When Basketball goes Bad

Earlier this year Pope Francis gave an address to the Italian Sports Centre.  His remarks included the observation that “[Sport] is a great school, provided that you live it with self-control and respect for others.”.  Recently the Supreme Court of Utah had to look at what this means in practice.

A basketball match at a meetinghouse of the Church of Jesus Christ of Latter Day Saints turned a bit ugly when one Judd Nixon was tackled by another player, Edward Clay.  The tackle was ruled to be an unintentional common foul, despite which Nixon suffered a serious knee injury.

action backboard ball basketball
Photo by Pixabay on Pexels.com

Nixon brought proceedings seeking damages in the Utah County District Court.  Judge Pullan granted a summary dismissal of the case on the grounds that a participant in a contact sport is liable only for the results of a wilful or reckless disregard for the safety of another player.  Mr Nixon appealed.

The Supreme Court of Utah dismissed the Appeal.  The Court adopted a simpler test which bypassed consideration of the defendant’s state of mind.  It expressed the relevant common law to be –

that voluntary participants in a sport cannot be held liable for injuries arising out of any contact that is “inherent” in the sport. Under our rule, participants in voluntary sports activities retain “a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.” Knight, 834 P.2d at 708. But there is no duty to lower or eliminate risks that are inherent in an activity.

In the circumstances, a grant of summary judgment was appropriate.

Interestingly, the Supreme Court of Utah was essentially the same as that reached by Australian courts in McNamara v Duncan and Smith v Emerson.

Nixon v Clay, 2019 UT 32

Prosecutor v Unidentified Father (2015) H&FLR 2015-9

Prosecutor v Unidentified Father (2015) H&FLR 2015-9

Turin Magistrates Court (Fifth Criminal Division)

26 January 2015

Coram: Minucci J.

Appearing for the Prosecution: Barbara Badellino (of the Italian Ministry of Justice)
Appearing for the Defendant: Not identified

Catchwords: Italy – criminal law – parent – psychological abuse – “tough love” – sport – competition – skiing – dieting

Facts: The accused was the father of two daughters and separated from their mother.  Between 2008 (at which time they were aged roughly 11 and 14 years) the girls saw him at weekends.  As they entered adolescence they gained a certain amount of weight and lost interest in skiing.  The accused compelled his daughters to follow a restricted and macrobiotic diet and forced them to train for and take part in competitive skiing.  In 2011 the accused’s daughters complained to their mother of ill-treatment by their father and the matter was referred to the Turin prosecutor’s office.  The accused was charged with mistreatment of his daughters.

The evidence (including statements from the girls’ school principal and skiing trainer) indicated that they were subjected to significant psychological pressure and repeatedly told that they were fat and had to do more sport.  It appears that identifiable psychological harm had been caused to the girls.  There was no evidence of physical abuse.

The accused’s position was that he was acting only as a concerned father, and that any verbal abuse was only to encourage them.

Held: Convicting the accused of mistreating his daughters, that a sentence of nine months imprisonment was appropriate.

Judgment

No written judgment is available.  This report has been prepared based on accounts prepared by duerighe.com, Il Secolo XIXRAI News, La Voce and La Repubblica, all of 26 January 2015, with the aid of Google Translate

Note: the accused has announced his intention to appeal.

Comment: This case forms an interesting companion to State v Corrigan (1998) H&FLR 2014-63, in which the defendant was convicted of felony child abuse as a result of not addressing health issues caused by her daughter’s significant obesity.  Viewed as part of a bigger jurisprudential picture, it suggests that notwithstanding the serious health and economic effects of obesity (1), the ‘fat shaming’ identified by some bloggers will at some point stray from being socially inappropriate to being a legal wrong.

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(1) Jim Landers, ‘Cost of Care: The U.S. health care system is bleeding green’, Dallas Morning News, 1 February 2015.