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.