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:negligence;
culpable conduct;
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.
Ralph Nader was the first to lead the charge against the corporate welfare of building stadiums for billionaire owners. Sadly, he has lost that battle. Not one dime of taxpayer money should be spent on ballparks.
I do believe the folks from Ferguson and UMizzou have found their next protest opportunity.
Paul & Stevegroen,
I do want the Rams to stay. However, the final bill, over 35 years, for taxpayers, will be $239 million?!?!?!
Do I want the Rams to stay for that much?!?!
RWL, I feel your pain. The City of San Diego spent $350 million it didn’t have to build an absolutely beautiful bayside stadium for the Padres (PetCo Park), who’ve been in the cellar ever since. I don’t know whether the park and the outrageous ticket prices to pay for it are worth it. How can it be worth it when the City gets the taxpayer to pay for it, many of whom are not baseball fans? About the same time that this deal went through, the City was contemplating a petition for bankruptcy protection. Astonishing lack of fiscal maturity from the city council.
The Rams need to move to LA. Stan Kroenke does not deserve Saint Louis subsidies in the millions. Saint Louis does not need a pro football team on the terms that the NFL wants. If LA will not take the Rams then perhaps Mexico City. They play very few home games a year and if the Dome is not good enough then please leave.
I wonder what they’re going to do with all of those slippery slabs, which were ultimately displaced from the stadium? I’m a big proponent of recycling. Waste not, want not. I wish that the concrete slabs could find a new home, where they could be put to good use. Perhaps the quad at Mizzou could be resurfaced with those things?
I think I saw a cop push him.
No wonder you are blogging about it.
When he ran out of bounds he went into a different zone and cannot hold the city or owner of the property liable. Had there been concrete or a hole in the field it would be another matter. Stay in bounds. If he was out on the street he would be out of bounds. If he was in Illinois he would be out of bounds. Why would Illinois be liable because he hazardly ran into some concrete or other item in full view. A cross claim for destruction of property is in order.
BarkinDog – they knew it was a hazard from the previous game. Should have been fixed.
Oxa, general Workers Compensation laws bar only actions against the injured person’s employer. They wouldn’t bar an action against a third party property owner who allegedly created/maintained a dangerous condition causing injury. There are some exceptions where the person is actually employed to provide services to the third party, but it doesn’t seem that would apply here.
Oxa, I did work for an attorney who represented NFL players in career ending injuries. His primary job was representing insurance companies defending work comp claims but he also did some applicant work as well.
Make him go through the workers’ comp system like everyone else who is injured on the job.
If Reggie really wanted to avoid falling onto dangerous and slippery surfaces, he would’ve stayed off of Kim Kardashian.
So maybe the Rams will skip town and go back to Los Angeles, to evade these hazardous working conditions?
RWL writes, “Now the City & County of St. Louis wants us to pay $100 million towards the new, proposed football stadium. Thanks for the new law, voters must approve of new taxes for public stadiums in Missouri. However, I am wondering if the state legislature, governor, city alderman, and/or mayor can override this law, and still make the voters/tax payers pay for the stadium?”
If I were the NFL, I’d allow the Rams to relocate to Carson. More revenue for a revenue monster. So what do the City and County of St. Louis do but tax to get a new stadium to keep the Rams in St. Louis? Quite the conundrum.
Please do it. I don’t want the Raiders to leave Oakland and form a Taco Bell/KFC franchise partnership with the Chargers in LA.
Because St. Louis would not pick up the bill before Arizona got stuck with the Cardinals. Now they are whining again when the bill comes due.
The jury on this one is going to see everybody throw everybody else under the bus.
Football is primarily a gladiator event. There are many and diverse examples of athleticism and good sportsmanship but the overall intent is to see mayhem. This is also true of NASCAR. No one sits for hours watching cars go around and around unless every once in a while, some of these cars explode into fantastic visual delights.
The fans want the hits, crunches, and other wonderful collisions. When a body gets carted off the field there is a silence not to be found outside of Arlington. Football represents a mini war that must include destruction and mayhem.
For this the participants are paid enormous sums of money and live a hedonistic life not seen since when the sport was conceived back in the days of the Coliseum in Rome. They are placed on pedestals, get all the pretty girls, and sometimes are even quoted in newspapers.
This business of dangerous areas in the sidelines is totally out of color. Instead of reducing the dangers inherent to the field there should be more stuff thrown in the way of these gladiators. Imagine a running back evading 350 lb whales and broken glass, old tires, and planks with spikes sticking out. Imagine an area with a chained rabid dog, perhaps a police K-9 that had been taunted by someone in a football uniform. Now that would be worth the price of admission. As it stands the sport is being dumbed down to a state of pablum.
HSB, Often times the defendant, in this case the City of St. Louis and their insurance carrier, brings in other defendants, like the architect, private maintenance contractors, etc.
Sue the architect? how about the contractor, the City, the Team who is the tenant, of course the water boy and the guy who pushed him out of bounds, all the knowledgeable fans who did not boycott the games because there is a slippery place in the arena where Reggie could be hurt. Did I miss anyone who is potentially negligent.
The insurance companies will come to some sort of agreement and it will be settled out of court.
He’s got 8 rushes this year for 28 total yards with a 3.5 yard average. The rest of the league has a 5.1 yard average. How crappy is it to be over the hill and to banged up after 10 seasons at age 30.
I played all the way up until my sophomore year in high school before deciding that I didn’t want to be injured for life like so many of the players end up. In a Pop Warner League game, I had 5 inceptions and 5 TDs as the Quarterback and halfback on defense. Back them it was a 120 pound max, so you didn’t get creamed by some 220+ pound brut like in high school. Our defensive line in high school, this is 1970 mind you, averaged 220 lbs and we took second place in the State that year. Some friends and I would sometimes play football on Ft. Lauderdale beach in a slightly lighted area instead of going to some of the night games. Tackle with no pads and no one got hurt. It’s always more fun to play than watch any sport. The masses do like their sports.
I know you love football Jonathan, but it is sort of a barbaric brutal game at the college and pro levels. They have the young kids taking stroids before and in college before they go to the pros and start getting tested a lot.
Now the City & County of St. Louis wants us to pay $100 million towards the new, proposed football stadium. Thanks for the new law, voters must approve of new taxes for public stadiums in Missouri. However, I am wondering if the state legislature, governor, city alderman, and/or mayor can override this law, and still make the voters/tax payers pay for the stadium?
I have seen the slip and fall by Bush. The surface where he fell is like an ice rink. When I learned about the Subsequent Remedial Measures rule decades back, I thought it unfair. But, I learned it is well founded. If, something is hazardous, you do not want there to be disincentive for that hazard to be fixed. But, as JT pointed out, sharp plaintiff attorneys often get it “slipped” in.