3 Spectator Injuries in Professional Sports Sport Law 465 Spring 2002 Kelly Dougan Amanda Palmer Jill Rusinko 4 Assumption of Risk Before discussing assumption of risk and inherent risk, one must first determine the legal status of a spectator. Generally, spectators on the premise are legally referred to as invitees. More specifically, however, the business invitee is the patron whose presence will produce direct or indirect economic gain for the premise manager, or in the case of professional sports, the team itself (Maloy & Higgins, 2000).1 An example in this case is a spectator that has paid admission to watch a game or event. The premise management has an obligation to protect and warn all business invitees of any risks that are involved with watching the game or event. Premise management should not assume that a spectator is knowledgeable about his or her risks. Management's obligation in this regard is to affirmatively advise spectators of his or her risks. Usually, signs on the premise are posted to warn fans of baseball foul balls or broken bats, or deflected hockey pucks. Often, this written word will be accompanied by a public address announcement warning spectators of the risks of being in attendance. Again, premise management is wise to assume that spectators are not aware of any risks involved. There are also two other components of management's obligation to protect and warn spectators. First, in addition to providing both written and spoken warnings, management has to provide a reasonable number of seats that are protected by screens or barriers from risks for those spectators who ask for them. And, second, premise management is responsible to maintain and repair the protective screens and barriers (Maloy & Higgins). 2 Once management has done its part to warn and protect spectators, they can use the assumption of risk defense in a court of law if a suit were to be brought against them. But, there are three conditions that must be present in order for a spectator to assume a risk. First, the 1 Maloy, B. P., & Higgins, C. R. (2000). No Excuses Risk Management. Carmel, IN: Cooper Publishing Group LLC. pg. 22 2 pg. 59 5 activity must be a normal, integral part of the sport. This means that the dangers to spectators are not caused by the negligence of legal failure of the facility or its employees, including the athletes and mascots (Maloy & Higgins).3 In other words, if a mascot were to distract a young child, or anyone for that matter, from the game and the child suffered an injury due to a foul ball entering the stands, then this would not be an assumed risk on the part of the child or his or her parents. Second, the spectator must give his or her consent to the risk of injury (Maloy & Higgins). 4 This is difficult to uphold in court because spectators of professional sports do not verbally agree to the potential risks of injury. It would be impossible for organizations to do this because of the large numbers of spectators that attend a game. Instead, the law looks at the warnings by signage or announcements from the facility to determine whether the spectator was aware of the risks. Third, the spectator must have given consent freely and voluntarily (Maloy & Higgins). 5 Again, this is difficult to uphold, but by purchasing a ticket, seeing and hearing the warnings, and choosing (or not choosing) to sit behind a protective screen or barrier, spectators are voluntarily implying their consent to the risks of injury. A good example of the assumption of risk for spectators is baseball's common knowledge rule. It states that while the baseball stadium operators are expected to provide minimal protection by installation of backstops, and is required to provide protected seating if requested by the spectator, the courts assume that ordinary baseball spectators know that foul balls or flying bats are expected incidents of baseball (Maloy & Higgins). 6 3 pg. 62 4 pg. 63 5 pg. 63 6 pg. 64 6 Inherent Risks When talking about conditions that must be present in order for a spectator to assume a risk, one of those conditions contains the definition of an inherent risk. Inherent risks are those that are a normal occurrence of the activity itself. Inherent risks cannot be eliminated without substantially changing the nature of the activity (Maloy & Higgins). 7 For example, foul balls leaving the field of play are a natural occurrence of baseball; hockey pucks leaving the ice surface are a natural occurrence of hockey, and so on. Just as with assumption of risk, there is an obligation on the part of the premise management to make spectators aware of the inherent risks of the sport. In order for management to be relieved of the liability for an inherent risk of watching a game, the spectator must have knowledge of its existence, realize the specific effects of its dangers, and choose to be in attendance anyway. The spectator must have knowledge of his or her risk of inherent danger. This knowledge component is important because if the risk is known, then the spectator is said to assume the risk of injury, and this would allow management to use the assumption of risk defense in court (Maloy & Higgins). 8 7 pg. 29 8 pg. 32 7 Foreign Objects Entering the Stands Sporting events are often a hotbed for flying objects. Anything from balls, bottles, bats, and even paper airplanes can be seen flying through the stands at any given time. Sometimes, however, these foreign objects can prove to be a liability for stadium organizations, professional clubs, and the club’s governing body. Protecting fans from being struck by these objects is often a responsibility left up to the organization but sometimes these incidents can be seen as an inherent risk 9. It is not a problem exclusive to one sport but clouds many venues and arenas. In April of 1999 Linda Postlethwaite was in attendance at a Florida Marlins and Philadelphia Phillies game. The game was being played at Joe Robbie Stadium, in Miami, Florida. A front office official had ordered the net separating the fans from the Phillies’ bullpen to be lowered from 13 feet to 10. The owner of the Marlins, Wayne Huizenga, then ordered the net to be lowered further to 8 feet. The reasoning for moving the net was so that fans could more easily see the bullpen and playing field. Postlethwaite was sitting in a club seat on the third-base side when she was stuck by a wild pitch by Mitch “Wild Thing” Williams. Williams is notorious for his poor control and unpredictable style of pitching. Ms. Postlethwaite was stuck between the eyes and received a broken nose. In the trial the jury found that Huizenga was proportionately most to blame for this incident. Robbie Stadium Corp. was placed with the next highest blame, then the Marlins, and the Phillies. In this case of negligence Ms. Postethwaite was awarded $2.5 million. In a similar case of an insufficient protective net at a baseball game is Benejam v Detroit Tigers. Alyssia Benejam was at a Detroit Tigers game with a friend and a friend’s family 9 Inherent risk is defined as risk that is a normal occurrence of the activity itself (Maloy). 8 member. The young girl was seated along the third baseline 10 and was very close to the playing field. A net was up protecting fans from any fly balls, however, the net at the stadium was found to be insufficient as compared to other baseball stadium’s protective nets. The trial court found that this was the reason why a piece of a broken bat left the playing field and impaled 6-year-old Benejam’s hand. There was no reason to believe that the bat went through a hole in the net or that the net was dysfunctional in any other manner. It is believed that the piece went around the net and struck the child’s hand. The plaintiff argued that the Detroit Tigers had a duty to warn, and a duty to exercise care to an invitee such as Alyssia. The plaintiff relied on Faulkner v John E. Fetzer, Inc. 11 and acknowledged that there was an inherent risk of being hit by a ball during a baseball game. The defendant believed that no breach of duty occurred due to the abnormal path of the shard bat. As stated by the defense, this incident “was one that could not have reasonably been anticipated (Benejam v Detroit Tigers).” With all of this in mind the court awarded the plaintiff with $1 million. The initial ruling was then appealed and sited as a limited liability case. The court decided that a “baseball stadium owner is not liable for injuries to spectators that result from projectiles leaving the field during play if safety screening has been provided… (Fisk)” The Benejam case has the possibility of setting precedence for anything brought forth by the Cecil family against the Columbus Blue Jackets. While in attendance at a Columbus Blue Jackets game 13 year old Brittanie Cecil was struck in the head by a puck deflected by Columbus Blue Jackets player, Espen Knutsen. The girl was immediately escorted from her seat and received 10 The seating in the Detroit ball park in that area is open seating and fans may choose their seat (Benejam v. Detroit Tigers). 11 A case involving a spectator being hit by a batted ball, was later decided in the Benejam case that it the Faulkner case did not suggest that spectators had to be warned of objects coming into stands. 9 stitches. Brittanie was then taken to Children’s Hospital. Two days later Miss Cecil died of what coroners believe to have been a blood clot blocking blood to her brain. The blood clot itself was due to a torn artery. The NHL has decided to put more warnings to fans about hazards during games into force. NASCAR has sought to find and implement better safety regulations in order to protect fans. A report in the Abilene Reporter-News challenged how safe we can possibly be when it comes to sports. After the death of three fans due to car parts entering the stands at Lowe’s Motor speedway in Charlotte, North Carolina NASCAR has taken new measures to protect the fans (Dunham). They have begun researching more ways to put better parts on cars so that they do not fly off into the stands as they did in Charlotte. 10 Crowd Violence While crowd violence is not a major concern at U.S. professional sporting events, incidences still occur that leave management wondering what can be done to rectify the problem. Crowd violence is seen to be the following behaviors: loud verbal assaults of players, coaches, or other fans, threats and attempts to intimidate, throwing of articles in a deliberate or aggressive manner, aggressive approaches to another individual, physical striking of another individual, and attempts to goad or incite violence in others (Sport Safe, 2001). 12 There are two main types of crowd violence – catastrophic or direct threat to fans. Fortunately, in the U.S., catastrophic crowd violence is not an issue in professional sports. Most of the time, problems that arise are threatening to fans’ safety. One such example of a direct threat to fans occurred in the fall of 1993 at the University of Wisconsin. The Badgers football team was host to the University of Michigan for an exciting match-up that had seen much media coverage and hype during the week prior to the event. However, the media coverage and hype would not be all positive for the University of Wisconsin following their victory. This was due in part to injuries suffered by many students who were trampled and trapped when a surge of fans from the top of the student section began pushing their way down to rush the field. Students and fans at the lower level of the section had no where to go because of a fence placed at the bottom of the bleachers. Fans from above kept pushing their way down to the field and before long hundreds of innocent fans were seeking help from police and EMT’s. Fortunately, there were no deaths, but this incident set the precedence for further facility seating arrangements at Camp Randall Stadium (Maloy & Higgins). 13 12 The focus is on the behavior of non-players, except in a situation in which a player leaves the area of play to engage in a violent act (Sport Safe). 13 The next week, the preparations for the Ohio State game exhibited an entirely new examination and effort towards crowd control. The university was determined that there not be a reoccurrence (Maloy & Higgins). 11 Moving east, the crowd violence becomes more severe, forcing some countries to reconsider hosting any type of international competition, such as the Olympics. European soccer, especially, has seen the lives of several fans lost because of unruly crowds. In Argentina, soccer has been hit by a wave of fan violence in the past year and four fans have been killed. It wa s getting so out of control that at one point, the government contemplated suspending professional soccer (Ampuero, 2002). And, in Africa, 43 people died at a soccer game during a crush similar to what occurred at the Wisconsin vs. Michigan football game. The allegations of the incident in Africa centered on the over-selling of tickets (Baddoo, 2001). When there are violent crowds of fans packed into an over-capacitated stadium, injuries and deaths can be expected. As more people continue to attend professional sporting events, crowd violence may increase. When thousands of loyal, die-hard fans pack into a stadium or arena for a game, behaviors change and people become out of control. Fans are easily caught up in the excitement of the game, and sometimes this excitement leads to threatening situations within the stands. 12 Drunk and Disorderly Fans Another problem sporting venues often incur is the behavior of drunk and disorderly fans. Fan misconduct is a problem that has been escalating here in the United States. Drinking is something that has for years been synonymous with sports. These issues are a constant battle for professional teams as well as amateur. During the Cleveland Browns-Jacksonville Jaguars game on December 16 th in Cleveland a critical call was made by referee, Terry McAulay. McAulay ruled that the Browns wide receiver did not make a catch in the forth quarter of a very important game for the Browns. It was fourth down and two yards to go. This catch would have allowed attempt for the Browns and a continuation down the field for a touchdown. When McAulay announced that it was not a catch fans erupted. Beer bottles and water bottles were launched from the upper decks of Cleveland Browns Stadium. Although they were plastic bottles some were filled with up to 20 ounces of beer. Spectators aimed them at players, referees, and coaches but some hit other spectators. Some fans were arrested and some were escorted off of the field. The Browns organization did not denounce the fans but their actions. The commissioner of the NFL did not make an attempt to change the alcohol policy. The New York Giants can sympathize with Cleveland when it comes to unruly fans. During a Giants-Chargers game in 1995 Giant fans began throwing icy snowballs at Charger fans. This caused a San Diego equipment manager to be knocked unconscious. The Giants reacted to this by ejecting over 200 fans and confiscating 80 ticket stubs in hopes to punish season ticket holders. Serious attempts have been made to protect innocent spectators, athletes, and administration and also the liability of the whole operation. Many teams in Major League Baseball have adopted 13 the rule of stopping alcohol sales after the 7 th inning. Football has also moved to make attempts in stopping drunken fans by not allowing alcohol sales after the 3 rd quarter. The Atlanta Braves have even taken securing the safety of fans to another level. They have established a designated driver program. A person who chooses to be a designated driver before the game must sign an agreement and wear a wristband. The wristband indicates that no alcohol is to be sold to or consumed by this person. They are also entitled to receive free bottled water during the entire game. This is an incentive for fans which might remove some potentially dangerous problems for the Braves. 14 Mascots Teams throughout every sports leagues have mascots to represent the team themselves and also bring excitement to the crowd when the game is not going on. The mascot is there to keep the audience entertained at all times. Mascots use members of the crowd to participate in activities with them. This makes the crowd feel as if they were a part of the game itself. Using fans though can cause a problem if the fan resists the mascots attempt to use them in a skit or activity. In the case of Yvonne Gil De Rebollo vs. The Miami Heat Association, Inc. the mascot for the Miami Heat, “Burnie”, pulled Ms. Gil De Rebollo from her seat in attempt to use her in the act and he forcefully continued to pull her onto the court. “Burnie” finally pulled hard enough and the plaintiff fell onto the floor. He then pulled her by the arm to the middle of the court. At 14 this time, Ms. Gil De Rebollo stood up and walked off the court. Soon after the incident she left the game due to embarrassment and pain. Gil De Rebollo filed a lawsuit against the Miami Heat and the mascot. She claimed that she was injured, having tendentious now in her shoulder along with the emotional damage that she occurred while being dragged onto the court. Gil De Rebollo won the case and received punitive and compensatory damages. The Miami Heat was found guilty due to vicarious liability. 15 This means that the company is responsible for the actions of their employees if they are a cting as an employee at that time. This is an issue that most teams do not experience that often. The idea that a person would be injured due to a stunt preformed by a mascot is not common. Fans do not come to games expecting this sort of injury. Having mascots at games out a normal aspect of the game, but not 14 Yvonne Gil De Rebollo vs. The Miami Heat Association, Inc. November 4, 1997. 15 http://www.findlaw.com. Vicarious liability is the liability that is imposed for another’s acts because of imputed or constructive fault (as negligence). 15 assumed as a danger or risk by fans upon entering the stadium or arena. Teams must be able to control the mascots and not let these types of problems occur. 16 Facility Maintenance The safety and upkeep of facilities used for sporting events is very important. “The legal responsibility for providing safe premise is placed upon the possessor or occupier of the premise (Maloy).” Although fans should not put themselves in an obvious risk such as running onto a raceway while NASCAR is commencing or running into an end zone while a play is being made. As obvious as these seem some fans might try and just make an attempt to do so. Other obvious risks can be prevented by eliminating them or simply warning those that might come into a stadium or arena. There are three types of people that might come onto a premise; invitee, licensee, and trespasser. A spectator is classified as an invitee and directly benefits the owner. A licensee is someone that might come onto the premise with permission of the owner but does not directly benefit them. A trespasser is someone who enters the facility without previous consent of the owner (Maloy). The most liability is owed to the invitee and the least is towards the trespasser 16. It is suggested that facilities maintain a facilities management and safety manual. Although many organizations develop there own based on their principles, the Canadian Hockey League has developed a “skeleton” manual for all of the teams in the league. There are certain topics that are a required standard for all teams. Safety nets to protect spectators must be at a regulation size as well as glass heights. The manual also encourages properly and quickly addressing facility malfunctions, hazards, or incidents. This would include “Caution: Wet Floor” signs if wet floors could be a problem for invitees. Also more security at higher profile games is important to prevent anything similar to what happened in Cleveland and New York from happening again. 16 Although the trespasser has the least amount of liability a trespasser cannot be intentionally harmed by an owner. 17 Records and incident reports must also be kept on file. Maintenance checks as well as records of these maintenance checks should be kept on file. These might show facility managers where problem areas are and aid it trying to fix them. Prevention is very important when it comes to fan and spectator safety. It is things that have been overlooked that often cause problems. 18 Teams take preventive action Teams are now instructed to warn fans of any injuries that may occur from objects entering the stands. This is all done because of a little girl in 1978, Karen Friedman. Ms. Friedman may have single-handily changed the way that baseball and other sports are viewed (Abrams, 1991). She was struck in the eye with a foul ball causing her to suffer from a broken facial bone along with a serious eye injury. Her parents sued the Houston Astros on her behalf. The law suit was for claims that the Astros did not warn of this type of accident and did not protect fans from the ball.17 This is the case that made the American League and National League teams post warnings around the stadium and ticket backs to warn all fans of foul balls entering the stands (Abrams, 1991). While attending a sporting event many teams use the public address system to help warn the fans about events that may be taking place. Many teams make announcements before, during, and after the games to warn the fans that objects may be entering the stands at all times and to be prepared if this event should occur. The Richmond Braves, AAA of the Atlanta Braves, use this announcement to warn the fans: “Upon entering The Diamond please be aware of your surroundings. Balls, bats, and other objects may enter the stands at anytime. Please be aware of this during and after the play of the game. If a problem should arise, please contact the nearest usher for assistance. Thank you and please enjoy the game” 18 A precaution that teams also take to warn fans prior to entering the game is to print the warning on the back of the tickets that they have purchased. Baseball tickets have a warning that tells the patrons that balls, bats, and objects may leave the playing field at all times. These ticket 17 Friedman vs. Astrodomain, Corp. June 1978. The Friedman’s won the case receiving money for punitive damages along with money for mental suffering. Soon after the verdict, the case was overturned, taking the money away from the Friedman’s. 18 Richmond Braves (Richmond, Virginia) Public Address Announcement, 2002 Baseball Season. 19 backs also suggest that the patron assumes these risks and will not sue any part of Major League Baseball if this should occur (www.mlb.com). All teams state the ticket backs differently and each are written by different people. 19 The Bowie Baysox ticket back is written by their parent company, ComCast sports and states: “The holder of this ticket voluntarily assumes all risks and dangers of personal injury and all hazards arising from, or related in any way to, the event in which this ticket is issued, whether occurring prior to, during, or subsequent to the event, including, without limitations, injuries caused by thrown bats or thrown or batted balls.” 20 TicketMaster is a ticketing outlet that teams and other events use to sell tickets to patrons that may want to purchase tickets to that event (www.ticketmaster.com). TicketMaster mainly focuses on sporting events but you are also able to purchase tickets to concerts, plays, and other attractions through the company. TicketMaster tickets have a general warning on the back of every ticket purchased. The warning states: “Pucks, hockey sticks, balls, bats, racquets, and other objects flying into spectators areas can cause serious injury. All spectators need to be alert at all times. Patrons are instructed to inform ushers immediately if injured.” 21 Teams take precautions to try to protect fans from anything that may occur during the game. Being at the game though, a fan should always be aware of what is going on during the game and any times that the game is not taking place. Being aware of what is going on around you is the safest way to protect yourself from any injury caused by items entering the stands. 19 Atlanta Braves vs. Houston Astros Ticket Back, September 2001. Written by Bud Selig Richmond Braves vs. Toledo MudHens Ticket Back, April 19, 2002. Written by staff 20 Bowie Baysox vs. Altoona Curve Ticket Back, April 20, 2002. 21 Richmond Renegades vs. Roanoke Express Ticket Back, March 30, 2001. 20 Staff and Employees Take Precautions to Help Protect Fans At stadiums and arenas around the world, other injuries can occur. These injuries are not caused by a fan, objects entering the stands or from maintenance problems. These can be caused from bomb threats, fires or natural disasters. According to the Richmond Braves 2001 Employee Handbook, if a bomb threat should occur employees should remain calm at all times and gather as much information as possible. Also, employees are informed not to give information to any fans and not to use the two-way radios to disclose information. Public address announcements will inform fans on what steps they need to follow.22 Evacuating the building due to a natural disaster or fire are other reasons that could cause harm to patrons at an event. If this occurs, Stadium Operations and the police will notify the fire department and rescue squads, along with any other groups that need to be informed of the problem. Public address announcements will be used to explain to fans where they need to move in order to be the safest. All personnel will be instructed on what areas need to be dealt with.23 These events are not that common at any game. However, prior to the season, each employee is given instructions on what to do if the events should occur. Each staff member will be given an employee handbook to read over and learn all the steps that are involved with each crisis. Also, classes are given to every employee to make sure that everyone is aware of what to do if and when a problem should occur. 22 Richmond Braves 2001 Employee Handbook. Appendix #2. Part 1 of Evacuation Plan. 23 Richmond Braves 2001 Employee Handbook. Appendix #2. Part 2 of Evacuation Plan.