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.

NFL revises its position regarding "race norming"

Back in March, and later in May, I wrote about ‘race norming’ and the NFL settlement fund to compensate retired players for the effects of their concussions and other injuries.  See here.  

I am writing today because according to a proposed deal filed Wednesday in federal court, the NFL has agreed to end race-based adjustments in dementia testing that critics said made it difficult for Black retirees to qualify for awards in the $1 billion settlement of concussion claims.  NPR has the story here.

The proposal, which must still be approved by a judge, says that no race norms or race demographic estimates will be used in the settlement program going forward, but it is not clear if the players who will be affected by the new proposal will simply have their tests scored anew, or whether they will have to subject themselves to a new rounds of tests.

To date, about 2,000 players have applied for awards based on arguments of dementia, but only 30% have been approved. 

Federal judge orders NFL and players to mediation to address concern over racist methodology when calculating compensation for players - UPDATED

March 13, 2021

There are some good news and some bad news related to the lawsuit against the NFL seeking compensation for players related to concussions and other injuries.  

The good news is that the judge overseeing the litigation has ordered the parties to revise the compensation methodology to address serious concerns over "race norming" which results in lower compensation for black athletes.  The judge stated that “the Court . . . remains concerned” about the race-based formula used to measure cognitive impairment to determine eligibility for compensation.

The bad news is that the judge took the issue out of the courtroom and sent it to mediation.  As stated by the lawyer who represents some of the retired players, this means that the court's proposed solution is to order the very parties who created the discriminatory system to negotiate a fix while apparently excluding  some of the players affected by it.  

As you may know, the NFL had agreed to a settlement with retired players, but at some point later several players filed a lawsuit attacking the terms of the settlement, at least in part based on allegations of "race norming" in the process used to determine the proper compensation for players.  It is this lawsuit that the federal judge dismissed as “an improper attack on the Settlement Agreement.” 

You can read more about the story here and here.

The Nation has a good short op-ed piece on the topic here, which explains how the notion of "race norming" has changed over time.

In this story from ABC news you can also access a 11 minute video from the TV show Nightline.

 

Here is the key part of the story:

At the crux of the controversy is the fact that the NFL's concussion settlement program manual recommends the use of a "full demographic correction," in which a player's cognitive test scores are compared to average scores, or "norms," for similar demographic groups, and then adjusted to account for expected differences in age, gender, education -- and race. 

The practice of adjusting test scores for race, widely known as "race-norming," is in use across several different medical fields as a supposed safeguard against misdiagnosis. But because these "norms," as used in a neuropsychology context, assume that the average Black player starts at a lower level of cognitive functioning than the average white player at the outset of their careers, Black players need to show larger cognitive declines than white players to qualify for compensation. 

. . . . 

In response to questions from ABC News, an NFL spokesperson issued a statement in February saying that . . . "[t]he settlement seeks to provide accurate examinations to retired players," . . ."and thus permits, but does not require, independent clinicians to consider race in adjusting retired players' test scores as they would in their typical practice." 

But in email correspondence obtained by ABC News, those same clinicians appear to disagree. One bemoaned their possible complicity in a system that perpetuated "racial inequity" in payouts. 

 . . . . 

"Bottom line is that the norms do discriminate against Black players," [one] clinician wrote. "So now what? In this time of reckoning, like many professions, I think we need to look closely at the expected and unexpected ramifications of our practices." 

 And a dataset shared exclusively with ABC News suggests that race-based adjustments could have a significant impact on payouts. 

 At the request of an attorney who represents several former NFL players, a neuropsychologist who has evaluated former NFL players under the concussion settlement program recently rescored the results of cognitive tests from a group of 94 Black former players. . . . When the clinician interpreted the test scores as if those former players had been white, 34 of them met the criteria to receive payouts through the program. When the clinician applied the recommended demographic correction to those same scores, however, only 10 of those same players qualified.

 

UPDATE May 17, 2021:  Courthouse News has a new story on this topic here.

UPDATE October 21, 2021:  NFL changes its position on race norming

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.

On the difficult to understand distinction between negligence and recklessness

I have often argued that the distinction between negligence and recklessness is difficult to understand.  True, on paper we can express a definition that supports and distinction between the two concepts.  For example, in New Jersey, “recklessness, unlike negligence, requires a conscious choice of a course of action, with knowledge or a reason to know that it will create serious danger to others.”   Yet, as is often the case, in practice this type of definition (and attempt to distinguish from negligence) is difficult to apply, as a recent case from New Jersey illustrates.

As reported in Golf Dispute Resolution, in this case the plaintiff asked the defendant to show him how to properly hit a golf ball. The plaintiff then said ‘All right, get back.’ He then set up a golf ball on a tee and explained how to set up properly to the ball, how to hold the club and how to start the swing. The plaintiff testified that he thought the defendant had moved back enough that he would not be in harms way, but did not confirm this visually before swinging the club.  Unfortunately, the plaintiff was not out of harms way, and when the defendant swung the club, he struck the plaintiff in the face causing severe injuries.

On these facts, the trial court determined that the defendant’s actions, at most, constituted negligence, requiring that the case against him be dismissed, which in my opinion, was the correct decision.  Often, states require a showing of recklessness in cases involving sports injuries and the conduct in this case does not sound to me to fit the definition of recklessness cited above.

The appellate court disagreed holding that the judge erroneously usurped the role of the factfinder by making findings of fact and liability in matters in dispute between the parties.

I disagree, on these facts, a judge could easily have concluded (in response to a motion to dismiss) that reasonable people would not disagree that the evidence presented did not support a finding of recklessness.

Instead, the court of appeals held that there exists a material fact in dispute concerning whether the defendant "made appropriate observations prior to swinging the golf club consonant with the attendant risk of significant injury to a bystander."

And there is the problem:  saying that we have to decide whether someone "made appropriate observations prior to swinging the golf club consonant with the attendant risk of significant injury to a bystander" is a long way of saying whether the actor acted unlike a reasonable person would have under the circumstances, which is, of course, the standard of negligence.

In other words, the court decided that holding the case was a negligence claim was wrong, but then remanded so the jury could decide the case based on applying a negligence standard.

The case is called Spataro v The Stakemaster and you can read it here.

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.

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.

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.

More violence in football

By now I am sure you are familiar with the story about the high school football players who attacked an official in the middle of a game last week.  Well...  here is another incident.  For the second week in a row, a San Antonio-area high school is dealing with a player who hit an official in the middle of the game. Here is the video.

Not to be outdone, the pros began their season today and here is a video of Bengals player PacMan Jones ripping an opponent's helmet off and pushing the opponent's head into it after the play was over.

As in the story from last week, the torts issue is the same.  Are these incidents within the scope of the consent to the "inherent risks" of the game?  Is the conduct within the "customs" of the game?

UPDATE (9-14-15):  It sounds like PacMan Jones will not be suspended for his conduct.

Battery during football game or consent?

After just one day into the high school and college football season, we now have several examples of cheap shots and concussions to write about.  However, the most disturbing is the play in the video below which shows two players in a high school team attack a referee. The incident took place during a game at Marble Falls High School, northwest of Austin. The attacking players are from John Jay High, in San Antonio's large Northside Independent School District. Their team was losing and the referee had called at least one penalty on the team before the two players apparently decided to take matters into their own hands.



As any first semester law student knows, there are some cases that discuss the fine line between battery and contact within the customs of a sport.  In negligence language, it is often said that players assume the inherent risks of the sport.  For the same reason, so do the umpires and refs.  I don't think anyone would dispute that baseball umpires assume the risk of getting hit by balls, having runners run into them and getting yelled at or criticized by players.  These are known risks.  In football, some of the refs have to be positioned close to the plays and it is not uncommon to be pushed or run over.

However, I don't think that refs assume the risk of being intentionally attacked from behind by players.  The conduct of the players involved in this video is inexcusable.  They should be expelled from the team and if their conduct was suggested or even condoned by their coaches, they (the coaches) should be fired.  There is no place for this in sports.  Knowing what we know about concussions in football, this vicious attack on the ref could have caused him serious injury.

The Marble Falls Police Department is conducting an investigation and I will try to update this post when I hear more.

UPDATE (Sept. 7, 2015):  ESPN is reporting that the two players who attacked the ref have been suspended from the team and from school pending the investigation.  It also reported that the Austin Football Officials Association wants to make sure the two players are not allowed to play football again.  I would support that decision. Slate also has the story here.  NPR has an update here.

UPDATE (Sept. 8):  Slate is now reporting two new pieces of information:  the students are claiming the ref used a racial slur toward them and the  school district it is treating the incident as an assault on a school official, an offense that could lead to expulsion. 

Tony Stewart Sued For Wrongful Death By Family Of Kevin Ward, Jr.

You may remember a race car accident last year in which a driver got out of his car and started walking on the racetrack yelling at the driver that hit him. That driver, Tony Stewart, then hit the first driver, Kevin Ward, who later died from his injuries. ESPN is now reporting that Kevin Ward's family has filed a wrongful death lawsuit against Tony Stewart.

It will be interesting to see how the court addresses the claim because it raises several issues.  First of all, drivers who engage in race car driving assume the inherent risks of the sport, one of which is death.  However, the plaintiffs will argue that the plaintiff does not assume the risk of having a car driven into him the way Stewart did in this instance.  In reply, Stewart will probably argue that Ward was contributorily negligent in walking on the race track as the race was ongoing.  Depending on the rule in the jurisdiction, this argument may be enough to win the case for the defendant.

According to the lawsuit, Stewart gunned the throttle of his car to kick the tail end out as he drove by Ward, unlike the other cars that had passed through that section.  “Stewart could have easily acted reasonably and with prudence to avoid striking Ward, just as all other drivers had done as they passed Ward during the yellow caution flag,” reads the lawsuit. “Stewart acted with disregard for Ward’s life and safety by driving his vehicle in a manner that would terrorize Ward ...”  In other words, the plaintiffs seem to be arguing that Stewart purposely tried to scare Ward.  If that is the case, I wonder if they also included a count for battery in the complaint.

Here is a video of the accident itself:

Jury finds for the defendant Kansas City Royals in the case for injury caused by mascot

Long time readers of this blog might remember the case filed against the Kansas City Royals seeking compensation for an injury caused by a hot dog thrown by the team's mascot into the crowd.  My first reports on the case are here and here (including links to comments on the claim and to the original complaint).  My most recent posts on it are here (with a video) and here.

Eventually, the case went to trial and the jury found for the defendant. However, the Missouri Court of Appeals reversed the judgment and reinstated the case against the Kansas City Royals. Then, back in June 2014, the Missouri Supreme Court ruled that being hit in the eye with a flying hot dog is not an inherent risks of watching a baseball game and that, therefore, the  trial judge wrongly asked the jury to consider the defense of assumption of the risk.

The case went back to trial and just recently the jury found for the defendant.  The Kansas City Star has the story here.

The lawsuit that could be the end of pee wee football?

Here is a story about a lawsuit recently filed in federal court in Wisconsin by the mother of a young man who committed suicide.  The lawsuit claims that the plaintiff's son’s involvement in a football program for children between the ages of 11 and 14 led to traumatic brain injury that eventually sent him into a spiral of paranoia and depression, culminating in his death.  You can read the complaint here.  It reads like a protest poster against football.  In it, the complainant argues that football is not a contact sport, but a combat sport and cites a number of famous football personalities describing the violent culture of the sport.  In short, the complaint argues (using several different theories of liability) that the defendant should be liable for allowing young children to play football.

The argument is interesting, but I don't think it has a good chance. There is no question that football is a dangerous sport, but courts are reluctant to recognize claims for injuries suffered in sports as long as the injury occurs as part of the rules and customs of the game.  Also, participating in the sport is voluntary and I am sure the parents signed a waiver when they decided to sign up the child for the league.  This brings up the defenses of implied assumption of the risk and express assumption of the risk.  Finally, the defendant will probably argue that the decision to commit suicide should be seen as a superseding cause - although that may be left to the jury if it can be argued that it was an "irresistible impulse."

The article points out that the plaintiff has been "quite vocal in her position that tackle football for kids should be abolished, and she hopes that her suit will lead to exactly that result, by making the activity too expensive to carry on."  Frankly, maybe kids football should be abolished, but I am not sure that this lawsuit is the best way to achieve that goal.