11-12 Tues and Thurs, Office Hours

1/12/10

11-12 tues and thurs, office hours

x1111 for recording

What is sports law?

Torts in Sports

Sports leagues are not pure cartels but also not separate businesses.

Hybrid.

As opposed to Holiday Inn and Marriott, Cowboys do NOT want to push Redskins out of business (just off the field)

Crespin v. Albuquerque Baseball Club

216 P.2d 827 (N.M. 2008)

N.J. Baseball Spectator Safety Act

52A-53A-43 (2006)

Special statute to create greater protection for stadium operators.

In the context of baseball, they make up a special test.

46 of 50 states have adopted COMPARATIVE FAULT.

Only 4 states that use old rule – contributory fault or assumption of risk is complete bar.

The standard of care owned to sports spectator

Spectator is a BUSINESS INVITEES

Same as going to supermarket or Disneyland

General tort law has established law for business invitees.

You are NOT guaranteed safety in these places

Standard of care owed to business invitees: duty of reasonable care

NOW we come to the baseball cases:

Akins case page 9

P arrives at a local baseball. Stands along third base ball and hit with baseball and serious injury.

P 35% at fault and D 65% at fault (in old rule, P would get nothing before comparative fault because P had any fault)

But goes up to appellate, court affirms

Then goes to what is NY Supreme Court, they reverse, saying P should get nothing.

Page 11 D is a not an insurer, makes sense

Not owed a duty of strict liability

Owed a duty of reasonable care

Court says this is NEGLIGENCE. However, here is the professor’s problem:

How can a comparative fault state say standard is reasonable care (care is for the court and breach is for the jury) Went to jury and applying standard of reasonable care, awarded damages accordingly.

So if the court acknowledges all this, how can the majority say you get nothing.

THIS IS THE MAJORITY APPROACH TODAY.

This is being down judicially, without a statute.

So general tort principles are NOT applied in a sports setting.

Why would the court do this?

Court didn’t say it was an error by lower court.

Instead, they did something unusual:

Professor thinks it should be case by case, just like a supermarket or car crash

Integrity of the game

If we know which areas are likely are to be dangerous, isn’t that an argument to make the necessary protections.

By statute, you can do it legislatively and created a lower standard of care.

Page 11: We hold

Provide screening for area behind plate…

For as many spectators as may be reasonably be expected to desire such seating…

Test of reasonable care.

Why would you not combine screening test with requiring a WARNING? (Teams do this anyway)

Court assumes that the overwhelming majority knows of the risk

So this case has become the prevailing judicial view!

How do you explain other cases that go the other way?

Page 51 case Maisonave

Splits three ways there

P was hit at mobile vending cart at walkway

Or a picnic table or concession stand. DOES THIS CHANGE THINGS?

P injured by being distracted by mascot

Coronel case

What is different in these cases?

BIG ISSUE: IS AKINS APPROACH CORRECT?

SHOULD IT BE DONE LEGISLATIVELY?

1/19/10

Spectator injuries

Trend is Akins.

Before comparative fault, spectator injured by a ball would have most probably been seen a fault so complete bar to recovery.

Duty of reasonable care

But did unusual with sports, not

Defined judicially how you determine duty of care. Protection behind home base. Enough screened seats. Ask for screened seat.

You fulfilled your duty. Doesn’t go to jury.

No contributory fault or assumption of the risk. This is not done usually, like at a grocery store like you need to clean up water every 20 minutes or what speed you need to drive in rain. Usually negligence cases is case by case.

This is typically sports spectator injury law for baseball and now also hockey. This is the evolving rule JUDICIALLY.

Risks are open and obvious. Fan want non-obstructed view, catch a ball, don’t want to change the integrity of the game. Don’t worry about foreigner who doesn’t know about foul balls.

Stadiums are very different at backstop in various pro stadiums and other levels.

Page 47 Fenway park analysis. How quick someone needs to react.

Legitimate question: should this be done by judges or legislature.

Aktins, Benejam and Costa compared to Coronel (page 21)

Coronel

Woman sits in really good seat, 3 seats away from screen. Look down in her lap for a moment and gets by a line drive and jaw is broken.

She sues the ballclub and park. You were negligent.

If this were Akins, did the park provide screening directly behind home plate (yes) and did they give seat to person who wants screened seat (yes).

But this court is more traditional. She is business invitee. Is there a duty, yes…duty of reasonable care. Same as Akins.

Different from Akins: Where there is a breach of duty is for the jury. Should be a left to jury to decide if enough screening and enough warning (enough on small type in ticket, on loudspeaker, on tv screen). Jury can determine WAS IT ENOUGH. This is what juries do all the time: did you do enough that is reasonable care. Not enough to PREVENT injury but reasonable care. This is a minority view.

Majority view is LIMITED DUTY.

Jones case:

Jones was struck by ball in a walkway.

You get the sense that if she were in her seat, in an unscreened seat, then this court would have said no relief for her.

Court seems to see it different in another area

Cripsin, Maison

You don’t expect to be hit by ball when you are in an interior walkway. Or a mascot distracting your view. Don’t expect to be hit by pitcher during warmup.

In these case, not rejecting the limited duty rule, but saying it is limited to in the seating area.

Maisonave

Court split.

In each case, are not incurred by spectator just watching game. Spectators are doing something where they would not reasonably be expected to be hit by ball.

Professor believes if you adopt the Akins rule, you should at least combine it with a rule to post warning signs. (NJ did warning by legislation, which he likes)

Most don’t need to be warned, but the people that most need to protect, need to be warmed.

Warnings cost nothing. That’s why he has a problem with Akins.

Another way to protect stadiums is the passage of statutes.

Rationale for this rule, judicially and statutorily: baseball is unique and players reach into stands for balls and fans like unobstructed view and catch balls. They don’t want to change game.

ICE HOCKEY

Girl went to arena and hit by puck and died.

Schneider 35 and Nemarnik page 39

Trend has been to extend baseball rule to hockey as well.

Protection behind the goals.

In golf, if they put up screens, then balls would bounce back into fairway and destroy game.

On exam, BASEBALL OR HOCKEY. Probably. Need to know the rules.

Why is there a special need to protect stadium operators as opposed to supermarkets? (Insurance rates go up with car accidents as well, not just ticket prices.) Solution is I guess don’t go to baseball game or hockey game or sit in safer seat.

PARTICIPANT INJURIES

Spectator sports, they are owned duty of care even with limited duty rule.

But participants are different.

Risks of injury are inherent at every level when playing sports.

Question: when one participant causes injury to another how do you deal. There is NOT a business invitee relationship.

People voluntarily entering into activity. Some sports can’t be handled with reasonable care.

Golf you can. You can look behind and look ahead before hitting or yell “fore”

But boxing, football, hockey, mixed martial arts where you can’t play with maximum efficiency with reasonable care.

What standard applies?

Fixed set of rules

Kids or adults?

Violent sport v. passive sport?

If race car driver drove on road like they do on normal road, it would be actionable.

Nabozny v. Barnhill page 71

Goalie in the penalty area got kicked in the head. Clear violation under FEFA rules, can’t make contact with goalie when he has ball in penalty area.

Court says he should go forward.

P is suing to recover for personal injuries caused by NEGLIGENCE of D. Suggests a negligence standard.

Negligence is NOT enough. You have to be acting RECKLESSLY or INTENTIONALLY.

Not just violating a rule, but violating a safety rule.

To violate tort principle in sports, you must be at least reckless or intention. That conduct must be in violation of a safety rule.

That suggests a negligent or careless violation of a safety rule is not enough.

What is reckless: page 84. Not quite intentional.

What are the safety rules for a pick up game?

Touch football kind of thing.

Knight v. Jewett, one of the most important tort cases in CA history.

Guy was told he was playing too roughly. Then stepped on her finger and P had to have finger amputated. It was a touch football game, pickup randomly.

CA court said she had no recovery.

Do you apply same rules to golf, a passive sport?

What about breaking rules that have become part of sport like “pitching inside” and fights in hockey?

1/26/10

Participant Injuries (Continued)

Bourque v. Duplechin page 74

P sues D for putting a forearm under his chin. Amateur softball game.

Question is whether this action can go forward.

Some discussion of negligence , but not a negligence case.

This action was so far outside the expected risks of softball and done with sufficient intent that the case was allowed to go forward and the claim is actionable.

Was there a safety rule violation? Yes

Was the action more culpable than negligence? Yes

Hackbart v. Bengals page 78

Hackbart was hit in the back of head by Booby Clark during an NFL game. Caused a pretty serious injury, neck was fractured. Refs missed it, it was done away from the action.

Professor would say this force of blow happens on every play in NFL.

Should tort law apply in the context of professional football? Or should their own union and commission deal with it, since they have the power to do so.

Page 80, upper right. Safety rule. Pretty clear Clark’s action violated rule.

Court states this case should go forward. Page 84 restatement of tort.

Bottom line of case: If you can demonstrate reckless behavior that violates a safety rule, you can have action even in professional football.

But this is very difficult today in NFL.

However, an easier case is Bill Rominowski, who punched a player during training camp.Romo settled with the guy for six figures.

Another easier case:

Kermit Washington – punched Rudy on basketball court. Resulted in big settlement.

Hockey is a different matter.

What do we do with safety violations that occur and reoccur? Like Nolan Ryan and others throwing at batters heads to intimidate.

We don’t want children emulating this stuff. At the same, people accept certain safety violations.

Gauvin v. Clark page 86

P was butt-ended in college hockey game by D. It was away from the play with a “weapon” that would be considered deadly outside of hockey rink. Butt-ending in dangerous. P gets serious injury.

Clearly violated safety rule.

Goes to jury. Acknowledge there is safety violation. Jury found 30K in damages, but sided with D.

Jury found that D’s action was NOT reckless. Even though it was safety violation.

Professor says this was away from the puck so he would say it was reckless.

Let’s change of the facts of case:

What if D had hard checked P into boards fairly, but P got serious head injuries?

No claim. Inherent risks of the sport, not reckless. And NO rule violation.

If player takes shot at goal and player moves in way, then not a claim probably.

But if player tries to hit a player in face, maybe different.

Turcotte v. Fell page 90

Jockey riding Secretariat. Riding at Belmont.

Another jockey riding violated the NY racing rules (footnote 1, 91) by engaging in violating “lane change” rule – “foul riding.”

Dangerous sport – small jockeys racing at high speeds with big horses.

Causes P’s serious injury.

[Only concerned here on injury against other jockey, not against stadium.]

Why did they dismiss this case?

Similar to why the Gauvin case was dismissed.

Safety violation occurred, but he was negligent (not reckless). Not a duty of reasonable care in horse riding because the nature of the sport doesn’t lend itself to that. Negligence is NOT enough.

This is similar to NASCAR. You can’t expect same standard of care in NASCAR as on you driving on 101.

Closer call would be driver hitting a crew member. But probably not a tort because everything is going so fast.

Knight v. Jewitt page 97

Reasonable implied assumption of risk – all subsumed under comparative negligence.

That if P is reasonably or unreasonably implied assumption of the risk, not a complete bar in a negligence case.

Woman played pick up football game and guy, even after being warned, stepped on her finger. It was amputated.

Question:

Under pure comparative fault case, shouldn’t it have gone to jury to weight fault.

But court did not let her get past summary judgment.

How does this work?

COURT says this is PRIMARY assumption of the risk case. Primary assumption of the risk – the D does not have a duty of care. So no fault to weigh. THIS IS NOT a negligence case. The standard is not a standard duty of care, but higher standard recklessness in co-participant in sport.

Page 111

Policy reason – about expectations in pick up game. Concerned about chilling vigorous participation in sports. Don’t want floodgate of litigation.

In secondary assumption of the risk – ASK???

Footnote 7, page 113

Archery or golf

Professor wrote article on this.

He believed negligence is a good standard for lesser contact sports. Contact sports needing reckless is an exception to the rule. Even best golfers hit stray shots, probably wouldn’t be negligence if golfer yelled fore.

Court leaves it open now for lesser contact (passive) sports.

Lestina v. West Ben page 127

They use flexible negligence standard.

Raises concern about litigation floodgates and chilling sports.

After this case—and in response, Wisconsin passes law – in contact sports liable only reckless or intent. (presumably adjusted according to the sport) Thought the flexible negligence way does not work.

Noffke v. Baake

760 N.W.2d 156 (2009)

P was injured while participating in cheerleading.

Is cheering a contact sport?

Court says for purposes of this statute is a contact sport.

He brings this up because when we think of contact sport, we think of contact with the opposed team. But cheerleading is contact between teammates.

Court uses a definition of contact.

Precludes a negligence claim

Professor surprised cheerleading is deemed by this court as contact sport.

How do you deal or measure what is far outside accepted behavior when NO written rules?

What about coaches and their responsibility?

What about customs that frequently violate customs (Nolan Ryan throwing at head of batter)?

2/2/10

Not required reading: 119 Yale L.J. 726 (2010)

Co-participant injuries

Without written rules, how to establish when something is so far outside the norm?

Avila v. Citrus Community College page 196

Page 201

We do not want you to throw the ball at 90 MPH at someone’s head.

Safety rule, could be a serious injury.

But court says inherent part of the game.

Page 203

How do we know what the “culture” is?

Like at a pickup game in certain parks in NY, bad neighborhoods versus good, has different cultural games with basketball.

It’s a grey area – a game without written rules and play outside those rules is a grey area.

Inherent risk of the sport – but when you get into a car, you know inherent risk of injury. So it can work both ways. Even if it’s common, maybe it’s better to allow people to sue with injuries. But that might up cost of sports.

Shin page 205

Page 211

He disagrees with decision.

He doesn’t see them as rules of Etiquette like the court; he sees them as safety rules. Hitting when people are out of range.

He disagrees with Shick case as well.

Court even recognizes that reasonable care is the normal standard. Reckless is a deviation. But courts are getting with reckless standard in noncontract sports to remain consistent.

General Rule with co-participants: need more than neg, must be violating a safety rule at the same time.

What’s a risk inherent in the sport?

Problem: we encourage kids to participate in sports; we don’t want to have kids get injured because they emulate professional athletes. Should tort law help that? But we don’t want Ray Lewis to be cautious on the field.