TortsProf Blog

Yen & Gregas on an Empirical Analysis of Liability Waivers and Participation in Youth Sports

Alfred Yen & Matthew Gregas have posted to SSRN Liability Waivers and Participation Rates in Youth Sports:  An Empirical Investigation.  The abstract provides:

This article explores whether there is empirical support for the assertion that enforcing liability waivers signed by parents increases participation in youth sports. To the authors' knowledge, it is the first and only article to do so.

This inquiry is critically relevant to a sharp split in contract law. Youth sports providers typically condition a minor’s participation on a signed parental waiver of the minor’s ability to sue for negligence. There are many reasons to doubt the enforceability of such releases. They are contracts of adhesion, their terms might be unconscionable, and they expose minors to increased risk of injury. Nevertheless, states do not consistently invalidate these releases. Of states that have explicitly considered the question, roughly one-third enforce youth sports releases, and they do so for a very specific reason, namely a professed belief that enforcing youth sports releases increases youth sports participation. Thus, if enforcing youth sports releases does not actually increase youth sports participation, then the primary reason given for doing so evaporates.

Our article searches for empirical evidence by statistically analyzing a database constructed from a fifty-state survey of the law covering 1988-2014, high school sports participation numbers reported by the National Federation of State High School Associations over the same years, data from the National Center for Education Statistics, and data from the United States Census. We found no statistically significant relationship between enforcing youth sports releases and increased participation in high school youth sports.

Baker, Edelman & Holden on College Football and COVID-19

Thomas Baker, Marc Edelman & John Holden have posted to SSRN College Football in the Time of COVID-19.  The abstract provides:

This article explores some of the legal and ethical challenges for college sports in the time of COVID-19, and it explains why it would be entirely inappropriate for colleges that are not planning to offer live classes this fall to have student-athletes return to campus this summer to prepare for a college football season.

PA: Football Players Injured in Tackling Drill Can Sue University

Two football players at Lackawanna Junior College were injured during the same tackling drill in 2010.  Their suits against the school were dismissed by the trial court on the ground the players had signed a waiver.  The Superior Court reinstated the suits and now the Pennsylvania Supreme Court has affirmed that ruling.  The court noted waivers against gross negligence and recklessness were ineffective and held there were sufficient facts for the players to present the case to a jury.  The "Oklahoma Drill" the players were engaged in later became subject to criticism during investigations about concussions and the school did not have licensed athletic trainers present to treat injuries.  PennLive has the story.

UT: Pre-Injury Waivers Signed by Parents on Behalf of Children Not Enforceable

Not long after a similar holding in Kentucky, the Utah Supreme Court held that pre-injury releases signed by parents on behalf of their children "generally offend Utah public policy."  From Shook, Hardy & Bacon's State Supreme Court Watch:

Rutherford v. Talisker Canyons Fin., Co., LC, 2019 WL 2710230 

Holding:  Pre-injury liability releases executed by a parent on behalf of a minor “generally offend Utah’s public policy” and are unenforceable. 

The parents of a 10-year-old advanced skier who sustained brain injuries in a crash at a ski resort brought negligence and premises liability claims against the ski resort.  The ski resort argued that the minor’s injuries were due to the inherent risks of skiing and barred pursuant to both Utah’s Inherent Risks of Skiing Act (IRSA) and a pre-injury liability release executed by the minor’s father.  The trial court determined that the resort’s pre-injury liability release was unenforceable and that a question of fact existed as to whether the resort exercised reasonable care in the circumstances.  The court of appeals affirmed this decision, but recognized that other pre-injury releases signed by a parent on behalf of a child are generally enforceable.  The Utah Supreme Court affirmed the judgment of the lower courts, but also took the opportunity to clarify that pre-injury liability releases executed by a parent on behalf of a minor generally offend state public policy. 

OH: Football Widow's CTE Case Allowed to Proceed

At Legally Speaking Ohio, Marianna Bettman has an extensive analysis.  She summarizes:

On October 31, 2018, the Supreme Court of Ohio handed down a merit decision in Schmitz v. Natl. Collegiate Athletic Assn., Slip Opinion No. 2018-Ohio-4391. In a decision written by Justice French, joined in full by Chief Justice O’Connor and Justices DeWine and DeGenaro, the court allowed a lawsuit to proceed which was filed by the widow of a football player who sustained repetitive blows to the head during his college playing days in the 1970’s, but who was not diagnosed with chronic traumatic encephalopathy (“CTE”) until December of 2012. The court ruled that the 12(B)(6) motions to dismiss the claims as time-barred should have been denied. Justice Fischer concurred in judgment only. Justice Kennedy, joined by Justice O’Donnell, concurred in part, and concurred in judgment only in part, with an opinion. The case was argued April 11, 2018.

Essentially, the court held the discovery rule applied to the claims and the court could not rule as a matter of law that the plaintiff's negligence claims were time-barred based on the discovery rule.  Of course, the discovery process may unearth facts that establish the claims as time-barred, but the plaintiff has the chance to move forward.

Pittsburgh Steelers WR Antonio Brown Sued for Assault, IIED

Antonio Brown allegedly flew into a violent rage back in April, throwing furniture off a 14th story balcony:

The Pittsburgh Steelers star WR has been sued by Ophir Sternberg -- who claims his 22-month-old son was walking around the pool at a high-end apartment complex with his grandfather when suddenly "large objects started to fall from the building many floors above them."

Sternberg claims the items included 2 very large vases, a heavy ottoman and other pieces of furniture -- which landed within a mere foot or 2 from the toddler and his grandfather. 

Suit was filed for both assault and IIED.  TMZ Sports has the story.  Thanks to Shannon Costa for the tip.

College Basketball Coach Accused of Battering Players During Game

Sean Woods, the basketball coach at Morehead State, has been accused of battering two players during a game last month.  One player said the coach backhanded him in the chest in the locker room at halftime and another player said the coach shoved him during a timeout and in the locker room.  Woods has been suspended, and criminal battery charges have been filed.  The Lexington Herald Leader has the story.  Thanks to David Raeker-Jordan for the tip.

Hnylka on Recklessness in Sports Injury Litigation in California

Joseph Hnylka has posted to SSRN California Drops the Ball:  The Lack of a Clear Approach to Recklessness in Sports Injury Litigation.  The abstract provides:

California jurisprudence lacks a uniform, clear, and manageable approach to recklessness in sport injury cases. In Knight v. Jewett, 3 Cal. 4th 296 (1992), the California Supreme Court adopted a unique “duty” approach for primary assumption of risk cases involving sports. The Court ruled that a plaintiff’s subjective knowledge and awareness of risks were irrelevant. Instead, the Court noted that the focus of the inquiry should be whether “in light of the nature of the sporting activity in which defendant and plaintiff were engaged, defendant’s conduct breached a legal duty of care to plaintiff.” Under the new duty approach, although there is no duty to protect a plaintiff from risks inherent in the sport itself, participants, coaches, and instructors will be liable for intentionally injuring the plaintiff or engaging in conduct that is “so reckless as to be totally outside the range of ordinary activity involved in the sport.” In the past two decades, California recklessness cases involving coaches and sport participants have become confusing. Courts lack a uniform approach and continue to apply different standards for recklessness.

First, courts have difficulty applying the California Supreme Court’s definition of recklessness, which requires courts to determine whether conduct is “totally outside the range of ordinary activity involved in the sport.” This standard provides no guidance to the court or to the trier of fact who must distinguish reckless conduct from negligent or careless conduct.

Second, courts are confused by the relationship between the concepts of recklessness and inherent risk. The concept of inherent risk is critical to the application of the primary assumption of risk doctrine. Inherent risk defines duty, and a defendant has no duty to protect plaintiff from risks inherent in the sport. However, because recklessness requires conduct “totally outside the range of ordinary activity involved in the sport,” does a finding that plaintiff was injured by a risk inherent in the sport preclude a finding of recklessness? When a court rules that a risk is not inherent, is the court also saying the risk is “totally outside the range of ordinary activity involved in the sport”?

Third, California’s courts are confused by the relationship, if any, between recklessness and the defendant’s duty not to increase the risk. Are these duties essentially the same when defendant is a coach or sport participant? If not, may courts and plaintiff’s attorneys use the duty not to increase the risk as a vehicle to bypass the intentional/reckless standard and instead apply a negligence standard to coaches and participants in sport injury cases?

Fourth, some courts of appeal, perhaps frustrated by the lack of a clear standard for recklessness, have traveled beyond the California Supreme Court’s recklessness definition and have used different standards to determine whether a defendant’s conduct was reckless. Some courts have used the Restatement of Torts to define recklessness in sports injury cases. Other courts have used a policy-based test for recklessness.

The confusion can be significantly decreased, and perhaps eliminated, if the courts adopt a uniform, policy-based approach to inherent risk and use the Restatement standard for recklessness in sport injury cases. Under the policy-based approach to inherent risk, a risk is inherent if the prohibition of the defendant’s conduct would neither chill vigorous participation in the sport or activity nor alter the nature of the sport or activity. California courts also should use the Restatement standard for recklessness in sport injury cases. The Restatement approach can be used as a recklessness standard in sport injury cases without difficulty if the question of recklessness is raised, as it should be, after the court has applied the policy-based test for inherent risk, suggested above. Finally, the courts should abandon the defendant’s duty not to increase the risk beyond what is inherent in a sport. The duty not to increase the risk is unnecessary and only increases confusion.

OT: An Appreciation of Tim Duncan at His Retirement

My heroes are family members, some friends, and an occasional religious, political, or academic figure.  I enjoy sports but I don't engage in hero worship of athletes.  There is, however, one exception:  Timothy Theodore Duncan.  Through an announcement put out by his team, the San Antonio Spurs, Timmy retired on Monday after 19 seasons in the NBA. 

His individual accomplishments are legion and have secured for him wide acknowledgment as the best power forward to ever play basketball.  Selected first in the 1997 draft, Timmy earned the Rookie of the Year award in 1998.  Timmy was named All-NBA a record-tying 15 times, was the league MVP twice (2002, 2003), and was the Finals MVP three times (1999, 2003, 2005).  Unlike many modern players, Timmy was at least as focused on defense as offense; he was named to the NBA All-Defensive Team a record 15 times.  Timmy is one of only two players in NBA history (Kareem Abdul-Jabbar) to record at least 26,000 points, 15,000 rebounds, and 3,000 blocked shots. 

One of the things that made Timmy so special was that his individual accomplishments were nowhere near as important to him as team wins.  He made that clear in every way possible, including taking salary reductions to recruit other players and accepting a reduced role to allow those players to flourish.  It paid off in spades.  Timmy's Spurs won 5 national titles (1999, 2003, 2005, 2007, 2014).  Timmy is one of only three players in NBA history to win over 1,000 games, and the only one to do so with a single team.  His consistency and longevity while winning is astonishing.  He is the only NBA player to start on teams that won titles in three different decades.  Timmy's Spurs posted at least a .600 winning percentage in each of his 19 seasons.  During his tenure, the Spurs had a .710 winning percentage, which is the best 19-year stretch in NBA history and was the best in all of the NBA, NFL, NHL, and MLB over the last 19 seasons. 

What truly sets him apart, though, is how he carried himself during this dominance.  To begin, there are the things Timmy did not do.  There were no Tim Duncan scandals.  He was not arrested.  He never embarrassed himself or his team.  Instead, he dedicated himself to his craft.  Much of modern sports elevates style over substance.  Flashy plays garner a player a spot on ESPN's "Top 10 Plays of the Day".  In this world, Timmy focused on the fundamentals and defense.  His trademark shot was not a vicious dunk, but a bank shot.  Shaquille O'Neal, fond of nicknames, dubbed Timmy the "Big Fundamental".  His discipline was legendary.  During hot San Antonio summers, he worked out relentlessly to be ready for the next season.  As he aged, he lost dozens of pounds to keep the strain off his knees and extend his career. 

In an era when almost everyone screams for attention, Timmy was old fashioned.  He didn't need attention.  He wanted to do a good job and win games.  He preferred that attention went to others.  In 2003, the Spurs beat the Nets in 6 games to win the NBA Finals.  Timmy was a monster in the final game, nearly earning a quadruple double.  He had 21 points, 20 rebounds, 10 assists, and 8 blocked shots.  His teammate, David Robinson, had just played his last game and the two of them were being interviewed by a reporter.  Timmy made a brief, polite comment, got up, slapped Robinson on the shoulders and walked off.  The message was clear:  talk to David Robinson, not me. 

This, perhaps, is the most unusual of Timmy's traits.  Contrary to his bland public image, he has a rich personal life.  He is a terrific practical joker.  He dotes on his children.  He practices martial arts.  He loves comic books and video games.  He owns his own car shop.  He doesn't talk about these things, or speaks of them only rarely, for two reasons.  First, Timmy is a humble man.  He doesn't understand why people would care about his personal life.  Second, he has an admirable sense of the private sphere.  Even if people want to know more about him, he understands that some parts of yourself should be reserved for loved ones.  

Timmy cared about his teammates.  He was the last player to leave the floor, waiting until everyone else headed for the locker room.  He wanted to make sure everyone was okay.  He cared about people, generally.  He once spent $12,000 to save the life of a stranger's dog.  The essence of the man is best summed up by those who played with and against him:

Steve Kerr (former teammate and current coach of the Golden State Warriors):  "One of the best teammates I ever had.  Incredibly confident with his game but humble with his approach, always taking the criticism for the rest of us.  He'd come into the locker room after a loss and he'd say, 'My fault,'and you'd look at the stats and he's got 38 points and 24 rebounds.  Pretty sure it wasn't your fault, Tim."

Tony Massenburg (former reserve teammate; played on 12 NBA teams):  "This is the first team I've been on where everybody is treated the same.  Usually a coach will yell at the man next to The Man to make his point.  Pop (the coach) gets in Tim's face and Tim takes it.  That lets everyone know that when Pop chews you out, it's strictly about what you need to do to get better.  He can do that because of Tim--the most laid-back superstar I've ever known."

Shaquille O'Neal (former rival):  "The Spurs won because of Tim Duncan, a guy I could never break.  I could talk trash to Patrick Ewing, get in David Robinson's face, get a rise out of Alonzo Mourning, but when I went at Tim he'd look at me like he was bored."

Draymond Green (former rival):  “I do have a Tim Duncan story. My rookie year I kind of talked junk to everybody. In the middle of the game I started talking to Tim, and I had already got into it with somebody on their team. I don’t remember who it was. But I started talking to Tim and he kind of just stared at me. I just kept talking junk to him and he kept staring at me.  At that point I realized during the rest of my career that I might as well not talk to him. Either, one, he is not going to talk back because he has no respect for me. Or, two, he is not going to talk back because that is who he is. Or, three, both. I figured then that was the last time I would talk junk to Tim. And that was the last time.”

Few athletes, few people, are worthy of the phrase "role model".  Timmy is.  The world would be a better place if people went about their jobs the way Timmy went about his.  He will be missed. 

NFL Admits Link Between Football and CTE

In a Congressional round table on Monday, Jeff Miller, the NFL's senior vice president of health and safety, admitted there is a link between football and CTE.  The liability ramifications are significant.  USA Today has the story.

Erichson on the NFL Concussion Settlement

Over at Mass Tort Profs, Howie Erichson (Fordham) analyzes the NFL concussion settlement.  He's not in favor:

We have grown so accustomed to "settlement class actions" that we have lost sight of what is strange and troubling about them. Class actions serve an essential function in our legal system by empowering claimants in mass disputes, and I reject the knee-jerk criticisms of class actions that I  hear too often. But when the class action tool is exploited by defendants to buy peace on the cheap, and when class members are harmed by the alignment of interests between defendants and class counsel, I feel the need to speak up.

Read the full piece here.

Coomer v. Kansas City Royals Decided

On Tuesday, the Supreme Court of Missouri issued an opinion in Coomer, the case of the fan injured by a flying hot dog.  The court ruled that getting hit with a hot dog is not an inherent risk of baseball and the trial judge should not have allowed an assumption of risk instruction.  The opinion is here.  Alberto Bernabe, who has followed the case, has comments here.  Michael McCann wrote a guest post for TortsProf in 2010 that foreshadowed the holding.

--CJR

"Fore!" - Golfer Liability in New Jersey

A New Jersey Superior Court reaffirmed that only the golfer taking the shot is legally responsibile for yelling "fore" for an errant shot.  In Corino v. Duffy, the court held that two bystanders - friends of the golfer hitting the ball and part of the threesome - were not liable  for the golfer's shot striking the plaintiff in the right eye.  A copy of the decision is available here.  The Legal Blitz has more on the decision.

- SBS

Culhane on Coomer

John Culhane has a piece at Slate on Coomer v. Kansas City Royals (the hot-dog-toss case) here.

--CJR

Culhane on Concussions as a Public Health Problem

John Culhane (Widener) has posted his contribution to the FIU symposium on concussions to SSRN.  Entitled Not Just the NFL:  Compensation, Litigation, and Public Health in Concussion Cases, the abstract provides:

 

This article examines the recent attention given to traumatic head injury in the National Football League from a public health perspective. It notes that injuries are prevalent in many sports (not just football), and argues that the goal should be to design interventions that reduce the incidence and severity of such injuries. The article explores and evaluates some of the measures that have been taken throughout football (from the NFL down through youth leagues) to make the sport safer, and notes how these steps also affect other sports and injuries to other parts of the body. Since football and other dangerous sports are unlikely to be eliminated, harm reduction should be the goal. Taken together, these measures
are likely to be successful by that measure.

The article concludes with some observations about the use and limitations of tort claims and compensation funds to redress the harms caused by participation in dangerous sports such as football.

--CJR

Scheuerman on Class Certification in NFL Concussion Litigation

TortsProf's Sheila Scheuerman has posted to SSRN The NFL Concussion Litigation:  A Critical Assessment of Class Certification.  The abstract provides:

In the world of high-stakes class action litigation, a new theory is emerging that seeks to overcome the longstanding hurdles that have precluded certification of personal injury class actions: the "medical monitoring" class action. A recent example is the concussion-related lawsuits brought by former football players against the National Football League. The players allege that the NFL concealed the long term effects of on-field head injury, and failed to warn players of the risks of harm from repeated concussions. The players only seek class certification on a medical monitoring claim — a tort that may allow asymptomatic plaintiffs to recover anticipated medical testing. Like the putative personal injury class or no-injury class, however, aggregation of medical monitoring claims presents its own individual issues that preclude class certification under the Federal Rules of Civil Procedure.

This symposium essay examines the class certification issues presented by the "NFL concussion" litigation. The essay presents the history and status of this litigation, provides an overview of concussion science, and examines the players’ claims against current standards for class certification. The essay concludes that the players’ medical monitoring claim as currently pled fails to satisfy the criteria for class certification. This does not mean that these plaintiffs have no redress against the NFL. It means only that the NFL players need to employ the traditional personal injury lawsuit — not the class action device — to pursue their relief.

 --CJR

Rapp on NFL Concussions

Geoff Rapp (Toledo) has posted to SSRN his contribution to Howard Wasserman's symposium, Suicide, Concussions, and the NFL.  The abstract provides:

This contribution to a FIU Law Review symposium on concussions in the NFL explores the state of the science and the possibility that the family of a former NFL player could recover from the NFL in the event that the former player committed suicide. While the link between brain injury, depression and suicide is both logical and supported by some emerging science, the paper suggests that significant legal obstacles would confront any such claim.

--CJR

Culhane on the NASCAR Debris Cloud

John Culhane (Widener) has a piece in Slate about spectators injured by by flying objects, with a focus on last month's NASCAR crash.

--CJR

Idaho Declines to Adopt Baseball Rule

In an interlocutory appeal, the Idaho Supreme Court declined to adopt the "baseball rule," limiting a stadium operator's liability for foul balls.  The case, Rountree v. Boise Ball (pdf), involved a Boise Hawks minor league game.  Bud Rountree was hit in the eye by a foul ball, and sued the stadium owners and the Boise Hawks for negligence.   On interlocutory appeal, the Idaho Supreme Court held that "[w]hether watching baseball is inherently dangerous, and the degrees of fault to be apportioned to Rountree and Boise Baseball, are questions for the jury."   A Retuers report has more.

- SBS

MD: Pro Football Injury Covered by Workers' Comp

George Conk at TortsToday has the story.

--CJR