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By Dayan Shlomo Cohen, Badatz Ahavat Shalom, Yerushalayim
Serious and painful injuries can be caused while playing sport. A game of football can end in concussion from a strong tackle and a boxer or wrestler can suffer even worse injuries.
The question is, can a player in a football game claim damages for those injuries from the guy who tackled him, or can a boxer get compensation from his opponent for a bloody nose.
Human Fault
The general rule in all cases of damages caused by a human being, as opposed to an animal, is that ‘a human is responsible for all damages caused by his actions, whether intentional or unintentional, and even while he is asleep’.
The only exception to this rule is where the damages were caused by totally extraordinary and exceptional circumstances.
The Shulhan Aruch writes that even if someone was blown off a roof by an unexpected gust of wind, and were to fall on the utensils of another, that he is required to pay for the damage caused by his fall, as this is not considered as totally extraordinary and unexpected circumstances[1].
However, if one was climbing a ladder, where the rungs were strong and solid, but nevertheless one of them broke while the guy was climbing, and he fell onto the utensils of another, he is not required to pay for the damages as this is considered as an ‘act of G-d’ [of course everything is an act of G-d! The intention here is that when an accident is completely out of the ordinary, it cannot be attributed to human negligence][2].
This would seem to imply that compensation could be claimed for damages caused while playing football, as it was the tackler’s responsibility to ensure the safety of his opponent.
Rules of the Game
However, elsewhere in Shulhan Aruch[3], Maran rules that if two guys were wrestling together and one of them threw his opponent to the ground blinding his eye, that a claim for damages cannot be made.
The S’ma explains the reasoning: since each of the fighters is participating out of his own free will – with the intention to throw his opponent to the ground – he realizes and accepts that he too may be damaged, and it is as if each one of them, by taking part, exempts his opponent from paying for any damage caused to him.
[This of course will only apply to fair play, according to the rules of the game. Where the rules were broken, this will not apply, and any damages caused by a foul must be paid for!]
Rip My Shirt
This principle however, seems to be contradicted by the Shulhan Aruch himself who rules[4] that if one guy were to invite another to tear his shirt, telling him explicitly that he will not claim damages; the guy who tears the shirt is not required to pay. But, if he invited the other guy to tear his shirt without explicitly stating that he will not be required to pay, the owner of the shirt can claim compensation.
This would seem to contradict the previously mentioned Halacha that a wrestler is exempt from paying damages to his opponent!
The Shulhan Aruch himself provides the answer to this apparent contradiction, by continuing to say that an explicit exemption is only required where the damager had a responsibility to guard and protect his fellow’s property. Where he did not, an explicit exemption is not required.
Bodily Injury
While it could be argued that in the case of bodily damage we are obligated to guard and protect our fellow, nevertheless, participation in the game of one’s own free will would be considered as an explicit exemption[5].
This principle can be found in a number of other places in the Shulhan Aruch. The Rama[6] writes that there used to be a custom at weddings for the young men to ride on horseback towards the groom, and that they would sometimes push each other, not maliciously, but in a friendly, playful fashion. If one rider would fall from his horse and be damaged, compensation cannot be claimed from the guy who pushed him. The reason for this is based on the same principle: each participant realizes that there is a risk of damage and by taking part he exempts his fellow riders.
Fair Play
In the Halachot of Purim too, the Rama writes[7] that compensation for damages caused during the Purim festivities cannot be claimed.
The Mishna Berura adds that this would only apply to small damages – not large, and, in addition, that it would only apply where there was no intention to cause damage.
The principle here too, has the same basis as the case of two wrestlers mentioned earlier, that by participating one realizes that such damage can occur and accepts the risk.
However, we see an important qualification to this Halacha from the words of the Mishna Berura, that this exemption only applies where there was no intention to damage.
While this exemption will clearly not apply to a foul tackle during a game of football, as explained above; all football players know, that if a player has intention to damage his opponent, a lot of harm can be caused by a fair tackle too.
In my opinion, only damages caused by fair play where there was no positive intention to cause damage is included in his exemption. Where the intention of the tackler was to cause damage to his opponent, even though the tackle may have been in accordance with the rules of the game, he can be made to pay compensation for the damage caused.
This is because the intention of the players is to have fun, and not to damage each other.
To differentiate between these two types of tackle is not easy but I think that any experienced football player will be able to do so.
We once had a case in bet din of a group of young boys who got very drunk on Purim, and set up a road block, stopping passing cars. The wing mirror of a passing driver was broken, and the boys seemed to think that they were exempt from paying compensation, quoting the above Halacha.
Bet Din of course made them pay for the damage, as the exemption applies to small damage in Simhat Purim, which may include spilling wine on someone or stepping on their toe while dancing, but certainly not such wild behavior.
Sources:
[1] H.M. 378:1
[2] Ibid. 2
[3] 421:5
[4] 380:1
[5] See Rama 380:1
[6] 379:9
[7] O.H. 695:2