Koffman v. Garnett

265 Va. 12, 574 S.E.2d 258 (2003)



The tort of battery is an unwanted touching which is neither consented to, excused, nor justified.


The coach told the 13-year-old player to stand upright and motionless so that the coach could explain the proper tackling technique to the team. The coach then thrust his arms around the player, lifted him up, and slammed him to the ground. The player suffered a broken arm. A second amended motion for judgment was filed by the complainants alleging that the player was injured as a result of the coach’s simple and gross negligence and intentional acts of assault and battery. The trial court dismissed the action upon the coach’s demurrer especially since the coach, as a school board employee, was entitled to sovereign immunity for simple negligence. The trial court's ruling was based on a finding that the instruction of football was inherently dangerous, thus, the coach’s action only constituted simple negligence.


Whether the trial court properly dismissed the plaintiffs' second amended motion for judgment for failure to state causes of action for gross negligence, assault, and battery.


Sufficient causes of action existed for both gross negligence and battery, but none for assault.


The appellate court held that the coach's knowledge of his greater size and experience, his instructions, the force he used, and his prior practice of not personally using force to teach football technique could have allowed a reasonable person to find that the coach acted in utter disregard for the player's safety and allowed the gross negligence claim to go to a jury. The battery claim also presented a jury issue. Although the coach alleged that, by playing football, the player consented to being tackled, whether he consented to being tackled in the manner alleged was a fact issue. The pleadings, however, did not state a cause of action for assault, as plaintiffs did not allege an apprehension of an immediate battery; in fact, they alleged that the player had no warning of an imminent forceful tackle.

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