Tort Liability of One Participant to Another
Participation in sports carries with it special risks. It is probably fair to say that sports activities--playing baseball, basketball, football, tennis, and racketball, for example--mate greater risks of physical harm than do most other human activities. Typically, injuries incurred in athletic competition are not of tortious origin. They occur as a result of the normal risks associated with participation in the sport. Thus, when a basketball player breaks his ankle after jumping and inadvertently landing on his opponent's foot, no lawyer worth his salt would be heard to argue that the opponent is a tortfeasor. In some instances, however, injuries occur as a consequence of arguably tortious behavior by a participant. This chapter explores those instances.
Generally, in an athletic event a participant who is injured by the act of another participant can base an action to recover on three theories. The first theory is an intentional tort theory, such as battery or assault. The second theory is negligence. The third theory available to the injured participant is based on recklessness.
A simple definition of battery is the intentional, unprivileged, harmful, or offensive contact by the defendant with the person of another. An assault is committed when the defendant, without privilege, intentionally places the plaintiff in apprehension of an immediate harmful or offensive touching. Sports activities are rife with what can arguably be termed assaults and batteries. A review of the cases indicates that the existence or nonexistence of a defense of privilege is often the key issue in such litigation. The Restatement provides the following definition of privilege.