Idaho Baseball Fan Who Lost His Eye Allowed to Sue

In another tragic story similar to the NASCAR post yesterday, an Idaho man who was struck by a foul ball and lost his eye, will be allowed to seek damages from the Boise Hawks, a minor league team in the Chicago Cubs farm system.

The Idaho Supreme Court decided not to apply the “Baseball Rule” in this case allowing the case to proceed. The “Baseball Rule” generally absolves stadium owners of liability for these types of injuries as long as they take reasonable precautions in protecting spectators; in other areas of the stadium, fans assume the risks of attending the game, which include being struck by a foul ball.

The issue that will be argued should this case go to trial is whether the team provided adequate protection for fans.  A number of questions will arise in determining whether the team and stadium owner are held liable: Should the team have provided netting or screens for fans that are not in areas of the stadium where they are watching the game (i.e. concession stands)? Was that netting installed properly, strong enough and high enough? Did the team provide adequate warnings to fans in certain areas of the park where foul balls or fly balls might be common? As you can see, the Court’s decision not to apply the “Baseball Rule” opens the team and stadium up to a lot of criticism and possible financial liability.

Another question that may arise similar to the question in the NASCAR case, is the issue of the disclaimer on the back of the ticket and whether it absolves the team and owner of the stadium of liability. Courts have gone both ways on this issue. It can be said that the disclaimer on the back is a contract: When you purchase a ticket, you agree to the terms including those on the back. However, many courts may rule that if the ticket-holder was not made aware of the disclaimer on the back, it is not a valid contract. Is it fair that after you agree to a contract, additional terms that you were unaware of are used against you? Not so much.

To protect themselves from suits such as this, teams can provide the disclaimer on the back but also must be able to show they provide reasonable protection and warning for fans in dangerous areas of the ballparks. In addition, providing on-site emergency medical services and warning fans through PA announcements can reduce the possibility of a successful lawsuit against them

Although in this case, the Court decided the “Baseball Rule” does not apply so the Idaho fan is able to sue, it is recognized by many jurisdictions and therefore it may be difficult to sue a team if you’re injured. Regardless of where you live or attend a game, if you are at a sporting event where there’s a risk of flying objects at high speeds, keep your head up!

Drake and Chris Brown Sue Each Other for W.i.P Nightclub Brawl

In case you haven’t been following the Drake vs. Chris Brown feud, the narrative stemming from their brawl at W.i.P nightclub in NYC last year is now growing. Spurs guard Tony Parker’s lawsuit against the nightclub has been revised to include Brown’s recent outburst against singer Frank Ocean over a parking spot (come on now, we’ve all been there). Parker mentioning this story in his lawsuit, in addition to Brown’s 2009 beating of his girlfriend Rihanna, helps his case against the club by showing it was negligent in allowing Brown into the club without adequate security. Parker’s lawsuit is based on the fact that it was foreseeable that a fight may break out by not only allowing Brown and Drake into the club, but placing them in VIP booths close to each other. By providing further evidence that Brown is a violent person, Parker has strengthened his case, putting more pressure on the owners of the nightclub to settle.

In addition, Brown and Drake are being sued by a French (male) model named Romain Julien for injuries he sustained during the fight (turns out there is more to life than being really really good looking). In response, Brown and Drake are suing each other, the first time they are going after each other in court. In effect, if Julien wins his lawsuit, a judge will have to decide whether Brown or Drake is responsible for paying up.

Briefly, the lawsuits by Brown and Drake against each other are called crossclaims and are allowed under Rule 13(g) of the Federal Rules of Civil Procedure. Basically, the suit between the defendants must “arise out of the transaction or occurrence” the original claim was based on. In this case it’s not too complicated; Julien is suing for injuries sustained in the fight and Drake and Brown are suing each other saying the other caused the fight in which Julien was injured. It may be difficult to substantiate who started the fight because witnesses are limited and even if enough witnesses are found, their stories can be called into question on a number of factors including how dark the nightclub was and how much they had to drink that night. The court may choose to apply the rule of comparative negligence which would allocate the amount of damages between Brown and Drake in proportion to how responsible each was in causing the injury to Julien.

Here’s some advice for all parties involved: Grow Up.

Injured NASCAR Fans Hire an Attorney

Imagine going to a sporting event and seeing a 200-pound engine flying at you at over 200 miles per hour – quick what would you do? (I say duck and call Morgan and Morgan). The recent injuries to fans watching a race at Daytona last weekend have led at least three fans to hiring an attorney (they actually hired Morgan and Morgan). Here is an overview of why they may have a case and what defense may be used to counter a lawsuit.

The fans that were injured will likely sue NASCAR and International Speedway Corporation (ISC)(who owns Daytona International Speedway) for negligence. The theory of negligence is based on the fact that the defendants (NASCAR and ISC) owe a duty of care to the fans that come watch their events.

For the fans suing to actually win in court, they would have to prove that the defendants were negligent in some aspect of protecting the fans from injuries. An example would be to prove the fencing NASCAR uses between the track and the seats is not strong enough to protect fans from flying debris (or in this case an engine). Proving that the fencing was not strong enough is likely not enough to prevail in court however. The fans would have to prove NASCAR knew the fencing was not strong enough and could lead to injuries to fans but failed to do anything about it.

In addition, NASCAR tickets, like many other major sporting event tickets, contain a disclaimer on the back.  The disclaimer on the back of the Daytona tickets read:

“The holder of this ticket expressly assumes all risk incident to the event, whether occurring prior to, during or subsequent to the actual event, and agrees that all participants, sanctioning bodies, and all employees, agents, officers, and directors of Daytona International Speedway, its affiliates and subsidiaries, are hereby released from any and all claims arising from the event, including claims of negligence.”

The theory these disclaimers are based on is ‘assumption of risk’ – meaning fans are aware of the inherent dangers of attending a sporting event and assume the risk of injury. The disclaimer is probably strong enough to hold up in court but the issue is whether NASCAR is willing to gamble on that. You are never guaranteed to win going to court and although NASCAR requires tracks to hold $50 million of insurance coverage for claims like this one, juries are unpredictable and if they award lets say, $55 million, then NASCAR is $5 million in the hole.

Because of the risk of losing, NASCAR and ISC may end up settling in this case. Settling would be smart, not only to protect themselves from greater financial loss in this case, but also from a public relations perspective. NASCAR doesn’t want a long drawn out trial highlighting the dangers of going to watch one of their races.

Legal Implications: Junior Seau’s Family Sues NFL and Riddell Inc.

As we head into Super Bowl week a foggy haze continues to hover over the NFL taking many forms, the most recent being President Obama’s comments about the sport of football in general and Baltimore Ravens safety Bernard Pollard’s theory about the future of the NFL. A more serious story that is clouding Super Bowl week comes in the form of Junior Seau’s family filing a wrongful death lawsuit against the NFL.

Seau’s ex-wife Gina Seau, his four children and Beth Hoffman, the trustee of his estate,  are suing the NFL claiming the former linebacker’s suicide was the result of chronic tramautic encephalopathy (CTE) which was caused by repeated hits during his playing career. Seau’s family is highlighting NFL Films in the lawsuit claiming the NFL glorified violent play through videos sold by NFL Films. NFL Films is a company owned by the NFL which produces most of its video content with the exception of live coverage of games.

In addition to suing the NFL, the Associated Press reports the Seau’s family is also suing helmet manufacturer Riddell Inc. claiming it was “negligent in their design, testing, assembly, manufacture, marketing, and engineering of the helmets”. Basically everything…including the kitchen sink.

The complaint details physical as well as behavioral symptoms demonstrated by Seau as early as the mid-90’s including “dizziness and other symptoms of concussion,” with a “noted change in his behavior and functioning.” In addition the complaint claims that Seau suffered from “erratic” behavior and showed “emotional instability”.

The lawsuit also contends that Seau became “a compulsive and manic gambler” which led to “gambling binges” and losses of “significant amounts of money”.

The NFL’s lawyers will likely begin fighting this lawsuit by asking for dismissal based on the statute of limitations having run. A statute of limitations sets the maximum time after an event has occurred that legal proceedings may be initiated.

If Seau was exhibiting symptoms through 2009 when the NFL came forward in front of Congress, acknowledged the problem and began taking action to remedy it, then the statute of limitations clock started ticking from that point on and the suit will likely be dismissed. The only exception may come with the discovery rule. The discovery rule allows for a delay on when the statute of limitations begins. If an injury was not discovered until a period of time after the injury occurred, the statue of limitations begins when the injury is discovered. In this case however, because the complaint details symptoms Seau suffered many years ago, the discovery rule will likely not help.

If the suit is not dismissed, Seau’s family will have to prove that Seau developed CTE from the hits he took while playing and that the NFL deliberately ignored and concealed evidence of the risks associated with repeated blows to the head and brain injuries from those hits. Seau’s family would have to prove this “beyond a preponderance of the evidence”, meaning they have to show there is more than a 50% chance that the NFL’s “acts or omissions” led to Seau developing CTE which eventually caused his death.

The suit against Riddell Inc. is a product liability lawsuit. There generally are three different types of product liability claims: manufacturing defect, design defect, and failure to warn. In this case Seau’s family is including all three of these claiming that Riddell Inc. was “negligent in their design, testing, assembly, manufacture, marketing, and engineering of the helmets” used by NFL players. A basic negligence claim requires the plaintiff (in this case Seau’s family) to prove:

• Riddell Inc. owed a duty to Seau and his family
• Riddell Inc. breached that duty
• The breach was the actual cause of Seau’s injury
• The breach was the proximate cause of Seau’s injury AND
• That Seau’s family suffered actual quantifiable injury or damages

Because of the statute of limitations it will likely be difficult for Seau’s family to prevail in this case as well. In the unlikely event the case is not dismissed prior to trial, it will be difficult to prove that Riddell fell below the duty of care it owes to those who use their products. If the case goes to trial, Riddell will likely have to show its entire process of creating the helmets including research, testing, design, manufacturing, and distribution. As long as Riddell shows they exercised ordinary and reasonable care in the manufacturing, marketing, and distribution of the product as well as providing sufficient warning labels, Seau’s family will have a tough time winning this case.

According to the AP, Seau’s family has issued a statement: “We know this lawsuit will not bring back Junior. But it will send a message that the NFL needs to care for its former players, acknowledge its decades of deception on the issue of head injuries and player safety, and make the game safer for future generations”.

Although Seau’s family may not win this lawsuit in court, it seems like they are more concerned with raising awareness of concussions in the NFL and in forcing the league to make changes. The question is, will these changes hurt the popularity of the game? Would you want to watch an NFL without the hard hitting plays we see every week?

NFL players using Adderall to gain edge on the field

When I started this blog, I promised myself I would be consistent in maintaining it and write a post at least twice a month (I came to the conclusion that visiting my own blog and re-reading old posts doesn’t count as maintaining). With over four months between now and my last post I clearly did not keep that promise to myself. After finally settling into the Washington DC area and my new school, I found a story that lit enough of a fire inside me to write again (either that or I desperately needed a break from studying for finals).

Let me start with the fact that I’m still struggling with the news that some NFL players have been using Viagra as a performance enhancing drug (PED). First of all, I would definitely not want to be in a pile with 300 pound linemen wearing tight pants and using Viagra. Aside from that, personally I would see the effects of Viagra as more of a hindrance than an edge, but I’m going to leave that story alone right now.

With the recent news breaking that NFL players have been using Adderall to gain a competitive advantage on the field, I couldn’t help but relate it to my first year of law school. It’s widely known that Adderall is used to enhance focus and concentration over an extended period of time and that students have used it to gain an advantage for years. With the competitive nature of law school, use of the drug is highly prevalent, especially among first year law students where your rank amongst your peers can largely determine your future success.

When I started law school, I decided that I was going to do everything in my power to ensure I was at the top of my class. I put every ounce of energy I had into school and made sure every second of my day was used to further my success in school. If I wasn’t studying, I was eating, sleeping, or working out, all designed to ensure I was able to study more. I won’t lie — when I found out many of my classmates were using Adderall to study, I began weighing the pros and cons of taking it. Being so focused on one goal and wanting it so much forced me to take it into consideration and maybe 10 years ago I would have tried it. Very quickly however, I came to the decision that I was not going to sacrifice my long-term health for a slight edge in school. In no way will I condemn anyone for using it, but I decided that my edge was going to be taking care of my health and outworking everyone. To an extent, it worked. I may not have done as well as I could have with the help of Adderall, but I did well enough to accomplish my goal of transferring to a first tier law school.

After I decided not to use Adderall, I couldn’t help but think about and compare my feelings to the feelings of baseball players during the steroid era. Barry Bonds (allegedly) used steroids and may not make it into the Baseball Hall of Fame (even that may still happen) but he arguably made millions of dollars more by using steroids and breaking Hank Aaron’s all time home run record (and the single season home run record ironically set by another steroid user). Compare that to a minor league player trying to make it to the majors without using PED’s. The minor league salary of a first year player is $2,150 per month ($25,800 annually) while the average annual major league salary is $3,095,183 according to MLB Players association. Clearly the financial reward is enormous just to make it to the Major League level but is it worth the long-term health risks?

It has yet to be seen how his alleged steroid use will affect Bonds’ health in the future, but in my (completely non-medical) opinion, very few people will coast through life with no health issues after prolonged steroid use.

I apply the logic above to my situation and continue to be proud of the fact that wherever I end up I will have done so knowing I did it without any help and without the fear of my health being affected later on in life.

My thoughts on NCAA sanctions against Penn State

Unless you’ve been hiding under a rock or you’ve locked yourself up Howard Hughes style you probably heard that the NCAA announced it’s sanctions against Penn State this morning. Rather than hitting Penn State with the “death penalty” (suspending football completely for a season or more), the NCAA chose to drop the hammer and use a combination of fines, bowl bans, and vacating of victories and scholarships. Here is an overview of the sanctions and my thoughts on each.

$60 million sanction on the university
This figure was reached by calculating the average annual gross revenue generated by the football program. The money will be required to be placed into an endowment to fund programs against child sexual abuse or to help victims. Not to minimize the impact the money will have on the programs or victims it will help but the NCAA helped improve public perception with this and possibly give Penn State a jump start on more fundraising for the same cause. One idea I heard from Bonnie Bernstein filling in for Dan Patrick on the Dan Patrick Show today was for Penn State to place donation jars around their football stadium next season. If each of the 107,000 fans donates $1 multiplied by 7 games, you have over $700,000 of funds raised to donate. Add to that, the possibility that many people will donate more than a dollar and the amount goes up. Either way, Penn State should take the ball from the NCAA and run with it.

Four year postseason ban and reduction of scholarships
I lumped these two together to compare them to the “death penalty” that so many people were talking about. The idea with a “death penalty” is to kill the football program all together for a year. This might sound like a just punishment at first, until you think about how many of the school’s other programs would be affected by it. The football program is the highest revenue-generating program on most major college campuses around the country and Penn State was no exception. Kill the football program and you probably kill the other 26 athletic programs Penn State has. Punishing the athletes in other programs who had nothing to do with the scandal is far from fair. So I’m glad the NCAA took account of this and decided to allow the football program to continue playing making money.

In addition, the four-year bowl ban and scholarship reduction will set the football program back for years after the bowl ban and scholarships. First of all, which five star (or even 4, 3, or 2 star) recruit wants to play at a school with no chance of playing in a bowl?  Assuming recruits stay for four years, the seniors in 2020 will be a class that came in as freshman under the final year of the bowl ban and scholarship reductions. It’s safe to say the Penn State football program will be crippled for much longer than only four years. Having said that, if Bill O’Brien is able to recruit and coach them to even halfway decent seasons the next few years, he deserves to be held in high regard.

Vacating of victories from 1998-2011
Obviously this is a direct shot at Joe Paterno. While this is sad because Paterno isn’t around, I think this is also a just penalty. It can be argued that Paterno met his legal obligation when he reported Sandusky’s actions to his superiors at Penn State. It can also be argued that Paterno was not able to fire Sandusky when the prosecutor did not press charges against him in 1998. However, Paterno was still apart of the cover up and did in my opinion did not meet his moral obligations as a football coach or more importantly a human being. Paterno may have done a million great things but this one wrong (or many wrongs) wipes out all of the good he did. I commend the NCAA in making a point to knock Paterno out of his lofty status as the ‘winningest‘ coach in college football history. Society’s moral compass did not feel right about that and the NCAA took steps to correct it.

I also want to commend the normally stiff and unforgiving (to players) NCAA in allowing current Penn State football players to transfer without penalty. Those players had nothing to do with the scandal that went on and should not be punished for it. As a fan of another school in the Big Ten (Ohio State) I am interested seeing the fallout from players potentially leaving Penn State (I am confident that Urban Meyer was on his phone a couple minutes after the sanctions were announced).

All jokes aside, I feel like the NCAA acted swiftly and justly in administering sanctions on Penn State. Had they gone through the process they normally do (at a snails pace), they would have taken months or possibly years to come up with information that took former FBI director Louis Freeh nine months to gather and the police almost three years.

What do you think of the NCAA sanctions on Penn State? Do you think they were just, too light, or too severe?

Terrell Owens owes $20,000 in child support: How is that calculated?

No one ever said parenting was easy. Terrell Owens is finding that not parenting might turn out to be even harder.  According to WSBTV.com in Atlanta, Owens may face jail time for failing to pay over $20,000 in child support to Melanie Smith, the mother of his 7-year-old daughter. Owens owes $5,000 a month in child support which might seem outrageous to those of us who grew up with a $5 per week allowance and without an iPhone, iPad, iPod, or  i(Insert clever name here), but child support calculations take into account how much the paying parent makes. However, the popular belief that if you can only manage to have a kid with someone rich and famous, you will be rich is merely a myth. Here is an overview at how child support is calculated to give you a better understanding as to why Owens’ 7-year-old daughter might need $5,000 per month, why that is not as ridiculous as you might think, and why you might not hit the jackpot by having a kid with a celebrity.

According to the Child Support Enforcement Act, each state has guidelines for how to determine the amount of child support that is to be paid. The guidelines vary from state to state and so does the amount of leeway judges are given in determining the amount. Because of these differences, the amount of child support awarded in one state can vary drastically from the amount in another state under the same circumstances. Although the rules vary from state to state, here are a few factors that are commonly used:

The needs of the child (this includes but is not limited to daycare, school, and health insurance)

• The standard of living the child was used to
• The ability of the parent to pay
• The amount of time the child is spending with each parent

So if we are talking about the daughter of a multi-millionaire athlete, she may spend all of her time with mom, she may be attending a private school, and she may even have nannies. A nanny alone can cost $2,000 per month and so it’s more clear now how Owens may owe that much in child support (Hey, at least he’s not paying for Suri Cruise!). Basically, the fact that Owens is rich is not the only reason his daughter is entitled to that amount of child support but a number of factors are considered in the decision.

In any case, less than 10 minutes into the hearing Judge John Goger called both attorneys into his chambers and as a result the hearing has been postponed until July 19^th.  Owens has until then to pay or he’ll have a new world of problems to worry about, behind bars.