Hackbart v. Cincinnati Bengals, Inc.

United States Court of Appeals, Tenth Circuit, 1979.

601 F.2d 516, cert. denied, 444 U.S. 931, 100 S.Ct. 275, 62 L.Ed.2d 188 (1979).


Facts: Hackbart played for the Broncos and was struck by Clark of the Bengals with a forearm in the back of the head.Hackbart sued Clark and the Bengals.


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 donít consent to being intentionally beat up when they agree to play the game.


Conclusion: The court reversed the trial courtís 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 gameís 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 werenít acted upon, that doesnít 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 donít think that the plaintiff should be legally compelled to follow ďlocal customĒ.


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