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A sports fan attended an indoor lacrosse match pitting the home team against their rivals. During the game, a rival player intentionally swung his stick at the head of a player from the home team, but the stick slipped and flew into the crowd, striking the fan in the face and causing severe damage to his cheek bones.
In a battery action against the rival player, is the fan likely to prevail?
(A) Yes, under the doctrine of transferred intent.
(B) Yes, because the rival player’s conduct was criminal in nature.
(C) No, because the rival team is the responsible party under the doctrine of respondeat superior.
(D) No, because the fan assumed the risk.
The Answer is : A.
Under primary assumption of the risk, sports participants and spectators are deemed to have assumed the risks inherent in playing or observing sports. However, there is no privilege in lacrosse to take an intentional swing at the head of another lacrosse player. Such conduct greatly increases the risks associated with the sport beyond those inherent therein. Thus, the fan will not be deemed to have assumed the risk of being hit with the stick in this instance, and the rival player’s intent to commit a battery will be transferred to the fan. Accordingly, choice (A) is the correct choice, and for similar reasons, choice (D) is incorrect. Assumption of the risk is only applicable in negligence actions, and this action is based on the intentional tort of battery. The fan’s action would only be defeated if it could be found that he consented to this battery, which is obviously not the case.
Choice (B), which arrives at the correct conclusion, does not provide as strong a legal basis as does choice (A).
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