides that, upon 

the filing of an application and the payment of the applicable fee, defendant “shall issue 

the license to the applicant if it determines that the applicant is of good moral character, 

is not likely to engage in acts detrimental to the fair and honest conduct of public boxing 

matches or exhibitions, and is qualified to hold such a license by reason of the 

applicant’s knowledge and experience.” The knowledge and experience component 

requires that the applicant complete “such referee training requirements as the 

commission prescribes by rule” and must possess “such experience requirements as 

the commission prescribes by rule.” R.C. 3773.42(A-B). Until the legislature amended 

it on September 29, 2015, the statute provided an additional condition in subsection (C). 

Specifically, an applicant had to obtain: 

a passing grade on an examination administered by the commission and 

designed to test the examinee’s knowledge of the rules of the particular 

sport that the person seeks to referee, the commission’s rules applicable 

to the conduct of the matches and exhibitions in the particular sport that 

the person seeks to referee, and such other aspects of officiating as the 

commission determines appropriate to its determination as to whether the 

applicant possesses the qualifications and capabilities to act as a referee. 

Ohio Adm. Code 3773-5-03 also addresses referee licensing and provides: 

(A) A person shall not be determined to possess the knowledge and 

experience necessary to qualify them to hold a referee’s license unless all 

of the following conditions are met: 

(1) They are at least twenty-one years of age; 
Case No. 2017-00986JD -14- DECISION 

(2) They have experience as an amateur or professional referee; or 

have been evaluated by the executive director, inspector or person 

delegated by the commission; 

(3) They have a current Ohio license to referee. 

Only the administrative code addresses ringside physicians. O.A.C. 3773-2-04 requires 

that a ringside physician must be present “at all times” and “must be a licensed medical 

doctor or a doctor of osteopathic medicine * * * legally authorized to practice medicine” 

in Ohio. 

{¶32} The court finds that defendant’s decisions regarding the qualifications and 

appointment of ringside physicians and referees are clearly legislative acts and/or the 

kind of basic policy decisions that discretionary immunity protects. Regarding the 

appointment of Dr. Armille, Ohio Adm. Code 3773-2-04 requires only that ringside 

physicians “be a licensed medical doctor or a doctor of osteopathic medicine * * * legally 

authorized to practice medicine” in Ohio. It is undisputed that Dr. Armille met these 

requirements. Plaintiff’s claims based on Dr. Armille’s appointment and his criticisms of 

Dr. Armille, in effect, attack this regulation’s lack of additional requirements for 

qualification as a ringside physician. Thus, Dr. Armille’s field of practice and his level of 

individual study or training regarding boxing head injuries are immaterial. In the court’s 

view, defendant’s decision whether to include additional qualification requirements in its 

regulations and/or whether to appoint Dr. Armille as the ringside physician pursuant to 

those regulations is just as much a policy decision as the decision whether to improve 

one portion of highway over another or whether to initiate disciplinary proceedings 

against an attorney. The court will not second-guess these requirements, which 

resulted from defendant’s basic policy decision regarding the regulations applicable to 

boxing matches in Ohio, and finds that immunity bars any claim based on defendant’s 

appointment of Dr. Armille. 
Case No. 2017-00986JD -15- DECISION 

{¶33} Turning to defendant’s appointment of Mr. Osorio, both the Revised Code 

and the Administrative Code set forth qualifications for referees, none of which require 

specific knowledge and/or training regarding head injuries.1 As for the contents of Ohio 

Adm. Code 3773-5-03, the court finds defendant’s basic policy decision regarding the 

qualifications for referees, which is set forth in this regulation, is entitled to immunity. 

Thus, plaintiff’s suggestion that defendant is reckless because it did not follow the 

Association of Boxing Commission standards for certifying referees and/or does not use 

the ABC’s training program lacks merit.

{¶34} Plaintiff also asserts that his claims are based on defendant’s

implementation of R.C. 3773.42 and/or Ohio Adm. Code 3773-05-03 because it failed to 

assure Mr. Osorio had the “knowledge and experience” necessary to be a referee. 

However, the court finds that defendant’s decisions, which the Revised Code empowers 

it to make, as to “the training requirements” a prospective referee must complete and 

the “experience requirements” a referee must possess are also policy decisions 

protected by discretionary immunity as is the determination, pursuant to these 

standards, whether an applicant possesses the knowledge and experience necessary to 

obtain licensure. Thus, defendant cannot be liable for its decision to include or not 

include head injury training as part of its “training requirements” or its decision as to 

whether knowledge of head or brain injuries are necessary “experience requirements” 

an applicant must possess to qualify as a referee. The same is true for defendant’s 

decisions as to what type of evaluation process to utilize and/or whether to require or 

ensure knowledge of head injuries as part of any evaluation or examination before 

licensure. All are policy decisions. Thus, the court finds defendant’s decision that Mr. 

Osorio was “qualified to hold a license by reason of [his] knowledge and experience” is 

entitled to immunity. 

 1Of course, the Ohio legislature enacts the Ohio Revised Code and there is no greater legislative 

function than the legislature’s enactment of statutes. In addition to being entitled to immunity, the 

decision embodied in R.C. 3773.42 is not one made by defendant who is the only party to this case. 
Case No. 2017-00986JD -16- DECISION 

{¶35} Further, despite plaintiff’s assertion otherwise, Mr. Osorio’s recollection of 

his evaluation and licensing process does not create an issue of material fact, one that 

would prevent the application of immunity. In Lewis, the 10th District held, based partly 

on immunity, that similar activity, licensing and inspecting of nursing homes, failed to 

state a claim without examining the requirements of the inspection statutes at issue or 

the defendant’s conduct thereunder. The court cannot discern and finds no difference 

between licensing and inspecting nursing homes and evaluating and licensing referees. 

Schweisberger and Robinson are also instructive. Like defendant’s regulation of 

boxing, there is a statutory and regulatory framework that applies to disciplinary counsel 

and/or the medical board’s investigation and prosecution of disciplinary complaints. 

Discretionary decisions made by these administrative bodies whether to initiate 

investigations or prosecutions, like decisions regarding the content of training or 

qualifications or whether a prospective referee is qualified, are entitled to immunity. 

{¶36} Moreover, plaintiff’s expert’s opinions do not change the court’s conclusion. 

Mr. Steele, is critical of defendant’s training of Mr. Osorio and specifically its failure to 

assure Mr. Osorio possessed knowledge regarding head injuries and/or concussions. 

Plaintiff’s assertion that defendant failed to assure knowledge of head injuries or that 

any specific failing of knowledge is actionable is no different than attacking defendant 

on the contents of the regulation itself. See Risner 145 Ohio St.3d at 62-63 (Argument 

that ODOT’s implementation of policies did nothing to improve intersection sight 

distance actually attacked the decision entitled to immunity itself).

{¶37} There is no genuine issue of material fact that defendant is empowered by 

and acts pursuant to both the Ohio Revised Code and the Ohio Administrative Code 

and that its decisions relative to its basic function of licensing and appointing ringside 

physicians and referees are basic policy decisions characterized by the exercise of a 

high degree of official judgment or discretion. Based on immunity, the court finds 
Case No. 2017-00986JD -17- DECISION 

defendant is entitled to judgment as a matter of law as to any claims based on its 

licensing and appointment of Dr. Armille and Mr. Osorio. 

 -Defendant did not act recklessly in failing to stop the fight 

{¶38} In addition to asserting plaintiff acted recklessly in its appointment of Mr. 

Osorio and Dr. Armille, plaintiff asserts that defendant acted recklessly through the 

actions or omissions of both in failing to stop the fight in the first round. As noted above, 

“actions of the agents or employees * * * are distinguishable from the original decision to 

take action and thus [can] be actionable.” Risner at p. 61-62. Thus, the court finds 

discretionary immunity does not apply to plaintiff’s claims regarding the failure to stop 

the fight. 

{¶39} Demonstrating recklessness is an onerous burden. One acts recklessly 

when “he does an act or intentionally fails to do an act which it is his duty to the other to 

do, knowing or having reason to know of facts which would lead a reasonable man to 

realize, not only that the conduct creates an unreasonable risk of physical harm to 

another, but also that such risk is substantially greater than that which is necessary to 

make his conduct negligent.” Thompson v. McNeill, 53 Ohio St. 3d 102, 104-105 

(1990), abrogated on other grounds. Accord Anderson v. City of Massillon, 134 Ohio 

St. 3d 380, 2012 Ohio 5711, ¶ 4 of syllabus (“Reckless conduct is characterized by the 

conscious disregard of or indifference to a known or obvious risk of harm to another that 

is unreasonable under the circumstances and is substantially greater than negligent 

conduct”). Further, “[w]hile an act to be reckless must be intended by the actor, the 

actor does not intend to cause the harm which results from it.” Thompson at 104-105. 

In contrast, “the term “negligence” is synonymous with heedlessness, thoughtlessness, 

inattention, inadvertence, and oversight, and conveys the idea of inadvertence as 

distinguished from premeditated or formed intention, or a conscious purpose to do a 

wrong act or to omit the performance of a duty.” Wolfe v. AmeriCheer, Inc., 10th Dist. 

No. 11AP-550, 2012-Ohio-941, 2012 Ohio App. Lexis 827, ¶ 17. 
Case No. 2017-00986JD -18- DECISION 

{¶40} In holding that recovery, based on conduct in sports, requires intentional or 

reckless conduct the Ohio Supreme Court indicated “our conclusion * * * must be 

understood in the context of the rules of the sport” and that “[w]hat constitutes an 

unreasonable risk under the circumstances of a sporting event must be delineated with 

reference to the way the particular game is played, i.e., the rules and customs that 

shape the participants’ ideas of foreseeable conduct in the course of a game.” The 

Court recognized the “inverse relationship” between duty and dangerousness in sports 

which “should enter into a court’s decision-making process on a motion for summary 

judgment when the plaintiff alleges reckless or intentional conduct.” Id. at 104-105. 

{¶41} As the court found in its first summary judgment decision, boxing is a sport 

involving “the art of attack and defense with the fists.” It is not a contact sport; it is a 

combat sport. Boxers attack their opponent through punches to the head and body. It 

is customary for boxers to be knocked down and/or sustain injury and continue to fight. 

Even after multiple knockdowns involving one or both boxers, fights often continue until 

all rounds are concluded. When moving from the amateur to professional ranks, as 

Hamzah did on December 19, 2015, boxers use smaller gloves, fight without headgear, 

and fight for more rounds in addition to facing better competition. When asked about 

the dangers to boxers when entering the ring, Coach Hamood testified, “I mean all 

fighters going into the ring know this. It’s just a given rule. You’re getting punched in 

the head. It’s not normal.” (Hamood depo. p. 71.) 

{¶42} Consequently, rules applicable to boxing matches in Ohio reflect boxing’s 

violent nature. The rules state that a knockout means “to defeat an opponent by 

knocking them to the canvas for a count of ten.” One way to accomplish a knockout, of 

course, is to strike an opponent in such a way as to render them unconscious. A 

technical knockout requires not just that a fighter appear injured but that they be “too 

badly injured to continue.” There is no three-knockdown rule in Ohio so boxers can 

continue fighting even if they are knocked to the canvas by their opponent three or more 
Case No. 2017-00986JD -19- DECISION 

times in one round. After a knockdown, while the referee is counting to ten, a boxer can 

rise, fall again and still fight so long as he is able to continue by the count of ten. The 

rules even contemplate a boxer getting knocked out of the ring, re-entering the ring and 

continuing to fight. Judges score the fighters each round based on punches, 

aggressiveness and defense. Admn. Code 3773-1-01(D; H-I; K-L; U). 

{¶43} Considering the above and given the inherent dangerousness of boxing, 

the court finds that the duty owed to Hamzah was low. Accord Levine v. Gross, 123 

Ohio App. 3d 326, 330-31 (9th Dist.1997) (As “[k]arate is a high-contact, inherently 

dangerous sport where contact to the head, face, and other parts of the body is actually 

encouraged by the rules * * * duty is low.”). In addition, the court finds injuries of all 

sorts, including serious head injuries, are an intrinsic part of boxing. 

{¶44} Based on its review of the evidence presented by the parties including the 

video evidence, the court finds that there is no genuine issue of material fact and that 

defendant did not act recklessly in failing to stop the fight. While the court 

acknowledges that there is some variation in the testimony of the witnesses regarding 

Hamzah’s condition during the fight, this testimony does not establish a genuine issue 

of material fact regarding recklessness. The video, which represents objective evidence 

of the December 19, 2015 fight contains no evidence of recklessness on the part of 

Mr. Osorio, Dr. Armille or anyone else. 

{¶45} Further, there is no evidence that Mr. Osorio, Dr. Armille or anyone else 

was aware that Hamzah suffered a brain injury or any other serious injury necessitating 

that the fight be stopped during the first round. Mr. Osorio and Dr. Armille, both 

experienced, testified that they are mindful of boxer safety and observe fighters for 

signs of injury. Mr. Osorio testified that he would have stopped the fight if he had any 

concern for Hamzah’s well-being and that he had stopped fights previously. (Osorio 

depo. p. 56.) Thus, plaintiff seeks recovery based on defendant’s failure to notice or 

be aware of Hamzah’s injury. Rather than exhibiting a conscious disregard or 
Case No. 2017-00986JD -20- DECISION 

indifference to a known risk, the evidence establishes, at most, thoughtlessness, 

inadvertence, or oversight which speaks to negligence, not recklessness. See Wolfe v. 

Americheer, 10th Dist. No. 11AP-550, 2012-Ohio-941, ¶ 20; 26, (Despite evidence that 

spotters involved in a dangerous cheerleading maneuver were in incorrect positions, the 

10th District found “[t]here is no evidence that the spotters themselves recognized any 

facts that would lead them to believe that their conduct could or did create an 

unreasonable risk of harm to another * * * At best, their actions could be considered 

negligent.”) 

{¶46} Moreover, other undisputed facts support the court’s finding that 

recklessness is absent. It is undisputed that both Hamzah and Coach Hamood were 

experienced. They had trained together for years and had participated together in 

numerous amateur fights. It is undisputed that Hamzah fought and defended himself 

well enough that defendant’s judges found he won rounds two and three. Even Coach 

Hamood, who interacted with Hamzah during the minute between each round, failed to 

notice his injury and did not believe, at the time, that the fight should have been 

stopped. In fact, he testified Hamzah seemed fine and responded well to his 

instructions. 

{¶47} Further, the fact that repeated blows to the head and serious head injuries 

are intrinsic to boxing bolsters the court’s conclusion that defendant did not act 

recklessly. In Doody v. Evans, 186 Ohio App. 3d 479, 2010-Ohio-3523, a softball player 

sued for injuries which resulted from a collision at home plate that violated league rules. 

In upholding summary judgment, the 10th District found that the player’s injuries were 

the result of a “foreseeable hazard of the game of softball.” While acknowledging that a 

“fine line” sometimes exist between “sporting injuries that can and cannot be legally 

remedied,” the court ultimately held that “[a]bsent evidence that appellant’s injury arose 

out of conduct that was not truly an intrinsic part of the sport of competitive softball, 
Case No. 2017-00986JD -21- DECISION 

appellant’s cause of action cannot be sustained.” Id. at ¶ 33. The same is true here; 

Hamzah’s injuries arose from conduct that is an intrinsic part of boxing. 

{¶48} As the court finds defendant did not act recklessly, defendant is entitled to 

judgment as a matter of law based on plaintiff’s claims related to the failure to stop the 

fight. 

Conclusion 

{¶49} Based upon the foregoing, the court finds that there are no genuine issues 

of material fact and that defendant is entitled to judgment as a matter of law. The court 

denies plaintiff’s motion for summary judgment and grants defendant’s motion for 

summary judgment. 

 

 PATRICK M. MCGRATH 

Judge 

 
[Cite as Al-Jahmi v. Ohio Athletic Comm., 2020-Ohio-3487.]

{¶50} A non-oral hearing was conducted in this case upon the parties’ motions for 

summary judgment. For the reasons set forth in the decision filed concurrently 

herewith, plaintiff’s motion for summary judgment is DENIED and defendant’s motion for 

summary judgment is GRANTED. Judgment is rendered in favor of defendant. Court 

costs are assessed against plaintiff. The clerk shall serve upon all parties notice of this 

judgment and its date of entry upon the journal. 

 

 PATRICK M. MCGRATH 

Judge 

Filed May 13, 2020 

Sent to S.C. Reporter 6/26/20

ALI AL-JAHMI, etc. 

 Plaintiff/Counter Defendant 

 v. 

OHIO ATHLETIC COMMISSION 

 Defendant/Counter Plaintiff 

Case No. 2017-00986JD 

Judge Patrick M. McGrath 

JUDGMENT ENTRY