This week my two great loves have finally been joined. Tort law and football have come together with a lawsuit planned by San Francisco 49er running back Reggie Bush against the city of St. Louis for a slip-and-fall injury at the Edward Jones Dome during a game. With Raiders Linebacker Ray-Ray Armstrong reportedly under criminal investigation for taunting of a police K-9. As he ran out on to the field for the game against the Steelers at Heinz Field, this month is proving a virtual litigation scrum.
Reggie Bush was playing the Rams when a defender pushed Bush out of bounds at the end of a punt return. Bush slipped and fell on a concrete border that surrounds the playing field at St. Louis.
Edward Jones Dome is owned and operated by the city of St. Louis. What will make this lawsuit particularly interesting is that just a week before Cleveland quarterback (and former Bear) Josh McCown slid on the same area into the padded wall and was injured (though he returned to the game). Bush was not so lucky and is out for the season.
Tort law has occasionally invaded the gridiron. We cover such cases in torts in the context of Hackbart v. The Cincinnati Bengals involving a game between the Denver Broncos and the Cincinnati Bengals in Denver in 1973. The Broncos’ defensive back, Dale Hackbart, was injured by a blow by Bengals’ offensive back, Charles “Booby” Clark. The court ruled that the hit fell outside of the NFL rules and thus Hackbart did not consent to such a battery. The reason was that the hit violated the rules of the game. However, there was no discussion of whether the rules of the NFL differed from the practices or industry custom.
The case has classic elements to a negligence case if this concrete border is an aberration for stadiums, which it may be. It does seem odd to have a concrete surface in an area of highly foreseeable traffic and potential slips. In torts, we often use the Hand formula to determine negligence: B < PL. B stands for burden; P stands for probability, and L stands for loss. When the B is lower than the PL, negligence is generally present. In this case involving the replacement or covering of the concrete would seem to present a relatively low B while both the P and L are high. Indeed, having a safer surface would protect not just players but news personnel, trainers and others on the sideline. There is obviously an inherent danger on the sideline but that does not mean that it could not and should not be reduced.
The NFL has reportedly contacted St. Louis to address the problem and changes may have been made. Such changes are normally barred from admissibility under rules like 407:
Rule 407. Subsequent Remedial Measures
When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:
a defect in a product or its design; or
a need for a warning or instruction.
But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.
This evidence can be introduced if a witness trips the wire on examination however and often finds its way into trials.
In the meantime, I would like to be retained by the NFL to come up with the appropriate referee signal for pending lawsuit under review. I suggest a running motion (as if after an ambulance) or the rubbing of the thumb over the tip of the index finger and middle finger. While other plays are reviewed automatically in New York under the rules, I would be happy to review all NFL lawsuit fouls in Washington.