I was recently interviewed by Bill Shields, a reporter for WBZ CBS Boston Channel 4. He showed me a video of a Scituate hockey player checking a Duxbury hockey player during a game. The check was quite hard but there was no penalty called. (The video and newscast is linked below.) The Duxbury player sustained a bad concussion as a result. The parents of the Duxbury player retained an attorney to bring criminal and possibly a civil claim against the Scituate player as a result of the check. The parents want to the Scituate player charged criminally with assault and battery.
The reporter, knowing that I have been a personal injury attorney for the last 20 years, wanted my opinion as to whether there was criminal or civil responsibility for the Scituate players’ actions. My opinion is that there is not liability. An assault is an act that creates fear of an imminent battery. A battery is an unlawful offensive touching. While spitting on someone may trigger liability outside of the realm of sports, an action done within the context of a game and which is an anticipated part of the game, does not, in most cases, carry criminal or civil liability. It is important to realize that there are several defenses to an assault and battery based on Privilege:
1. Consent: Where a Plaintiff consents to the Defendant’s acts, the Plaintiff may not subsequently bring a lawsuit or be charged criminally based on those acts claiming assault and battery. This is the case in sports. It’s called a consensual battery. A tackle in football (even a chop block), a check in hockey, an intentional/flagrant foul in basketball and even a pitcher intentionally hitting a batter are an anticipated parts of those sports. In fact, in high school and college basketball, you get five chances to commit an “assault and battery”, they are called fouls. In hockey, if you commit an “assault and battery” such as slashing or elbowing, you are given a penalty. Even if the actions are egregious and violate that sports’ rules, they are unlikely to support a personal injury claim because violation of the rules is also a part of standard play in a sport. Where do you draw the line? If your child could be held criminally or civilly liable for something that is a part of that sport, no one would allow their children to play sports. Of course we don’t want our student athletes going around trying to injure other players. The regulation and oversight of players’ actions is really with the game officials, (referees/umpires), the coaches and the league officials.
2. Discipline– Parents, based on the particular jurisdiction, are permitted to apply reasonable physical restraint or “battery” to to discipline their children. Mental health facilities and schools are allowed, in some jurisdictions to apply a certain level of physical restraint in limited circumstances. Each situation is analyzed on a case by case basis. One of the major factors considered is was the restraint or action reasonably necessary to to prevent the student or patient from harming others or themselves.
3. Police Conduct– Police are allowed to use a reasonable amount of force to effectuate a lawful arrest.
4. Self-Defense– The law allows a person who is assaulted to defend themselves and commit an assault and battery on the attacker. The amount of force must be reasonable in light of the type of attack and level of threat.
There should be no liability in this case, either criminal or civil.
To view the video and my opinion on WBZ CBS Boston Channel 4, click on the link below:
http://boston.cbslocal.com/2012/04/26/duxbury-family-seeks-criminal-charges-after-hockey-hit/
