Individual and institutional liability for injuries arising from sports and athletics.

• Jurisdiction: United States
• Date: 01 October 1996
• Author: Noce, Gerard T.

PARTICIPATION in sports is inherently dangerous, and the risk of injury is manifest. Physical contact is a fundamental and sanctioned component of many sports. Most often, sports-related injuries are inflicted unintentionally, and participants are deemed to have accepted the intrinsic risk of injury involved in the activity. When a tennis player suffers a detached retina after being struck by an opponent's enthusiastic overhead smash, the opponent is generally not considered a tortfeasor.(1) But at what point does a beanball pitch or a spikes-up slide in baseball, a late hit in football, or an aggressive soccer slide tackle transcend the code of acceptable behavior and sportsmanship that governs participation in sport? And to what extent are coaches, sports organizations and educational institutions liable for the transgressions of their players?

LIABILITY OF PARTICIPANTS

When addressing the issue of sports injuries among coparticipants, courts necessarily must balance the equally compelling and conflicting principles of providing legal recourse for individuals unjustifiably injured on the field of play with the potential chilling effect that expansive tort liability would place on spirited competition. In the context of participant liability, courts generally recognize three categories of actionable behavior: (1) intentional torts, (2) willful, wanton or reckless misconduct, and (3) negligent misconduct.

1. Intentional Torts

   The intentional torts of assault and battery provide the most compelling justification for imposition of liability in the context of sports injuries because that behavior clearly falls outside the scope of traditional notions of fair play. Many sports by their very nature subject participants to physical to contact that would be objectionable in other contexts. An individual's very participation in an athletic contest, however, demonstrates consent to physical contact as permitted and foreseeable under the applicable rules. As Comment b to Section 50 of the Restatement (second) of Torts states: "Taking part in a game manifests a willingness to submit to such bodily contacts or restrictions of liberty as are permitted by its rules or usages. Participating in such a game does not manifest consent to contacts which are prohibited by rules or usages of the game if such rules or usages are designed to protect the participants and not merely to secure the better playing of the game as a test of skill."

   Thus, the critical inquiry is whether the offending player's conduct violates the accepted behavior and time parameters of the game.

   Gratuitous physical contact is universally condemned by all jurisdictions. In Griggas v. Clauson(2) the plaintiff was playing center for an amateur basketball team. Just prior to receiving a pass from a teammate, he was pushed from behind by a player on the opposing team, who proceeded to strike the plaintiff repeatedly in the face until he fell to the floor unconscious. Condemning the wanton and unprovoked attack, the Illinois Appellate Court affirmed the jury's verdict that the defendant was guilty of assault and battery.

   In Overall v. Kadella(3) a general melee broke out after the completion of an amateur hockey game. During the fight, the plaintiff remained on the bench, which was well removed from the altercation. Without provocation, the defendant skated over to the bench and struck the plaintiff on the right side of the face, knocking him unconscious and fracturing the bones around his right eye. Affirming the trial court's $46,000 judgment for the plaintiff, the Michigan Court of Appeals concluded that an "intentional act causing injury, which goes beyond what is ordinarily permissible, is an assault and battery for which recovery may be had."(4)

   The lesson of these cases and other similar rulings is clearly intentional violent behavior not countenanced by the rules is actionable conduct under traditional tort theories of recovery.

2. Willful or Reckless Misconduct

   The recklessness standard falls somewhere in the middle of the liability continuum, between intentional torts and negligence, and it represents the prevailing view in jurisdictions that have considered participant-to-participant injuries.(5) Reckless behavior entails "highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent."(6)

   The seminal case establishing the recklessness standard is an Illinois Appellate Court decision, Nabozny v. Barnhill,(7) in which the plaintiff, a soccer goalie, was kicked in the head while kneeling and holding the ball to his chest inside the penalty zone, despite a rule expressly prohibiting any contact with the goalie in the penalty area. Witnesses testified that the defendant, a player on the opposing team, had more than sufficient time to avoid making contact with the plaintiff, who sustained permanent damage to his skull and brain.

   As all players are charged with a legal duty to refrain from conduct proscribed by a safety rule, the court concluded that the defendant's flagrant disregard of the applicable rule required that the directed verdict in favor of the defendant be reversed. Since Nabozny, Illinois courts have steadfastly adhered to the wanton and willful misconduct standard.(8)

   Professional athletes are subject to the same standards as amateurs. In Hackbart v. Cincinnati Bengals Inc.(9) Bengal offensive back Charles "Booby" Clark struck a blow to the back of the head of Denver Bronco defensive back Dale Hackbart because of his "anger and frustration" brought about by an interception on the preceding play and the fact that his team was losing the game. The conduct occurred far away from the ongoing play, and although no penalty was called, the game film clearly showed what happened. Although Clark admitted that the blow was intentional, not accidental, the trial court denied recovery on the ground that professional football is violent in nature and Hackbart had assumed the risk of his injury, given the "level of violence and frequency of emotional outbursts in NFL games."(10)

   On appeal, the Tenth Circuit reversed and remanded. Although cognizant of the inherent risks associated with professional football, the court concluded that players do not consent to injuries caused by conduct explicitly falling outside of the express rules of the game. In doing so, the court adopted the recklessness standard, as Clark's conduct involved a risk of harm substantially greater than mere negligence.

3. Negligent Conduct

   The majority of jurisdictions that have considered the issue of participant-to-participant sports injuries have rejected simple negligence as a basis for recovery, primarily because of the perceived adverse effect on healthy competition. An important distinction, however, should be drawn between contact and non-contact sports.

   In 1993, Wisconsin became one of the only jurisdictions to expressly adopt the negligence standard for cases involving recreational team contact sports. In Lestina v. West Bend Mutual Insurance Co.(11) the goalie in a recreational soccer league left the penalty area and "slide tackled" an opposing offensive player in order to prevent a goal. Because of the resulting collision, the plaintiff, who was the offensive player, sustained serious injury to his left knee and leg.

   After a lengthy analysis of Nabozny and its progeny, the Wisconsin Supreme Court adopted the negligence standard and expressly rejected the contention that this...