Tag Archives: injury

Suffering Sports Spectators: The Canadian view on liability for injuries to spectators at sporting events

October 10, 2014

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By Danika Heighes – Thompson Rivers University 3L JD Student

Sports, especially contact sports such as hockey, have an inherent risk of injury. When players take to the ice they assume liability for their possible injury within the regular course and scope of the game. The logic behind the assumption of risk doctrine is quite sound: a player provides consent for the activity in question after being fully aware of the risks involved in that activity. But what happens, when the injured party is not a player, but a spectator?

Recently spectator injuries at Chicago Blackhawks games have resulted in two lawsuits. On June 12, 2013 during Game 1 of the Stanley Cup Finals, Patricia Higgins was struck in the face by a puck. Higgins was seated behind the safety net in section 115, in the southwest corner of the stadium, when an errant puck had flown up and under the protective netting to strike her in the face. As a result of the incident, Higgins suffered a bone-deep gash that required 20 stitches, a bruised retina, a concussion, and required reconstructive surgery. In July, she filed a lawsuit against the United Center for $50, 000, plus legal costs, claiming the safety netting wasn’t “functional” to protect her from the puck.

In September 2014, a second spectator lawsuit was filed regarding the Chicago Blackhawks. Gerald Green was seated in the northwest corner of the rink in the second row as the Chicago Blackhawks hosted the Minnesota Wild on May 2, 2014 in a playoff game. Although Green was seated in an area behind protective glass and the spectator netting, he was struck in the side of the head by a puck that flew over the protective glass at a high rate of speed. According to the lawsuit, Green sustained a “severe neurological injury”, has trouble formulating words, can no longer do mathematical equations and can no longer work to support his family of four. Green’s lawsuit against the NHL and the United Center claims negligence, seeks at least $200,000 in damages and expects the team to extend its safety netting further around the rink. In addition, Green claims he was not warned of the serious risk associated with being hit with a hockey puck.

Which brings us back to the question: who is liable for a spectator’s injury at a sporting event? Specifically in Canada, spectators at a sporting event are assumed to have accepted the ordinary, reasonable, and foreseeable risks associated with attendance. Nonetheless, in general, when a spectator is injured an action will be brought against the occupier of the facility where the sporting event was held and potentially against the individual participant, team, or league. The principle behind this is that the occupier has a duty to ensure that the premise is reasonably safe. However, as the great cricket case of Bolton v Stone illustrates, there is a difference between guarding against foreseeable risk and an absolute guarantee of a completely risk-free environment. Thus, when the courts determine whether an occupier has discharged its duty of care, they consider the nature of the sporting event, any inherent risks, whether the spectator can foresee those risks, and the industry standard for safety precautions. The United States, however, has a very different set of rules governing spectator injuries.

The current NHL industry standards regarding spectator safety has been in place since the 2002 death of a 13-year-old girl. Currently every arena has safety netting which is roughly 120 feet wide and 30 feet high. This netting is consistent with European hockey leagues, and minor leagues. In addition, every hockey ticket sold in the NHL has a waiver of liability written on them asserting that the spectator assumes any risks inherent to the sporting event, including “flying pucks”. The lawsuits both allege that the current netting does not protect spectators. However, both Higgins and Green were seated in the lower bowl, where the risk of a flying puck is greater than other sections. In fact, the appeal of the corner sections is that the line of sight is not encumbered by the netting.

Frankly, the current standards guard against reasonably foreseeable risk, even if they do not absolutely guarantee a completely risk-free environment. How can any spectator at a hockey game state that they were not warned of the serious risk associated with being hit with a hockey puck? At some point, a spectator must take liability for their own safety at a hockey game where it is reasonably foreseeable that a puck will leave the ice during the course of a game.

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Alpine Canada applies the brakes to ski racing

May 31, 2011

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Alpine Canada, the national governing body for alpine and ski cross racing, announced a series of measures aimed at improving safety in domestic ski racing as well as a strategy to work with FIS (the International Ski Federation) to improve conditions at the World Cup level.

The changes are in response to a rise in serious skier injuries; more than half of Canada’s national team didn’t compete throughout the 2010-11 season due to injury (read article here). Erich Mueller, a ski safety expert from the University of Salzburg and a member of the injury research team for FIS, says that 42% of World Cup skiers suffered injuries in 2009 and that 23% of those injuries resulted in athletes missing at least eight days of training and/or racing (read article here).

Kelly VanderBeek, a skier on the national team, opines that, ‘We know there are risks but we’ve gone too far.’ VanderBeek appreciates that ski racing is an inherently dangerous sport but qualifies it: ‘It doesn’t have to be this dangerous. It’s just taken a quantum leap in the severity’ of injuries sustained by skiers.

Max Gartner, President of Alpine Canada, correctly notes that, ‘In order to have a sport with a good balance between risk and reward’ it is necessary to recalibrate and rethink their approach.

Changes include (see Alpine Canada’s press release here):

  • avoiding the use of injecting water into the snow thereby making the slope resemble a skating risk to make the course hard and fast
  • setting courses in Canada with a focus on reducing speed
  • lobbying FIS for different ski suit materials to be used at the elite/World Cup level to create more drag and slow down ski racers
  • recommending mouth guards and back braces be used at all levels (their cost can be prohibitively expensive so they aren’t yet mandated)

It is noteworthy that in a sport where the need for speed is essential for winning, the national governing body for alpine and ski cross racing has recognized that the best courses and gear needn’t be the fastest. Alpine Canada has appreciated that the technologically-inspired means of making skiers go faster has disrupted the balance between risk and reward and have accordingly and properly taken measures to slow things down.

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Fore-warned is….. irrevelant: Anand v. Kapoor, 222, New York State Court of Appeals (Albany)

January 31, 2011

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Read the Case transcripts here: http://www.newyorkinjurycasesblog.com/uploads/file/Court%20of%20Appeals%202010.pdf (2010) and http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03110.htm (2009 Appellate)

This case concerned an amateur golf game on Oct 19 2002 between three friends: Dr Anand, Dr Kapoor and Balram Verma in Suffolk County. Each player had hit two shots and separated to retrieve their respective golf balls. (While Dr Anand’s landed on the Fairway, Kapoor’s landed 20ft or so behind it in the rough).

On finding his ball, Dr Kapoor, unaware of where the other golfers were, decided not to wait and took his next shot. Unfortunately he shanked it 50 degrees and struck the claimant in the eye, causing retinal detachment and a permanent loss of vision. The claim focuses on whether the failure to warn the other players (by shouting “fore”) amounted to negligence. For a discussion on why some commentators think the claim should have been made in recklessness, see: http://overlawyered.com/2009/05/new-york-court-says-golfers-arent-required-to-yell-fore/comment-page-1/#comment-47831 and http://www.newyorkinjurycasesblog.com/2009/05/articles/eye-and-vision-injuries/newest-ruling-in-golf-course-cases-plaintiff-hit-in-eye-by-errant-shot-loses-vision-and-case/

The Supreme Court, Appellate Division Second Department, and now the New York State Court of Appeals dismissed the complaint and granted summary judgment on two grounds:

  • Anand was not in the foreseeable “zone of danger”.  Effectively, the Court held that while there was an obligation to yell “fore” if the other person was in such a “zone”, this was not the case here as the claimant was at least 50 degrees and 20ft away from Kapoor. A misdirected shot of such poor quality could not therefore be foreseen so no warning was needed. (The Judge obviously hasn’t seen me play!)
  •  Even if he was in a “zone of danger”, the Court held that Anand assumed the risk of injury by playing golf. Indeed, even though Kapoor did not call out “fore” or any other warning, this did not amount to intentional or reckless conduct or unreasonably increase the inherent risks of golf.

Interestingly, CBS reported (http://www.cbs12.com/articles/anand-4730174-kapoor-golfer.html) that Anand’s counsel unsuccessfully argued that the zone of danger differed with the skill of the player (reminiscent of Condon v. Basi – different duties of care for different leagues anyone?)

What nobody so far seems to have picked up is the difference between UK and US Golf. In the UK case of Pearson v. Lightning (1998) 95(20) LSG 33, which concerned a similar eye-injury from a mis-hit ball out of the rough, the defendant was held liable for his decision to play the shot at that particular time given the presence of other players ahead of him. Lord Justice Simon Brown in giving the leading opinion for the Court of Appeal stated that the risk of a mis-hit was a real risk for every golfer and this risk was increased by the lie of the ball in the rough.

Recklessness was also addressed by the claimant’s expert witness who stated: “I find it difficult to understand how players of handicaps as high as sixteen and above undertake shots over trees with players within one hundred yards of where they are hitting from. In my opinion, it is absolutely reckless and inconsiderate and a complete breach of the etiquette observed by sensible players.”

While the rules of golf might be the same the world over, it would seem that “zoning laws” have different interpretations depending on where the case is brought.

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Lies, Damned Lies and Statistics,

June 27, 2010

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Source: Harrison (A Child) v. Wirral Metropolitan BC (19/3/09) (unreported), Liverpool County Court, (Zurich Case)

Echoing the famous House of Lords authority of Bolton v. Stone [1951] 1 All ER 1078, a similar case was recently brought by a six year old boy struck by a golf ball while he was in a park adjacent to a golf course. The boy alleged the golf club (not literally the driver used but the organisation!) were liable in negligence for:

  • Not having built a higher fence (Bolton)
  • Using a fence with broken wire mesh in places which would allow a ball to pass through
  • Failing to put warning signs in place (although I would be impressed by a six year olds reading prowess, it may be pictorial signs might have been better?)
  • Failing to carry out a risk assessment (Poppleton / Uren)

By contrast, the defendants suggested that a 4m high fence was suitable and therefore satisfied their duty towards the public. They also suggested that the risk of a golf ball leaving the area and striking someone was so small that it did not justify further precautions being taken (the Bolton argument). Liverpool County Court heard evidence that in the five years prior to the incident, there had been few, if any, misdirected golf balls leaving the area and no previous injuries reported in that period. While these statistics are not as impressive as those cited in Bolton, they are enough to suggest that the defendant club had met their duty of care. Given these conclusions, while the injury was a tragic accident caused by golf, the claim against the club failed.

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Johnny Benson hospitalised in ISMA race

July 2, 2009

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Sources: http://www.autoracingdaily.com/news/modified-racing/video-johnny-benson-jrs-crash-at-berlin-raceway/; http://sports.espn.go.com/rpm/nascar/truck/news/story?id=4264274;

Johnny Benson (reigning NASCAR Camping World Truck Series champion) was hospitalised after his car collided with another car (driven by Larry Lehnert) before bursting into flames in an International SuperModified Association (ISMA) 50-lap race at the Berlin Raceway (nr Grand Rapids, Michigan) on Saturday 13th June.

Although Benson was taken to hospital (with reported burns and broken ribs) he was discharged three days later and is expected to make a full recovery, Lehnert was not injured in the crash.

A Youtube video of the crash can be found here:

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Talladega Afternoons: The Ballad of Carl Edwards

July 2, 2009

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Sources: http://www.nascar.com/2009/news/headlines/cup/04/26/post.race.fans.injured.talladega.cedwards/story_single.html#page2 http://www.telegraph.co.uk/sport/motorsport/5231092/Nascar-investigate-Carl-Edwards-crash-after-seven-spectators-injured.html

A collision between two cars (driven by Brad Keselowski and Carl Edwards) at a NASCAR race led to Edwards’ car crashing into perimeter fencing on the final lap of the Sprint Cup Series Aaron’s 449 race at the Talladega Superspeedway (Alabama) on Sunday 26th April.

Seven spectators were struck by flying debris from the collision and suffered non-life-threatening minor injuries (including a suspected broken jaw and minor contusions / fractures). An additional spectator sitting in the same grandstand also suffered chest pains after she had witnessed the incident (possible primary psychiatric damage anyone?), while Edwards himself was able to jog from his car across the finishing line.

According to both a NASCAR official (Jim Hunter) and the medical director of the track (Dr. Bobby Lewis), it was not possible to say with any certainty whether the pieces of debris came from Edwards’ car or from the fence that absorbed the impact, what is important though is that the retaining fence stayed intact and kept the wreckage of the car on the race track. Without this fence, there is no doubt that the injuries could have been fatal.

See also critical reaction from Joe Menzer (from NASCAR.com) who suggests that further safety changes need to be made in order to make the track safe:  http://www.nascar.com/2009/news/opinion/04/26/one.menz.jmenzer.talladega.safety.cedwards/story_single.html#page2

You can see a Youtube clip of the crash here:

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Albrecht recovers

February 20, 2009

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Source: http://sports.theglobeandmail.com/servlet/story/RTGAM.20090126.wsptskier0126/GSStory/GlobeSportsOther/?page=rss&id=RTGAM.20090126.wsptskier0126 ; http://www.cbc.ca/sports/story/2009/02/13/albrecht-recovery.html

On January 22nd, reigning world champion Swiss skier, Daniel Albrecht, lost control and crashed while skiing down the notoriously difficult Streif course in Austria while preparing for a competition. Albrecht suffered brain and lung injuries and had to be treated by medics at the site for 20minutes before being taken to a nearby hospital. There he was put into an induced coma in order to give his body time to recover.

Three weeks later and doctors have now suggested that Albrecht has not suffered any permanent damage and had full movement in all of his limbs. Albrecht has now returned to his home in Switzerland to complete his recovery.

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Fashionable Fan

February 19, 2009

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Source: http://football.uk.reuters.com/world/news/LA784694.php

Reuters report that: A number of fans were injured during a Brazilian football match on February 10th, between Vitoria and Bahia. Apparently, “A female fan, who was wearing high heels, lost her balance and fell on top of another fan and this led to a domino effect. This led to some panic and some fans were slightly injured. They were quickly treated in the five ambulances by four doctors and eight nurses.”

A statement issued by the club denied media reports that upto 50 fans had been injured, some seriously.

 

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Monster Truck Death

January 19, 2009

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monster-jam-truck-game1

Yet another injury to spectators watching a sporting event, this time it concerned spectators at a Monster Truck Show in Washington, USA. A piece of the drive train from one of the trucks came loose and catapulted into the crowd on Saturday night killing a 6yr old boy and injuring another spectator.

“Witnesses described the boy, Sebastian Hizey, being struck in the head by a Frisbee-sized chunk of metal that tore off a truck doing doughnuts during the Monster Jam show Friday night in the Tacoma Dome. Police gathered loose parts of the drive train and the drive train loop, a special monster truck device that is supposed to hold the drive train on the vehicle, Bill Easterling, senior operations director for Feld Motor Sports of Aurora, Ill., told The Associated Press on Sunday. He said he could give no further details or description of the loose parts, including where they were found. “I’ve never seen the loop or the drive shaft parts come off like this,” said Easterling, whose company is the promoter of the show. Tacoma police Officer Mark W. Fulghum said no further information on the parts or other aspects of the investigation would be available before Monday at the earliest.

The second spectator struck by debris was taken to a hospital, but authorities haven’t disclosed his name or condition.”

Source: http://www.google.com/hostednews/ap/article/ALeqM5gIDYmzSgjWCSJqnGyeUzktyhrKxgD95PS9G80

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Because nobody knows who did it, i’ll sue you all!!!

January 19, 2009

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Newspapers report that four cricket teams are being sued in negligence for an alleged injury to a parent hit on the head by a cricket ball at Ilford Cricket Club.

At the end of the session, the mother of one of the cricketers apparently walked into the middle of the pitch to talk to the umpire to see how her son had done, when she was hit by a cricket ball from the teams warming up. Because her back was turned she did not know which team hit the ball towards her, so she is suing all of the teams present in the room on a no-win, no-fee basis!

Source: Daily Telegraph: http://www.telegraph.co.uk/sport/cricket/4269880/Cricket-teams-face-legal-bill-after-mother-hit-on-head-with-ball.html

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