Hackbart
v. Cincinnati Bengals, Inc.
601
F.2d 516, cert. denied, 444
Facts: Hackbart played for the
Broncos and was struck by
Issue: Can there be a tort action
for an injury from an intentional blow in a pro football game?
Rule: If there are rules in the
game to prevent the infliction of serious injuries, then the plaintiff cannot
be construed to have given up his rights by playing.
Analysis: The appellate court says
that pro football players don’t consent to being intentionally beat up when
they agree to play the game.
Conclusion: The court reversed the trial
court’s ruling and ordered a new trial.
Notes
and Questions
1. There are a
lot of actions during football games that are intentional and violate
the game’s rules, but very few of them become torts. One reason is probably economic.
2. I would be
interested to know what the typical customs of such softball games are. Are the games hotly contested? Are steals allowed? Do people frequently slide into bases in
these games? It would seem that if the
players were warming up, it would be less likely there would be implied consent
to slide into a base.
3. This might
make implied consent more likely, however, if the previous practical jokes
could have been considered torts but just weren’t acted upon, that doesn’t mean
the plaintiff gives up his right to proceed with an action on a more recent
tort (I think).
4. I think
consent may be assumed if the purpose is important and the plaintiff has not
previously told the defendant that he is especially sensitive to being tapped
on the shoulder. This would not be
battery, though, because tapping someone on the shoulder in a typical way could
not be considered harmful or offensive contact.
5. I think it
would make a difference whether or not there was another way to get to the
lake, for example, a public park. I don’t
think that the plaintiff should be legally compelled to follow “local custom”.