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.