What if Venus Williams faced civil liability for hitting Martina Hingis with one of her 128-mile-per-hour serves while Hingis was adjusting the strings on her racquet? What if Dennis Rodman, or even just a weekend basketball player faced liability each time he played a game of basketball and hit someone with an elbow while going up for a rebound?
The 4th District Court of Appeal continued a path down that slippery slope when it refused to apply the assumption of risk defense to exonerate a defendant who had caused injury to another during a game of tennis. See, Solano v. Abrenica, 81 Cal.Rptr.2d 881 (1999). However, the California Supreme Court decertified Solano, ensuring, at least for now, the continued viability of the assumption of risk defense as a complete bar in sports-related injury cases.
In Yancey v. Superior Court, 28 Cal.App.4th 558 (1994), the 4th District laid the groundwork for Solano when it refused to apply the assumption of risk defense to exonerate a defendant who accidentally hit someone with a discus. In Yancey, the plaintiff was throwing a discus while participating in a college physical education class. After plaintiff threw the discus, she walked onto the field to retrieve it. The defendant, who was next in line to throw, did not check the field and did not warn plaintiff that he was about to throw. As a result, he hit plaintiff on the head.
The trial court entered judgment in favor of the defendant, holding that defendant could not be held liable to plaintiff in the absence of reckless or intentional conduct. The 4th District disagreed, holding that the assumption-of-risk defense was not appropriate, because by failing to check the field and observe elementary safety precautions before throwing the discus, the defendant actually increased the risks to plaintiff over and above those inherent in the sport.
The court reasoned that being hit in the head with a discus is not an inherent risk of that sport, as opposed to being hit with a baseball or with an elbow in a game of basketball. As such, the defendant had a legal duty to protect plaintiff from that risk and was not able to avail himself of the assumption-of-risk defense.
Using Yancey as a stepping stone, the 4th District in February once again refused to apply the assumption-of-risk defense to exonerate a defendant in a sports-related injury case. In Solano v. Abrenica, 81 Cal.Rptr.2d 881 (1999), the plaintiff and defendant were professional tennis players practicing in preparation for an upcoming match. Their coach announced the end of practice and plaintiff stopped playing. As the plaintiff was walking off the court, the defendant yelled, "Let’s practice serve" and then proceeded to hit plaintiff in the eye with a serve.
When the plaintiff sued, the defendant obtained summary judgment based on the defense of assumption-of-risk. The Court of Appeal reversed, rationalizing that just as the careless conduct of a discus thrower in throwing a discus without first ascertaining that the target area is clear is not an inherent risk of that sport, the careless conduct of a tennis player in serving a ball directly at a teammate without warning after a practice session has ended and all tennis activity has ceased is not an inherent risk of the sport of tennis.
Although Solano was eventually decertified, the 4th District's rationale that a participant who is no longer participating in the sporting event ceases to assume the risk was compelling at first blush. After all, why should a participant continue to assume the risk of injury when the game is over? One of the major problems with Solano, however, was that it did not provide any hard-and-fast rules regarding its applicability. After further scrutiny, it becomes apparent that allowing Solano to stand could potentially have opened the floodgate for injured claimants alleging that they were not actively engaged in the sport at the time of injury.
Who would risk playing any sport if the participants had to continually to verify with their opponents that the game was still ongoing to avoid liability? The bottom line is that the uncertainty created in the wake of such decision would have circumvented the policy of preserving competitive and vigorous participation in sports, a policy first championed by the California Supreme Court in Knight v. Jewett, 3 Cal. 4th 296 (1992).
Knight was the California Supreme Court’s first pronouncement regarding the applicability of the assumption-of-risk defense in the context of sports-related injury cases. In Knight, the plaintiff and defendant were participants in an informal game of touch football during half-time of the Super Bowl. Five to 10 minutes into the game, defendant ran into plaintiff during a play. Although plaintiff complained to defendant that he was playing too rough, she continued to participate. During the next play, the defendant knocked the plaintiff over and stepped on her right hand. This resulted in an injury to plaintiff’s finger which eventually had to be amputated.
The plaintiff sued alleging negligence and assault and battery. The defendant argued that by participating in the sporting event, the plaintiff impliedly agreed to limit the duty of care owed to her by the defendant to only a duty to avoid reckless or intentional conduct. The trial court agreed and summary judgment was granted in favor of the defendant and affirmed on appeal.
The Supreme Court also affirmed, holding that the duty of a sport participant is to refrain from intentional or reckless activity totally outside the range of appropriate conduct for the sport so as not to increase the inherent risks of the particular sport to the plaintiff. The Court rationalized that imposing legal liability for conduct which is not only foreseeable, but an integral part of the sport, would fundamentally alter the nature of the sport and chill vigorous participation.
Knight changed the way courts approached the application of the assumption-of-risk defense in sports-related injury cases, shifting the focus from an analysis of the plaintiff’s conduct (i.e. whether it was reasonable or unreasonable to confront a known risk) to a determination of whether defendant owed a duty. In accordance with Knight, this issue is now addressed by examining the nature of the sport and the relationship of the participants to that sport.
That approach was reflected in the 4th District’s analysis in both Yancey and Solano. In Yancey, the court determined that permitting liability against the discus thrower would not fundamentally alter that sport in the same way that baseball would invariably be affected if a batter could successfully sue Roger Clemens after being accidentally hit by one of the Rocket’s famous brush-back pitches.
Solano, the Supreme Court recognized, was a much different situation, because being hit with a tennis ball is an inherent risk of that sport. Moreover, the fundamental nature of any sport would certainly be altered if the participants had to continually verify with their co-participants that the sport was still ongoing to avoid being sued. By decertifying Solano, the Supreme Court insured that the worst Dennis Rodman can expect when he throws an elbow is a technical foul and maybe a few boos.