I. Introduction
More than 3.5 million sports-related concussions take place in the United States each year. [1] The National Center for Catastrophic Sport Injury Research indicates that the largest number of sports-related fatalities occur at the high school level as a consequence of heat stroke, heart problems, aorta tears, neck injuries, and Pulmonary Emboli. [2] The likelihood of injury may even be elevated at specific points during a sporting competition. [3] A study published in the Research in Sports Medicine revealed that 16 percent of injuries occur at the beginning of a football game, 54 percent during the middle, and 30 percent at the conclusion. [4] Perhaps the most shocking reality is that the majority of the legal cases which develop as a result of these sports injuries and fatalities will be dismissed in court. [5] The reason being, that on every occasion a person voluntarily attends or participates in any sporting event, he or she is surrendering an individual right to sue for injury or death whether expressly agreed to or not. [6] Courts recognize this principle as “primary assumption of risk.” [7] This article will discuss the risks assumed with participating in a sport, the scope of liability associated with different key characters, and the consequences these assumed risks have on American Sports and the economy.
II. The Risk of Participation
As a matter of law, most courts hold that a plaintiff who voluntarily participates in a sporting or recreational activity is owed no duty of care with respect to the obvious and foreseeable risks associated with that activity. [8] Under tort law, the primary assumption of risk attributed to sporting activities establishes a presumption of consent despite the lack of an express agreement. [9] Illinois courts have promulgated a more fine tuned law for contact sports because they have the propensity to result in the most serious and debilitating injuries. [10] These contact sports include football, rugby, horseback riding, cheerleading, gymnastics, diving, pole vaulting, and soccer. [11] Under Illinois law, voluntary participants in contact sports are not liable for injuries caused by simple negligence. [12] However, participants are liable for willful and wanton or intentional misconduct and have a duty to refrain from this sort of behavior. [13]
III. The Scope of Liability
In the Illinois Supreme Court case, Karas v. Strevell, a complaint was brought against the Amateur Hockey Association and others by a father on behalf of his minor son, Benjamin Karas. [14]. The minor was allegedly injured in an organized ice hockey game after he was checked from behind by two opposing players. [15] The question for the court was whether the opposing players had acted intentionally or willfully and wantonly when they violated player rules by checking from behind. [16] The court concluded that no intentional conduct was demonstrated and that “bodychecking” is foreseeable in the game rules as an inherent risk of the game. [17] Although this case took place within a formalized sports setting, the inherent risks involved in contact sports apply whether or not a sport is formally organized or coached. [18] In Pfister v. Shusta, the court stated that even participants in an informal “kick the can” game owed no additional duty to each other than to refrain from intentional or willful and wanton misconduct. [19]
Some courts have broadened the scope of liability for sports participants by imposing a duty of care for unforeseeable risks which players would clearly not endorse given the nature of the circumstances. [20] In a New York Supreme Court case, Arnold v. Schmeiser, a child was persuaded by his playmates to take part in a game of “fireman’s chair” in which participants would hurl each other in the air and catch one another. [21] The nine year old initially refused to play but his playmates assured him that they would catch him. [22] When the boys made no attempt to catch the nine year old, the boy fell and fractured his wrist and subsequently sued the other participants. [23] The Court decided in favor of the child and concluded that it was obvious that he did not submit to this risk of injury when the participants assured him that they would catch him. [24] It went on to say that “one who takes part in a sport accepts the risks that inhere in it so far as they are obvious and necessary.” [25]
New York has recently recognized the doctrine of inherent compulsion as a factor supporting recovery for sport injuries. [26] The doctrine assumes that coaches and superiors forcibly compel players to do what they are told. [27] So that argument becomes, “the first base coach urged my client to continue running to the base and then slide. My client felt compelled by a superior to follow instructions.” [28] Therefore, the coach caused injury to my client. [29] Some have also fought to attach liability to coaches for injuries resulting from the failure to properly teach their players to, for example, slide or dive for a ball. [30] Furthermore, the State of Washington introduced a law known as the Zachery Lystedt Law, named after a 13-year-old football player who suffered a severe and debilitating concussion in an eight-grade football game after having been allowed to return to play with an undiagnosed head injury. [31] Washington’s recent law promulgated in May 2009, “requires all athletes under the age of 18 who are suspected of having a concussion to get written consent from a licensed medical provider trained in evaluating concussions before returning to play.” [32]
Despite the seemingly positive additions to liability laws making sports safer for participants, many have criticized the advancements because they discourage sport recreation and place stressful burdens on coaches. [33] Outraged lawyers and sports fans claim that expanding liability like this will create a chilling effect on coaches and other sports administrators, and ultimately decrease the popularity of sports. [34]
IV. Other Key Characters at Sporting Events
When analyzing the risks associated with sporting events, the analysis would not be complete without the mention of spectators and those individuals who sponsor and host such activities. A sports spectator assumes similar risks as does a sports participant. [35] Courts usually conclude that a “spectator has a duty to protect himself or herself not only against the dangers of which he or she has actual knowledge but also against such dangers incident to the game as would be apparent to a reasonable person in the exercise of due care.” [36] Courts look at whether the injuries to the spectator were foreseeable. [37] Along those same lines, those who sponsor sporting events owe their spectators and participants a limited duty of care. [38] Many states have adopted a limited-liability doctrine where defendants have a limited duty to maintain reasonable care in keeping their premises safe. [39] This is the reason why many sports facilities have screened or fenced off fields and arenas [40]. However, when this duty is neglected, various defendants arise, including school districts, sports leagues, coaches, and even teammates. [41]
In Benejam v. Detroit Tigers, Inc., Alyssa Maribel Benejam, a minor attending a Detroit Tigers game was injured when part of a player’s bat broke and hit her, crushing her fingers. [42] The incident occurred despite protective screens employed to safeguard against such events. [43] The parents brought a lawsuit on their daughter’s behalf, alleging that the stadium failed to adequately provide warning about flying projectiles and that the stadium operator owed a duty of reasonable care to keep their premises safe under inviter-invitee principles. [44] The Michigan Court of Appeals found in favor of the defendants, rejecting landowner, inviter-invitee principles and reemphasizing that defendants had only a limited duty to protect their fans which was adequately accomplished through protective screens. [45] The court also rejected the idea that stadium operators have a duty to warn spectators because flying objects are foreseeable and an inherent risk of attending a baseball game. [46]
Despite these distinctions by the court, many coaches, players, and ball boys often elect to hand rather than throw used or played balls to fans. [47] Sports teams such as the Chicago Cubs, openly warn their fans to “beware of fly balls” by posting signs around the Wrigley Field Stadium and on the back of game tickets. [48] With the looming threat of having to compensate injured fans in expensive lawsuits or settlements, it is no surprise that sports teams employ preventative safeguards to ensure the safety of their fans.
V. The Economic Impact of Liability on the Sports Industry
In 2009, the entire sports industry in the United States has circulated an estimated $410.6 billion into the overall economy thus far. [49] The sports industry is big business which provides significant amounts of revenues to local governments and communities. [50] According to Plunkett Research, Ltd., the “Big 4” leagues in America, the National Football League (NFL), National Basketball Association (NBA), the National Hockey League (NHL) and Major League Baseball (MLB) bring in about $17 billion collectively in annual revenue. [51] However, this does not even begin to incorporate revenues from retail sales, sporting equipment, video games, vending, and advertising sales which add up into additional billions. [52]
Many people fear that increasing liability under the assumption of risk principle will eventually result in the elimination of the sports industry altogether. [53] In 2003, a “$27.75 million verdict was awarded to a 20-year-old state diving champion who was rendered a quadriplegic when he collided with a synchronized swimmer during diving practice at a public pool owned by the City of Walnut Creek, California. [54] The verdict was identified as the 12th largest in California and the 67th largest in the United States in 2003. [55] A year later, a boy accidently clubbed in the head by a baseball bat won a $6.7 million verdict against a sports tournament organizer, the U.S. Specialty Sports Association, who was held 92.5 percent liable for the resulting injuries. [56] The attorney for the Association, Cliff Payne, stated that he was “shocked at the size of the verdict.” [57] Richard Feldman, executive director of Product Liability-Sports, a North Palm Beach, Florida-based organization dedicated to lobbying Congress for product liability and tort reform legislation, fears that sports in America may be eliminated if such high verdict lawsuits continue to persist. [58]
Mr. Feldman blames the legal system in giving plaintiffs reason to sue retailers, coaches, trainers and administrators in million-dollar lawsuits. [59] He believes that the sports equipment manufacturing industry has already taken a big hit and has responded to frequent liability suits and rising insurance costs by abandoning the production of certain items including sports helmets. [60] Manufacturers reference multimillion-dollar liability awards and the expense of insurance for the high prices of sports equipment as a reason why many amateur athletic clubs and facilities have closed. [61]The only problem is that it is difficult to “legislate the elimination of injuries from the games without eliminating the games themselves.” [62] Allowing recovery on every sports related injury would not only negatively impact on the competitiveness and thrill of sports, but would result in economic chaos for local governments, business, and the entire United States economy which the sports industry contributes so significantly.
VI. Conclusion
The overwhelming majority of participants in sports competitions compete without the premeditated consideration that there is an inherent possibility that they may be injured. The very nature of most sports and more specifically contact sports is based upon the physical conquest of an opponent. Likewise, most people attending sports events attempt to share vicariously in the triumph by cheering on their favorite sports player or team and are not consciously aware that at any moment, they could be the recipient of an injury. Despite this unpremeditated consideration, it is foreseeable that sports participants and spectators can be injured, and in attending sporting events, they may be assuming full risk of injury without liability. Sports competition by its very nature cannot divorce itself of the innate risk of injury, and if the attachment of liability to foreseeable conduct in unregulated and regulated sports activities were a reality, the potential for consequential high court costs, verdicts, and settlements would deprive America of its favorite pastime.
End Notes:
[1] Tim Booth, Washington passes measure to try to prevent tragedy from multiple concussions, Long Beach Press-Telegram, Sept. 21, 2009.
[2] 1982-2008 Nat’l Ctr. Catastrophic Inj. Res. Ann. Rep. 26, available at http://www.unc.edu/depts/nccsi/.
[3] Nationwide Child. Hosp., Football Injuries in U.S. High School Athletes More Severe During Kickoff (2009), http://www.nationwidechildrens.org/gd/applications/controller.cfm?page=204&id=670&type=new.
[4] Id.
[5] Posting of John Hochfelder to New York Injury Cases Blog, http://www.newyorkinjurycasesblog.com/2009/09/articles/assumption-of-the-risk-1/assumption-of-risk-doctrine-bars-new-york-sports-injury-lawsuits-part-2-baseball/ (Sept. 15, 2009).
[6] Id.
[7] Id.
[8] 65 C.J.S. Negligence § 367 (2009).
[9] Id.
[10] 2 Ill. Law and Prac. Amusements §22.
[11] Athletic & Sport Injury, http://www.kroll-lawfirm.com/lawyer-attorney-1340626.html (last visited Oct. 20, 2009).
[12] 2 Ill. Law and Prac. Amusements, supra note 10.
[13] Id.
[14] Karas v. Strevell, 227 Ill.2d 440, 442 (2008).
[15] Id.
[16] Id.
[17] Id. at 465.
[18] 65 C.J.S. Negligence, supra note 8.
[19] Pfister v. Shusta, 167 Ill.2d 417, 427 (1995).
[20] 2 Ill. Law and Prac. Amusements, supra note 10.
[21] Arnold v. Schmeiser, 309 N.Y.S.2d 699, 700 (1970).
[22] Id.
[23] Id. at 701.
[24] Id.
[25] Id.
[26] Justin Rebello, Will Little League case let PI lawyers swing for the fences?, Minn. Law., Aug. 31, 2009.
[27] Id.
[28] Id.
[29] Id.
[30] Id.
[31] ‘Zachery’s Law’ Aims to Make a Difference, USA Today, May 25, 2009, at 4d.
[32] Id.
[33] Will Little League case let PI lawyers swing for the fences?, supra note 26.
[34] Id.
[35] 57 Am. Jur. 2d Municipal, etc., Tort Liability § 560 (2009).
[36] Id.
[37] Id.
[38] Id.
[39] John H. Minan & Kevin Cole, The Little White Book of Baseball Law 110 (American Bar Association) (2009).
[40] See Id.
[41] Sylvia Hsieh, Cheerleading lawsuits start to spring up, Minn. Law., Aug. 17, 2009.
[42] Minan & Cole, supra note 39, at 108 (citing Benejam v. Detroit Tigers, Inc., 246 Mich. App. 645 (2001).
[43] Id. at 110.
[44] See supra text accompanying note 42.
[45] Minan & Cole, supra note 39, at 110.
[46] Id. at 111.
[47] Posting of John Hochfelder to New York Injury Cases Blog, supra at note 5.
[48] Charles Mahtesian, Illinois Enacts `Fans Beware' Law On Foul Balls, Governing Magazine, Jan. 3, 1993, available at http://community.seattletimes.nwsource.com/archive/?date=19930103&slug=1677993.
[49] Plunkett Research Identifies 10 Major Trends in the Sports Industry, http://www.plunkettresearch.com/AboutUs/News/tabid/413/Default.aspx, (last visited Oct. 29, 2009).
[50] Id.
[51] Id.
[52] Id.
[53] Alan Schwarz, N.F.L. Scolded Over Injuries to Its Players, N.Y. Times, Oct. 29, 2009, at A18.
[54] Our Client v. City of Walnut Creek, http://www.aswllp.com/CM/Custom/Sport6.asp (last visited Oct. 29, 2009).
[55] Boy awarded $6.7M in head-injury suit, Deseret Morning News, Nov. 18, 2007.
[56] Id.
[57] Id.
[58] Geoffrey Brown, Insurance Costs, Lawsuits Injure U.S. Sports, J. Com. (1988).
[59] Id.
[60] Id.
[61] Id.
[62] Schwarz, supra note 54.