dissenting.
I respectfully dissent.
The evidence makes it clear that defendant's action constituted either an intentional tort or no tort at all. It therefore is unnecessary to decide whether participants in athletic events should be allowed to recover damages for injuries resulting from the acts of other participants that are not intentional but are either reckless or negligent. I agree with the principal opinion that mere negligence is an insufficient basis upon which to impose tort liability arising out of athletic competition. I am not as yet prepared to say that recklessness is a sufficient basis. That question is not necessary to a decision of this case, and I think it is unwise in advance of necessity to engrave into our law a new principle for the imposition of liability.
The yin-yang testimony elicited in this case would leave even an eyewitness to the event confused. The parties agree that plaintiff, the third baseman, was injured when defendant, the baserunner attempting to go from first base to third base on a hit to short center field, collided with him. Beyond that there is total disagreement. Plaintiff and two of his teammates claimed that plaintiff was twelve feet on the outfield side of third base when he received the throw from the short fielder and that defendant, after rounding second base, made no attempt to reach third but instead ran directly toward plaintiff and collided with him after making a head-first dive. Defendant, three of his teammates, and the umpire claimed that plaintiff was standing in the basepath approximately three feet on the second base side of third and that the collision occurred when defendant slid feet-first toward third in an effort to avoid plaintiff's tag and reach the base.
The two versions of the story are irreconcilable. If one accepts plaintiff's version, defendant's action rather obviously is an intentional tort, for which in the absence of consent plaintiff may recover. See Griggas v. Clauson, 6 Ill.App.2d 412, 128 N.E.2d 363 (1955) (basketball). See also Averil v. Luttrell, 44 Tenn.App. 56, 311 S.W.2d 812 (1957) (baseball). Plaintiff should be deemed to have consented to the contact unless the contact was prohibited "by rules or usages of the game if such rules or usages are designed to protect the participants and iiot merely to secure the better playing of the game as a test of skill." Restatement (Second) of Torts § 50 comment b (1965). See Tavernier v. Maes, 242 Cal.App.2d 532, 51 Cal.Rptr. 575 (1966) (softball). See also W. Prosser, Handbook of the Law of Torts § 18, at 101 (4th ed. 1971). If one accepts defendant's version of the facts, plaintiff has no basis for recovery whatsoever, because the contact was not prohibited by the rules or usages of the game. Defendant's conduct could not be considered negligent or reckless, and in any event plaintiff assumed any risk incident to the game. Perkins v. Byrnes, 364 Mo. 849, 853, 269 S.W.2d 52, 53 (1954).
It is unnecessary to hold in this case that a participant in an athletic event may recover damages for injuries resulting from the reckless conduct of another participant. That holding will do nothing more than open the door to needless litigation.1 This *16case should be reversed and remanded for a new trial with proper instruction of the jury as to intentional tort, consent, and assumption of risk. The question of recklessness, not present in this case and unnecessary to the decision, should be reserved for another day.
. My own informal survey shows that in the City of Columbia, Missouri, for example, a total of 339 teams, 272 of which are composed of adults, participate in leagues sponsored by the Department of Parks and Recreation. Each team averages 15 persons, for a total of 5085 persons who participate in governmentally sponsored leagues. That figure does not include those persons who participate in church softball and other private leagues. The 1980 census shows the population of Columbia to be 62,061. If the same ratio is applied to Missouri's 1980 population of 4,917,444. there are potentially 402,738 persons who participate in only governmentally sponsored softball leagues. Each of those persons, as well as those who participate in church and other private leagues, conceivably could be a plaintiff under the rationale of the principal opinion.
*16As a matter of social policy, recreation with less litigation may well be preferable to litigation with less recreation.