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Markley v. Whitman

Michigan Supreme Court
20 L.R.A. 55, 54 N.W. 763, 95 Mich. 236 (1893)
ELI5:

Rule of Law:

A person who voluntarily participates in a dangerous game or activity is liable for injuries caused to a non-participating third party, even if the person's specific action that caused the injury was the result of being pushed by another participant.


Facts:

  • Plaintiff and defendant were students at the same high school.
  • On February 7, 1890, the defendant and other students were engaged in a game called a 'rush' or 'horse game' on a public sidewalk.
  • The game involved a line of participants, where those in the rear would push those in front, culminating in a forceful 'rush' against an unsuspecting target.
  • The plaintiff was walking home from school, was not participating in the game, and was unaware he was the intended target.
  • The defendant, positioned directly behind the plaintiff, was pushed from his rear by another player as part of the game.
  • This push caused the defendant to strike the plaintiff between the shoulders with such force that the plaintiff was thrown nearly to the ground.
  • As a result of the impact, the plaintiff suffered severe and lasting injuries, including the loss of his voice above a whisper and a nearly fractured neck.

Procedural Posture:

  • The plaintiff brought an action against the defendant in a trial court to recover for personal injuries.
  • A jury trial was held, resulting in a verdict for the plaintiff in the amount of $2,500.
  • The trial court entered a judgment in favor of the plaintiff based on the jury's verdict.
  • The defendant (appellant) appealed the judgment to this court (an appellate court), claiming errors in the trial court's instructions to the jury.

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Issue:

Is a participant in a dangerous 'horse game' liable for battery when he is pushed by another participant into an unsuspecting person, causing injury?


Opinions:

Majority - Long, J.

Yes. A participant in a dangerous game is liable for injuries caused to an innocent bystander, and it is not a defense that another participant pushed him. The court reasoned that the 'rush' game was inherently dangerous to play on a public street. The defendant voluntarily engaged in this unlawful and dangerous activity. Therefore, his action of striking the plaintiff constituted an assault. It is irrelevant that the defendant may not have intended the specific, severe consequences or that he was himself pushed by another boy; his willing participation in the dangerous game makes him responsible for the foreseeable harm to an innocent, non-participating person like the plaintiff.



Analysis:

This case clarifies the element of intent required for an intentional tort like battery. It establishes that the defendant's intent to commit the tortious act can be inferred from their voluntary participation in an activity that is substantially certain to result in a harmful or offensive contact. The ruling holds participants in 'horseplay' or group pranks accountable for injuries to innocent third parties, dismissing the defense that one's direct action was involuntary because they were pushed by another co-participant. This precedent reinforces the principle that one cannot use participation in a dangerous, unlawful game as a shield from liability for the harm it causes.

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