A modern day up-to-date approach to the present status of recreational injuries associated with “Courts and Sports” can be best understood by reviewing the basic principles of law, findings and facts involved in the leading sports injury cases Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516, (10th Cir. 1979), cert. denied, S.Ct. 275) and Tomjanovich v. California Sports, Inc., No. H-78-243, 1979 U.S. Dist. LEXIS 9282 (S.D. Texas Oct. 10, 1979). These underlying cases provide the basic legal foundation and requirements which are necessary in litigation involving recreational injuries in order to establish the legal principles for liability and recovery in sports injury cases. The basic legal principles and holdings set forth in the Hackbart and Tomjanovich cases are alive and well today and should be considered when evaluating a case that involves sports injuries in modern litigation. These cases and their holdings relate to sport injury litigation involving the individual player or corporate owner regarding negligence, intentional tort and gross negligence and normally are not connected from a products liability theory.
This paper will discuss the general principles as set forth in Hackbart and Tomjanovich and will also provide information on recent cases which involve the same basic principles as discussed.
Since the decisions of Hackbart v. Cincinnati Bengals, Inc., and Tomjanovich v. California Sports, Inc., many courts have continued to hold that an injury resulting from an intentional tort, negligence, or recklessness, may have grounds for recovery of damages for the injured athlete. However, the majority of cases have established liability through an intentional tort involving illegitimate conduct not within the rules of the game or by the establishment of recklessness. While many courts have rejected a negligence cause of action, the defense of the assumption of risk doctrine has proven very effective in defeating cases for the plaintiff, as well as, the consideration of public policy. Some of the cases in which these legal principles, tort theories and defenses were involved are mentioned in this paper.
In Knight v. Jewett, 834 P.2d 696 (California 1992), the plaintiff brought action for negligence and assault and battery after she was injured by the defendant during a friendly game of touch football. Early into the game, the defendant ran into the plaintiff during a play, and the plaintiff requested that the defendant not play so rough, which he acknowledged. However, on the next play the defendant collided with the plaintiff, knocking her down, and stepping on her hand. The injury to the plaintiff’s hand ultimately resulted in the amputation of her little finger.
In discussing the defense of the assumption of the risk, as well as recklessness, the Supreme Court of California, in affirming the trial court’s granting of summary judgment, held that “a participant in an active sport breaches a legal duty of care to other participants – i.e., engages in conduct that may properly subject him or her to financial liability – only if the participant intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity in the sport.” Furthermore, the Court held that the determination of whether assumption of risk bars recovery depends upon whether a particular defendant owed a duty to the injured plaintiff, not on whether the plaintiff acted reasonably in encountering a known risk. Ultimately, the Court ruled that although the defendant may have been reckless, he did not breach any legal duty, and thus assumption of risk barred recovery.
The Supreme Court of Connecticut addressed the relevant public policy considerations in barring recovery for negligence causes of action in Jaworski v. Kiernan, 696 A.2d 332 (Conn. 1997). In Jaworski, the plaintiff was injured by the defendant during a co-ed soccer game when the defendant slide-tackled the plaintiff, which was against league rules. The Connecticut Supreme Court explained that public policy requires a balance in promoting vigorous athletic competition on the one hand and protecting those who participate on the other. In finding the proper balance, the Court concluded this balance is best achieved in an athletic contest to maintain an action against a co-participant only for reckless or intentional conduct and not for merely negligent conduct. Furthermore, the Court was influenced by the public policy concern of the possible flood of litigation that might result from adopting simple negligence as the standard of care to be utilized in athletic contests. The Court feared that with the number of athletic events that occurred in Connecticut every year, there existed a potential for a surge of lawsuits if it became known that simple negligence, based on an inadvertent contest rule, will suffice as a ground for recovery for an athletic injury.
It should be noted that in both Knight and Jaworski, no recovery was made by the plaintiff which normally occurs in sports injury cases.
In 2003, the case of Marcus Williams v. Bill Romanowski, involved two Oakland Raiders National Football League players. The lawsuit arose after Romanowski confronted Williams during a scrimmage, ripped off his helmet and punched Williams in the face, crushing his left eye socket. The injury allegedly forced Williams to retire from football, and Williams sought $3.4 million in damages from Romanowski. Williams’ attorney argued that Romanowski had crossed the line and broken the rules. The jury returned a verdict in favor of Williams, yet they only found Romanowski liable for $340,000 in damages. Ultimately, the case settled out of court for $415,000.00.
In Avila v. Citrus Community College District, 131 P.3d 383 (California 2006), a community college baseball player, Avila, brought a negligence cause of action against the college, the opposing team’s college, and others after he was hit in head with a pitch during the game. The Supreme Court of California held that the governmental statute for injuries stemming from hazardous recreational activity did not apply to immunize the opposing college, and that the opposing college had a duty not to increase harm inherent to the sport. However, the court ultimately ruled that the opposing college breached no duty to the player and no recovery was made.
Thompson v. McNeill, 559 N.E.2d 705 (Ohio 1990) involved a case in which a player brought a negligence cause of action against a fellow golfer after the plaintiff golfer was struck in the eye by the ball. The Supreme Court of Ohio held that between the two participants in the sporting event, there was no liability for injuries caused by negligent conduct, but rather only injuries caused by intentional conduct could give rise to cause of action. Furthermore, the Court held that the injury to the plaintiff golfer in the course of the golf game was the result of foreseeable conduct, and thus the defendant golfer could not be held liable for any negligence since no duty was owed to protect plaintiff golfer from that conduct.
The case of Turcotte v. Fell, 502 N.E.2d 964 (N.Y. Ct. App. 1986) involved a professional jockey that was injured in a fall during a thoroughbred horse race who brought action against another jockey, owner of horse which that jockey was riding, and owner-operator of the racetrack. The Court found that the plaintiff jockey consented to relieve defendant jockey of legal duty to use reasonable care to avoid crossing into plaintiff jockey’s lane of travel during the race. The Court also held that the racetrack owner-operator was not liable for alleged negligence in caring for the track because the plaintiff jockey’s participation in prior races, ability to observe the condition of the track, and his general knowledge and experience established that he was well aware of cupping conditions and possible dangers from them, and he accepted that risk.
The case of Brocail v. Detroit Tigers, 2008 WL 87851 (Tex. App. – Houston [14th] 2008) involved a major league baseball player, Brocail, who brought suit against his employer, the Detroit Tigers, alleging the club was liable for injuries to his pitching arm. The 14 th District Court of Appeals of Texas affirmed the summary judgment in favor of the baseball club, holding that the player’s claim that the club failed to provide a proper second opinion before recommending treatment for the player’s injured arm was preempted under the Labor-Management Relations Act. Furthermore, the Court held that the Michigan Workers’ Disability Compensation Act was the exclusive remedy for the player’s negligence claims, and the Act’s exclusive remedy provision barred claims seeking earnings-related damages. Finally, the Court found that the Michigan statue of frauds barred claims arising from the club’s alleged promises and fraudulent concealment relating to plaintiff’s medical treatment.
Also, in the case of Stringer v. Minnesota Vikings, 686 N.W.2d 545 (Minn. Ct. App. 2004), the estate of Stringer brought a wrongful death action against the head trainer, assistant trainer, and medical services coordinator as co-employees of football organization, following the player’s death from heat stroke. On appeal from a motion for summary judgment, the Court of Appeals of Minnesota held that the head trainer was entitled to co-employee immunity under workers’ compensation law. Although the Court held that the assistant trainer and medical services coordinator were not entitled to the co-employee immunity, the Court found that the actions taken by the assistant trainer and medical coordinator did not constitute gross negligence.
In Hackbart, the incident that made the basis of the suit occurred during a September 16, 1973 game between the Denver Broncos and the Cincinnati Bengals. The incident occurred near the end of the first half when the Denver Broncos were leading by a score of 21-3. Following an interception by Denver free safety Billy Thompson of a pass intended for Cincinnati offensive back Charles “Booby” Clark, Dale Hackbart attempted to block Booby on the runback of the interception. After the attempted block, Hackbart remained on the ground, turned, and with one knee on the ground, watched the play following the interception. Clark stepped forward and struck a blow with his right forearm to the back of Hackbart’s head and neck and with sufficient force to cause both players to fall forward on the ground. A game film showed clearly what occurred, though no official viewed the incident at the time. After two weeks, the pain caused Hackbart to seek medical help where it was discovered that he had a serious neck fracture.
The trial court ruled as a matter of law that the game of professional football is basically a business that is violent in nature; thus, the available sanctions are the imposition of penalties and expulsion from the game.
In reversing the trial court, the United States Court of Appeals for the Tenth Circuit held:
1. The principles of law governing infliction of injuries are not to be disregarded merely because the player’s injury occurs in the course of a professional football game. With regard to the issue of consent, the court noted that it is highly questionable whether a professional football player consents to injuries caused by conduct that is not within the rules of the game. The court specifically looked to the rules of football and found that punching and hitting with the arms about the face and head were prohibited by the rules and that undoubtedly, these restraints were intended to establish reasonable boundaries so that one football player would not intentionally inflict a serious injury on another.
2. The Tenth Circuit Court also determined that since it is essential that citizens be able to look to their government for redress, every injury wrongfully inflicted must be afforded some redress under the common law. The court found that the Colorado legislature had not chosen to change any of the common law areas for redress. Thus, the court stated that it was bound to follow the common law rules of redressing the injury inflicted.
3. In determining that the intentional tort of assault and battery was not the sole standard to be applied in a case involving players of professional sports, the court stated that “recklessness is an appropriate standard and that assault and battery is not the exclusive one, … these two liability concepts are not necessarily opposed to one another. Rather, recklessness under Section 500 of the Restatement might be regarded, for the purpose of analysis at least, a less included act.” The court went on to make the traditional distinction between assault and battery and recklessness, noting that with recklessness, the actor intents to do the act but does not intent to cause any particular harm.
4. Significantly, the court also directed that “on retrial, the admissibility of prior unrelated acts should be very carefully considered and should not be received merely for the purpose of showing that the defendant himself had violated rules in times past since this is not per se relevant.”
Returning to the basic principles and rules of law handed down by the Hackbart case and utilizing the Tomjanovich case regarding contact injuries in sports, the ” Hackbart test” can provide the equation for accepting a case which may be successful and prove to be a winner for the client. The principal inquiry, as it relates to the facts of the Hackbart case is: “was the act an accepted, usual, legitimate part of the game and traditionally considered a part of the game, i.e., was it a legitimate or fair hit?” This standard has become known as ” Hackbart test” and should be applied to the underlying facts in each similar case. When analyzing a potential case by utilizing the ” Hackbart test” one should consider the following:
1. Rules of the game;
2. Conduct of the player;
3. Intentionally reckless history of the player;
4. The Hackbart question, “is this contact a part of the game”?;
5. The duty of the owner;
6. The duty of the player; and
7. The conduct of the plaintiff.
In analyzing a set of facts, the attorney should concentrate on the specific act or particular conduct in question and on how that conduct relates to or is connected with the particular sport. Also, the attorney should focus on any provocation by the plaintiff or the promotion of the event and the particular role of the plaintiff concerning the event. In violent situations, such as when a team fights, the investigative questions should include:
a. Who started or provoked the situation?
b. What role did the plaintiff play?
c. How could entire affair have been avoided?
For other factors to consider in a sports injury case, see Niemczyck v. Burleson, 538 S.W.2d 737 (Mo. Ct. App.1976)(ages and physical attributes, skill level, knowledge of game, amateurs or professionals, protective uniforms or equipment, zestfulness of players) as well as, Ross v. Clouser, 637 S.W.2d 11 (Mo. 1982)(for application of Burleson factors).
In closing, sports injuries that occurred during the practice of the game seem to be on the rise today in modern sports. A view of the sport industries for some reason indicate that the injuries seem to be more serious as the years go by. At the present time, while these injuries appear to be more common, the test for recovery remains fairly rigid and difficult and a full investigation of each prospective case should be made before making a decision to move forward and accepting the case considering the time and expenses involved. Finally – a word of advice, always consider the Hackbart case and the ” Hackbart test”. Good luck!