Hellriegel v. Tholl – Case Brief
Hellriegel v. Tholl, 417 P.2d 362 (Wash. Ct. App. 1966).
Case Summary
Facts: Hellriegel’s (P) teen-age son Dicka was seriously injured when three of his friends (Tholl, D) tried to throw him into a lake during an afternoon of outdoor horseplay. Dicka had invited his friends to try to throw him into the lake if they were able. P sued in his own behalf for recovery of the cost of the medical care and sued in Dicka’s behalf for the loss of income and for temporary total disability and for general damages arising from alleged negligence and recklessness. Hellriegel later amended the complaint to change the grounds of liability to battery. The trial court granted a nonsuit, holding there was evidence that P’s son had consented to the acts.
Issue: Does a person who consents to roughhouse horseplay accept the risk of injury?
Holding and Rule: Yes. Consent is a defense to battery, except for some cases in which consent cannot be given. Dicka’s statement to his friends constituted consent and he thereby assumed the risk that he might be accidentally injured. If there had been the slightest indication that Dicka had not wanted to participate in the horseplay but had engaged in it only to the extent necessary to protect himself, then appellant’s position might be plausible.
The court held that the test is whether the plaintiff consented to the activity, not whether he gave consent to the injury.
Disposition: Affirmed – judgment for D.
Notes: The conduct here was not in itself illegal and therefore Dicka could give valid consent. Note that while Dicka’s consent here was a perfect defense to battery for the Ds, negligence would have been another matter. The negligence claim had been dropped on amending the claim however.