Suppose you’re playing in a friendly game of pickup basketball at your local park. Another player misses a shot and you go for the ball on the rebound. However, a player on the opposing team goes after the ball, too. The other player starts flailing his arms and hits you in the eye with an elbow, causing you to become blind in that eye. Can you sue the other player for the lost vision in your eye and all that comes with it? Well, you can sue him but you won’t win.
According to the California Supreme Court, careless conduct (“negligence”) by other players is an inherent risk in many sports, and holding co-participants liable for resulting injuries or deaths would discourage vigorous competition. The California Supreme Court held that those involved in a sporting activity do not have a duty to reduce the risk of harm that is inherent in the sport itself. They do, however, have a duty not to increase that inherent risk through behavior that is intentional or is “so reckless as to be totally outside the range of the ordinary activity involved in the sport.”
Whether a person assumes the risk of being injured depends on the nature of the sport or activity in question and the person’s relationship to that activity. In the context of sports, the question turns on whether a given injury is within the “inherent risk of the sport.” Conduct is totally outside the range of ordinary activity involved in the sport if the prohibition of that conduct would neither deter vigorous participation in the sport nor otherwise fundamentally alter the nature of the sport.
In a landmark case, a player carelessly knocked over a coparticipant and stepped on her hand during a touch football game. The California Supreme Court ruled that the conduct was an inherent risk of the sport and therefore rejected the injured player’s complaint for monetary damages on the basis that she had assumed the risk of being injured. The Court reasoned that vigorous participation in such sporting events likely would be chilled if legal liability were to be imposed on a participant on the basis of his ordinary careless conduct.
By choosing to participate in the sport, a person assumes that level of risk inherent in the sport. In a sports context, a court does not look at which risks a particular participant subjectively knew of and chose to encounter. Rather, the court evaluates the fundamental nature of the sport and the offending player’s role in or relationship to that sport in order to determine whether the player owed a duty to protect a participant from the particular risk of harm.
The degree of the risk anticipated varies from sport to sport. While bodily harm is expected in prize fighting, the fighters do not consent to or assume the risk of being stabbed or shot in the ring. At the other extreme, in bridge or table tennis, bodily harm is not contemplated at all. As one court stated: “The correct rule is this: If the defendant’s actions, even those which might cause incidental physical damage in some sports, are within the ordinary expectations of the participants—such as blocking in football, checking in hockey, knock-out punches in boxing, and aggressive riding in horse racing—no cause of action can succeed based on a resulting injury.”
For example, in baseball, a batter is not supposed to carelessly throw the bat after getting a hit and starting to run to first base. However, the “assumption of risk” doctrine recognizes that “vigorous bat deployment” is an integral part of the sport of baseball and a risk players assume when they choose to participate. Especially in the heat of competition, and in an effort to get to first base quickly, a batter may be careless in getting rid of the bat. Under the assumption of risk doctrine, the hitter does not have a duty to other players or spectators to avoid carelessly throwing the bat after getting a hit.
A chilling effect on players participating in the sport would result from imposing liability on players for ordinary careless conduct. The California Supreme Court stated that “even when a participant’s conduct violates a rule of the game and may subject the violator to internal sanctions prescribed by the sport itself, imposition of legal liability for such conduct might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity.” Accordingly, the California Supreme Court has held that co-participants’ limited duty of care is to refrain from intentionally injuring one another or engaging in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.
It doesn’t make a difference if one of the participants is penalized for such actions by the officials. Routine rule violations, such as clipping in football, low blows in boxing, and fouls in horse races are common occurrences and within the scope of the athletes’ expectations. In an intercollegiate baseball game, a pitcher on the Rio Hondo Community College team hit a batter on the Citrus Community College team with a normal pitch. The next inning, the Citrus pitcher allegedly retaliated by hitting a Rio Hondo batter with a “beanball.” The Rio Hondo player sued the Citrus Community College District for negligence. The California Supreme Court ruled that the suit was barred by the assumption of risk doctrine, stating that while it is against the rules of baseball to intentionally throw at a batter, being intentionally thrown at is a fundamental part and inherent risk of the sport of baseball. The Court commented that it is not the function of personal injury (“tort”) law to police such conduct.
As for non-contact sports such as golf, the California Supreme Court held that the “assumption of risk” doctrine applies and that being struck by a carelessly hit golf ball is an inherent risk of the sport. In determining whether the defendant acted recklessly, the trier of fact (i.e., the jury) must consider both the nature of the game and the totality of circumstances surrounding the shot. In making a golf shot, the player focuses on the ball, unlike other sports in which a player’s focus is divided between the ball and other players. That is not to say that a golfer may ignore other players before making a shot.
Ordinarily, a golfer should not make a shot without checking to see whether others are reasonably likely to be struck. Once having addressed the ball, a golfer is not required to break his concentration by checking the field again. Nor must a golfer conduct a head count of the other players in the group before making a shot. Many factors will bear on whether a golfer’s conduct was reasonable, negligent, or reckless. Relevant circumstances may include: (1) the golfer’s skill level, (2) whether topographical undulations, trees, or other impediments obscured his view, (3) what steps he took to determine whether anyone was within range, and (4) the distance and angle between a plaintiff and defendant.
In one case, a student rock climber was killed after a fall allegedly caused by his instructors’ improper placement of rope anchors. The court rejected the survivors’ lawsuit, stating that “Falling, whether because of one’s own slip, a coclimber’s stumble, or an anchor system giving way, is the very risk inherent in the sport of mountain climbing and cannot be completely eliminated without destroying the sport itself.” That court further found that the defendant met the burden of proving that the climber was not taken beyond his level of experience and capability in the activity culminating in his fall, and that the risk to him was not beyond that inherent in any climbing activity.
A sport instructor may be found to have breached a duty of care to a student or athlete only if the instructor intentionally injures the student or engages in conduct that is reckless in the sense that it is totally outside the range of the ordinary activity involved in teaching or coaching the sport. A 14-year-old novice on a school swim team broke her neck during a meet when she executed a practice dive into a shallow racing pool located on school property. The California Supreme Court held that the case should go to trial as a jury could find that the coach’s conduct was reckless in that it fell totally outside the range of ordinary activity involved in teaching or coaching the sport.
The injured girl presented evidence of the coach’s failure to provide her with training in shallow-water diving, his awareness of the girl’s intense fear of diving into shallow water, his conduct in lulling the girl into a false sense of security by promising that she would not be required to dive at competitions, his last-minute breach of this promise in the heat of competition, and his threat to remove her from competition or at least from the meet if she refused to dive. The girl’s evidence also supported the conclusion that the maneuver of diving into a shallow racing pool, if not done correctly, posed a significant risk of extremely serious injury, and that there is a well-established mode of instruction for teaching a student to perform this maneuver safely. The court found that the evidence presented by the injured girl raised a disputed issue of fact as to whether the coach provided any instruction at all to the girl with regard to the safe performance of such a dive, as well as to the existence and nature of the coach’s promises and threats. Thus, the court concluded the girl was entitled to a trial in front of a fair and impartial jury and her lawsuit should not be thrown out.
In the context of snow skiing, the courts have held that the participant assumes the risk of being injured by moguls on a ski run, snow-covered stumps, variations in terrain, changes in surface or subsurface snow conditions, bare spots, other skiers, snow-making equipment, and many other hazards which must be considered inherent in the sport of skiing. Generally, a skier is not liable for running into another skier, because it is not done recklessly or deliberately, but is usually the result of mere ordinary carelessness (negligence). However, while inadvertent collisions are an inherent risk of skiing and therefore assumed by the participants, a skier does not assume the risk that other skiers will ski while intoxicated. The increased risks of injury created by the consumption of alcohol are not inherent in the sport of skiing.
However, not all risks of being injured while using the slopes are assumed. For instance, a skier who was struck and injured by a runaway snowboard that was not equipped with a retention strap was not barred from suing the careless snowboarder. The court held that the assumption of risk doctrine was not an absolute bar to recovery on the facts presented, as the jury could find that the lack of a retention strap increased the risk of harm to the victim beyond what was inherent in the sport of skiing.
Although a snow skier or snowboarder assumes the risks inherent in the activity, that does not include assuming the risk that he may be injured by a defective chair lift. A snow skier or snowboarder puts his life and limbs in the hands of the owner or operator of a chair lift, gondola, or tram that takes people up to the top of the mountain. In California, a chair lift or tram is deemed to be a “common carrier” of skiers and others up (or down) the hill. As such, it owes its riders the duty of utmost care and diligence. A cable car company that, for a fee, shuttles passengers up the snowless slopes of a mountain for downhill bike riders, sightseeing, and other activities is a common carrier, too.
A commercial operator of a horse-riding facility has the duty to supply horses that are not unduly dangerous, to warn patrons renting a given horse of its predisposition to behave in certain ways which add to the ordinary risk of horse riding, to not provide faulty saddles, and to not provide dangerous trails. Being cut by the blade of another skater during a group figure skating session is an inherent risk of the sport, and the injured skater cannot recover for personal injuries under the doctrine of “primary assumption of risk.”
Bungee jumping is a popular pastime for many people who want to feel the experience of flying and the freedom it brings. Unfortunately, sometimes the bungee cord is not secured properly, or otherwise fails to stop the rider’s fall, causing the rider to free-fall a total of hundreds of feet, resulting in serious injuries, even death. Owners and operators of bungee jumping companies must check the bungee cord regularly to ensure that it is still safe and sound. The person who is actually securing the bungee cord to the stationary surface—such as a bridge—must make sure that the bungee cord is properly fastened and will not slip or break when the person stretches the bungee cord to the limit, putting the most pressure on the site where the bungee cord is secured.
The operator must also make sure that the bungee cord and equipment are property fastened to the jumper’s leg and foot, ensuring that it will not break or the jumper’s leg will not come out of the equipment. Often, a person who participates in a bungee jump is given a “written release of liability” or waiver to sign, in which she promises not to sue the bungee-jumping company if she is injured in the jump, even if the injury is due to some carelessness (negligence) on the bungee-jumping company’s part. Such releases of liability, sometimes called a waiver, are discussed below.
Although a person may be barred from recovery on the basis that he assumed the risks inherent in the sport, one risk that is not assumed is that the playing field or course has been negligently designed, thereby increasing the risk of harm to the participant beyond what is inherent in the sport. This was the case in a lawsuit that involved a 17-year-old boy who was injured while racing his bicycle on the defendant’s bicycle motocross (BMX) course. By its nature, BMX racing includes bumps, jumps, turns, straight-aways and obstacles. The boy was injured on the “million dollar jump,” which consisted of two bumps joined together in a saddle-like configuration.
Both parties (the victim and the BMX operator) submitted declarations of experts that conflicted on the cause of the injury. The injured boy’s expert stated that the “million dollar jump” was defectively designed in that the slope of the first hill of the jump was too steep and caused the rider’s center of gravity to rise too abruptly, leading to the accident. The BMX operator’s expert witness submitted a declaration in which he stated that the jumps at the BMX park were of the type that could be expected at any BMX track. The court held that there is a duty to refrain from using BMX jumps that by design pose an extreme risk of injury, and it was a question of fact for the jury to decide whether that duty was breached by virtue of the design of the million dollar jump.
The court stated that it is not unreasonable to expect a BMX course to refrain from utilizing jumps that by design create an extreme risk of injury. Certainly the jumps and falls are inherent to the sport, and there is no duty to eliminate the jumps entirely. Nor is there a duty to protect a participant from injury arising from reasonably designed jumps. However, the sport does not inherently require jumps that are designed in such a way as to create an extreme risk of injury. The court concluded that a duty to exercise due care is owed to a bicycle racer injured on a bicycle jump that by its design creates an extreme risk of injury.
Likewise, a golfer assumes the risk that she may be hit by an errant golf ball; however, she doesn’t assume the risk that the golf course has been negligently designed in such a way that increases the risk of being injured beyond what is reasonably expected.
Before you are allowed to participate in a recreational activity— be it rock climbing, horse riding, participating in a baseball league, a bicycle race, a running marathon, bungee jumping, or parachuting, for example—you may be asked to sign a written “express release of liability” (also known as a “hold harmless” contract, a waiver agreement, or an exculpatory clause). An express release of liability is an assumption of risk by which you, in advance, take your chances of injury from known (and sometimes unknown) risks arising from what the other party is to do or leaves undone. A well-drafted release relieves the other party of his legal duty to you; that is, he cannot be held liable to you even if he was careless (“negligent”). However, a release that does not clearly and unambiguously inform an ordinary person untrained in the law that its purpose and effect is to relieve the owner/operator of the business of responsibility is not enforceable and will not bar a lawsuit by a person who was injured by the other party’s negligence.
A release—no matter how well written—cannot relieve the party from wrongdoing more serious than negligence, such as gross negligence, recklessness and intentional misconduct. The release agreement is usually given on a take-it-or-leaveit-basis, and you have no negotiating or bargaining power; the release is valid unless it involves the “public interest.” However, California courts have uniformly refused to find a public interest or to invalidate releases from liability for ordinary negligence for injuries that occur in the context and course of sports and recreational activities.
Just because you may have signed a release or received a pass or ticket with a waiver or release written on it does not necessarily mean that you are out of luck. To be effective to relieve a party from future carelessness or misconduct, the release must be clear, explicit, and comprehensible in each of its essential details. If the language is ambiguous or convoluted so that it does not clearly notify you that you cannot sue the party even if he was negligent, the release is invalid. If the release is printed in fine print on a portion of a document you are not likely to notice, the release may not apply. Under contract law, if there is any ambiguity about the meaning of a word, phrase, sentence, or entire paragraph, it is construed against the party that drafted the release.
A release that was both broad and explicit and through which a rock climber not only expressly acknowledged and assumed “all the risks” of rock climbing activities, both known and unknown, “whether caused or alleged to be caused by the negligent acts or omissions” of the rock climbing facility was enforceable and provided a complete defense to the lawsuit filed by a seasoned rock climber who was injured in a fall.
Foul balls hit into the spectators’ area clearly create a risk of injury at baseball games. But if such foul balls were to be eliminated, it would be impossible to play the game. Thus, the risk of being hit by a foul ball is an inherent risk to spectators attending baseball games. The owner of a baseball stadium has no duty to protect spectators from the natural hazards generated by the way in which the game itself is played. In determining whether an individual should be compensated for her injury and in crafting a rule that would permit or reject such compensation, there is a group of persons other than the immediate parties whose interests are worthy of consideration. Those are the literally millions of people who attend baseball games all over the country.
In one lawsuit by a spectator who was hit by a foul ball, the court stated,
As we see it, to permit plaintiff to recover under the circumstances here would force baseball stadiums to do one of two things: (1) place all spectator areas behind a protective screen thereby reducing the quality of everyone’s view, and since players are often able to reach into the spectator area to catch foul balls, changing the very nature of the game itself; or (2) continue the status quo and increase the price of tickets to cover the cost of compensating injured persons with the attendant result that persons of meager means might be “priced out” of enjoying the great American pastime. To us, neither alternative is acceptable. In our opinion it is not the role of the court to effect a wholesale remodeling of a revered American institution through application of [personal injury] law.
One of the natural risks assumed by spectators attending professional baseball games is that of being struck by batted or thrown balls. The management is not required, nor does it undertake, to insure patrons against injury from such sources. All that is required is the exercise of ordinary care to protect patrons against such injuries and, in doing so, the management is not obliged to screen all seats, because many patrons prefer to sit where their view is not obscured by a screen. Moreover, the management is not required to provide screened seats for all who may apply for them. The duty imposed by the law is performed when screened seats are provided for as many as may be reasonably expected to ask for them on any ordinary occasion.
If a spectator chooses to occupy an unscreened seat or is unable to obtain a secured seat and consequently occupies one that is not protected, she is considered to be sufficiently warned of the risk of being hit by a foul ball or a thrown or broken bat by common knowledge of the sport, and assumes the risk of being struck by thrown or batted balls. If such a spectator is injured thereby, she is therefor barred from recovering damages. The courts reason that a person who fears being injured always has the option of not attending a baseball game or sitting in a part of the park that is out of reach of balls traveling with enough speed to cause them harm.
One woman who was an ardent Los Angeles Dodgers fan was injured when she was struck in the head by a foul ball and filed a lawsuit to recover the costs and expenses of her injuries and other damages. The court held that the woman had impliedly consented to take her own chances that she would not be injured by voluntarily electing to sit in a seat that was clearly unprotected by any form of screening. The court stated that, rather than request a seat in a section where injury was unlikely to occur, the woman chose to accept a highly sought after seat, close to the “sphere of action,” where the likelihood of foul balls entering the stands remained a possibility. She was sufficiently warned of the risk by the common knowledge of the nature of the sport and by the warning provided on the back of her ticket. Thus, the court concluded that the Dodgers were under no duty to do anything further to protect her from that hazard.
However, not all risks of being hit by a foul ball are necessarily assumed by the spectators. A spectator at a minor league professional baseball game was sitting in an uncovered section of the stadium when a foul ball struck Immediately before being hit, the team’s mascot (a man dressed in a dinosaur costume as a character named “Tremor”) was behind the victim and the mascot’s tail was hitting the victim on the head and shoulders. The victim turned to see what the mascot was doing, and as he was turning back around to face the field, a foul ball hit him before he could react to it. The court agreed with the general rule that the risk of being hit with a foul ball was inherent in the sport of baseball and such risk was therefore assumed by spectators.
However, the court found that in this case the antics of the mascot may have increased the inherent risk to the victim and was a question of fact for the jury to decide at a trial. The court noted that the antics of a mascot were not an essential or integral part of the playing of a baseball game, and the game could be played in the absence of such antics. Indeed, the person who dressed up as the mascot submitted a sworn written statement (a “declaration”) that there were occasional games when he had not been there, but the game was nevertheless played.
Of course, if a person chooses to sit in a seat that is protected by a screen, but the screen turns out to be defective and lets a foul ball through to hit and injure the spectator, the spectator may have the right to sue the owner/operator of the stadium for her injuries.
The rule against spectators being hit by flying debris does not apply solely to baseball stadiums. A woman was injured when, during pre-game warm-ups at a Los Angeles Kings ice hockey game, a puck flew off the ice and struck her in the mouth. The woman claimed that the “assumption of risk” doctrine did not apply in her case. She asserted that while the risk of being hit by a puck at an ice hockey game is an assumed risk, the risk of having her view blocked by large groups of spectators congregating near the ice so she could not see the playing surface or the puck was not an inherent risk of the game. The court denied her claim, stating that just as baseball stadium owners owe no duty to eliminate the risk of injury from foul balls, the owner of an ice rink owes no duty to eliminate the inherent risk of injury from flying pucks during a hockey game or warm-ups.
As for the injured spectator’s contention that she did not assume the risk that her view would be blocked by groups of people milling around in front of her, the court held that obstructions of view caused by the unpredictable movements of other fans are an inherent and unavoidable part of attending a sporting event. The court noted that views are blocked whenever fans spontaneously leap to their feet or move to and from their seats.