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Present:    All the Justices
ANDREW W. KOFFMAN, AN INFANT BY HIS
FATHER AND NEXT FRIEND,
RICHARD KOFFMAN, ET AL.
v.    Record No.  020439                                            OPINION BY JUSTICE ELIZABETH B. LACY
                                                                    January  10,  2003
JAMES GARNETT
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
George E. Honts, III, Judge
In this case we consider 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.
Because this case was decided on demurrer, we take as
true all material facts properly pleaded in the motion for
judgment and all inferences properly drawn from those facts.
Burns v. Board of Supvrs.,  218 Va.  625,  627,  238 S.E.2d  823,
824-25  (1977).
In the fall of  2000, Andrew W. Koffman, a  13-year old
middle school student at a public school in Botetourt County,
began participating on the school's football team.    It was
Andy's first season playing organized football, and he was
positioned as a third-string defensive player.    James Garnett
was employed by the Botetourt County School Board as an
assistant coach for the football team and was responsible for




the supervision, training, and instruction of the team's
defensive players.
The team lost its first game of the season.    Garnett was
upset by the defensive players' inadequate tackling in that
game and became further displeased by what he perceived as
inadequate tackling during the first practice following the
loss.
Garnett ordered Andy to hold a football and "stand
upright and motionless" so that Garnett could explain the
proper tackling technique to the defensive players.    Then
Garnett, without further warning, thrust his arms around
Andy's body, lifted him "off his feet by two feet or more,"
and "slamm[ed]" him to the ground.    Andy weighed  144 pounds,
while Garnett weighed approximately  260 pounds.    The force of
the tackle broke the humerus bone in Andy's left arm.    During
prior practices, no coach had used physical force to instruct
players on rules or techniques of playing football.
In his second amended motion for judgment, Andy, by his
father and next friend, Richard Koffman, and Andy's parents,
Richard and Rebecca Koffman, individually,  (collectively "the
Koffmans") alleged that Andy was injured as a result of
Garnett's simple and gross negligence and intentional acts of
assault and battery.    Garnett filed a demurrer and plea of
sovereign immunity, asserting that the second amended motion
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for judgment did not allege sufficient facts to support a lack
of consent to the tackling demonstration and, therefore, did
not plead causes of action for either gross negligence,
assault, or battery.    The trial court dismissed the action,
finding that Garnett, as a school board employee, was entitled
to sovereign immunity for acts of simple negligence and that
the facts alleged were insufficient to state causes of action
for gross negligence, assault, or battery because the
instruction and playing of football are "inherently dangerous
and always potentially violent."
In this appeal, the Koffmans do not challenge the trial
court’s ruling on Garnett’s plea of sovereign immunity but do
assert that they pled sufficient facts in their second amended
motion for judgment to sustain their claims of gross
negligence, assault, and battery.
I.
In Ferguson v. Ferguson,  212 Va.  86,  92,  181 S.E.2d  648,
653  (1971), this Court defined gross negligence as "that
degree of negligence which shows indifference to others as
constitutes an utter disregard of prudence amounting to a
complete neglect of the safety of  [another].    It must be such
a degree of negligence as would shock fair minded  [people]
although something less than willful recklessness."    Whether
certain actions constitute gross negligence is generally a
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factual matter for resolution by the jury and becomes a
question of law only when reasonable people cannot differ.
Griffin v. Shively,  227 Va.  317,  320,  315 S.E.2d  210,  212
(1984).
The disparity in size between Garnett and Andy was
obvious to Garnett.    Because of his authority as a coach,
Garnett must have anticipated that Andy would comply with his
instructions to stand in a non-defensive, upright, and
motionless position.    Under these circumstances, Garnett
proceeded to aggressively tackle the much smaller,
inexperienced student football player, by lifting him more
than two feet from the ground and slamming him into the turf.
According to the Koffmans' allegations, no coach had tackled
any player previously so there was no reason for Andy to
expect to be tackled by Garnett, nor was Andy warned of the
impending tackle or of the force Garnett would use.
As the trial court observed, receiving an injury while
participating in a tackling demonstration may be part of the
sport.    The facts alleged in this case, however, go beyond the
circumstances of simply being tackled in the course of
participating in organized football.    Here Garnett's knowledge
of his greater size and experience, his instruction implying
that Andy was not to take any action to defend himself from
the force of a tackle, the force he used during the tackle,
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and Garnett’s previous practice of not personally using force
to demonstrate or teach football technique could lead a
reasonable person to conclude that, in this instance,
Garnett’s actions were imprudent and were taken in utter
disregard for the safety of the player involved.    Because
reasonable persons could disagree on this issue, a jury issue
was presented, and the trial court erred in holding that, as a
matter of law, the second amended motion for judgment was
inadequate to state a claim for gross negligence.
II.
The trial court held that the second amended motion for
judgment was insufficient as a matter of law to establish
causes of action for the torts of assault and battery.    We
begin by identifying the elements of these two independent
torts.    See Charles E. Friend, Personal Injury Law in Virginia
§  6.2.1  (2d ed.  1998).    The tort of assault consists of an act
intended to cause either harmful or offensive contact with
another person or apprehension of such contact, and that
creates in that other person's mind a reasonable apprehension
of an imminent battery.    Restatement  (Second) of Torts  §  21
(1965); Friend  §  6.3.1 at  226; Fowler V. Harper, et al., The
Law of Torts  §  3.5 at  3:18-:19  (3d ed. Cum. Supp.  2003).
The tort of battery is an unwanted touching which is
neither consented to, excused, nor justified.    See Washburn v.
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Klara,  263 Va.  586,  561 S.E.2d  682  (2002); Woodbury v.
Courtney,  239 Va.  651,  391 S.E.2d  293  (1990).    Although these
two torts "go together like ham and eggs," the difference
between them is "that between physical contact and the mere
apprehension of it.    One may exist without the other."
W. Page Keeton, Prosser and Keeton on Torts  §  10 at  46; see
also Friend  §  6.3.
The Koffmans' second amended motion for judgment does not
include an allegation that Andy had any apprehension of an
immediate battery.    This allegation cannot be supplied by
inference because any inference of Andy's apprehension is
discredited by the affirmative allegations that Andy had no
warning of an imminent forceful tackle by Garnett.    The
Koffmans argue that a reasonable inference of apprehension can
be found "in the very short period of time that it took the
coach to lift Andy into the air and throw him violently to the
ground."    At this point, however, the battery alleged by the
Koffmans was in progress.    Accordingly, we find that the
pleadings were insufficient as a matter of law to establish a
cause of action for civil assault.
The second amended motion for judgment is sufficient,
however, to establish a cause of action for the tort of
battery.    The Koffmans pled that Andy consented to physical
contact with players "of like age and experience" and that
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neither Andy nor his parents expected or consented to his
"participation in aggressive contact tackling by the adult
coaches."    Further, the Koffmans pled that, in the past,
coaches had not tackled players as a method of instruction.
Garnett asserts that, by consenting to play football, Andy
consented to be tackled, by either other football players or
by the coaches.
Whether Andy consented to be tackled by Garnett in the
manner alleged was a matter of fact.    Based on the allegations
in the Koffmans’ second amended motion for judgment,
reasonable persons could disagree on whether Andy gave such
consent.    Thus, we find that the trial court erred in holding
that the Koffmans’ second amended motion for judgment was
insufficient as a matter of law to establish a claim for
battery.
For the above reasons, we will reverse the trial court’s
judgment that the Koffmans’ second amended motion for judgment
was insufficient as a matter of law to establish the causes of
actions for gross negligence and battery and remand the case
for further proceedings consistent with this opinion.*
Reversed and remanded.
* Because we have concluded that a cause of action for an
intentional tort was sufficiently pled, on remand, the
Koffmans may pursue their claim for punitive damages.
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JUSTICE KINSER, concurring in part and dissenting in part.
I agree with the majority opinion except with regard to
the issue of consent as it pertains to the intentional tort of
battery.    In my view, the second amended motion for judgment
filed by the plaintiffs, Andrew W. Koffman, by his father and
next friend, and Richard Koffman and Rebecca Koffman,
individually, was insufficient as a matter of law to state a
claim for battery.*
Absent fraud, consent is generally a defense to an
alleged battery.    See Banovitch v. Commonwealth,  196 Va.  210,
219,  83 S.E.2d  369,  375  (1954); Perkins v. Commonwealth,  31
Va. App.  326,  330,  523 S.E.2d  512,  513  (2000); People ex rel.
Arvada v. Nissen,  650 P.2d  547,  551  (Colo.  1982); Bergman v.
Anderson,  411 N.W.2d  336,  339  (Neb.  1987); Willey v.
Carpenter,  23 A.  630,  631  (Vt.  1891); Restatement  (Second) of
Torts  §  13, cmt. d  (1965).    In the context of this case,
“[t]aking 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  (Second) of
Torts  §  50, cmt. b  (1965), quoted in Thompson v. McNeill,  559
* Although the circuit court sustained the demurrer with
regard to the alleged battery on the basis that an intention
to batter and inflict injury on Andy could not be inferred
from the alleged facts, the majority does not address that
holding.    Since the majority discusses only the issue of
consent, I confine my dissent to that question.
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N.E.2d  705,  708  (Ohio  1990); see also Kabella v. Bouschelle,
672 P.2d  290,  292  (N.M. Ct. App.  1983).    However,
participating in a particular sport  “does not manifest consent
to contacts which are prohibited by rules or usages of the
game if such rules or usages are designed to protect the
participants and not merely to secure the better playing of
the game as a test of skill.”    Restatement  (Second) of Torts
§  50, cmt. b  (1965) quoted in Thompson,  559 N.E.2d at  708; see
also Kabella,  672 P.2d at  292.
The thrust of the plaintiffs’ allegations is that they
did not consent to  “Andy’s participation in aggressive contact
tackling by the adult coaches” but that they consented only to
Andy’s engaging  “in a contact sport with other children of
like age and experience.”    They further alleged that the
coaches had not previously tackled the players when
instructing them about the rules and techniques of football.
It is notable, in my opinion, that the plaintiffs
admitted in their pleading that Andy’s coach was  “responsible
.  .  . for the supervision, training and instruction of the
defensive players.”    It cannot be disputed that one
responsibility of a football coach is to minimize the
possibility that players will sustain  “something more than
slight injury” while playing the sport.    Vendrell v. School
District No.  26C, Malheur County,  376 P.2d  406,  413  (Ore.
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1962).    A football coach cannot be expected  “to extract from
the game the body clashes that cause bruises, jolts and hard
falls.”    Id.    Instead, a coach should ensure that players are
able to  “withstand the shocks, blows and other rough treatment
with which they would meet in actual play” by making certain
that players are in  “sound physical condition,” are issued
proper protective equipment, and are  “taught and shown how to
handle  [themselves] while in play.”    Id.    The instruction on
how to handle themselves during a game should include
demonstrations of proper tackling techniques.    Id.    By
voluntarily participating in football, Andy and his parents
necessarily consented to instruction by the coach on such
techniques.    The alleged battery occurred during that
instruction.
The plaintiffs alleged that they were not aware that
Andy’s coach would use physical force to instruct on the rules
and techniques of football since neither he nor the other
coaches had done so in the past.    Surely, the plaintiffs are
not claiming that the scope of their consent changed from day
to day depending on the coaches’ instruction methods during
prior practices.    Moreover, they did not allege that they were
told that the coaches would not use physical demonstrations to
instruct the players.
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Additionally, the plaintiffs did not allege that the
tackle itself violated any rule or usage of the sport of
football.    Nor did they plead that Andy could not have been
tackled by a larger, physically stronger, and more experienced
player either during a game or practice.    Tackling and
instruction on proper tackling techniques are aspects of the
sport of football to which a player consents when making a
decision to participate in the sport.
In sum, I conclude that the plaintiffs did not
sufficiently plead a claim for battery.    We must remember that
acts that might give rise to a battery on a city street will
not do so in the context of the sport of football.    See
Thompson,  559 N.E.2d at  707.    We must also not blur the lines
between gross negligence and battery because the latter is an
intentional tort.    I agree fully that the plaintiffs alleged
sufficient facts to proceed with their claim for gross
negligence.
For these reasons, I respectfully concur, in part, and
dissent, in part, and would affirm the judgment of the circuit
court sustaining the demurrer with regard to the claim for
battery.
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