Sports Gone Wild: Injuries Beyond The Scope Of Consent              

 by Neil S. Siskind, Esq.              

               Athletic activities are inherently physical in nature. Some sports, such as boxing, football and hockey are also inherently violent. They require physically fit men to slam into or even strike one another. By their participation in these events, players are deemed to consent to the risks of injury that these games present.  Thus, in the case of an injury, bringing a personal injury case against another participant is difficult as a general matter. For example, if a boxer is punched in the nose and suffers a broken nose, it is deemed that the boxer knew the risks of the fight and agreed to assume those risks by participating. Moreover, it is assumed that the opposing fighter acted reasonably when punching the injured fighter in the face. Another example is a crosscheck in hockey. Any person who plays hockey realizes that while a crosscheck may be illegal under the rules of the sport, it is nevertheless a regular and expected part of the game. A player who is badly hurt by a crosscheck in the course of play will be unlikely to have a viable personal injury claim against the perpetrator. Again, it is because he has consented to the risk and because the other player may be viewed as having acted within the scope of reasonably foreseeable behavior by applying a crosscheck in a hockey game.                

               But there may be exceptions to these rules. When an athlete goes beyond the bounds of what is expected in a game and his actions surpass the level of risk that other players are deemed to assume, a criminal and civil action for injury may exist for an action that causes harm. So it becomes a question of facts and expectations. As an attorney, I would ask if the party causing the injury went beyond what was reasonable, after factoring in the nature and expectations of the athletic event, such that his action caused an injury for which he is financially (or even criminally) liable. Factually, this can be a murky question with gray areas rather then black and white lines.               

               Let’s again use hockey as an example, as hockey has been controversial in this regard. The nature of hockey is such that in the execution of the activity it is not required that one man physically impact or strike another. Such action is a by-product of the core aims of the players. This is contrasted with boxing and football where impacting or striking your opponent is the actual aim of the game. Fights and hits often occur in hockey, many times within the scope of the action and other times without it. At times, the violence is acceptable, and at others, inexcusable. For example, if two players square off, put up their dukes and start punching it out, no matter how badly one of the players is hurt in that fight, any injury would likely not provide the basis for a civil lawsuit (of course, if one party did bring a suit, we would have to look at additional facts, such as the reputation of each player, and whether one player squared off solely to defend himself. But for purposes of this discussion, we are assuming both players wanted to fight). This level of violence goes beyond trying to score a goal, but has still become an accepted part of the game. But then there are cases like the Bertuzzi-Moore fight that go beyond even hockey’s violent parameters. In this case, during a 2004 game, Todd Bertuzzi of the Vancouver Canucks approached Steve Moore of the Colorado Avalanche, tapped him on the shoulder, and when Moore turned around, Bertuzzi punched him in the face. Moore fell to the ground suffering a concussion and three fractured vertebrae in his neck.  While fighting is an accepted and expected part of the game, this inarguably went beyond the scope of even that liberal standard. This was not a consensual squaring-off of players, it was an unwarranted unilateral attack. Bertuzzi was arrested and charged with assault. He pleaded guilty and was sentenced to probation and community service. A personal injury case by Moore for his career-ending injuries in the amount of $38 million is still pending.                

               If a player is injured by an intentional, reckless or negligent act in the course of a game, under certain circumstance, where the action was unforeseeable as part of a game, the question may become not only one for the rules of the game, but one for the legal system.                

               But let’s not just pick on hockey. Here are some baseball hypotheticals to contrast a legally inactionable act vs. one that may be actionable:               

               Hypothetical 1:  Ronnie Run is on first base. The batter at the plate lays down a bunt which the catcher picks up and whips to second base to get Ronnie Run out. Ronnie Run knows he will be out, but in order to break-up a double play slides especially hard into the shortstop covering second base. Ronnie sticks his right foot up during the slide to obscure the view of the shortstop and push the shortstop’s momentum backwards. It is clearly intentional. Ronnie, with his strong legs, fractures the wrist of the lanky shortstop. Does the shortstop have a civil case? I would argue that he does not. I would deem a runner who slid aggressively into a shortstop in order to break-up a double play as being within the scope of reasonably expected behavior by a runner. Did he slide “too” aggressively? Perhaps he did. If he slid very aggressively with intent to block the shortstop’s view and break-up his forward momentum, is that so outside of what the shortstop would expect in a baseball game that he is entitled to civil relief? The shortstop has the right to be upset- and the runner should be reprimanded- but the shortstop would not have an especially strong civil action in my judgment.              

               Hypothetical 2: Sammy Strike is in a slump. He strikes out for the third time in one game. He breaks his bat over his knee and throws one piece toward the pitcher and the other at the ump. The ump, taking a breather after the strikeout, has his mask off and is wiping his forehead. The bat hits him in the mouth and cracks four teeth. Does the ump have a civil case against Sammy Strike? I think he might. If the act of a player breaking his bat in half and throwing the pieces in different directions where players and umpires are expected to be standing is determined to be outside the scope of what any baseball player signs up for, then legal liability could be placed on Sammy Strike.                

               For an injury in any sport, where someone is intentionally struck and injured outside the course of play, such as on a sideline, or during a timeout, without provocation, a criminal and civil claim may exist. If someone is struck in the course of play but in an unacceptable manner, such as by a hockey stick check to the face while shooting a goal or a linebacker dropkicking a quarterback in his head, personal injury actions for any resulting harm may be appropriate. On the other hand, if, in the course of play, someone is struck in a manner that is against the rules and very harmful, but yet common in the sport, then there may be no legal recourse. A good lawyer may be the best answer in all cases.