On the third day of torts in law school, while the summer sun still blazes and classrooms are a sticky 94 degrees, the concept of assumption of risk in the context of sporting events is introduced. It’s prime fodder for the Socratic method; the professor can keep creating hypotheticals until the line between expected and unexpected is crossed. The theory, quite simply, is that there are risks inherent in engaging in sporting events – an elbow to the face in basketball, torn knee ligaments in football. And, apparently, shanked shots in golf:
The New York court in the case above clarified its standard for assumption of the risk in the context of a sporting event: “a plaintiff will not be deemed to have assumed the risks of reckless or intentional conduct or concealed or unreasonably increased risks.” The law in California is similar; the conduct has to go well beyond what could reasonably be anticipated in the context of the sporting event in order for a lawsuit to proceed. If it’s in the gray area, you have probably assumed the risk of injury.
A colleague of mine had a case a couple of years ago in which a basketball player claimed to have torn his anterior cruciate ligament (ACL) when he was “tackled” from behind by an opponent. If true, this would be deemed and intentional or reckless act, and arguably would give rise to a lawsuit. Furthermore, the injured player claimed that the opponent was well-known within the league for reckless and dangerous play, and that the injury came about directly as a result of conduct well outside the bounds of what could reasonably be expected or anticipated; in other words, the conduct was not of the type of risk that one assumes when they go and play in their church recreation basketball league on Sunday morning.
As expected, the defendant argued that the foul was just a foul, exactly as you would anticipate in any basketball game. The plaintiff (the player who had been fouled) had to show that the conduct was intentional or reckless, and/or that the defendant had unreasonably increased the risks of injury. Initially, one of the league’s referees (who was not refereeing that particular game) supported the plaintiff’s theory that the foul had been intentional or reckless, directly leading to the injury. However, during the course of discovery the other players on the court and the game’s referee confirmed that neither a flagrant foul nor a technical foul was called on the play in question, and that the foul was, in fact, just a garden variety foul. The shooter came down wrong and was injured – exactly the type of injury contemplated when you step onto the basketball court. The shooter therefore had assumed the risk of injury (and misled his lawyer as to the manner in which the injury was caused).Read More