So holds the Sixth Circuit in Geeslin v. Bryant (6th Cir. Dec. 22, 2011), reversing the trial court. An excerpt:
Geeslin and a friend attended a professional basketball game at the FedEx Forum in Memphis, Tennessee on November 14, 2005…. While Geeslin and his friend were seated in their courtside seats, a Lakers player recovered a ball at the Grizzlies’ end of the floor. That player attempted a pass to Bryant. In attempting to get control of the ball, Bryant came into contact with a Grizzlies player and careened out of bounds, into or onto the plaintiff. Geeslin spilled his beer, and was pushed backwards in the folding chair.
Geeslin alleges that Bryant, in getting himself up and back into the game, pushed his forearm into Geeslin’s chest in an unnecessary and forceful manner, causing him injury. Geeslin also alleges that Bryant “glared” at him as he moved away and did not apologize. In asserting that Bryant used more force than necessary, Geeslin suggests that Bryant may have been frustrated by the Lakers’ losing score and the referee’s refusal to call a foul on the player allegedly responsible for Bryant’s fall.
After the contact between Geeslin and Bryant, Geeslin and his friend returned to the skybox for a period of time and then went home. Two days later, Geeslin sought medical attention for pain in his chest. He was diagnosed with a bruised lung cavity, and received ibuprofen, another medicine, and a breathing machine. Geeslin’s physical symptoms dissipated after two weeks, but he alleges he also suffered from continued anxiety stemming from the incident, for which he received prescriptions for Xanax and Ambien from his primary care physician….
[UPDATE: Paragraph added.] The Amended Complaint, filed after Geeslin’s death, alleges claims of assault, battery, and intentional infliction of emotional distress, asserting that the incident between Geeslin and Bryant “contributed as a proximate cause to [Geeslin’s] death on June 17, 2008. [Footnote: Bill Geeslin died in June 2008. His mother and personal representative Betty Geeslin filed a notice of suggestion of death and was substituted for plaintiff in November 2009.] …
There is no dispute about the fact that Bryant’s initial contact with Geeslin was involuntary. Geeslin’s claim is that as Bryant got up, he, “without provocation, violently struck Mr. Geeslin with [his] elbow, causing the injuries and damages.” Geeslin’s support for this claim is his deposition testimony that (a) it was “obvious” that Bryant intended to harm him, and (b) as Bryant left the scene of contact, he “kind of pushed his arm towards me and glared at me and walked away.” Geeslin has presented no evidence distinguishing injury caused by his initial contact with Bryant from any injury caused by what Geeslin has described as Bryant’s “intentional forearm” following the initial collision. However, as outlined above, Geeslin presented his description of the events, including offensive contact by Bryant which he claims caused him injury. Bryant, on the other hand, offered neither deposition testimony nor an affidavit in opposition to the motion.
Although the district court found that Geeslin had “assumed the risk or consented to the entire contact between he and the Defendant,” by virtue of taking the courtside seat, we find that analysis applies only to the initial contact between Geeslin and Bryant and not the secondary, offensive contact described by Geeslin. In viewing the evidence in the light most favorable to Geeslin, as we must, we find that a material question of fact remains on his assault and battery claims. For this reason, the district court’s entry of summary judgment for Bryant on these claims was improper.
Based on the factual allegations as the court describes them, the result seems correct. Thanks to Robert Markle for the pointer.