(Dissenting).
25. I dissent. I would affirm the summary judgment. First, I would hold that Matthew has no cause of action against Teak if Matthew consented to the physical contact that injured him. Second, I would hold that Matthew did so consent. Third, even if Matthew did not consent, I do not understand how Teak’s conduct could be deemed negligent.
26. The first point is the most important because it concerns fundamental legal doctrine, rather than just an evaluation of the evidence of record. In my view, the majority has erred in rejecting consent as a defense to a cause of action for negligence during horseplay.
27. The majority recognizes that “[c]on-sent is a defense for intentional torts like assault and battery,” but it finds that doctrine inapplicable here because Matthew “has sued in negligence, not intentional tort.” In other words, even though a claim for battery is barred by the victim’s consent to the contact, the victim still has a claim against the batterer if it was unreasonable (negligent) of the batterer to commit the battery. This is a profound revision of the law of consent. Now, as a practical matter, consent provides little protection against liability. One can no longer rely on another’s consent, because consent does not affect one’s duty of due care. The consequences of this proposition boggle the mind. In a football game the tackier cannot be sued for battery because the runner consented to the contact. See Restatement (Second) of Torts § 50 cmt. b (1963-1964) (the Restatement). But the runner could sue on the ground that it was nonetheless negligent to execute a tackle.
28. The law is not so bizarre. It recognizes the autonomy of the individual. It allows a competent individual to consent to invasion of personal interests even when to do so may be foolish. And it finds it unfair to impose liability on one who relies on that consent.
29. To avoid misunderstanding regarding the proposition upon which I rely, it is necessary to make two distinctions. First, there is a difference between (a) negligence in deciding to commit the battery and (b) negligence in the manner of committing the battery. Consent to the battery forecloses a claim regarding the first type of negligence, but not necessarily the second. The issue arises, for example, in the context of medical malpractice. Even when the patient gives informed consent to the treatment, the patient may still have a claim for malpractice in the manner of performance of the treatment. See 1 David W. Louisell & Harold Williams, Medical Malpractice § 9.02[2] (1995). Likewise, one who consents to being tackled in football does not necessarily consent to every manner in which a tackle can be executed.
30. The second distinction is one made historically between “consent” to an intentional tort and “assumption of the risk” of negligence. As explained in the Restatement, assumption of the risk “is applied to acts that are not intended to invade the plaintiffs interests but merely create a risk of the invasion, so that they are negligent with respect to it.” Restatement, supra, § 892A cmt. a (1977). Thus, a spectator at a baseball game might be said to “assume the risk” of being struck by a foul ball, but the spectator cannot be said to “consent” to being hit. The type of consent on which I am relying is consent to the physical contact itself — such as consent to being tackled in football, tagged in baseball, or pinned in wrestling. I am not suggesting adoption of a doctrine that bars recovery by everyone who willingly encounters a risk of injury.
31. What the majority appears to assume is that the successful assault on the assumption-of-the-risk doctrine — an assault with which I generally agree, see Davis v. Gabriel, 111 N.M. 289, 804 P.2d 1108 (Ct.App.1990)— undermines any reliance on consent in the context of a negligence claim. I disagree. It is inaccurate to suggest that one cannot consent to another’s negligence. For example, contracts relieving a party of responsibility for negligence are routinely upheld. See Restatement, supra, § 496B.
32. More specifically, if one adopts the universally accepted rule that consent to physical contact bars a claim of battery for that contact, see Restatement, supra, § 892A; Fowler V. Harper et al., The Law of Torts § 3.10 (3d ed. 1996); W.P. Keeton et al., Prosser and Keeton on the Law of Torts § 18 (5th ed. 1984), I see no ground for permitting a cause of action predicated on the contention that it was negligent to cause the contact. The majority has cited no authority, and I am aware of none, that would sustain such a cause of action. The Illinois Supreme Court recently held to the contrary when it rejected a cause of action for negligence by a participant in a college dormitory game of kick the can. It wrote: “By participating in the game, the plaintiff would have given his consent to the physical contact permitted by the rules and usages of the game, and thus cannot recover under either the theories of negligence or intentional tort.” Pfister v. Shusta, 167 Ill.2d 417, 212 Ill.Dec. 668, 672, 657 N.E.2d 1013, 1017 (1995).
33. Rejection of consent as a defense to negligence would be contrary to the basic proposition that one cannot recover for damages resulting from consented-to conduct. See Restatement, supra, § 892A. It would also be remarkable to recognize a cause of action for negligence when a cause of action for an intentional tort is not available. Ordinarily, any distinctions between the right to recover for intentional torts and the right to recover for negligent torts favor claims for intentional torts. Compare, e.g., Dominguez v. Stone, 97 N.M. 211, 214-15, 638 P.2d 423, 426-27 (Ct.App.1981) (intentional infliction of emotional distress) with Flores v. Baca, 117 N.M. 306, 310, 871 P.2d 962, 966 (1994) (negligent infliction of emotional distress).
34. In the context of play, no jurisdiction has held that a participant is subject to a claim for negligence based on conduct that complied with the rules. “Taking part in a game manifests a willingness to submit to such bodily contacts or restrictions of liberty as are permitted by its rules or usages.” Restatement, supra, § 50 cmt. b. The difference of opinion among jurisdictions is confined to when liability should arise for conduct that violates the rules. Some jurisdictions would impose liability for conduct not permitted by the rules when the conduct is negligent. See Lestina v. West Bend Mut. Ins. Co., 176 Wis.2d 901, 501 N.W.2d 28 (1993) (soccer); Babych v. McRae, 41 Conn.Supp. 280, 567 A.2d 1269 (Ct.1989) (professional hockey); cf. Auckenthaler v. Grundmeyer, 110 Nev. 682, 877 P.2d 1039 (1994) (horseback riding). But the great weight of authority, both recent and over a longer period of time, confines liability to reckless or willful misconduct. See, e.g., Knight v. Jewett, 3 Cal.4th 296, 11 Cal. Rptr.2d 2, 834 P.2d 696 (1992) (en banc) (touch football); Pfister (kick the can); Gibeline v. Smith, 106 Mo.App. 545, 80 S.W. 961 (1904) (friendly scuffle); Crawn v. Campo, 136 N.J. 494, 643 A.2d 600 (1994) (informal softball); Marchetti v. Kalish, 53 Ohio St.3d 95, 559 N.E.2d 699 (1990) (kick the can); Hellriegel v. Tholl, 69 Wash.2d 97, 417 P.2d 362 (1966) (horseplay). I am inclined toward the view that participation in a game manifests consent not only to conduct within the rules but also to conduct that is a normal, expected part of the game, even if it violates the rules (such as fouls by basketball players vying for a rebound). But it is unnecessary to resolve that issue in this case.
35.One reason the majority has failed to give due recognition to the defense of consent may be that many similar cases are resolved on the issue of duty rather than consent. The analysis of the issue of duty can be quite different from an analysis of the issue of consent. Most importantly, deciding what duty is imposed by law may require the court to assess whether public policy favors the activity that led to the injury. The decision of the California Supreme Court in Knight is typical. The court held that a participant in an informal touch football game breaches a legal duty only by intentionally or recklessly injuring another player. 11 Cal.Rptr.2d at 17, 834 P.2d at 711. Liability for negligence was rejected because of concern that such liability would chill vigorous participation in the sport. Id. 11 Cal.Rptr.2d at 16, 834 P.2d at 710; see Kabella v. Bouschelle, 100 N.M. 461, 465, 672 P.2d 290, 294 (Ct.App.1983). Reading such decisions, one might conclude that if the activity is not deserving of special protection, then the typical negligence standard should be imposed. From that point of view Kabella itself could be criticized. I am not particularly confident that public policy favors sandlot tackle football games, such as the one causing the injury in Kdbella. Many reasonable people may find such activity foolish.
36. But when consent is present, there is no need to consider whether public policy favors the activity. Consent is a defense even when it may have been foolish to give consent. A competent person who “foolishly” participates in a tackle football game has no cause of action for injury arising from being tackled.
37. This is not to say that consent doctrine answers all questions regarding tort liability in the context of games. Most litigation in the area arises from conduct that violates a rule of the game, so that consent may well not be present. Also, the consent defense may not apply to games in which the actions of fellow players create a risk that an interest will be invaded but such an invasion is not essential to the game. For example, playing golf in a tournament exposes one to the risk of being hit by another player’s ball, but hitting other players with balls is not an object of the game. In such games, players do not consent to the physical contact itself. When analyzing the requisites for liability in the absence of consent to the physical contact, it is appropriate to look to policies other than those supporting the defense of consent. Then it makes sense to analyze liability in terms of duty. One could say, for example, that a golfer has a duty to refrain from negligently hitting a ball that endangers another player. It is in this context — in which a player proceeds in the face of a risk that would be created by another’s negligence— that courts must critique the doctrine of assumption of the risk. See Restatement, supra, § 892A cmt. a; §§ 496A-G. But that is not the context of this case.
38. The only reason I could see for not holding that Matthew’s consent relieves Teak of liability would be if there were a compelling public policy against horseplay. The majority may be suggesting such a public-policy rationale when it fails to follow our precedent in Kabella, which refused to recognize a claim for negligence arising out of a pick-up game of tackle football played by four teenagers. Yet, I fail to see the basis for such a policy distinction between tackle football and horseplay. Perhaps some play may be so dangerous that the courts should impose liability regardless of the consent of the participants. That proposition could be applied to formal sports as well as informal play. See generally Daniel E. Lazaroff, U.Miami Ent. & Sports L.Rev. 191, 225-27 (1990). But there is nothing inherently dangerous about picking up a student and spinning him around. Ironically, the greater danger ordinarily would be to the back of the person who lifted the other. I would think that the danger would be a good deal less than when aggressively trying for a rebound in a basketball game. If Teak and Matthew had been throwing rocks at one another, this would be a different case.
39. Having concluded that Matthew’s consent would bar an action against Teak, the issue arises whether Matthew consented. Were this a matter of Matthew’s state of mind, summary judgment would be inappropriate, because Matthew’s testimony suggested that he did not want Teak to lay hands on him. But one can be bound by actions that manifest consent even if consent is not intended. As set forth in the Restatement, “If words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact.” Id. § 892(2). The law does not recognize crossing one’s fingers behind one’s back.
40. In the context of organized sports often one can easily determine whether certain conduct was within the scope of consent. Some conduct clearly complies with the rules; other conduct clearly violates them. Yet, the absence of formal rules does not foreclose the possibility that consent may be manifested by conduct. At the least, there is an issue of fact concerning whether Matthew manifested consent. I would go further, however, and hold that as a matter of law Matthew’s conduct manifested consent to participate in the type of horseplay engaged in by his classmates.
41. On the day of the incident Matthew and Teak were classmates in Horticulture II. They and a third student went to the greenhouse to water the plants. On the way to the greenhouse the three began some gentle horseplay, tagging each other on the arm. In the greenhouse they turned the sprinklers on each other, threw leaves at each other, ran at each other, and pushed each other. Matthew’s injury occurred during the break between that class and the next class. Most of the horticulture students were standing around outside the classroom. Some were engaging in horseplay. While Teak was talking to another student, Matthew came up behind him, grabbed him on the shoulders, shook him a little, said “hey” or the like, and moved away. Teak then picked up Matthew from behind, with Matthew’s legs under his right arm and Matthew’s head under his left. Teak spun Matthew around once or twice, walked to a chain link fence, and pushed Matthew into the fence. When Matthew said “My back hurts,” Teak put him down.1
42. Although there is no evidence in the record that Teak had ever before picked Matthew up and spun him around, Matthew was well aware of similar conduct among the students. He testified that school horseplay included: “pushing each other around. The big thing for that — around that time was to take somebody and throw them in the ditch.” He said that he had personally participated in horseplay, including pushing and punching others. On those occasions when he no longer wished to participate because others were getting too rough, he had asked them to stop. He acknowledged that the horseplay was “a game that goes on” and characterized Teak’s conduct as “he just retaliated with horseplay, I guess.”
43. Thus, Matthew should have known, and indeed knew, the scope of horseplay engaged in by his classmates. When he shook Teak by the shoulders, he as much as said, “I’m in. I want to play.” Regardless of any mental reservations Matthew may have had, his conduct manifested consent. He did not ask Teak to stop until he said that his back hurt, and Teak then put him down. Matthew’s consent bars him from any cause of action arising from conduct by Teak within the “rules of the game.” Because Teak did no more than Matthew could reasonably have expected, Teak cannot be liable. I note that the appellate briefs on behalf of Matthew do not challenge the proposition that Matthew consented. They challenge only whether consent is a defense.
44.Finally, even were I to agree with the majority that Teak could be liable for negligence, I fail to understand how Teak was negligent. I realize that the parties do not address this issue on appeal and we should not affirm on this ground. But to understand the legal standard established by the majority opinion, it would be helpful to know how that standard would apply to the facts before us. I see nothing negligent about Teak’s conduct. The tragedy here was that Matthew, unbeknownst to Teak, had a serious preexisting back condition. Ordinarily, picking up a teenager horizontally and spinning him around does not present a significant risk of harm. If negligence could be found here, then this State’s playgrounds are ripe for litigation. I doubt that our children will be better off as a result.
. Teak’s version of events is somewhat different, but the difference is not material to this decision.