Could Ruben Tejada Sue Chase Utley for the Slide that Broke His Leg?

Last night, a friend asked what would happen if Ruben Tejada sued Chase Utley based on the slide that broke Tejada's leg. Although such a lawsuit is obviously unlikely--as in most sports, it's rare for professional baseball players to sue each other for what happens on the field--it was an interesting question.

Courts have struggled for decades over how to deal with on-field injuries. The cases tend to focus on two main legal concepts. The first is that, as a general rule, we all have a right to be free of harmful or offensive physical contact from others. So, for example, if I was waiting for a bus and Utley ran up and slid into me the way he slid into Tejada, I'd have a clear-cut case against him. Even if he didn't mean to run into me, I may still have a claim for negligence, if he didn't exercise a reasonable degree of care to avoid harming me.

The second concept is that voluntarily putting ourselves into situations in which such contacts are likely can affect our right to recover. Sometimes, this is expressed in terms of consent. If I agree to participate in a wrestling match, I can't later complain about my opponent grabbing me and throwing me around. Alternatively, it can be thought of as "assumption of the risk"--if I put myself in a situation in which certain otherwise unwanted things are particularly likely to happen, I may not be able to sue anyone if one of those things in fact comes to pass.

In the sports context, things get complicated when the injury is caused by conduct that's illegal under the particular game's rules. In a football game, for example, I obviously consent to being tackled legally and assume the corresponding risks, so if I'm injured by a legal tackle I have no legal recourse against the tackler or his team. But what if it's an illegal tackle--for example, a horse-collar tackle? By playing in the football game, did I consent to being tackled in what according to NFL rules is an illegal way? Did I assume the risk that someone would tackle me that way regardless of the rules? What if the contact is more egregiously illegal--for example, a forearm shiver to the back of a defenseless receiver's head--or happens after the whistle?

The reason this is such a difficult issue is that, although there are two theoretically available legal rules at the opposite ends of a spectrum, neither seems satisfactory. On the one hand, it's problematic to say that players only consent to that which is legal under the game's rules and should therefore be allowed to recover for injuries as long as the injuring conduct was some sort of violation. Any athlete or fan knows that a typical contest involves an enormous amount of "illegal" or borderline conduct--all of which the participants fully anticipate when they sign on--so that can't be the dividing line. On the other hand, it's also wrong to assume that anyone stepping onto a playing field is implicitly consenting to some sort of Thunderdome-style free-for-all with complete legal immunity for even seriously assaultive conduct. So where should the line be?

In law school, the typical case used to analyze this issue is Hackbart v. Cincinnati Bengals, Inc. Dale Hackbart was a defensive back for the Denver Broncos, playing in a game against the Bengals. After Hackbart's teammate intercepted a pass, and while Hackbart was kneeling on the field watching the runback, Bengals running back Charles "Booby" Clark hit Hackbart in the back of the head and neck with his forearm. When Hackbart sued Clark and the Bengals for the resulting injury, the courts had to decide what legal standard to apply.

The trial judge took a hands-off approach, ruling that football is an inherently violent game, that it was unreasonable to apply ordinary societal rules within the professional football context, and that Hackbart had to have recognized he was assuming the risk of something like this happening. The appellate court reversed, noting that "there are no principles of law which allow a court to rule out certain tortious [i.e. liability-causing] conduct by reason of general roughness of the game or the difficulty of administering it," and that "[t]he general customs of football do not approve the intentional punching or striking of others." (The case eventually settled out of court.)

Since then, jurisdictions across the country have developed their own approaches to Hackbart-type cases. Several courts have settled on some version of the rule that, as explained by the California Supreme Court, "liability properly may be imposed on a participant only when he or she intentionally injures another player or engages in reckless conduct that is totally outside the range of the ordinary activity involved in the sport."

So could Utley's slide support a damage award, if Tejada were so inclined? Probably not. Aggressively sliding into second in an effort to break up a double play is a common tactic with a long, well-established history in baseball. Even if the final MLB determination is that Utley's slide was illegal (the relevant rule addresses "deliberate, unwarranted, unsportsmanlike action by the runner in leaving the baseline for the obvious purpose of crashing the pivot man on a double play, rather than trying to reach the base"), it's hard to make the case that it was "totally outside the range of the ordinary activity involved in the sport." So although Utley may still face punishment from the league, along with whatever other informal disciplinary process the Mets' pitchers might choose to impose, legally he's probably in the clear.