Claim arising from punch thrown during soccer match is reinstated
Basil Esshaki suffered a broken jaw and lost four teeth when he was punched by Scott Millman during a soccer match. He sued to recover compensation, including medical expenses, that resulted. The Oakland County Circuit judge dismissed the case, holding that only Esshaki's testimony supported a claim that the injury was other than a typical sporting injury; the judge claimed that by engaging in the game, Esshaki waived any claim of injury resulting from the ordinary risks associated with participation.
The Court of Appeals rejected this determination and reversed the judgment. It held that in this typical "he-said, she-said" context, Esshaki was entitled to have a jury determine whether his account of the events was true. The Court could not simply dismiss Esshaki's testimony and adopt the testimony of the Defendant as accurate. The court also addressed the burgeoning area of excuse arising out of the Ritchie-Gamester v. Berkley decision. Ritchie-Gamester is another aberrant decision by the Engler majority which has developed a narrow, existing exclusion from liability into a broad defense for insurers.
Under the doctrine ascribed to Ritchie-Gamester, anyone who is "playing" (as opposed to working, walking or just existing) when hurt may not sue the negligent perpetrator for the injuries suffered. Without attribution, it is simply the revival of the assumption of risk defense that had been thrown out by our Supreme Court decades ago. While the logic of R-G was derived from organized sporting events and enjoyed at least a patina of common sense, it is now being applied to all manner of injuries suffered in widely varied circumstances. Some courts have even applied the doctrine to child's play and horseplay, to immunize negligently inflicted injuries.
The R-G decision would recognize an exception for injuries suffered as a result of "outrageous" conduct which is not normally part of the organized behavior, however, even that exception would not be enforced by some judges. Judge Christopher Murray filed a separate concurrence in Esshaki, disputing whether even a punch thrown during a soccer match is truly "outrageous". We are stunned by the public policy implications of this reasoning. What legitimate public policy would be served by not holding a perpetrator responsible for the expenses associated with an assault? Why should the fact that the assault or battery occurs during an game--whether "organized" or not--change the perpetrator's duty to pay for his improper conduct?
Two of the Esshaki judges dismised Murray's reasoning, concluding that a sports participant does not impliedly consent to being struck in the face by a competitor's fist. They rejected Millman's claim that "punching and elbowing--indeed fighting in general--are normal parts of the game of soccer."