April 13th, 2016

Let’s Go for a Horsie Ride…(And Fall Off)

Ridin-Hy promo image from its website

Ridin-Hy promo image from its website

Today we go horseback riding at the Ridin-Hy Resort. So put on your cowboy boots and climb into the saddle at my little stable.

Wait! Is the saddle secure? I know, you’ve only had a grand total of 10 hours of horseback riding experience in your life, but isn’t that enough to know that the saddle may slip and you might fall to the ground?

Isn’t that what assumption or risk is all about! It’s a horse: everyone knows they kick, they toss people, sometimes folks get hurt!

You’re not going to blame me for flopping off the horsie on the beginner ride, are you?

What do you mean you want to sue me because you got hurt? So your saddle slipped. It can happen. You must have been sitting on it wrong! Here’s how our funny judge wrote about you:

As her horse again began to move forward she attempted to straighten the saddle without success and fell. It is not clear from the record in this motion in limine if the saddle came off of the horse but the plaintiff certainly did.

Huh? Whaddya mean, judge, that I can’t show the jury the release she signed!  I know, in New York we can’t get cases like this dismissed by having the participant simply sign a waiver absolving me of negligence, as that would violate the law and be against public policy.

But look, that risk was right here there in our release that you signed! OK, well maybe that particular risk isn’t really spelled out, but shouldn’t we show the release to the jury anyway so that the jury might get the gist of it? The judge summarized my argument well!

“The opposition’s novel theory is that this unenforceable agreement’s language can still be used, perhaps with redactions, to demonstrate the plaintiff’s express awareness that saddles may loosen and riders may fall…”

OK, I see judge.  You’re going to keep this release away from the jury because our injured rider was still a rookie, or at least, the jury gets to determine that:

[A]n assessment of whether a participant assumed a risk depends on the openness and obviousness of the risks, the participant’s skill and experience, as well as his or her conduct under the circumstances and the nature of the defendant’s conduct’ ” (Decision: Boland v Riding High Dude Ranch, Inc.)

So maybe next time I’ll put this into the release — that the saddle may slip — so that riders are aware of the problem and can recognize problems before they get hurt?

Perhaps I’ll get that Turkewitz fellow to write me a better release — one that isn’t just poorly designed to dissuade lawsuits and gets chucked as being against public policy — to actually educate participants in the sporting activity they are undertaking. So they are less likely to get injured to begin with.

Like he did here with his trail race, whose release and waiver he once crowd-sourced on his blog.

Because in order to assume a risk, one has to actually have an awareness that the risks exist.

 

 

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.

KyleLarsonCarDaytona

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…