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Yount v. Johnson3/26/1996
ll players vying for a rebound). But it is unnecessary to resolve that issue in this case.
{35} One reason the majority has failed to give due recognition to the defense of consent may be that many similar cases are resolved on the issue of duty rather than consent. The analysis of the issue of duty can be quite different from an analysis of the issue of consent. Most importantly, deciding what duty is imposed by law may require the court to assess whether public policy favors the activity that led to the injury . The decision of the California Supreme Court in Knight is typical. The court held that a participant in an informal touch football game breaches a legal duty only by intentionally or recklessly injuring another player. 834 P.2d at 711. Liability for negligence was rejected because of concern that such liability would chill vigorous participation in the sport. 834 P.2d at 710; see . Reading such decisions, one might conclude that if the activity is not deserving of special protection, then the typical negligence standard should be imposed. From that point of view Kabella itself could be criticized. I am not particularly confident that public policy favors sandlot tackle football games, such as the one causing the injury in Kabella. Many reasonable people may find such activity foolish.
{36} But when consent is present, there is no need to consider whether public policy favors the activity. Consent is a defense even when it may have been foolish to give consent. A competent person who "foolishly" participates in a tackle football game has no cause of action for injury arising from being tackled.
{37} This is not to say that consent doctrine answers all questions regarding tort liability in the context of games. Most litigation in the area arises from conduct that violates a rule of the game, so that consent may well not be present. Also, the consent defense may not apply to games in which the actions of fellow players create a risk that an interest will be invaded but such an invasion is not essential to the game. For example, playing golf in a tournament exposes one to the risk of being hit by another player's ball, but hitting other players with balls is not an object of the game. In such games, players do not consent to the physical contact itself. When analyzing the requisites for liability in the absence of consent to the physical contact, it is appropriate to look to policies other than those supporting the defense of consent. Then it makes sense to analyze liability in terms of duty. One could say, for example, that a golfer has a duty to refrain from negligently hitting a ball that endangers another player. It is in this context--in which a player proceeds in the face of a risk that would be created by another's negligence--that courts must critique the doctrine of assumption of the risk. See Restatement, (supra) , § 892A cmt. a; §§ 496A-G. But that is not the context of this case.
{38} The only reason I could see for not holding that Matthew's consent relieves Teak of liability would be if there were a compelling public policy against horseplay. The majority may be suggesting such a public-policy rationale when it fails to follow our precedent in Kabella, which refused to recognize a claim for negligence arising out of a pick-up game of tackle football played by four teenagers. Yet, I fail to see the basis for such a policy distinction between tackle football and horseplay. Perhaps some play may be so dangerous that the courts should impose liability regardless of the consent of the participants. That proposition could be applied to formal sports as well as informal play. See generally Daniel E. Lazaroff, U. Miami Ent. & Sports L. Rev. 191, 225-27 (199
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