I’ve previously blogged about the prospect of football helmet manufacturers facing product liability lawsuits for design defects in their helmets and the resulting brain injuries that occur.
This week came news that former NFL lineman Ralph Wenzel has filed a Worker’s Compensation claim that says head injuries he sustained in the course of his NFL career are responsible for his present-day dementia.
Of course, a Worker’s Compensation claim for football head injuries is recourse that is only available to former professional football players, not to college or high school players who sustained brain injuries while playing for fun, rather than as part of their “job” or “work.” But even though these Worker’s Compensation claims are available only to the tiny fraction of football players who played professionally, the consequences could be enormous. The potential liability faced by the NFL in Worker’s Compensation claims relating to head injuries could be $100 million or more. Liability of that scale is big enough to force even a multi-billion dollar empire like the NFL to consider its rules and regulations regarding concussions and other head injuries. Football fans might even see the three point stance abolished as a result!
Worker’s Compensation pre-emption means that former pro football players cannot sue their former teams directly for brain injuries they sustained from their playing (they can however maintain product liability actions against the helmet manufacturers). High schools and colleges need to be alert to the prospect of this kind of litigation because their players are “students,” not “workers,” and Worker’s Compensation laws do not prove a bar to suing them directly. High school and college programs could therefore face even greater liability than the NFL.
It is a startling realization, but legal liability for brain injuries might fundamentally alter the rules of football and transform it place in our culture.
My guess, however, is that the NFL lobbies the California legislature to change the law with regards to football players.
The Wall Street Journal’s law blog featured a discussion today of the legal rights of the family of Nodar Kumaritashvili, the young Georgian luger who died in an Olympic practice run last Friday from head injuries sustained when he and his sled flew over a low wall coming out of a sharp turn on the luge course. Many have blamed the course for his death, noting how the course was apparently designed for maximum speed (in order to help one of the lugers set a new world record) and how the wall on the side of the luge track should have been higher.
But even if the International Olympic Committee is to blame for Kumaritashvili’s death can they be held legally responsible? That’s a question of Canadian law of course. But let’s assume that the Winter Olympics had been held in Boston, Massachusetts. What would the Kumaritashvili family’s rights be then?
The answer would turn upon a lot of the same legal doctrines raised in the Wall Street Journal post. First, there would be questions about Kumaritashvili’s assumption of risk. Under Massachusetts law, athletes who participate in sports are generally assumed to have agreed to the risks of injuries inherent in the sport and therefore to have waived their personal injury claims. In order to overcome the assumption of risk doctrine under Massachusetts law, Kumaritashvili’s family would have to show some sort of unusual risk posed by the track’s design.
Furthermore, as noted by the specialists in the Wall Street Journal article, the fact that the Olympics raised the wall that Kumaritashvili flew over as a result of his death, cannot be used against them as evidence of their negligence. Massachusetts law has the same rule regarding so-called “subsequent remedial measures,” now neatly summarized in Section 407 of the Massachusetts Guide To Evidence.
Another issue, one not raised by the article, would be the issue of contributory negligence. Did Kumaritshvili himself make any mistake? Did he oversteer? If Massachusetts law applied to the facts of the case and a jury found that the luger was more than 50 percent to blame for the accident, the jury would be instruct not to award the luger anything. (Of course, a good plaintiff’s lawyer could make a lot of arguments against the application of the rule – e.g., the plaintiff’s contributory negligence was not the cause of his injury, and a million others).
Assuming that the modern-day football helmets effectively prevent against the most serious head injuries – such as fractured skulls – but are ineffective in preventing other sorts of head injuries would Massachusetts product liability law regard the typical football helmet as a dangerous or defective product?
That’s a good question and there’s really no clear cut answer under Massachusetts law right now since there are no cases directly on point. Despite the lack of case law to guide us, there are a few things that we can say for certain. Massachusetts law recognizes three main types of product liability claims:
1. Manufacture defects: These types of cases involve something that went awry in the factory – basically this is a case when the machine spits out an irregular product, but it gets packaged up and sold anyways and the manufacture defect causes injury.
2. Design defects: This type of case involves a product that was manufactured as intended but the design concept was unreasonably dangerous.
3. Failure to warn: This is a claim that the product did not provide an adequate warning about a danger involved in its use and this failure-to-warn caused an injury.
If the safety of football helmets were litigated in Massachusetts, a player’s claim would like be premised on both a failure to warn theory and a design defect theory.
It would most likely be up to a jury to consider whether modern day football helmet has any design defects and, in weighing that question, a Massachusetts jury would be asked to weigh several factors:
-the gravity of the danger posed by the current football helmet design
-the likelihood that head injury will result from the use of the helmet
-the technical feasibility of a safer alternative design
-the financial feasibility of that alternative design, and
-any other consequences likely to result from the alternative design
However, even if a jury were to conclude that there exists a cost-effective design that would be more effective in preventing head injuries than the current football helmet design, the manufacturer might still have a few defenses under Massachusetts law: the so-called Vassallo defense and Correia defense. (The defenses are named after the Massachusetts cases that bear their name).
The Vassallo and Correia defenses would exonerate a defendant if either: 1. the danger could not be detected by reasonable testing at the time the product was sold or 2. the consumer unreasonably continues to use the defective product after becoming aware of its dangers. The relevance, if any, of these defenses would really only come out through litigating the case.
As you can see, a design defect case can be difficult to prosecute and normally requires expert testimony from engineers or other design defects. Failure-to-warn cases tend to be the simpler variety of products liability litigation.
If a football player were successful in such a products liability case who would be held liable? The helmet manufacturer and merchant who sold the helmet would definitely be liable and, under Massachusetts law, the school or team supplying the defective helmet might also be held responsible.
Will football helmet litigation ever take off in Massachusetts? Who knows. But let’s hope that we do see safer helmets down the road, so fewer players meet the plight of former Patriots linebacker Ted Johnson and others like him.
In November, a Wall Street Journal article asked, “Is It Time to Retire the Football Helmet?” At the beginning of this month, Representative John Conyers (D-MI), of the House Judiciary Committee, held the second part of a hearing on whether football gear is causing brain injuries.
As football fans in Massachusetts and throughout New England who are familiar with former Patriot Ted Johnson’s story know well, football players stand a great risk of brain injuries. What may be surprising to most fans however is the questions that are being raised about how effective football helmets are in preventing brain injuries.
Some speculate that the helmets might actually do more harm than good. The modern football helmet was designed to prevent catastrophic injuries like fractured skulls. It does a fairly good job at this. But the modern football helmet, and the ubiquitous football face mask, have also made some players feel invincible. By protecting the player’s skull from an open fracture, his face from broken bones and his teeth from getting knocked out, the modern helmet has encouraged players to collide more violently and more often without fear for their own safety. According to some, such as University of North Carolina professor Fred Mueller, this has led to more concussions and other head injuries not fewer.
All of this seems to pose an interesting question: Assuming that the modern football helmet leads players to play more violently, causing more head injuries overall, is the football helmet a defective product? Could a football player who suffers brain damage from repetitive concussions caused by a style of play that is encouraged and enabled by the modern helmet sue the helmet manufacturer and win under Massachusetts law?
These are interesting questions. And in our next post we’ll take a closer look at Massachusetts product liability law to try and come up with some answers.