The Volokh Conspiracy
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No negligence liability for injuries by fellow players in contact sport
A nice analysis of the issue from Laughman v. Girtakovskis, decided a few weeks ago by the Colorado Court of Appeals; the analysis here is the dominant view throughout the country (as usual, I omit the court's citations to the relevant precedents, and add some paragraph breaks):
This case arises from a martial arts sparring session. Mr. Girtakovskis was preparing to test for his black belt. As part of a pre-test, two other students were asked to attack him so that he could demonstrate his skill and control in defending himself. Mr. Laughman was one of the students who agreed to spar with Mr. Girtakovskis and assume the role of an attacker.
The attackers were in full protective gear, including helmets. Mr. Laughman's helmet, however, did not have a facemask. The demonstration was supposed to involve light sparring, and the head was off limits as a target.
At some point during the pre-test, Mr. Girtakovskis performed a ridge hand strike, an accepted technique in martial arts sparring, that unintentionally connected with Mr. Laughman's face. The strike resulted in serious facial and visual damage. Mr. Laughman has had multiple surgeries to repair the damage and continues to suffer permanent vision impairment.
Mr. Laughman [sued] …, asserting a claim for negligence….
To prevail on a claim of negligence, the plaintiff must show: (1) that the defendant owed him or her a legal duty of care; (2) that the defendant breached that duty; (3) that the plaintiff suffered injury; and (4) the cause of that injury was the defendant's conduct. Thus, to determine liability, the court must first determine if the defendant owed a legal duty to the plaintiff. The existence of a duty is a legal question that we review de novo.
To determine whether a legal duty exists, courts consider a number of factors, including the nature of the relationship between the parties, the risk involved, the foreseeability and likelihood of injury as weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against injury or harm, the consequences of placing the burden upon the actor, the convenience of administration, the capacity of the parties to bear the loss, a policy of preventing future injuries, and the moral blame attached to the wrongdoer….
Generally, every individual owes a duty of ordinary care not to create an unreasonable risk of harm to others. Contact sports, however, present a special circumstance because, by their nature, they involve an unreasonable risk of harm. Simply by participating in the sport, participants could cause or suffer significant injuries, even though their conduct may fall within the rules, and indeed the purpose, of the sport.
Colorado courts have not yet addressed whether a participant in a contact sport, specifically a martial arts sparring match, owes a duty to fellow participants other than to refrain from intentional or reckless conduct. However, the majority of courts in other jurisdictions that have addressed this issue hold that when a sport is inherently dangerous, a defendant is generally not liable for damage or injury caused by his or her negligent conduct.
To be liable, therefore, the defendant's conduct must be so reckless as to be outside the range of the ordinary conduct in the sport or intentionally harmful. And even when a defendant violates the rules of the game, he will generally not be liable for injury unless his conduct is beyond simple negligence….
On the undisputed facts here, we conclude that co-participants in a martial arts sparring activity, an inherently dangerous sport, do not owe each other a duty of ordinary care that would support a negligence claim. We reach this conclusion for the following reasons.
First, when two people voluntarily agree to participate in a sport that is inherently dangerous, such as the martial arts sparring engaged in by Mr. Laughman, we assume that each participant knows of the risks associated with such participation. Knowing the rules of the sport, each participant should know that the opposing participants will work to prevent him or her from achieving his or her goal. Thus, their relationship to each other is inherently adversarial and necessarily involves an unreasonable risk of harm.
Second, many courts have recognized that athletes vigorously participate in sports. Such vigorous participation means participants will not always be able to avoid causing injury. Even when they act reasonably, in the heat of the physical activity, accidents are likely to occur. And if the law were to hold participants liable for negligent, as opposed to reckless or intentional, conduct, it would have a chilling effect on the physical aspects of the activity.
Third, it is undisputed that the participants in the sparring match in this case recognized the inherent danger in the activity by wearing padded headgear, chest protectors, and gloves, and that Mr. Girtakovskis wore a face shield, which Mr. Laughman did not wear.
Further, most sports acknowledge that mistakes will happen and that the rules of conduct will be broken on occasion. Thus, where a player negligently violates the rules of a sport, there are already built-in consequences such as fouls, ejections, and other penalties.
The martial arts sparring in this case necessarily involved physical contact. Although martial arts competitions are regulated and the goal is generally to obtain points, the sparring match here involved attacking, defending, striking maneuvers, and blocking. Therefore, we agree with the trial court that the sparring match between Mr. Laughman and Mr. Girtakovskis was an inherently dangerous sport.
Accordingly, we agree with those jurisdictions that hold that a participant in a contact sport, here martial arts sparring, does not owe his or her fellow participants a duty of ordinary care. Rather, it is only when a participant's conduct moves beyond the anticipated vigorous bounds of the activity—beyond negligence and into the realm of reckless or intentional conduct—that he or she may become legally liable for that conduct. As one court noted, there is an inverse relationship between duty and dangerousness when it comes to sports: "`the standard of care rises as the inherent danger of the sport falls.'"
Mr. Laughman asserts that the rules of the sparring match in which he was involved specified that there was to be no contact with the head or face. However, knowledge that physical contact might occur, including to the head and face, is evidenced by the fact that the participants were wearing protective headgear, padded gloves, and chest pads.
Further, all parties agree that Mr. Girtakovskis did not act recklessly or intentionally. His striking Mr. Laughman during the sparring match was an unintentional act. And there was evidence before the trial court that the ridge hand strike that Mr. Girtakovskis used is a common technique used in this form of martial arts sparring.
Therefore, we conclude that, due to the inherent danger involved in the martial arts sparring match in this case and the fact that the conduct at issue was within the realm of conduct anticipated in the sport, Mr. Girtakovskis did not owe a duty of ordinary care to Mr. Laughman…. Therefore, we agree with the trial court that Mr. Girtakovskis is entitled to judgment as a matter of law and affirm the court's order granting summary judgment.