Wanton and Willful?: “He did it on purpose, dude.”

As readers are aware from earlier postings on the liability of professional athletes to other athletes injured in the course of a game, the general rule is that mere negligence is not actionable in connection with on-court torts (Wisconsin at one point was the exception, allowing recovery for negligence but considering the nature of sports amongst the circumstances affecting reasonableness). Some courts get to this result via limited duty, while others focus on (primary) implied assumption of risk. Instead, on-court or on-field action is only actionable if it amounts to recklessness, intentional wrongdoing, or wanton and willful conduct.

The line between negligence on the one hand and recklessness / wanton & willful behavior on the other is never obvious to students of tort (or sports) law. Wanton and willful behavior may suggest a “dark heart,” although the Restatement (Second) Torts merges “recklessness” with wanton & willful misconduct. Recklessness, as against negligence, involves a higher level of risk and a more substantial potential harm.

A fairly obvious example of wanton and willful on-court behavior is Reggie Evans’s below-the-belt grab of Chris Kaman in Game 4 of the Clippers-Nuggets series. Kaman has called for action; he should simply file suit to recover for violation of his personal space. I found the NBA’s “family friendly” version of the story an interesting example of groupspeak.

P.S. Thanks to Mike & Greg. I’m glad to be here!

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