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Vol. 9 - Issue 6
September 23, 2020


Novak Djokovic Booted From U.S. Open: Was It For An “Accident?”


You may have seen the strange way that Novak Djokovic exited tennis’ United States Open three Sundays ago.  The world’s best player was agitated after losing a game.  In response, without looking he hit a ball behind him -- striking a line judge in the throat.  She was not seriously injured. Nonetheless, Djokovic, the very heavy favorite to win the Grand Slam tournament, was sent packing from the Billie Jean King National Tennis Center in Flushing Meadows, New York.

Because it involved Djokovic, the story drew worldwide headlines.  This one from The New York Times on September6th: “Novak Djokovic Out of U.S. Open After Accidental Hit of Line Judge.”  Notably, The Times used the word “accidental” to describe Djokovic’s action.  Other news stories referred to the incident in terms of an accident.  But was it? The answer may lie in a 150-year-old judicial decision.  

Djokovic certainly thought it was an accident, applying the classic test: he didn’t mean it.  In arguing against being “defaulted” – tennis’s genteel term for being kicked-out – the Serbian star reportedly told the tournament referee: “Yes, I was angry, I hit the ball, I hit the line umpire, the facts are very clear, but it wasn’t my intent, I didn’t do it on purpose.” He later turned to Instagram to apologize and reiterate his state of mind, declaring, “I’m extremely sorry to have caused her such stress.  So unintended.  So wrong.” There is no doubt that Djokovic is sincere and tournament officials acknowledged as much.

So Djokovic said it was an accident because he didn’t do it on purpose. However, in an official statement, the tournament explained its decision, borrowing the relevant language from Article III, Section N of the Grand Slam rulebook: “[F]ollowing his actions of intentionally hitting a ball dangerously or recklessly within the court or hitting a ball with negligent disregard of the consequences, the U.S. Open tournament referee defaulted Novak Djokovic from the 2020 U.S. Open.” Dangerous. Reckless. Negligent disregard of consequences. That all sounds pretty menacing and not the stuff of an accident.

Essentially, how Djokovic and tournament officials characterized what happened presents one of the long-standing legal debates whether an injury was caused by an accident. On one hand, Djokovic did not cause any injury on purpose, so he says it was an accident. However, the counter-argument: he acted in such a foolhardy manner that the injury was one just waiting to happen. So he did not have the requisite blamelessness needed to claim the mantle of accidental conduct.    

This push and pull is one that judges sometimes confront when called upon to determine whether, for purposes of insurance coverage, an injury was caused by an “accident.” Specifically, the question is at the heart of whether coverage is owed under a general liability policy (as well as other types of liability policies). As an all-important gateway to coverage, the “accident-issue” comes up a lot. Indeed, it is the oldest and most litigated of all issues concerning liability policies.

As far as Djokovic is concerned, he paid the ultimate price for what was just an accident. While the issue did not arise as an insurance claim, of course, case law in this context is one place the law turns to address whether he is correct.

For sure, it is not an easy question. The challenge was well-described by Justice Michael Musmanno, of the Pennsylvania Supreme Court, nearly six decades ago in Brenneman v. St. Paul Fire & Marine Ins. Co., 192 A.2d 745, 747 (Pa. 1963): “What is an accident? Everyone knows what an accident is until the word comes up in court.  Then it becomes a mysterious phenomenon, and, in order to resolve the enigma, witnesses are summoned, experts testify, lawyers argue, treatises are consulted[.]”

Writing for Pennsylvania’s top court, Justice Musmanno went on to observe that, even after a jury of twelve “world-knowledgeable individuals” have determined whether an accident has taken place, an appellate court may be called on to make the final decision.  

Courts have little trouble concluding that intentionally caused injury is not an accident. After that, it can turn into the enigma that Musmanno described.  

Key to a court answering the question here is that Djokovic has been on tennis courts thousands of times with line judges present. He knows that they are there -- and exactly where. He knew that the judge was at her post since a break between games was not a reason for her to have left. And Djokovic knew that he was not standing particularly far from the judge.  The best tennis player in the world is familiar with the amount of space behind the baseline.       

Given all this, under one definition, as set out by Washington appeals courts, it may not have been an accidental injury when Djokovic hit the ball, without looking, and struck the line judge.

“[W]here the insured acts intentionally,” the court stated, “but claims that the result was unintended, the incident is not an accident if the insured knew or should have known facts from which a prudent person would have concluded that the harm was reasonably foreseeable.”  State Farm Fire & Cas. Co. v. Ham & Rye, LLC, 174 P.3d 1175, 1181 (Wash. Ct. App. 2007). In a subsequent decision, the Washington Court of Appeals cited the aforementioned definition and added that an outcome is “accidental only if both the means and the result were ‘unforeseen, involuntary, unexpected and unusual.’”  Grange Ins. Ass’n v. Roberts, 320 P.3d 77, 88 (Wash. Ct. App. 2013).

So perhaps Djokovic, with all his experience with line judges – a lot – knew or should have known that, by hitting the ball behind him, injury to her was reasonably foreseeable. Thus, the injury was not unforeseen, involuntary, unexpected and unusual, so, therefore, not an accident.

Experience with the instrumentality that caused an injury played a part in another Washington decision, this one from the Supreme Court, that addressed whether an injury was caused by an accident.  At issue in Safeco Ins. Co. v. Butler, 823 P.2d 499 (Wash. 1992) was coverage under the liability section of a homeowner’s policy for an insured who shot someone who had used firecrackers to blow up the insured’s mailbox. The victim was in a car.

The insured argued that he did not intend to shoot him, but, rather, acted in self-defense or for purpose of breaking off any confrontation. His argument was that the shot that hit the victim was an “unintentional ricochet.” But, even if so, the court concluded that it was not an accident because the insured had the knowledge that a ricochet was possible: “Both the Air Force and the Oakland Police Department trained Butler in the use of firearms. Butler belonged to a pistol range and practiced shooting approximately once a month.”

Admittedly, some courts believe that the use of a reasonably foreseeable test, to answer the accident-question, is simply too limiting. As these courts see it, the result must have been more likely to have occurred before an insured will lose coverage.

For example, the Eighth Circuit Court of Appeals in Carter Lake v. Aetna Cas. & Sur. Co., 604 F.2d 1052, 1058 (8th Cir. 1979) concluded that the way to answer the question is to look at “whether a result is ‘expected’ as a matter of probability.” However, the court rejected “the argument that a result is expected as that term is used in insurance policies simply because it was reasonably foreseeable. . . . An insured need not know to a virtual certainty that a result will follow its acts or omissions for the result to be expected. . . . Rather, each case must be determined by examination of the totality of the circumstances. . . . If the insured knew or should have known that there was a substantial probability that certain results would follow his acts or omissions then there has not been an occurrence or accident as defined in this type of policy when such results actually come to pass. The results cease to be expected and coverage is present as the probability  that the consequences will follow decreases and becomes less than a substantial probability.”

One court applied this probability approach a long time ago -- a very long time ago. In Schneider v. Provident Life Ins. Co., 24 Wis. 28 (1869), the Wisconsin Supreme Court addressed whether a man was killed by an accident when, while attempting to board a slow moving train at a station, he fell under it and was crushed. At issue was coverage under an accidental death policy. The insurer maintained that it was not an accident as the deceased was negligent and this led to his fate.

However, the Wisconsin high court concluded that his death was caused by an accident, which need not be the product of an unknown cause. It can also be an unusual result of a known cause. While the court used a probability analysis to reach its decision – it was far from a reasonably foreseeable standard.

[C]ases in which accidents occur are very rare in comparison with the number in which there is the same negligence without any accident. A man draws his loaded gun toward him by the muzzle--the servant fills the lighted lamp with kerosene--a hundred times without injury. The next time the gun is discharged, and the lamp explodes. The result was unusual, and therefore as unexpected as it had been in all the previous instances. So there are, undoubtedly, thousands of persons who get on and off from cars in motion without accident, where one is injured. And, therefore, when an injury occurs, it is an unusual result, and unexpected, and strictly an accident. Id. at 30.

No doubt Djokovic would find support in this decision -- issued when Andrew Johnson was in the White House. Even if, in the past, Djokovic had hit balls behind him, in anger, without looking, he had never hit the line judge. Or, even if he had never hit a ball in this manner, if he had it is very unlikely that he would have struck the judge.
So the tennis star’s argument would go, just as only one person out of thousands is injured while getting on or off a train in motion, any injury that he caused to the line judge was an unusual result. Translation – an accident.
Alternatively, given all his experience with line judges, Djokovic knew or should have known that, by hitting the ball behind him, injury to her was reasonably foreseeable. Translation - not an accident.

Justice Musmanno got it right: “Everyone knows what an accident is until the word comes up in court.”  

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