Foul Committed During Basketball Game Not Privileged Tort - $23,000 Judgment Awarded
A tort is a civil (as opposed to criminal) wrong or injury, other than breach of contract, for which a court will provide a remedy in the form of an action for damages. But, in some situations, an individual is privileged to commit what would otherwise be a battery (a physical touching of another person that is neither consented to nor privileged) or an assault, or both. One of those situations involves athletic events where the tort occurs during the course of play before the whistle has blown. The conduct may result in a penalty and a suspension, but it is not compensable via the civil liability route. Sports such as football and basketball involve practically continuous torts, and if they weren’t privileged, it would be impossible to play the game. Thus, everyone who participates in a basketball game (or other sporting activity) consents to the risks inherent in the event. However, some conduct will fall outside the realm of what is reasonable to expect and, thereby, give rise to an assault and battery claim. That includes conduct occurring after the whistle has blown that causes injury, as well as conduct that is intentional and so reckless that it could not reasonably be expected to occur during the athletic event. So, there is a clear distinction in the law between rough physical conduct that can reasonably be expected to occur during an athletic event and conduct that is outrageous. Here, the court totally obliterated that distinction in the law.
The case involved a varsity high-school basketball game in Iowa. One player, during the course of the game, unintentionally struck a player from the opposing team with his elbow which caused the player to fall to the floor. The foul was a hard one and resulted in a technical being called and an ejection from the game. (Note: Under IHSAA rules, swinging an elbow is an automatic technical foul regardless of whether it is intentional and regardless of whether contact is made with another player. Ejection is required if contact is made.) Over a year later the parents of the boy that got fouled sued the other player and his school for compensatory damages arising from the “assault and battery.” The claim against the school was for “negligent supervision” - the school knew that the player was an aggressive player and they failed to take steps to prevent “such physically aggressive behavior.” The claim against the player and his parents was a standard assault and battery claim.
On the issue of the school’s liability for negligent supervision, the trial court pointed out the player that threw the elbow “had never exhibited characteristics of being physically assaultive or being a dangerous individual.” In addition, the court noted that “[the player] played basketball intensely, but not aggressively. No witness testified that [the player] ever exhibited aggressive or assaultive behavior. [The player] never previously fouled out of any basketball game, and only once previously received a technical foul, and that was for cursing. [The player] has never been a discipline problem, never had gotten into a fight, and did not have a reputation for being an aggressive player.” Accordingly, the school was not liable to the injured player or his parents on a negligent supervision theory.
But, the trial court ruled against the player and his parents on the assault and battery claim, awarding $23,000 in actual damages (medical expenses of $13,000 and $10,000 for damages for “mind and body and mental pain and suffering”). After the basketball game at issue, and before the lawsuit was filed, the player who claimed injury as a result of the basketball game slipped and fell on a patch of ice and was beaned by a baseball. The trial court did not, however, award punitive damages. An appeal followed.
Without disturbing the trial court’s factual findings, the appellate court affirmed the trial court in all respects. Keep in mind that the trial court specifically noted that the foul did not “rise to the level of demonstrating a willful or reckless disregard for Jeremy’s rights because [the] action was a split-second decision made in the heat of a basketball game….The elbow thrown…does not appear to have been accompanied by great force. This was not a brutal substantial physical action. The act occurred during the course of a heated basketball game and appeared to be a “split-second” decision.”
So, what can be taken from this case? For starters, the appellate court’s opinion is devoid of any analysis of the privileged tort exception for torts arising during the course of an athletic event. As indicated above, the prevailing view in the U.S. is that, as applied to athletic events, tort recovery is limited to injuries incurred as a result of intentional or reckless conduct. Here, the trial court was faced with the following factual findings: (1) the foul occurred as the result of a split-second decision made in the heat of a basketball game; (2) the elbow thrown was not accompanied by great force; (3) the player was not an aggressive player; and (4) the player had never exhibited aggressive behavior. While there is generally good reason to grant deference to a trial court’s decision based on that court’s ability to hear testimony and view witnesses, sometimes that deference necessarily must yield to the law as applied to the facts.
Will the court’s opinion have an impact on high school athletic events in Iowa? That’s a good question. Tort liability for an unintentional act committed during the course of an athletic event could have a chilling effect. What is a high school basketball player in Iowa supposed to do? The court’s opinion would appear to open the door to just about any injury that occurs during the course of a game. Will a school be held liable if a player that they know aggressively plays the game causes an injury – even unintentionally?
The court’s opinion looks like a bonanza for personal injury tort lawyers. Brokaw v. Winfield-Mt. Union Community School District, et al., No. 8-435/07-1328 (Iowa Ct. App. Oct. 29, 2008).