The John Chaney Incident: Is There Cause for Tort Liability?

Just as Steve Moore has filed a lawsuit for his injuries arising from the Todd Bertuzzi hit, the buzzing has begun about whether injured St. Joe's player John Bryant can sue Chaney or the University for the actions leading to the incident. (Presumably, the Temple player that committed the foul would not be a factor in the case since he is most likely judgment-proof, i.e., he has no assets from which to pay damages.) I have written extensively (here, here and here) about how on-field activities should not lead to legal liability, but those posts dealt mostly with criminal liability. What is the possibility for liability in tort?

The facts are largely undisputed. John Chaney, angered by the illegal screens he felt St. Joseph's were using in a game in late February, sent in a rarely-used player to "send a message" to his opponents. The player was in for only four minutes before he fouled out and by this account, threw elbows, got into an argument with an opposing player that resulted in a technical, and committed a hard foul on Bryant. I will concentrate on the hard foul on Bryant.

Tom Kirkendall believes that the case is a "dead cinch winner" for Bryant. I am not so certain. At the very least, the question would have to go to a jury. Under Pennsylvania law, a participant in a contact sport will be liable under tort only if his conduct "constitutes a reckless disregard for the safety of the other players" (Wikert v. Kleppick, 8 Pa. D. & C.4th 193 (1990)). If the conduct is only adjudged to be a breach of the duty of "reasonable care," then the assumption of risk doctrine attaches and no negligence will be found (Bowser v. Hershey Baseball Ass'n, 357 Pa.Super. 435 (1986)).

The question then is one for the jury -- did the player's conduct exhibit "reckless disregard" for the safety of the other players? In the Wikert case, the court found "reckless disregard" when one player deliberately punched another in the face after an inadvertent collision. Other Pennsylvania cases, including Bowsher, have deemed actions occurring within the scope of a game, including injuries by batted balls, not to constitute "reckless disregard." This case seems to fall somewhere in the middle. On the one hand, you have a player being sent in to "send a message" and responding with flying elbows. On the other, I have seen the footage of the foul that resulted in a broken arm and it does not look that extraordinary. I have seen far harder fouls, especially on fast-breaks when the player is completely defenseless. Hard fouls are a part of basketball, which is why leagues have an "intentional foul" rule.

In answering this question, it may be helpful to look for cases from other states. In Gauvin v. Clark, 404 Mass. 450 (1989), the court held that a college hockey player intentionally striking another player in the stomach with his stick did not give rise to legal liability. Although the court found that the player violated a "safety rule" (a rule of the game intended to ensure the safety of the participants, like the intentional foul rule), the player "did not act with reckless disregard of safety." The hit in that case resulted in the player's spleen being removed and him missing seven weeks of school. The 10th Circuit has found, though, that an NFL player intentionally striking another player in the back of the head after the play had ended could give rise to liability under a recklessness analysis (Hackbart v Cincinnati Bengals, Inc. 601 F2d 516 (1979)).

Thus, it seems that the question remains open as to whether the act resulting in Bryant's broken arm would give rise to legal liability. If it did, however, it seems almost certain that Chaney would be vicariously liable. Normally, supervisors are not liable for battery or reckless conduct unless "a servant authorized to keep order or use force under some circumstances uses too much force." That seems to be the case here.

The harder question is the one of the University's liability. The plaintiff would have to prove either that the University negligently supervised Chaney and his players, and that Chaney and the players had a history of violence, or that the University is vicariously liable because the action was within the "scope of employment." The latter point will be almost impossible, because of the recklessness requirement for establishing liability. This would remove it from the respondeat superior requirement that the conduct be the type that the employee was hired to perform. The former, that the University was negligent in its supervision, could be shown if Chaney has a history of violence or of similar activities. Chaney does have a long history of losing his temper and having run-ins with officials, but I am not certain if this would be sufficient to result in liability.

In sum, Bryant may have a case for tort liability. Then again, a jury might just see the injuries as "part of the game" and not hold them to constitute "reckless disregard" for the safety of the plaintiff. If I was on the jury, this is probably the view that I would take.

Update: Tom Kirkendall also informs me that Temple is a public university (something I did not know). Thus, any suits against the university could be derailed because of state sovereign immunity (which basically prohibits a state from being sued unless it consents to the suit).

Update 2: An excellent question has been raised about the difference between intentional misconduct and reckless misconduct. Though "battery" is usually considered to be an intentional tort, it can also be classified under recklessness. To understand the difference, I consulted the Restatement 2d on Torts, which was explicitly adopted in Hackbart and implicitly adopted in Gauvin. Under both intentional and reckless acts, the actor must intend to commit the act. The difference lies in the harm the actor expects to arise from that act. Under an intentional standard, the actor must know with substantial certainty that the harm will result from the action. In contrast, under a reckless standard, the actor does not intend the harm, but there is a strong probability that harm will result. Thus, recklessness occupies that gray area in between intentional torts and negligence.

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