In Virginia, “a person’s voluntary assumption of the risk of injury from a known danger operates as a complete bar to recovery for a defendant’s alleged negligence in causing the injury.” Arndt v. Russillo, 231 Va. 328, 332, 343 S.E.2d 84, 86 (1986). When it comes to contact sports, courts from across the country have found that a player assumes the risk of injury inherent to the sport. For Example see Balthazor v. Little League Baseball, Inc., 62 Cal. App. 4th 47, 49, 72 Cal. Rptr. 2d 337, 339 (1998); Crace v. Kent State Univ., 185 Ohio App. 3d 534, 539 (2009); Brown v. Stevens Pass, Inc., 97 Wn. App. 519, 522-523, 984 P.2d 448, 450 (1999); and Morgan v. State, 90 N.Y.2d 471, 482-483, 685 N.E.2d 202, 206 (1997). When a participant steps onto the field, court, or other playing surface, they voluntarily accept the risks of injury that come with that sport. This includes the risk of injury caused by another participant due to the other player’s careless conduct, “because in the heat of an active sporting event a participant’s normal energetic conduct often includes accidentally careless behavior.” McGarry v. Sax, 158 Cal. App. 4th 983, 999 (2008).
The rules governing liability for injuries sustained in contact sports are not as clear in Virginia as in other states. The Virginia Supreme Court has not affirmatively ruled on a player’s assumption of risk in the context of contact sports, but the case law of Virginia tends to support the general rule applied in other states—that a participant voluntarily assumes risks inherent to the sport. The Virginia Supreme Court applied similar logic when a spectator was injured at a minor league baseball game. In Thurmond v. Prince William Prof’l Baseball Club, 265 Va. 59, 64, 574 S.E.2d 246, 249-50 (2003), the Supreme Court examined a situation where a foul ball went into the stands, injuring a spectator. The Court held, “when a particular adult spectator of ordinary intelligence is familiar with the game of baseball, that spectator assumes the normal risks of watching a baseball game, including the danger of being hit by a ball batted into an unscreened seating area of a stadium.” Id. at 265 Va.at 66, 574 S.E.2d at 251.
The most comprehensive look at the issue came from the City of Richmond Circuit Court in the case of Stephenson v. Reed, 21 Va. Cir. 302 (Richmond 1990). In Stephenson, the plaintiff sustained a serious injury while participating in an adult softball game. During the course of the game, defendant hit a grounder and ran to first base. Plaintiff attempted to cover first base and receive a throw from her teammate. Though plaintiff was not in the basepath, defendant ran through the plaintiff while attempting to tag first base, causing plaintiff’s injuries. Defendant argued that he was not negligent in running into the plaintiff because “the alleged tort occurred in a recreational athletic contest, the plaintiff either assumed the risk of the collision between her and the defendant or consented to it.” Id. at 303. The Honorable T.J. Markow noted that “this is a case of first impression in Virginia,” but eventually concluded that “where people voluntarily choose to play contact sports, the contestants have by their choice assumed the risk ordinarily incident to their sport, but they do not assume the risk of recklessness or intentional misconduct.” Id. at 304-05. Additionally, citing Prosser & Keeton, The Law of Torts (5th Ed. Supp. 1990), Judge Markow further noted that “in the context of a contact sport, it is such common sense that reasonable minds cannot differ that the risk of ordinary negligence was assumed by” participants, and dismissed all claims of basic negligence. In contrast, Judge Markow allowed plaintiff’s claims of gross negligence to proceed, noting that “Going beyond the usual risks of the game, however, is another story, at least as to the game of softball when the contact expected is being tagged, players on the base path incidentally colliding, and so on, a player should not assume the risk of grossly negligent conduct.” Id. at 305.
Sometimes, a plaintiff injured in a sports contest will combine a claim of battery will allegations of negligence. To make out a claim for battery, a plaintiff must allege that defendant touched the plaintiff, the contact was intentional, the touching was unwanted, and the touching was without justification, excuse, or the plaintiff’s consent. See 1 Virginia Remedies § 6-3. For example, the Virginia Supreme Court analyzed an alleged battery during a middle school football practice. Koffman v. Garnett, 265 Va. 12, 574 S.E.2d 258 (2003). In that case, the Court conducted an analysis similar to that of Judge Markow in the Stephenson case. The Court looked to see if the plaintiff consented to the alleged unwanted touching based on the rules of the game and the facts surrounding the incident. The alleged battery occurred when a 260-pound adult tackled a 144-pound 13-year-old middle school student, in an attempt to demonstrate proper tackling. The Court noted the disparity in size between the adult and minor, the authority position of the adult coach, and the fact that the minor was required to stand in a defenseless position prior to the tackle. Based on its analysis, the Court concluded that the facts alleged by plaintiff went “beyond the circumstances of simply being tackled in the course of participating in organized football” and allowed plaintiff to proceed with his allegations of battery.
Unlike contact sports, the Virginia Supreme Court applied a general rule of due care—similar to other everyday situations like driving a car—when it comes to the non-contact sport of golf. In Thurston Metals & Supply Co. v. Taylor, the Virginia Supreme Court established the rule that “a player upon a golf course must exercise reasonable care in playing the game to prevent injury to others.” 230 Va. 475, 480, 339 S.E.2d 538, 541 (1986). The Court expressly limited this ruling to the non-contact sport of golf and applied the rule of due care, which it has in various other situations, such as a duty of a landowner to maintain his property or a driver’s obligation to other drivers on the road.
In Virginia, the law seems to align with that of other jurisdictions. Whether the allegations are based on theories of negligence or battery, a participant in contact sports consents to contact (and resulting injury) of the type normally associated and/or reasonably foreseeable in the sport. What is normally associated and/or reasonably foreseeable is based on the facts surrounding the injury, the rules of the sport, and the particularities of the incident. A participant in contact sports does not assume the risk of contact that is not incident of the sport, including gross negligence, intentional assaults, or other actions a reasonable person would not assume or expect to happen when stepping onto the field of competition. This determination, of course, is a factual one, based on the specific facts and manner of injury.
Therefore, a claim of simple negligence resulting from a contact sport will normally not survive, but the Virginia Courts will analyze the facts of the incident to determine if the contact went beyond the type incident to the sport and into the realm of gross negligence, battery, or other intentional torts.