The Soccer Game Gone Wrong

Question:

During a friendly soccer game, Josh and his friend Leo are playing an aggressive one-on-one match. Both players agree to “play rough,” allowing for some physical contact typically avoided in casual play. While trying to steal the ball, Leo tackles Josh, accidentally twisting Josh’s ankle. Josh sues Leo for battery, claiming the injury was excessive and beyond what he consented to. Analyze a defense for Leo.

Baseline Response

Issue
The issue is whether Leo’s tackle, resulting in Josh’s ankle injury, constitutes battery or if Josh’s prior consent to rough play provides Leo with a defense against liability.

Rule
Consent is a defense to intentional torts, such as battery, which requires unconsented contact or injury. When an individual consents to certain conduct, they waive their right to claim it as a tort, provided that the conduct remains within the scope of what was agreed upon. Consent can be explicit or implied, and courts consider what a reasonable person in the same situation would have understood to be allowed. In Wulf v. Kunnath, apparent consent (expressed through words or actions) is as effective as explicit consent if it reasonably suggests willingness for certain conduct, negating the tortious nature of otherwise offensive contact. However, if the defendant’s actions exceed the consented-to conduct, they may still be liable for resulting harm.

Application
Applying this principle to the present case, Josh’s agreement to play aggressively with Leo implies consent to a degree of physical contact beyond what is typical in non-competitive settings. By explicitly agreeing to “play rough,” Josh would likely be seen as consenting to contact like tackling, commonly understood as part of a more physical style of soccer. Given this context, Leo’s tackle would likely be within the scope of Josh’s consent. The accidental injury from the tackle, though unfortunate, does not exceed the implied risks associated with the agreed-upon level of physicality in the game.

However, the court will evaluate whether Leo’s actions went beyond the scope of Josh’s consent by considering whether a reasonable person in Josh’s position would have anticipated a tackle as part of the rough play. Since tackling is generally expected in aggressive soccer games, Josh’s consent to rough play would likely encompass such physicality. Therefore, Leo’s conduct would fall within the boundaries of Josh’s implied consent.

Counterarguments
Josh might argue that while he agreed to rough play, he did not consent to actions that would risk severe injury, such as tackling in a non-professional context. He could claim that the injury exceeded the type of contact he reasonably anticipated. However, Leo could counter that rough play in soccer inherently involves physical risk, including potential injuries. Leo would argue that Josh’s consent to rough play includes the possibility of minor injuries resulting from reasonable, competitive actions.

Conclusion
In conclusion, Leo’s defense based on consent is likely to succeed. Given Josh’s prior agreement to a rough style of play, a court would likely find that Josh impliedly consented to physical contact, including actions such as tackling, that fall within the scope of rough soccer. Therefore, Leo’s actions are likely to be shielded by the defense of consent, negating liability for battery.