Hellriegel v. Tholl
69 Wn.2d 97, 417 P.2d 362 (1966)
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Rule of Law:
An individual who consents to participate in rough and tumble horseplay assumes the risk of accidental injury and cannot recover for battery for contacts that are a part of, or accidental results of, that consented-to activity.
Facts:
- Wolf-Jurgen Hellriegel, a teenager, was with his friends John Tholl, Gregory Haverfield, and Michael Dorris at a lake after an afternoon of water-skiing.
- The group began engaging in horseplay, first by throwing a pillow and then by throwing grass, in which Hellriegel willingly participated.
- The conversation turned to throwing people into the water, and someone suggested throwing Hellriegel in.
- In response, Hellriegel stated, "Oh, you couldn’t throw me in even if you tried."
- Tholl, Haverfield, and Dorris then grabbed Hellriegel and attempted to carry him to the water while he physically resisted.
- During this struggle, Dorris, who was positioned behind Hellriegel, slipped or lost his balance.
- Dorris fell onto the back of Hellriegel's head, pushing it forward and causing an injury that resulted in paralysis.
Procedural Posture:
- Wolf-Jurgen Hellriegel's father, as plaintiff, sued his son's three friends in a state trial court.
- The initial complaint alleged negligence and recklessness, but was later amended to a claim of battery.
- At the close of the plaintiff’s evidence during trial, the defendants made a motion for nonsuit (dismissal).
- The trial court granted the motion and dismissed the plaintiff's complaint, ruling that the defendants were not liable.
- The plaintiff appealed the trial court's judgment of dismissal to the Supreme Court of Washington.
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Issue:
Does an individual's voluntary participation in and verbal challenge during rough, good-natured 'horseplay' constitute consent to the physical contact, thereby barring a battery claim for an injury that results accidentally from that contact?
Opinions:
Majority - Donworth, J.
Yes. An individual's participation and verbal challenge during horseplay constitutes consent to the rough physical contact inherent in the activity, barring a claim for battery for an accidental injury. Hellriegel's statement was not a warning but an invitation for his friends to try to throw him in the lake. By making this challenge in the context of ongoing, good-natured horseplay, he consented to the "rough and tumble" activity that would ensue. This consent covers the physical contact of the attempt itself and the assumption of risk for accidental injuries that might occur during the struggle. The court distinguished between consenting to the act (the horseplay) and the unintended result (the injury), finding that the injury-causing contact from Dorris slipping was accidental and within the scope of the consented-to play, not a separate, non-consensual battery.
Analysis:
This case clarifies the scope of consent as a defense to the tort of battery, particularly in the context of informal, recreational activities. It establishes that consent can be implied from words and conduct, and that participants in "rough and tumble" activities assume the risk of accidental injuries that are a natural consequence of the play. This decision distinguishes between the consented-to act (the horseplay) and the unintended result (the injury), holding that consent to the former bars liability for the latter when it occurs accidentally. This precedent is significant for cases involving injuries during informal sports or play, reinforcing that one cannot sue for harms that are an inherent, albeit accidental, part of an activity they willingly joined.
