Author Name:   vagisha

It deals with the practical application of law of torts in sports

Law of Tort And Sports Litigation

“Tort means a civil wrong which is not exclusively breach of contract or breach of trust”

The word “tort” has been derived from the Latin term “tortum”, which means “to twist”. It means and includes those conducts which are not straight or lawful, but twisted, crooked or unlawful.

Law of Tort is thus that branch of law which consists of various “torts” or wrongful acts whereby the wrongdoer violates some legal right vested in another person. The law imposes a duty to respect the rights vested in the members of the society and the person making the breach of that duty is said to have done the wrongful act. A “crime” is the wrongful act, which results from breach of duty recognized by the criminal law, “breach of contract” is the civil wrong which results from the breach of duty as decided by the parties. Similarly, tort is the civil wrong which results from the breach of duty to respect the rights of other.

Some eminent jurists have defined tort under law of tort as follows:
“It is a civil wrong for which remedy is a common law action for unliquidated damages and which is not exclusively the breach of contract or the breach of trust or other merely equitable obligations”.

“It is an infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured party”.

The basic idea which is indicated by these definitions is that tort is a civil wrong; every civil wrong is not a tort. There are other civil wrongs as well, important of them being breach of contract and breach of trust.

The essentials of tort are that there must be some act or omission on the part of the defendant, and the act or omission should result in legal damage (injuria) i.e., violation of a legal right vested in the plaintiff.

Torts may be categorized in a number of ways: one such is to divide them into Negligence Torts, and Intentional Torts. The dominant action in tort is negligence. The tort of negligence provides a cause of action leading to damages, designed to protect legal rights, including those of personal safety, property, and, in some cases, intangible economic interests. Negligence actions include claims arising primarily from automobile accidents and personal injury accidents of many kinds, including clinical negligence, workers negligence and so forth. One such is the tort of nuisance, which connotes strict liability for a neighbor who interferes with another's enjoyment of his real property. Trespass allows owners to sue for incursions by a person (or his structure, for example an overhanging building) on their land. There is a tort of false imprisonment, and a tort of defemation, where someone makes an unsupportable allegation represented to be factual which damages the reputation of another.

Sports law is an expression which incorporates within itself the legal issues at work in the world of both amateur and professional sports. Sports law overlaps substantially with labour law, contract law and tort law. Issues like defamation have been an integral aspect of sports law. The area of law was established as a separate and important entity only a few decades ago, coinciding with the rise of player-agents and increased media scrutiny of sports law topics.

Relation of law of torts and sports
Many sports pose serious dangers to participants. Generally, a person who suffers a sports related injury may recover for medical expenses and other losses if the injury was caused by the negligence of another party. Injuries and damages resulting from intentional torts, such as battery or assault, likewise are recoverable.

Courts generally decide suits involving injuries to athletes, spectators, and other parties involved in sports according to basic tort laws. If a party owes a duty of care toward another party and that duty is breached, the party owing the duty is liable for any injuries suffered by the party to whom the duty is owed that result from the breach. The level of care that must be exercised depends on the situation: dangerous situations require a high degree of care, whereas less dangerous situations require less care. Expectations may also play a part. For example, a spectator who is hit by a foul ball while sitting in the stands at a baseball game cannot recover for injuries because most fans know that stray balls in the stands are an inescapable by-product of baseball. However, a patron who is standing in the interior walkway of a stadium concourse may recover for injuries resulting from a foul ball. A spectator in the unfamiliar environs of a stadium is not aware of the dangers and thus is owed a greater duty of care by the baseball organization.

Athletes may recover for injuries resulting from another party's negligence or intentional acts. In both professional and amateur contact sports, athletes consent to some physical contact, but courts do not find that participants consent to contact that goes outside the bounds of the game.

In some cases schools may be held liable for injuries to athletes. If an employee of the school, such as a coach, teacher, or referee, fails to properly supervise a student and the student suffers an injury as a result of the failure to supervise, the school may be held liable for its employee's negligence. Generally, coaches, teachers, and referees must exercise reasonable care to prevent foreseeable injuries.

Defendants in sports-related personal injury suits may possess any number of defenses. One of the most successful of these defenses is that the party assumed the risk of being injured by playing in or watching the sporting event. Defendants also may argue that the plaintiff was negligent and therefore should recover only a portion of his damages or nothing at all. For example, a plaintiff may have ignored warnings or signed a document that waived the defendant's liability for any injury suffered by the plaintiff. Finally, public institutions may argue that they are immune from suit under the doctrine of SOVEREIGN IMMUNITY, a judicial doctrine that prohibits suits against government entities unless such suits have been explicitly authorized by the government. Legislators have made many public institutions open to lawsuits, and in cases in which a public institution still enjoys IMMUNITY, courts often find ways to circumvent immunity and attach liability.

Torts involved in sports
An increasing number of violence acts occurring during competitive sports events, including professional sports event, are being addressed using law of torts. For example, the criminal charges laid against Todd Bertuzzi and the suspension and fine imposed by the NHL for the assault by Bertuzzi, Steve Moore filed a civil suit against Bertuzzi seeking damages for the injuries sustained by him.

Through the use of law suits, the plaintiff is seeking compensation for the injuries sustained as a result of the defendant’s conduct. The legal framework for such recovery is based on establishing that defendant owed a duty of care to the plaintiff, that the duty was breached and as a result the victim had to sustain serious injuries and he need to be compensated for the same financially. This area of law whereby the victim seeks compensation for the sustained injury is known as tort. Broadly speaking three aspects of law are addressed in the context of the sports based injuries:- unintentional torts (negligence), intentional torts (civil, as opposed to criminal assault) and recklessness.

Unintentional Tort:-Negligence
Negligence refers to the failure to exercise the standard of care as a reasonable man should by law, have exercised in the circumstances. The court must look that there was a “duty of care” relationship between the plaintiff and the defendant and such the defendant did not take standard care while performing the act and this resulted in injuries to the plaintiff. The standard of care means what a reasonable competitor would do in place of the defendant, which full in the spirit of game and without vengeance.

Here are some of the cases which would explain the application of tort of negligence in sports:-
Caldwell v Maguire
The claimant and defendants were all professional jockeys. During a race the defendants’ riding caused the serious injury of the claimant. The claimant raised an action for damages.

The claimant’s case was dismissed. It was held that horse racing is a competitive sport and that the risk of injury is high. Therefore, it was not possible to consider the defendant’s momentary lapse of judgement as negligence because the opportunity for injury was abundant and the choices available to jockeys to avoid or reduce risk were limited. In such circumstances, it was not possible to characterize momentary carelessness as negligence.

Day v. Ouachita Parish School Board et al. (2002)
As a member of the freshman football team at West Monroe High School (WMHS), Morgan Day was required to participate in a weight training class held during school hours. The class was supervised by WMHS’ strength coach and three other coaches. Sixty football players were divided into five groups and were supervised by one of the coaches. Several senior students on the team helped the coaches supervise and instruct the class participants.

During one of the classes, Morgan injured his back while lifting weights. The next day, he played in a freshman football game even though his back was bothering him. Shortly thereafter, Morgan sought medical treatment. After an examination, the treating orthopedic surgeon provided Morgan with a written medical excuse which stated, "(1) No football for 1 week (2) No weightlifting, squats or power cleans. Diagnosis-lumbar strain and injured L-5 disc" (p. 1040). Morgan presented the note to the freshman coach and the note was posted in the office. The coaches testified that they believed the physician’s note meant that Morgan could not participate in football or weightlifting for 1 week. Morgan and his mother claimed that they interpreted the note to mean that Morgan could not play football for 1 week and could not lift weights for an indefinite amount of time. One day after the medical excuse was posted, Morgan was observing the class but not lifting weights when an assistant coach instructed him to perform a dumbbell power clean push press. Morgan reminded the coach that he was medically excused; however, the coach insisted that the exercise would not affect his low back. After performing a few repetitions of the exercise, Morgan experienced severe pain and needed to lie down. Morgan again saw the orthopedic surgeon complaining of back pain. Magnetic resonance imaging revealed a disc protrusion between the fourth and fifth vertebrae. The physician wrote another medical excuse that prohibited Morgan from all weightlifting and football activities until further notice. Morgan was referred to another specialist. He also went to other orthopedic surgeons and a neurosurgeon. After the disc injury, Morgan was unable to play high school football or baseball. He lost interest in school and failed his classes because of excessive absences. He withdrew from WMHS and enrolled in an alternative school. Morgan’s mother sued the school board and the coach who instructed Morgan to perform the lift after the medical excuse had been delivered.

The trial court found the defendants liable for Morgan’s back injury (Day v. Ouachita Parish School Board et al., 2002).

Moreover, the negligent act done by the defendant and the consequences suffered should be such that it could have been reasonably been forcible. This is principle or forseeability is also applied in many cases for determining the compensation and liability of the wrong doer. This is also known as principle of reasonability.

Bolton v. Stone
The plaintiff was standing on a highway near a cricket ground. A batsman hit a ball, which went over a fence seven feet high and seventeen feet above the cricket pitch and struck the plaintiff at a distance of 100 yards from there. The ground was being used for about ninety years and no such injuries had occurred earlier. The House of Lords considered that the likelihood of injury to persons on the road was so slight that the cricket club was held not to be negligent in this case.

Volenti Non Fit Injuria
In the United States, the courts refer to the common law doctrine of volenti as the assumption of risk doctrine. The doctrine involves the defendant establishing that the plaintiff knew of the risk of injury arising from participating and voluntarily assumed it by agreeing to participate. The doctrine is, ‘based on knowledge, comprehension and appreciation of the risk.This consent, according to Lord Denning, can be implied or express. Where a defendant can establish this they are absolved from liability. However, there can be no successful defence where the plaintiff was under any compulsion to participate.

Halls v. Brooklands Auto Racing Club
The plaintiff was a spectator at a motor care race being held at Brooklands on a track owned by the defendant’s company. During the race, there was a collision between two cars, one of which was thrown among the spectators, thereby injuring the plaintiff. It was held that the plaintiff impliedly took the risk of such injury, the danger being inherent in the sport which any spectator could forsee, hence the defendant was not held liable.

Condon v Basi, CA
Amateur footballer held liable for breaking his opponent’s leg in a tackle. Court concluded that players are under a duty to take all reasonable care taking account of the circumstances in which they are placed, which, in a game of football, are quite different from those affecting someone going for a walk in the countryside.

Intentional Tort: -Civil Assault
Just as the crown may charge a person with criminal assault, an injured person may bring an action against another person for civil assault. Civil assault like criminal assault consists of use of force or threat of use of force against another person. A kick, a punch swung at another person may result into assault. It dosen’t matter that the individual did not mean to cause the exact damages that ensued, or even that the intended target was actually another person- it is the intent to use force or final contact that matter.

As assault is distinguished from negligence on the notion of intention, whereby assault is in the category of intentional torts along with defamation and invasion of privacy. While negligence is in the category of unintentional torts. In assault the perpetrator must be shown to have intended the violent act. The high speed and legitimate physical contact that characterizes many sports in which violent action occurs make it difficult to prove the element of intent.

The defences of civil assault are consent, self-defence ad involuntary reflex.

Nabozny v. Barnhill
The Plaintiff, a soccer goalie, was kicked in the face by another player during an amateur soccer match. The Nabozny case was the first Appellate Court case in Illinois to recognize the contact sport exception to the general rule that a person is responsible for his negligent acts or omissions. The court stated that to allow the plaintiff goalie to sue another player in negligence under these facts would obviously have a chilling effect on other players who choose to play soccer, basketball, hockey, football, softball, etc. The court held that a player could still be liable in tort if his conduct was either deliberate, willful, or with a reckless disregard for the safety of others.

Recklessness
Somewhere in between the unintentional act of negligence and intentional act of assault lies the notion of reckless behaviour. A person is reckless where he or she knew, or ought to have known, that the conduct would likely cause serious injury to another, but the person was nonetheless indifferent to that risk and carried out that conduct anyway. The difference between the reckless conduct and negligence is the degree of forseeability of harm, while recklessness differs from an intentional wrong doing such as assault by way of issue of intent.

In conclusion, violent activity as perceived from a civil perspective occurs along a continuum. At one end is the tort of negligence, where there was no intention to cause harm and on the other end is civil assault in which there exists the intention to cause harm. Recklessness lies somewhere between the two.

The following case lays down the applicability of recklessness in sports:-
Wooldridge v Sumner
It is an English Court of Appeal judgment dealing with the liability in negligence of participants in sporting competitions towards spectators. The Court of Appeal held in this case that sportsmen would only be liable to spectators if they showed "reckless disregard" for their safety. The plaintiff, Mr Wooldridge, who was a photographer at a horse race, was injured by the horse belonging to the defendant, Sumner, which was ridden in a competition by Sumner's, who was a skilled and experienced horseman. The Court of Appeal held that Sumner owed no duty of care to Wooldridge in this case. As a spectator, Wooldridge accepted the risks involved in a horserace he came to watch. As a reasonable participant in the race, which is a fast and competitive sport, the horseman was expected to concentrate on the race and not on the spectator. In the course of a fast moving competition such as this one, he could be expected to make errors of judgment. As long as the damage was not caused recklessly or deliberately, the participant in a race could not be held liable for the spectators injuries because he was not negligent, i.e. not in breach of his duty.

In 1999, the case Leatherland vs. Edwards stated that a hockey player, who followed through to high with his stick and caused an eye injury, was negligent and sued in court.

Thus, in the end I can say, Tort, being a civil wrong deals with and holds liable those persons who infringe the civil right of other members of the society. In sports also there are some players who do not play the game with its pure spirit and thus may by their own negligent act or also sometimes intentionally cause harm to other players. Here only the need for applicability of law of torts in the field of sports arises. It punishes those sport persons who does an act of negligence while playing and thereby causing harm to other players. The injured player has the right to sue the wrongdoer and get the compensation for the injuries.

Thus law of torts also finds its applicability in settling the disputes in the field of sports. Principle of volenti non fit injuria, negligence, assault is some of the common torts that finds in applicability in the field of sports.
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# See section 2(m) of the Limitation Act, 1963
# Defined by Salmond
# As said by Fraser
# [2001] EWCA Civ 1054, [2002] PIQR P6
# John O. Spengler, Paul M. Anderson, Daniel P. Connaughton, and Thomas A. Baker III,” Introduction to Sport Law”
# (1951) A.C. 850
# Laura Hess, ‘Sports and the Assumption of Risk Doctrine in
# New York’ (2002) 76 St. John’s Law Review’ 460.
# Glenn, M. Wong, ‘Essentials of Sports Law’ (3rd ed, 2002) 71.
# Deborah Healey, ‘Protecting Participants: Whose Responsibility?’ [1997] Sports Injuries: Legal and Risk Management Issues in Professional Sport 12.
# (1932) All E.R.Rep. 208
# [1985] 1 WLR 866
# 31 Ill. App., 3d 212, 334 N.E.2d 258 ( 1st Dist. 1975)
# [1963] 2 QB 23

The  author can be reached at: vagisha@legalserviceindia.com

ISBN No: 978-81-928510-1-3
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