Assumption of Risk Doctrine Bars New York Sports Injury Lawsuits - Part 1

Posted on September 14, 2009 by John Hochfelder

"School's Open" say the signs all over the roadways every September. "Drive Carefully," they say.

Perhaps they should also say "Play Carefully."

Every year, students at schools get injured in sporting events and every year their parents start lawsuits for them. More and more, though, these cases are dismissed by trial judges without even proceeding to trial. We've discussed assumption of risk defenses in New York injury cases before, here in the context of fights at school and skydiving and here and here in the context of golf-related accidents. We've also surveyed some unusual sports-related cases here.

The most recent New York injury cases involving these issues are discussed below, along with another case that, while not on school grounds, involves a soccer injury that is apropos.

Floor Hockey: A high school boy was injured in a floor hockey game in physical education class when he fell over his opponent's hockey stick as they were both trying to take control of the puck.

The trial judge dismissed the case and the appeals court upheld the dismissal in Mayer v. Gulmi. Plaintiff was found to have assumed the risk of falling, an incident everyone knows happens all the time in floor hockey. His claim that his opponent intentionally threw his stick at him would, if proven, have allowed the case to be presented to a jury but there was not enough reliable evidence to support that claim and avoid having the case tossed.

Wrestling: A high school wrestler contracted herpes while participating in a match against another school. The trial judge denied the motion by the two school districts to have the case dismissed without a trial but the appeals court reversed. In Farrell v. Hochhauser, it was held that the plaintiff knowingly engaged in a close contact activity (wrestling) and he therefore assumed the risk of a disease being transmitted through skin to skin contact.

Additionally, plaintiff's coach submitted an affidavit stating that before the season he:

  1. gave all of his wrestlers and their parents written information about how common it is to contract herpes from wrestling (almost 30%) and
  2. discussed all of this with his team and the boys' parents

While plaintiff and his father said they did not recall this information being given to them, they could not be sure it wasn't. That, the appeals judges said, was not enough to avoid dismissal of this case.

Soccer: A spectator at a soccer game was standing in the field's sideline area when she was kicked by a player who was trying to kick a ball that had rolled off the field.

The plaintiff suffered a broken ankle requiring surgery and in her lawsuit she claimed that the defendant (the athletic complex owner) should have created a buffer zone to protect sideline spectators. No, said the judge in Andrade v. Nassau County. The plaintiff assumed the risk of this injury by standing where she did when she could have watched from seats available in the stands. Case dismissed.

We will continue our review of sports injury cases and how assumption of the risk bears upon their outcome in court with our next installment that will deal with our national pastime - baseball.

 

 

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Unusual Sports Related Injury Case Plaintiffs Failing to Win Damages

Posted on March 24, 2009 by John Hochfelder

In several unusual sports related cases around the country recently, injured plaintiffs have failed to win any damages. If we count "slam dancing" as a sport then the score is no wins, two losses and two ties (to be broken by trials down the road).

Loss #1: In Fry v. Jolly Roger Rides, Inc. a Maryland jury returned a verdict for the defense finding that an amusement park was not negligent when an errant basketball struck a woman in the head. Chrisitne Fry had been walking at an amusement park pier when a basketball used in a long range basketball shot game deflected off the game's apparatus and struck her. She claimed that a year and a half later she underwent neck surgery because the force of the ball aggravated a pre-existing cervical spine injury.

The defendant had sought a dismissal before trial claiming that there was no way it could foresee such an accident. The motion was denied. No matter. The jury heard testimony that there had been no one injured from the game in five years and that the incident was so unexpected the defendant should not be liable for having failed to foresee it. And so the jury dismissed the case.

  • As our friends at Torts Prof Blog suggested, Ms. Fry's husband probably helped the defense with his testimony that he thought the odds of this accident were "one in a million."

Loss #2: In Schoneboom v. B.B. King Blues Club, a New York judge dismissed without a trial the case of a Manhattan concert goer who sustained a torn anterior cruciate ligament in his knee requiring surgery.

David Schoneboom admitted that he knew there was wild, violent "slam dancing" (also known as moshing) all around the heavy metal band concert.

He still went right up to the front near the stage, next to some of the wildest activity. Low and behold, he got bumped by an unknown person and then he sued the club. The judge found that he had assumed the risk of such an occurrence and injury because he knew that the aggressive moshing was taking place and still deliberately placed himself in proximity to it.

Tie #1: In Sweeney v. Bettendorf, an eight year old girl in the stands at a professional minor league baseball game in Iowa was injured when a player lost control of his bat which traveled 120 feet and struck her in the head.

Tara Sweeney was on a field trip organized by her city parks department. Her injury case against the city was initially tossed out by the trial judge but an appeals court has now ruled (5-2) that the case may proceed to trial because the city had a duty to protect the child's safety at the ballpark and that a jury could find that parks employees put her in an unreasonably hazardous location to watch the game.

Tie #2: In Allred v. Capital Area Soccer League, Inc., the North Carolina Court of Appels overturned a lower court's pre-trial dismissal of an injury case brought against a soccer league by a spectator at a game who was struck in the head by a soccer ball before the game even started. Teresa Alford had been in the stands behind one of the goals while the teams were warming up and many balls were being shot by the players towards the goal.

One shot sailed over the goal and hit Teresa casuing severe head injuries.

In discussing the assumption of the risk doctrine, the court noted that the case is at an early stage and the defense has not shown that Ms. Allred's knowledge of soccer was such that she should have known of the inherent risks of being hit by an errant ball. So the judges ruled that this case may proceed. For now.

  • My prediction: defense verdict at trial.

These assumption of the risk cases will continue to be brought and they will always be controversial.

There appear to be three schools of thought on these cases:

  1. Many who would like to see all of the plaintiffs in cases like the ones discussed here completely barred from the courthouse or, if allowed to trial and they lose, forced to pay the winner's legal fees.
  2. Others would would like to see a remedy for every person injured, no matter the fault, no matter the social and economic consequences.
  3. Judges who will continue to play a large part in the outcome of each individual case as well as on the impact their rulings have on society at large.

And we will continue to report on these cases and engage in discussions about them.

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