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Jay Young

Let's All Be Careful Out There

Harford Business Ledger: March 2005

This issue of the Harford Business Ledger includes a special feature section on sports. It is, therefore, appropriate as the Business Law contributor to discuss a legal topic related to sports. The most significant legal issues related to sports have to be issues of liability and responsibility. The areas of law most significantly involved are tort law (specifically, negligence) and contract law.

Tort law related to sporting activity involves liability for injury to participants, as well as spectators. Generally, in order to recover for an injury, the injury must be caused by the negligence of another. For example, if a baseball catcher's mask shatters when hit with the normal force of a baseball, the injured catcher may try to recover for his injuries against the manufacturer of the face mask (for a defective or inferior design or construction) or against the team for failure to properly maintain the equipment.

However, there are other components of negligence law that significantly impact tort liability in sports -- particularly in Maryland. In order to recover damages for an injury in Maryland, the party seeking to recover must be 100% free of any negligence himself or herself. If there is ANY "contributory negligence" whatsoever on the part of the person seeking recovery, that person cannot recover. In our previous example, if it was the catcher's responsibility to maintain the face mask and the catcher failed to do so, and that failure contributed in any way to the shattering of the face mask, the catcher cannot recover. The reason most sporting activities are not plagued with law suits is that most spectators and participants are contributorily negligent.

Another defense to a claim of negligence is assumption of risk. A participant or spectator in a sporting activity assumes certain risks by attending or participating in the event. A fan hit by a foul ball at a ball park cannot recover against the batter because foul balls falling in the stands are a normal risk of attending a ball game. The fan is said to have "assumed the risk" (of injury by foul balls) and therefore cannot recover. The same is true with spectators watching golf, polo, tennis or lacrosse.

Also, in order to be prohibited from recovery, the injury must be caused by or consistent with the risk assumed. If not, the injured person may still be able to recover. For instance, if an irate batter becomes angry, loses control and hurls a bat into the stands at a ball game, or when (as happened last September) Texas Rangers relief pitcher Frank Francisco threw a chair into the stands, hitting a woman and breaking her nose, such action is probably not within the scope of the risk assumed when attending a ball game. However, a broken nose suffered by a spectator as a result of a bat breaking from impact with the pitch, causing a piece to fly into the stands, might not be compensable because that is a risk assumed by those sitting close to the field.

Innocent fans injured in the basket-brawl between the Indiana Pacers and the Detroit Pistons on November 19, 2004, involving Ron Artest, probably have a cause of action, because being punched in the mouth by a player is not a risk anticipated when attending a basketball game! However, the spectators who allegedly provoked Ron Artest into his rage may not be able to recover because their actions in throwing the cup of beer on the player contributed to their injury.

Participants generally are charged with assuming all of the risks inherent in their activities. Christopher Reeve assumed the risk that a fall from a horse could leave him paralyzed. The Calvert Hall High School football player rendered a quadriplegic last fall likewise assumed the risk of his injury and could not make a recovery against anyone for causing the injury (other causes of action in that case, of course, may still arise).

Contract law plays a part in all of this because venue owners, spectators and participants are free to contract away certain rights and obligations. These types of contracts also serve to clarify certain aspects of negligence and assumption of risk. Generally, liability for ordinary acts of negligence can be waived through the use of a release. For instance, if you own a property where a cross-country race is to be conducted, there may be holes or slippery spots where a severe injury could occur, and, if it does, the injured person might try to bring an action against you, the property owner, claiming that you should have repaired holes and slippery places before allowing a cross-country event to occur on your property. However, with a tightly drawn release, the owner of a property could obtain a contractual waiver of liability for all things other than an intentional act.

Releases of liability are also many times helpful when dealing with insurance issues. Some events cannot obtain insurance without signed releases of liability from all participants; some insurance premiums can be lowered if releases are signed. In a dispute over negligence, it is always helpful to have a written admission from the injured individual that the sport is inherently dangerous and the participant assumes all risk of injury or death. In the case of the cross-country course, the release could contain a provision which says that: "The participant acknowledges that he or she has inspected the course and has identified any areas of extraordinary risk and notwithstanding that risk has elected to proceed as a participant in the race and assume all risk of injury or death." With a clause like that in place, it is likely that the property owner could claim the runner was contributorily negligent in not discovering the hole during his or her inspection. The runner would then be barred from recovery.

Another example would be a farm owner allowing deer hunters to hunt on the owner's property in exchange for a written release. Such a release might acknowledge that the property owner has given permission to a number of people and that the participant assumes the risk of being shot by others. Such a release would eliminate a claim by an injured hunter against the farm owner or an argument that the injured hunter thought he or she was the only person with permission to hunt.

The law, particularly in the area of sports, is intended to provide some protection, but if liability is extended too far, no one would allow sporting events to occur on his or her property. The risk and reward must be reasonable. Enjoy the LPGA tour when it comes to Havre de Grace -- just remember to duck if someone yells "Fore!" You assume that risk in attending.

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