Family members of former NHL player sue the NHL for wrongful death

The family of deceased former Chicago Blackhawks player Steve Montador have sued the National Hockey League in Cook County court, claiming it encouraged Montador to get into fist fights on the ice, which resulted in brain damage before his death.  You can read the complaint here.

Snapchat Ends 'Speed Filter' That Critics Say Encouraged Reckless Driving

 Last month I reported that the 9th U.S. Circuit Court of Appeals had issued an opinion holding that the parents of a teenager killed in a traffic accident could sue Snapchat based on the argument that Snapchat's speed filter entices young people to drive at astounding speeds.

Today I am writing about this because NPR is reporting that Snapchat is eliminating a feature known as the "speed filter" that lets users capture how fast they are moving and share it with friends. 

You can read the story on NPR here.

Court of Appeals for the 9th Circuit recognizes cause of action against Snapchat

A three-judge panel of the 9th U.S. Circuit Court of Appeals recently decided that the parents of a teenager killed in a traffic accident can sue Snapchat based on the argument that Snapchat's speed filter entices young people to drive at astounding speeds.

The decedent and two other teenagers were driving at over 120 miles an hour and wanted to capture the experience using an app feature called "speed filter" which documents real-life speed.  After one of them opened and started using the app, the driver lost control of the car and hit a tree.  All three died in the crash.

This type of allegation is not new.  It was the same type of allegation used in cases involving people playing "Pokemon Go" (remember that craze?). I posted a podcast on those claims back in 2016 here.

Other cases have found against the sender of a text which distracts a driver.  For example, see here, and here.

So, the plaintiffs' argument that the app "entices" young people to do stupid or dangerous things is not new; but it is not an easy one.  First of all, there is the issue of whether the conduct of one of the kids should be considered a superseding intervening cause.  Was the goal of the joy ride to use the app?  Or did they decide to use it after they were already driving fast?

Also, and even more problematic for the plaintiffs is the issue of comparative negligence, or assumption of the risk (if the jurisdiction still recognizes it as a defense).  If the jurisdiction is a modified comparative negligence jurisdiction, the defendants will argue that the plaintiffs' negligence should defeat the cause of action. 

What is most interesting about this case is that the plaintiffs argued the case as a products liability case while the defendant tried to defend the case by arguing it is protected from liability by the Communications Decency Act.

According to Courthouse News, the Ninth Circuit’s rejection of the defendant's attempt to hide behind the Communications Decency Act is the second opinion by an appellate court.  The other one was the Georgia Court of Appeals which rejected virtually identical arguments made by Snap in another Speed Filter case.  NPR has more on the case here.

The case is called Lemmon v. Snap, Inc, and you can read the opinion here.

USA Today publishes op-ed on why blanket COVID-19 liability immunity is not a good idea.

USA Today publishes Op-Ed on why blanket COVID-19 liability immunity is not a good idea. You can read the article here.

More on the issue of whether businesses and other institutions should be immune for liability related to Covid-19

During the past few weeks there has been a lot of discussion on whether it would be a good idea to grant immunity or to make it more difficult for plaintiffs to recover for injuries suffered when the defendant's negligence causes the plaintiff to catch the Covid-19 virus.  I have posted articles about it here, here, here and here.

NPR has the latest here.

Liability waivers in the age of the novel coronavirus

The ABA Journal has published a short article on issues related to the use of liability waivers in the age of the novel coronavirus.  You can read it here.

Court allows former NFL player lawsuit against helmet manufacturer to proceed

The First District Appellate Court of Illinois held in Nakamura v. BRG Sports, LLC that a former NFL player’s personal injury suit against his helmet manufacturer stemming from a severe concussion the player suffered was allowed to proceed. 

The decision was based only on an issue of whether the case was barred by the statute of limitations, so it will be very interesting to see how far the case goes since it is rare for sports participants to succeed in claims for injuries suffered while participating in the sport.  And given what we now know about concussions in sports like football and hockey a successful claim against a helmet manufacturer for an injury related to a concussion in a football game could open the doors to a floodgate of litigation.

Go here for more on this story.

Can Mason Rudolph (Pittsburgh Steelers quarterback) support a claim for battery against Myles Garrett?

If you are a football fan, and maybe even if you are not, you probably heard about or saw the video of a fight at the end of the game between the Cleveland Browns and the Pittsburgh Steelers a couple about a week ago.  At the end of the game, Myles Garrett (of the Browns) tore off Pittsburgh's quarterback Mason Rudolph’s helmet, and hit Rudolph in the head with it.  The NFL quickly responded by suspending Garrett for the rest of the season.  You can see the video here with the actual helmet to head contact here and here. 

Could Rudolph support a claim for battery against Garrett?

In sports cases, it is often said that players consent to conduct that would otherwise constitute battery if the conduct is inherent to the sport.  Likewise, if the claim were for negligence, it is often said that players assume the risks inherent to the sport.  For this reasons, given the violence inherent to football most of the time players can't support a claim.

But, is the risk of having an opponent rip off your helmet and use it against you like a weapon inherent to the sport of football?  I don't think so.  I think the conduct in this case is so far outside the inherent risks of the game that the quarterback should be allowed to have a cause of action.  What do you think?

Football players claim against College for injuries suffered in practice survives motion to dismiss

Two football players at Lackawanna Junior College were injured during the same tackling drill in 2010. They sued the college in 2012, claiming the football staff was negligent and the school should have had certified athletic trainers available to aid and advise players who were injured. Instead, the college employed two women who had failed to gain certification as athletic trainers.

The claims 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.

You can read more (although there isn't much) about the case here.

Utah Supreme Court holds that waivers signed by parents on behalf of children are not enforceable

Earlier this month I reported that the the Kentucky Supreme Court recently found that for-profit companies can be liable for injuries to minor children even if their parents signed a pre-injury waiver. See here.

Now comes news that, in a case called Rutherford v. Talisker Canyons Fin., Co., LC, 2019 WL 2710230, the Utah Supreme Court held that a parent cannot release his or her minor child's prospective claims for negligence unless this rule is altered by a statute enacted to make such releases enforceable.

Debate about safety netting around baseball parks continues

One of the more talked about themes during this baseball season is the increased amount of home runs (and the speculation that it has something to do with the way baseballs are manufactured).  Another continues to be the debate about whether baseball parks should extend the protective netting along the baselines.

If you are a baseball fan, you know that baseball parks offer safety netting to protect fans close to home filed from foul balls, errant throws and bats flying into the stands. Traditionally, the netting extends from just about half way to first base to about half way to third base.  

Yet, last year, in response to a number of incidents in which spectators were seriously hurt by foul balls along the baselines beyond the ends of protective netting some ballparks decided to extend the netting further down along the baselines.

Unfortunately, this season has already seen several such accidents and the debate about the netting has reignited.  Here in Chicago, at least two star Cubs players (Javier Baez and Kris Bryant) have called for the use of more netting.  

As you probably know, spectators usually do not have a remedy in tort available because of the so called "baseball rule" which is essentially a derivation of the notion of assumption of the risk.  I have argued the use of the rule is inconsistent with general principles of tort law, but it continues to be applied in many jurisdictions.  (Idaho is one which has refused to adopt it. See here.)   For some of my comments on the rule in general, go here, here and here.  For my posts on this and other topics related to baseball go here.

NPR recently posted a short radio segment on the issue.  You can listen to it below, or you can read the full story here.  It includes a video of one of the recent incidents (I also included it below).  It does NOT show the fan (in this case a young child) getting hit.  What it shows is the reaction of the players on the field.  Notice the reaction of the catcher the moment the ball goes into the stands; while the batter needed to be consoled by teammates and his manager.

Can a parent sign away a child's rights by signing a waiver of liability? Not in Kentucky (and many other states)

Those of you who have children out there are familiar with this, which as a parent myself, I have seen and done lots of times!  Your child wants to participate in a sport or other physical activity, and you (the parent) are asked to sign a "waiver" before the child can be allowed to do so.  Will those waivers really work to prevent a lawsuit?  Are they a valid form of contract that can be argued support a defense of express assumption of the risk.  Not in many states.  (I have not done a state by state survey, but I suspect this would be the case in a majority of states.) 

The Torts Prof blog is reporting that the Kentucky Supreme Court has unanimously ruled that for-profit companies can be liable for injuries to minor children even if their parents signed a pre-injury waiver.  The ruling came in a case in which an 11-year-old girl broke her ankle jumping on a trampoline at the House of Boom in Louisville, KY in 2015.  The mother had checked a box saying that she, on behalf of her daughter, would "forever discharge and agree not to sue" the trampoline park.  The court noted that for the most part, under Kentucky law, "a parent has no authority to enter into contracts on a child's behalf."  The court also stated that in 11 of 12 jurisdictions in the U.S., waivers between parents and for-profit entities have been found unenforceable.  WDRB.com has a little more on the story.

Injured Spectator vs The Chicago Cubs; Will This Be the Case That Establishes a New Rule? -- UPDATED

October 17, 2017
Readers of this blog probably saw the news that a baseball fan has sued the Chicago Cubs seeking compensation for the loss of sight in his left eye after he was hit by a foul ball during a Cubs game earlier this year.  This question has been litigated many times in many jurisdictions and, as it stands right now, the law favors baseball stadium owners.

In most cases, the discussion of the courts has focused on either whether the defendants have a duty to the spectator or whether the spectator assumed the risk of injury by choosing to sit close to the field.  Often, whether the issue is defined as the former or the latter, court and commentary refer to the analysis as one involving "the baseball rule," which is really a reference to the result of the application of the analysis. The case against the Cubs is different, however, because in Illinois, there is a specific statute that limits the possible liability of baseball stadium owners.

I wrote a short comment on this a few days ago in The John Marshall Law School Law Review blog.  You can read it here.

UPDATE (3-21-18):  Earlier this month, the court dismissed the claim against the Cubs but allowed the case to proceed against Major League Baseball.  The Chicago Daily Bulletin has the story.

Court upholds the so-called "baseball rule" in case against New York Yankees; rules no liability for injury caused by foul ball

Not too long ago, I posted a story about a recently filed claim against the Chicago Cubs by a fan injured by a foul ball.  The claim will not be an easy one to support given the current law in Illinois but also the long standing trend in the rest of the United States.  This trend, which typically holds the defendants only have a limited duty to a relatively small number of spectators, was reaffirmed recently in New York in a case that had been filed against the New York Yankees.  In that case, a state appeals court in Manhattan ruled that the baseball team was not responsible for a fan's foul ball-related injuries at a 2011 game.  Bob Van Voris, a legal reporter for Bloomberg News, discusses the story here (8 minute audio). 

It sounds like the plaintiff will appeal the decision.  If he does, it is possible the state's highest court may reconsider the validity of the baseball rule.  Stay tuned.

Podcast: Legal issues related to Pokemon Go

Pokemon Go, the latest craze that has millions of people walking around using their phones to find and "capture" pocket monsters, has generated much attention this summer.  And, as it happens frequently, the use of the app has raised a number of legal issues.  Some of the issues are:  possible tort liability for injuries caused by, or to, people who are playing the game, issues related to trespass into private property, and issues related to nuisance.

So, to help you sort out some of these issues, Lawyer2Lawyer has posted a podcast on the legal issues related to Pokemon Go.  You can listen to it by clicking on the play button below, or if you can't see the button, by going here.

More thoughts on possible liability for the consequences of the conduct of app users: Is Uber dangerous?

Over at the New York Personal Injury Lawyer Blog, Eric Turkewitz has posted a very interesting short comment called Uber Cars are Uber Dangerous.  You should read the full comment but the bottom line is that it is possible to argue that the way Uber works, it encourages its drivers to check and reply to text messages while driving.  If this is the case, it can then be argued that Uber is acting in a way that creates unreasonable risks of harm to others, and therefore, that it should be liable for injuries that result.  This would be particularly important in jurisdictions that have adopted the view that someone who sends a text may be liable if he or she knows that the recipient is driving at the time and is likely to be distracted by the text.  There are reported cases on this in at least two states.

It should also be noted that this theory of liability is not dependent on finding that Uber drivers are employees as it would be if the argument is based on vicarious liability (an issue that is currently being litigated in several cases in different jurisdictions).

Play Ball! Some thoughts on torts and baseball

Baseball fans are eagerly awaiting the beginning of a new season.  But, with a new season, we also get the renewed debate regarding safety at the ballpark.  Just a few days ago, at a spring training game, the quick reflexes of an adult saved a child from serious injury (or worse) when a bat flew into the stands.

That child was lucky. Really lucky.  According to one source about 1,750 people get hurt during major league baseball games primarily from foul balls and broken bats.  (Other common claims include injuries caused by team mascots.)  Many suffer severe injuries, yet few have been able to recover compensation.

One important reason for this is that many of the cases have been decided using a confused analysis based on the argument that people (both participants and spectators) assume the “inherent risks involved in the game,” often referred to by the unfortunate term “primary assumption of the risk.”  Yet, the analysis in most of those cases is not particularly coherent and I continue to be amazed at the fact that after so many years of common law so many courts are still unclear about the concept of assumption of the risk as it relates to sports and recreational activities.

Take the cases involving claims against bat manufacturers for injuries caused by aluminum bats, for example.

In the past few years there have been a number of cases imposing liability on aluminum bat manufacturers because the ball travels off them at a much higher rate of speed putting fielders are at a higher risk of injury.  In response, you often hear criticism from defendants and others that are quick to quote the notion that players assume the inherent risks of the game.  Using the same argument, some take the rhetoric even further and use it to attack the tort law system itself claiming that the lawsuits are just another example of plaintiffs’ lawyers bringing frivolous claims. 

I think those arguments miss the point.  Granted; risk, danger and injuries are a part of life, let alone of baseball.  However, tort law is one of the mechanisms we can use to regulate the level of risk we are willing to live with.  You can’t play baseball unless the hitters use a bat. But it does not have to be an aluminum bat. Why expose the players to more danger if there is a safer alternative? The alternative is not perfect and it won’t eliminate all the risk, but it is safer.  

The point is that litigation often helps society define the limits of the acceptable level of risk we are willing to take for any given activity.  We have accepted the risks of baseball when played with hardballs and solid wood bats.  But as we start our kids playing the game earlier and earlier we want them to be as safe as possible while still playing the game.  That is why we now require better helmets and protection.  That is why Little League Baseball has banned the use of dangerous aluminum bats and regulates those that are permitted for competition.

Now, some argue the resulting injuries would be the same even if the bats are made of wood. I have no expertise on that question, but I can concede that it may be true in some cases.  On the other hand, I am sure it is not true in all cases, and it is those cases that matter.

The risks inherent to baseball have changed over the years and it is perfectly reasonable to find that our tolerance for more risks has a limit.

The cases involving spectators are even more problematic. 

In these cases, many courts refer to what they often call “the baseball rule” according to which baseball park operators are excused from liability based on the notion that spectators assume the risk of being hit by foul balls or bats that fly into the stands.  According to the argument, these are risks "inherent to the game."  Many jurisdictions do follow this notion, usually again referring to it as the confusing concept of “primary assumption of the risk.”

The confusion starts because it is often said that spectators assume the risk of getting hit by foul balls at baseball games and that, thus, those in charge of the park do not have a duty to protect them.  Neither of the two parts of this statement is entirely correct.

First, it is well known that all baseball parks have installed some form of "netting" to protect the members of the public who sit behind home plate (and some distance between there and first and third bases).  Thus, the park operators do have a duty to those spectators.

Second, the statement confuses the concept of duty – which is an element of the cause of action’s prima facie case – and assumption of the risk – which is an affirmative defense that does not challenge an element of the cause of action’s prima facie case.

Assumption of the risk is a defense based on an evaluation of the plaintiff’s conduct in order to determine if he or she voluntarily decided to undertake a known risk.  However, the so–called “primary assumption of the risk” doctrine has nothing to do with an evaluation of the plaintiff’s conduct.  Primary assumption of the risk is a policy question that asks the court to decide whether to impose a duty on the defendant to act to protect others from certain risks.  In other words, the application of the concept of primary assumption of the risk is simply another way of asking whether the defendant owes a duty to the plaintiff. 

When applied to baseball, the policy question should be answered by saying that an operator of a baseball stadium has a duty to protect the spectators sitting in the most dangerous part of the stadium and to exercise ordinary care to prevent unreasonable, foreseeable risks of harm to others.  This means that a defendant can’t claim a plaintiff assumed a risk created by the defendant’s own negligence.  This approach will yield good results not only in spectator injury cases but also in other sports cases. 

What makes this issue more interesting this year is that given last season's many gruesome incidents in which fans were struck by balls and shattered bats, Major League Baseball issued a recommendation for all 30 clubs to extend the protective netting farther along the baselines to first and third.  (See NYT article.)

This sounds like a good decision, but, as explained in a New York Times article, the new MLB policy can't be more lame.

Under the new policy, teams are “encouraged” to extend the netting behind home plate a mere 70 feet or so down the foul lines, to the “near ends of both dugouts” — that is, the end of the dugout closest to home plate. Note that this is not a mandate but merely a recommendation. It also calls on teams to “explore ways to educate their fans” on the inherent dangers of sitting close to the action and the importance of paying attention. And it wants teams and ticket vendors to make clear to the fans which seats are protected when they are buying tickets.

Thus the new "policy" does not require the teams to do anything and most of it is to encourage them to do what they can so they can later claim "assumption of the risk" by arguing that the fans were warned about the risk.

Some teams have announced they will provide more protection to fans, but some will not, and accidents will continue to happen.  Then, as it happened in the NHL in 2002, someone - perhaps a child - will get killed and the league will change its policy.  In 2002, the N.H.L. mandated safety netting at its arenas after a girl was struck in the head by a puck and died from her injuries.  

It does not make any sense for MLB to wait until something like this happens.  And if you don't think it will, take another look at the photos of that recent game.  What do you think would have happened had the adult not extended the arm in front of the child's face?  (Read about them here.)

For more commentary on this issue and a discussion of ongoing litigation against the New York Yankees take a look at this article.

Charlie Sheen’s Ex-Fiancée Sues Over Sheen’s Failure to Disclose HIV Status; does she have a case?

Charlie Sheen’s ex-fiancée sues over Sheen’s failure to disclose HIV status.  Does she have a case?  Two articles discuss the issues here and here.

Yet another disturbing video of football violence

Watch the defensive end of the team in the black uniform rip an opponent's helmet's off and then use it as a weapon against him.


According to NJ.com, this happened last weekend during a game between New Jersey high schools Immaculata and Linden. According to the story, the player who was hit with the helmet received 10 stitches after the game. Local police is looking into the incident.

Pac Man Jones will not be suspended for violence on the football field

Sunday I commented on the conduct of Bengals corner Adam “Pacman” Jones on the football field to illustrate the recurring issue of whether conduct while participating in sports could give rise to a claim for battery.  As an update, it is now being reported that Jones will be fined but not suspended.