Archives: Personal Injury

As featured on California Lawyer, January 2011 edition, former athletes are starting to seek workers’ comp as a result of brain injuries or trauma. The lead plaintiff featured in the article is Fred McNeill of my alma mater, UCLA. McNeill was a great collegian, makes a great appearance and is in that sense the perfect plaintiff. The law firm representing him is a leader in workers’ compensation and has led fight in asbestos and other alleged toxins.

Here is a thought….as part of the NFL negotiations (to be subject of other columns), both management and the union should tackle this issue. Neither side looks good right now. I know the league has adopted new rules regarding concussions, but no one should ignore the crippled warriors of years gone by. By the same token, I would suggest that there is always the need to watch for fakes and imaginers. My suggestion is an independent board funded by the owners and the players to derive a compensation system and more importantly, a monitoring system. Encourage readers’ ideas on this one.

As featured on December 21, 2010 in FoxSports.com’s article “Court upholds dismissal of ‘fore’ suit,” the New York courts have dismissed a lawsuit by a golfer hit by an errant ball when the defendant failed to shout "fore". Court’s finding is that the participation in the activity is akin to voluntary assumption of the risk. Court could have said "you know you can get hit, dummy," but did not. The decision mirrors that of all other courts we know of who hold that you run such risks when you participate in somewhat risky activity. Think those who get hit by balls at a ball park or those who have a basketball player fly into their lap. Would have been disappointed by a contrary result.

As detailed in the Wichita Eagle at Kansas.com, Boise State’s kicker, who missed three game winning field goals, has been getting death threats (as well as some support) in the blogosphere.

I went undergraduate and then to law school with a football player who created a situation that arguably allowed USC to go to the Rose Bowl for the umpteenth time. Poor guy ended up switching law schools because he got tired of the abuse. Lest we forget, these are young men playing for the joy of it and for scholarships. If these miscreants could be traced, they would be on the line for assault and infliction of emotional distress. Hoary old line is that there is no right to shout "fire" in a crowded theater. Corollary should be that there is no right to threaten the life of a young man out there trying to win a boy’s game.

Roberto Alomar was a great baseball player and should be a lock for the Hall of Fame. As reported by ESPN.com, he also is the subject of at least two lawsuits by his wife and former girlfriend; the girlfriend has settled. Allegations are that he is HIV Positive and that he had unprotected relations with each of them with neither of them having knowledge of his condition. 

Likens back to the Rock Hudson case from decades ago. Rock was a matinee idol and also HIV positive. His live-in lover claimed that they had unprotected sex and that he knew nothing of Hudson’s condition before then. Hudson eventually died and the Estate was sued. My understanding is that the matter ultimately resolved.

 

Courts have trouble with "fear of" cases as in fear of developing AIDS, fear of future disease as a result of malpractice, etc. There are two countervailing concerns. The first is statute of limitations. Courts do not want to wait, nor do litigants to see if, years later, something develops. If nothing else, the fear is now. Alternately, the argument is that the risk is real and so is the fear. Courts have split on these issues and it remains to be seen how a Puerto Rican divorce court will handle. Here is betting the matter settles well before a judge has to rule.

Thanks to reader Ron Miller for his post “Pitcher Gets Verdict for Bad Pitcher Mound” in the The Maryland Injury Lawyer Blog in which he discusses a young pitcher, an injury and a verdict. The boy hurt his arm and found a way to sue over the height and construction of the mound!  Creative theory.

Question in these parts is whether it would survive summary judgment based on releases.  My hunch is that the verdict may cause amateur associations to rewrite their releases to include release of vendors and suppliers.  As my mom would say, "OY!"

Peter C. Buckley authored this article.

 

A recent decision from the Pennsylvania Superior Court shows that not every injury that occurs during a sporting event is so inherent in the game or so “common, frequent and expected” that the one causing the injury can escape liability. The case of Zeidman v. Fisher, 980 A.2d 637 (Pa. Super. 2009), suggests that the assumption of the risk and “no duty” rules cannot be blindly applied and that the circumstances of each injury must be examined to determine whether to impose liability. According to the court, liability for in-game injuries requires a detailed examination of the game situation and an in-depth study of the participants focusing on their physical attributes, skill level, recent performance amateur status, and knowledge of etiquette and rules of the game, among other factors.

 

View entire article.

 

As featured in VeloNews.com on July 9th, 2010, two contestants traded punches at the finish line, one asked for an apology, the unwritten law in sports is that this sort of thing, while not condoned, is allowed (well, maybe in hockey).

I am not aware of anyone filing charges or a civil suit except for the Rudy Thomjanovich case with the Lakers a generation ago. Rudy T was a perpetual all-star and never was the same after an eye injury. Case settled for what was then big bucks. Would be interested to know if any readers are aware of other civil suits involving sports contestants in combat with each other.