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Personal Injury Lawyers: Big League Attorneys for Big (or Little) League Issues

Posted by attorney Christopher Zachar

The two intentional torts most likely to arise in a sporting event are battery and assault. To prove battery, a plaintiff must show that the defendant intentionally caused a harmful or offensive touching on the plaintiff and the touching caused some injury. Assault is similar except that the plaintiff must prove that the defendant put the plaintiff in fear of a battery. The two claims will often occur at the same time, but not necessarily. However just because you can establish these elements doesn’t end the case. For example, plaintiffs can sometimes “assume the risk" of injury and release defendants from any liability for their actions.

Generally speaking, assumption of risk occurs when a person agrees to take part in an activity knowing that it involves a certain risk. If a victim agreed to accept a certain risk, no legal claim can be made for damages resulting from that risk because the plaintiff has assumed that burden. This rule applies to intentional torts as well as to negligence, but in Arizona whether a plaintiff has assumed a particular risk is always a question that a jury decides, even if the plaintiff signed a waiver. The general rule of thumb that courts follow in sports cases involving assumption of risk is that all other things being equal, the plaintiff assumes the risk of all injuries that are reasonably foreseeable given the type of event they chose to participate in. In this analysis, the sport, the players, and the customary way the game is played will all be important factors to consider.

Because the question is what the injured person could reasonably have been expected to anticipate when they agreed to play, the fact that someone’s conduct was illegal according to the rules of the sport may not be conclusive. For example, in basketball, it is against the rules to make contact with an opposing player as they are shooting at the basket, but because it happens in nearly every game anyway, it’s likely that a player who was injured in this way could not recover in court. On the other hand, if an the cause of an injury was aplayer acting within the rules, the victim probably can’t recover. This is because a person will usually be assumed to be aware of the rules of the sport they choose to participate in, so if a player is injured by a player who is following the rules, there’s a strong argument to be made that the injured player must have assumed the risk. Unfortunately, there is no consensus on how far outside the bounds of normal play an act needs to be before the victim can reliably be said not to have assumed the risk. However, in general, the more violence and physical contact that is common or expected in a certain event, the more outrageous the conduct must be, while at the same time there is conduct that will always fall outside of the expected and reasonable risks no matter how intense the sport or how fierce the competition.

There will always be considerable uncertainty surrounding the question of what risks a certain victim assumed and when the victim is a child, the uncertainty grows. Because these cases are very fact-sensitive, getting help from a professional personal injury lawyer who can research any recent changes in the law is a very good idea

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