January 15th, 2014

False and Misleading Headlines (Youth Baseball Edition) – Updated

An unhappy Brett Lawrie of the Toronto Blue Jays throws his helmet in 2013.

An unhappy Brett Lawrie of the Toronto Blue Jays throws his helmet in 2013.

Headlines make a difference, as headlines can skew the viewpoint of the reader before the facts are even read in the article. That is, if the article is even read. Many folks, of course, just skim.

And so it is with KCRA in Sacramento, CA.

The headline reads:

14-year-old Little Leaguer sued by coach for celebrating win

The problem? That isn’t really why anyone was sued. An actual reading of the article reveals that the defendant, a 14-year-old, threw off his helmet as he raced home with a winning run. But the helmet hit the coach and caused a torn Achilles tendon.

The kid, in other words, wasn’t sued because for celebrating, but for causing an injury to his coach.

As per the article’s actual text:

In legal papers filed in court, the teen’s former coach, Alan Beck, contends the boy “carelessly threw a helmet, striking Plaintiff’s Achilles tendon and tearing it.”

Whether the underlying facts support the suit or not, I have no way of knowing. All we have now is a legal pleading and a short news story.

Will it be tossed out on assumption of risk grounds? Perhaps. Throwing helmets isn’t exactly part of the game, but as you can see from the graphic above of Brett Lawrie throwing his helmet in 2013, it does happen on occasion.

But one thing is clear. The headline writer didn’t accurately tell you what the story was about.

Does this matter? You bet. Because headlines like this help to shape public opinion, and that public opinion affects how potential jurors will feel about cases before a trial even starts.

(hat tip, Conrad Saam)

Update (1/16/14):  CNN now has the story, with interviews with the parents of the kid being sued, bemoaning the suit, and the coach who brought the suit discussing his Achilles injury from a 6-foot tall, 180 pound kid, and the lack of apology. CNN harps on the amount sued for: $500,000. And that makes this a good time to remember that ad damnum clauses such as this are a very bad idea. They have, thankfully, been outlawed in New York.

The coach that sued says “it’s not about the money,” but the fact that there is a number in the complaint for the media to focus on takes that issue out of his hands.

While I don’t know if this suit will survive due to assumption of risk issues — and if California law is the same as New York law I think it will get tossed — it’s clear that the CNN focus is on money instead of safety. I wrote about that recently when Red Bull was sued for $85M — where I noted that it was a very poor move to put a number in the complaint, not only because it isn’t allowed but because it shifted the focus away from product safety.



April 15th, 2013

A Football Helmet Verdict (And what does the future hold?)

riddellAs per the New York Times, football helmet maker Riddell was whacked with a $3.1M verdict for failing to warn players of the dangers of concussions. This represents 27 percent of $11.5 million in damages that were awarded to Rhett Ridolfi, who sustained a head injury and was paralyzed on the left side of his body during a football drill in 2008.

In doing so, the jury also rejected claims related to design defects in Riddell’s helmet.

Since it isn’t my favorite thing to simply re-hash news stories — you are more than capable of hitting that link and reading about the case — let me jump to the future, and that deals with the design defect that was not found.

The modern football helmet is part of the Law of Unintended Circumstances. Created to protect the head, it gave players so much confidence that they started using the head to attack with, instead of to think with.

There are thousands of other lawsuits out there from former players who have suffered brain injuries from repeatedly smashing heads with the opposition. There are plenty of parents out there watching and, I believe, pushing their athletically minded kids to other sports where brain damage isn’t as likely.

Whether these lawsuits survive or not will likely go to the issue of what was known about the dangers, when was it known, and when was the information was shared. One can only assume the risk of an activity, after all, if it is a commonly appreciated risk which is inherent in and arising out of the nature of the sport and generally and flows from such participation.

But regardless of how those suits fare, playing out concepts of a failure to warn by manufacturers and assumption of risk by players, I think the writing is on the wall for the next generation of athletes.

I think we’ll see a return to helmets with a soft exterior, to help blunt the impact of smashing heads. If the helmet loses its effectiveness as a weapon, then it won’t be used that way. The TV folks probably won’t be keen on that, since the smash of helmets is part of the audio opera of the physical contest. But the times, I think, will be a changin’, as the cost of being a gridiron warrior is simply too high.


February 26th, 2013

Daytona Crash, Spectator Injuries and Assumption of Risk

Daytona Crash

Kyle Larson’s car heads up into the fence. Photo via CNN

I was minding my own business Sunday, reading about the huge crash at the Daytona Speedway, and the dozens of people injured, when this quote jumped off the CNN page at me from one of the involved drivers, Brad Keselowski:

“As drivers, we assume the risk. But fans do not.”

Really? Don’t be so sure.

As a backdrop, you may want to look at this video shot from the stands where the debris flew through and over the retaining fence and into the crowd after Kyle Larson‘s car hit it and the front end disintegrated. A tire can be seen just one row back and three seats over from the cameraman, with at least one injured spectator on the ground and fans frantically waiving for medical assistance.

Since this crash took place in Florida, and I’m not licensed there, I’ll hit upon the issues that will be raised, leaving an ultimate determination as to how Florida law will handle the questions to others.

First, as a general proposition — and I’m using New York law here since that is what I’m familiar with but concepts will be the similar elsewhere — we look at what primary assumption of risk actually is, and how it confers complete protection against lawsuits for injuries from an event: It is:

a voluntary participant in a sporting or recreational activity  consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation…If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty.

Lawyers see cases like this – or at least attempts at cases like this — usually with foul balls in baseball and hockey pucks flying into the stands. It is not just the players on the field that are subject to the concept. We see it sometimes also with golf and with racing. You can read from two law review articles on the broad subject: Here and here.


Kyle Larson car on the fence. Photo credit: Associated Press/John Raoux

So here is the question: Is injury due to debris flying into the stands an obvious risk of sitting near the race track?

The answer, I think, must be yes. According to this 2002 article from the St. Petersburg Times, “Since 1990, 29 racing spectators have been killed by cars or flying parts, and another 70 have been injured.”

Those dangers are the reasons why a retaining fence has been placed at race tracks, a fence placed behind home plate for foul balls, and glass placed around the boards of hockey rinks. But still things get past, as owners of the events weigh the risks/benefits of putting these security features in place, which also happen to partially obstruct views of the event.

Some questions that the Florida lawyers will no doubt be asking:

1. Did the existence of the fence remove the obvious risk? This would be similar, I think, to a shard of broken baseball bat slipping through the fence behind home plate. Will there be different articles for small debris that flew through the fence as opposed to a tire that flew over it?

2.  If the injured spectator was a minor that was unable to appreciate the risks of car parts flying into the stands, would that youth be able to proceed?

3.  Are any of the people involved in the crash, or the makers of the car, responsible for causing the accident?

4.  Would the disclaimer on the back of the ticket serve as notice to participants that they might be injured? It is very general:

“The holder of this ticket expressly assumes all risk incident to the event, whether occurring prior to, during or subsequent to the actual event, and agrees that all participants, sanctioning bodies, and all employees, agents, officers, and directors of Daytona International Speedway, its affiliates and subsidiaries, are hereby released from any and all claims arising from the event, including claims of negligence.”

If this was New York, my guess is that, if push came to shove, that a potential suit against the track would fail.

Of course, not all suits fail. It is’t only the track that might be a defendant. In one Florida suit resulting from a race track accident with debris sailing over the fence:

A Citrus County man and father of three, Lake Wilson, suffered a major head injury in 1990, when the hood of a race car at Citrus County Speedway sailed over a fence and struck him full force. Wilson was in a coma for 10 months, emerging brain damaged. He won a settlement of $2.7-million — not from the speedway, but the company that distributed the pins that failed to hold the car hood in place.

If any Florida lawyers want to take a crack at this in the comments, be my guest…


February 14th, 2013

Another Legal Waiver (A little help here?)

You guys know how much I love legalese, right?

Last year I wrote a waiver for a half marathon trail race that was crowd-sourced a bit. It came out great, in my not-so-humble opinion.

I’m now doing another one for participation in my little running club. Any comments or suggestions are welcome. You can find a little background on the concept of assumption of risk for athletic events here.)

This is a draft of the document club members would have to sign…and if you know about a Legal Waiver Hall of Fame, please let me know:


Club Membership Agreement and Waiver

I’m reading this because legal waivers are incredibly exciting documents. It’s always fun to see how lawyers butcher English, making it incomprehensible to mankind. I’m looking forward, especially, to ALL CAPS, since I know that’s how these things roll.

I know, of course, that I have to read and sign this, because running in and volunteering for organized group runs, social events, and races are potentially hazardous activities. It’s possible that I could be injured or somehow squashed like a bug. I certainly hope that doesn’t happen, but life is unpredictable when you engage in athletics.

I’m smart enough to know that I shouldn’t participate in any club-organized events without being in appropriate physical shape. Doing otherwise would be stoopid.  With my John Hancock at the bottom, I certify that I’m medically able to engage in all activities associated with the club, that I’m in good health, and properly trained.  Yay me!

And because I want to participate, I agree to abide by rules established by the club, even if they don’t seem to make sense at first blush. This includes the right of any official to deny or suspend my participation for any reason whatsoever. I think this is what the lawyers mean when they say they don’t “always seem to make sense at first blush.”

I attest that I have read the rules of the club and agree to abide by them.  If I haven’t actually read the rules, and am just claiming that I have, this will be my problem.

Some of the risks associated with participating in club activities may include falls, contact with other participants, weather effects, traffic and the conditions of the road or trails, all such risks being known and appreciated by me. There might be, for example, bicycles, skateboards, baby joggers, roller skates/blades, dogs, and alligators. I realize that the lawyers just kinda tossed in the alligators to make sure I was still reading.

Sometimes, of course, there will be unexpected problems, deviations, and detours. Trail running in particular, may have risks that are unforeseen even by organizers.

Having now read this waiver, and being appreciative of the lack of ALL CAPS, I (and my heirs should I kick the bucket), waive and release NewRo Runners and all club sponsors, their representatives and successors (and anyone else a lawyer can dream up) from all claims of any kind arising out of my participation.  I also grant permission to all of the foregoing to use my photographs, motion pictures, recordings or any other record for any legitimate promotional purposes for the club.


Any suggestions regarding things that I left out, or ways to improve it, please let me know…



January 10th, 2013

Injured In Softball, Teen Gets 2nd Chance at Trial

Your basic L-Screen, which looks like the one described in the opinion

The Second Department yesterday reinstated a case where a 14-year-old was pitching batting practice and was hit in the face with a line drive. The case had originally been a defense verdict at trial. As you read, try to figure out whether this was a question of fact for a jury or an issue of law for the court.

Before hitting the facts of Weinberger v. Solomon Schecter, this is the basic law in New York on primary  assumption of risk, the rule that says you can’t successfully sue someone if injured in an athletic pursuit:

Pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity  consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation…If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty.

OK, with that nugget in your back pocket we can look at the facts.

A 14-year-old high school freshman with limited pitching experience was throwing batting practice from several feet in front of the very muddy mound area. The L-screen that was supposed to be used, and was supposed to be free standing, was busted. It was propped up between benches, but kept toppling over.

After it fell over one last time, the teen kept pitching without the screen being used.  Why? There was mixed testimony at trial as to whether the coach told the kid to keep pitching (two non-party witnesses and the injured youth) or asked the kid if she was OK to keep pitching (the coach).

Does the doctrine of assumption of risk come into play here when the line drive slams into this young woman’s face? A bit more on the law…

the primary assumption of risk doctrine does not serve as a bar to liability if the risk is unassumed, concealed, or unreasonably increased. Awareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff.

Is this a question of fact for the jury or a question of law for the judge? The trial court ruled that the issue of primary assumption of risk was one for the jury in this instance and charged that jury that if they found this assumption of risk, the verdict must be for the defense. And that was what the jury did.

Wrong move, said the appellate court. This is a matter of law for the court, and these circumstances didn’t warrant such a finding or such a charge to the jury. The court reasoned that:

The faulty equipment provided by the School and the decreased distance between S. and the batter, from which she was pitching at the direction of [the coach] without the benefit of the L-screen, did not represent risks that were inherent in the sport of softball and, instead, enhanced the risk of being struck by a line drive.

And so the case was sent back for a new trial.

Does this mean the young lady will win? No, it doesn’t. The jury will still get to assess whether she was comparatively negligent in the accident, and that would reduce any potential verdict if such a finding is made.

This is an interesting decision and analysis for any sports related injury. While the inclination of most practitioners is to simply reject such cases outright, there are sometimes certain circumstances that will make you stop and say, wait, that isn’t a commonly accepted risk.

A few other assumption of risk pieces I have, simply because the sports-related injury is interesting:

A Personal Injury Waiver

Reach the Beach Relay (And Assumption of Risk)

The Wife, The Tushy Bone and The Waterpark (Assumption of Risk, or Not?)