The Tort of Throwing: Causation and the Reasonable Corki

This is a really emotionally difficult post for me to write, and I have to start with a hard, personal truth: I lost a game of ranked League of Legends, and it might have been my fault. … 😦

Now that that’s out there, we can use my reprehensible failings at a video game to see how American tort law might view a claim about whose fault it is that my team lost. Corki’s poor positioning matters, but how can we parse out individual responsibility in a complex and interconnected situation?

I. Facts

I’ll keep the facts simple: I was valiantly leading my team to victory with my high-quality Corki play, and after more than 40 minutes of grueling effort and heart-pounding combat, both teams were in a position to win a game after just one convincing teamfight. As my team emerged from blue base toward mid, I expected that red team had just secured a 3rd dragon. A lone enemy appeared from around a corner. I saw an opportunity to pick off one opponent and thus gain a 4v5 advantage on the map, so I engaged. Then I found out that the rest of his team was behind him. I was immediately destroyed, and my team lost the ensuing battle. The game ended in defeat less than a minute later.

II. Bringing Charges

To their credit, my team didn’t rage at me. (Though perhaps this is not to their credit, as it may indicate that they simply failed to understand my error or the role it played in our defeat.) But if they were upset, perhaps they could have charged me with the tort of negligence. Negligence is a civil wrong resulting from a person’s failure to meet a “reasonable” standard of care. Most of the elements of negligence are easy to agree upon in the case of my Corki failure: I owed some kind of duty to my team, which I probably breached, harm or damages occurred (my team lost), and the harm was caused by my breach of my duty. (I’m stipulating that I had a duty just as a function of the idea of the game as a “sport,” which is a subject for another post.)

The most interesting part of accusing Corki of negligence is the question of cause. For all of the criticisms of our legal system as unreasonable, there is a common law requirement that someone be held negligent only if the person’s actions actually caused the harm. In tort law, the basic test for cause is the “but-for” test: “The team would not have lost but for Corki’s irresponsible engagement that got him caught and killed.” Corki’s defense here is to claim that the team may still have lost even if he did not get caught in a bad position: the team may have lost the fight anyway, the game may have continued for 10 more minutes before losing a different teamfight or losing to a split-push, etc. However, it would not be an adequate defense to claim that the rest of the team should have warded, or the rest of the team should have been in a better position, etc.  Those claims (no matter how true!) do not address the question of whether the caught Corki caused the catastrophic collapse of his team’s nexus.

III. Reasonableness (What online gamers are most famous for)

An infamous feature of tort law is the “reasonable person” standard. It is infamous because it expects an uncommonly high standard—it imagines a person who behaves according to textbook, carefully thought-out behaviors, who takes every expert-recommended precaution, every time. The “reasonable Corki” would always maintain proper position, communicate with exactness with his team throughout the game, and would err on the side of caution in every engagement. This is a particularly controversial standard to apply in this case because delicate caution is not always the optimal strategy when playing a competitive sport, dependent on reaction-time and seizing opportunities quickly. Indeed, if Corki went to trial for his negligence, he would call expert witnesses* (professional players, Riot employees and shoutcasters, coaches, analysts, etc.) to testify on the subject of whether Corki’s aggressive positioning was “reasonable.” The plaintiff would call their own expert witnesses who would testify to the contrary. In most tort cases, there is some consensus about how the “reasonable person” would behave because there is some industry or government standard on the subject (even if most people do not abide by that standard, and the standard is presented in a 1950’s short film in which a 13 year old in a collared shirt says “Golly Gee” at least 5 times in 12 minutes).

IV. Verdict: Guilty

Ultimately, it’s likely that Corki’s positioning will be found unreasonable according to the “reasonableness” standard in tort law, if only because it wasn’t the safest positioning.  However, remember all those claims about what Corki’s team could have done to prevent the loss?  Those claims might satisfy the possibility of contributory negligence, in which a harm may be found to have multiple causes and multiple defendants. Not all jurisdictions accept the doctrine of contributory negligence, but those that do may ascribe percentages of responsibility to multiple defendants, and make each pay according to their decided contribution to the harm. There is also the possibility of an argument for using the “substantial factor test” to determine cause in a complex system such as a game of League. (For this test, Corki would argue that the entire team’s actions combined an co-mingled to bring about the loss.).

*I imagine some testimony would look like this…

C9Sneaky: You have to be aggressive, especially if you’re the one with all the kills on your team. You have to carry, and if you’re the only one who can burst someone down quickly, you have to take that opportunity and your team needs to back you up. A fed Corki has a lot of burst, so you need to use that.
CrsCop: The ADC should be way back, stay safe, and just poke and kite back. Your job is to just stay safe and provide support, and let the team engage and fight.

CLGDoublelift: You just lost because you’re trash. Corki should never get caught. He’s so easy to play. Your positioning doesn’t even matter. If you can’t outplay while ahead, you deserve to lose.

Doublelift would not be a helpful expert witness.

Genuine Enthusiasm, Different Experiences, and “Fake” Geeks

I don’t really see people start playing video games very often. The people I know who play games have played them since childhood, like I have. Seeing a good friend start to discover games is a novel and interesting experience. (It’s also interesting to talk to older, adult-like folk who played games in their youth and have different attitudes towards games now.)

My friend, T, is getting more involved and interested in video games in her mid-20’s. I enjoy showing her games that I’ve enjoyed, or talking to her about other games she’s heard of or experienced. Like many people, T was very excited about the announcement of Fallout 4.  Unlike a lot of people who were excited about Fallout 4, she at least had an excuse for not knowing it was coming. (Seriously, I was excited about this almost 3 years ago- why are people so behind?) Both T and I were excited about Fallout 4, though we have very different histories with gaming, Bethesda products, and the Fallout universe.

I was very surprised by T’s excitement over Fallout 4 because she did not play Fallout 3. T doesn’t have the experience of walking out of Vault 101 and discovering a wasteland DC. She never pieced together Project Purity or found her father. She has not experienced the chilling surrealism of Tranquility Lane. She does not have fond memories of strolling through Megaton or that instant emotional bond of rescuing Dogmeat. These are some of the experiences that fuel my enthusiasm for the next Fallout game. T doesn’t have these experiences to draw upon, so it seems she cannot be excited for the same reasons I am excited.

But she is, in fact, excited for Fallout 4. Her lack of these past experiences doesn’t make her enthusiasm or interest any less genuine than that of the most avid, longest-addicted Fallout aficionado.

Some time ago, there was a particular uproar over “Fake Geek Girls.” I think the general sentiment was eclipsed and adopted by a lot of the hate and anger contained within Gamergate, so the claims that attractive females were entering Geek culture for male attention fell by the wayside to give room to more wrathful accusations. I found the claims interesting when understood through sociological notions of “Groups,” or social cliques and subcultures. There was a strange defensiveness about it, which seemed to implicate several social facets (not merely gender). I imagine there are many who would take umbrage at T’s excitement over Fallout 4, given her lack of previous game experience. I think this criticism of T’s excitement can be interpreted in a coherent way that still leaves room for the sincerity of T’s enthusiasm.

The excitement of long-time gamers and Fallout fans can be understood as a symptom of the ways in which experience drives perception. As we perceive new experiences, we connect them to past experiences. When a fan sees the latest Fallout 4 trailer, the fan’s perception (including the internal state of reaction) is actually different* than the perception of a non-fan. Fundamentally, this is no more controversial a claim than asserting that each individual has uniquely subjective perceptions and experiences. Accordingly, the challenges against the sincerity of non-fans are reducible to claims that different subjective perceptions draw upon different non-shared experiences; it is no more than claiming, “You cannot feel what I feel,” which is always already true for most definitions of the notion of “feel.”

So, T cannot be excited about Fallout 4 because of her memories or experiences in playing Fallout 3 (or 2, or the original). But T can still perceive an impressive trailer with exciting gameplay, glimpse an interesting and wondrous world, and want to have those future experiences.

One of the outcomes of the “Fake Geek Girl” accusations was the rejoinder that there is no certification test to become a Geek: Previous knowledge and experience simply isn’t requisite for participation in Geeky things. Though there are other relevant sociological implications in that sordid affair, I think it is safe to conclude that T’s excitement can be entirely appropriate and genuine without some kind of certificate of previous game experience. It may be that my excitement is different, in that it has a different basis, but no fact of my own experience can undermine the reality of another’s perception. To claim that T’s excitement is disingenuous because I thought Fallout 3 was one of the greatest games ever made is to claim based on that level of absurdity.

*Jerry Holkins and Mike Krahulik have commented a few times on the fact of their respective fatherhoods influenced their experience of playing The Last of Us. Would Fallout 3 be a more powerful game for someone who had recently lost their own father, or never knew him? Would anyone assert that a stable, reasonable relationship with my own father undermines my proclaimed love of Fallout 3?