Epstein, A --- "Teaching torts with sports" [2011] LegEdDig 22; (2011) 19(2) Legal Education Digest 18

• Teaching torts with sports

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Teaching torts with sports

A Epstein

Journal of Legal Studies Education Vol 28, No. 1, 2011, pp 117-142

One of the most enjoyable and interesting subjects for students taking a business law or legal environment course is the study of torts. Whether a course only allows this discussion for a week or longer, seasoned professors realise that they can capture the attention of students by covering torts topics such as slip-and-fall litigation, defective products that cause injuries, and fisticuffs among neighbours.

Sports torts present a natural opportunity to use video clips in the classroom. Videos are an invaluable technological tool to demonstrate various torts to the students, and sports videos are ubiquitous.

While each instructor has his or her own style or preference with regard to the order of teaching torts, for over a decade I have found that beginning with negligence, rather than the intentional torts, is more effective for me and allows me to introduce how the early sports torts decisions focused on negligence rather than intentional torts.

Sports law as a distinct category of the law is relatively new and has been met with some hesitancy. Classic sports tort cases, most from the 1970s, provide an historical context and demonstrate the issues early courts had to determine. For example, early court cases considered the difference between expected contact during a sports contest among participants and that which could be characterised as being reckless.

Basic negligence concepts can be taught in the context of flying objects such as foul balls, bats, and ice hockey pucks. This approach usually hits a homerun because most students have attended sporting events and are well aware of the risks to participants and spectators.

Flying objects are any material objects related to the game or event that end up hitting spectators or other participants as a projectile, including debris. Generally, and depending upon the sport, fans assume some risk of injury of being hit by objects as a result of being physically close to the game. By starting with flying objects, the instructor is able to incorporate the negligence concepts of duty and causation into the discussion by querying the students about the degree to which they believe a duty is owed to a spectator at a sporting event. Before discussing foul balls in baseball, it is important to note that various states view the concept of duty differently and that some have attempted to reduce liability by enacting spectator-specific immunity statutes.

States differ on the degree of protective screening required for fans seated at baseball games. Some states apply the traditional rules of negligence (the just negligence rule) and hold the standard of care owed to the spectators is comparable to the business invitee relationship and landowners’ liability in property law. Other states utilise the limited duty rule, which allows a court to find in favour of the defendant if protective screening is provided for the most dangerous sections of the stadium unless the plaintiff has proven the tortious conditions or conduct were beyond the inherent risks of that sport. Finally, others use the no duty rule in situations in which fans might expect an object to find its way to the stands. In no-duty states, spectators assume all risks that are common, expected, and frequent risks of the game.

Students might be asked to read the 2005 Loughran v Phillies decision, in which the Superior Court of Pennsylvania held that there was no duty to protect a fan injured when a player tossed a baseball into the stands at the end of the inning, because the risk of that injury was considered inherent to the game. The case concerns Marlon Byrd, an outfielder for the Philadelphia Phillies, who threw a ball into the stands after catching the last out of the inning against the Florida Marlins on July 5, 2003. A spectator, appellant Jeremy Loughran, claimed that, as a result of being hit by the baseball, he was treated for ‘severe headaches, vomiting, confusion, incoherence, hallucinations, loss of balance, head and neck pain, photophobia, eye spasms, sleep disruption, and depression’. The Phillies organisation and Marlon Byrd were granted summary judgment by the trial court, which held that ‘the applicable law clearly states that recovery is not granted to those who voluntarily expose themselves to risks by participating in or viewing an activity.’

Clear and concise, this opinion lists the five separate questions posited by the appellant, which the court combines into one: ‘whether the trial court’s application of the “no duty” rule in the case was proper’. The court then guides the reader through the four basic elements of duty, breach of duty, causation, and damages, a perfect collection for the professor in the negligence context. In the end, the court affirmed the trial court decision, holding that the appellant failed to establish that Byrd or the Phillies deviated from the common and expected practices at a baseball game so as to take them out of the no-duty rule as entrenched in Pennsylvania jurisprudence. The case has an equally cogent dissenting opinion.

Flying objects that hit fans are not limited to the sport of baseball, and any of the following incidents may serve as good examples for discussion of negligence issues. In 2002, several incidents brought national attention to the issue of fan injuries caused by hockey pucks deflecting into the stands. Later that same year, the National Hockey League (NHL) mandated safety netting for spectators, and the American Hockey League and Central Hockey League (CHL) followed suit. Motor sports debris may also injure spectators. For example, a flying tire killed a spectator at a National Hot Rod Association (NHRA) race in 2010. Regardless of the sport or type of injury, a discussion of flying objects is a good introduction to concepts of negligence, providing an excellent opportunity to discuss the similarities and differences between contributory negligence, comparative negligence, and assumption of risk.

Having addressed flying objects, it is then natural to proceed to explore the states that have enacted statutes specifically limiting liability for spectator injuries from flying objects such as balls, bats, and pucks. In the sports context, a few state tort immunity statutes specifically protect stadium owners or operator from liability except for wilful or wanton (as opposed to ordinary) negligence. For example, the states of Arizona, Colorado, and Illinois have all adopted baseball-specific statutes that address liability from a flying ball or bat. Reacting to a 2005 court decision in Maisonave v Newark Bears Professional Baseball Club, Inc, in which the court classified spectators into different types of categories for liability purposes, the New Jersey state legislature enacted the New Jersey Baseball Spectator Safety Act of 2006, under which stadium owners can avoid liability for flying objects altogether as long as certain conditions are met.

The phenomenon of postgame celebrations and the possibility of injuries to fans, players, coaches, and referees during the hysteria provides an opportunity to cover legal concerns connected with ‘storming the court’. These celebrations might involve throwing items onto the field of play, spectators storming the basketball court or rushing the field and tearing down the football goalposts, or any other situation that can create liability concerns for leagues, teams, universities, and others. To deter such postgame celebrations, one of the most prominent National Collegiate Athletic Association (NCAA) conferences, the Southeastern Conference (SEC), announced a ban on spectators rushing onto football fields and storming the court in basketball to reduce potential risk of injury. Students might be asked what they would do to minimise risk as a coach, athletic director, team owner, or stadium management firm during a postgame celebration.

Like many negligence-related subjects, a discussion of wrongful death negligence cases provides an opportunity to compare and contrast tort law with its close companion criminal law. There have been several prominent deaths in recent years, including the deaths of National Football League (NFL) lineman Korey Stringer, Major League Baseball (MLB) pitcher Steve Bechler, and college football player Rashidi Wheeler. As these examples demonstrate, fatalities in sport occur in a variety of ways and may raise slightly different legal issues.

One important topic is the duty of care owed to participants by medical or other on-site staff at a sporting event or practice. This topic gained national attention in 2009 when high school football coach David Jason Stinson was charged with the crimes of reckless homicide and wanton endangerment (and later found not guilty) for the death of one of his high school players during an extremely hot summer practice session in Kentucky.

Sports injury cases also provide an opportunity to discuss workers’ compensation, a topic with which many undergraduate students may not be familiar, and whether student athletes should be compensated from a state workers’ compensation fund for sports-related injuries.

There are numerous other topics that an instructor can pursue in the negligence category if time allows, but it is important to recognise that negligence is only one of the four main categories of torts, and time should be retained for those other issues. Instructors might raise the timely issue of the recent influx of the antibiotic-resistant staph infection MRSA, which has appeared in locker rooms throughout the country, causing concerns over hygiene during practice and competition leading to possible medical malpractice lawsuits. Students might also consider potential liability for off-campus hazing issues, for incidents involving transportation of players and coaches, or for drunken players leaving the stadium or arena and then causing serious injury to others. Such cases can show the variety of situations that may give rise to negligence liability.

Coverage of intentional torts may be tied to hits after the play; a pitcher intentionally hitting the batter; or incidents of violence among participants, fans, referees, coaches, and parents. Nonviolent intentional torts such as defamation are included in sports torts as well. Although more often than not professional leagues handle alleged misconduct, such as unsportsmanlike conduct by players and coaches, internally through penalties or suspensions rather than in the courts, many of these situations provide apt examples for teaching legal issues. The following sections discuss particular intentional torts that an instructor may cover using sports examples.

Assaults and batteries by athletic participants provide useful examples of this tort, and instructors may find video available to enliven the discussion. Famously, in 1999, boxer Mike Tyson intentionally bit off part of Evander Holyfield’s ear, ending a boxing match but starting a criminal prosecution, though apparently no civil suit. In connection with discussion of possible assault and battery claims, it is also appropriate to consider the legitimacy of certain intentional contact by sports participants, such as, in baseball, the pitcher throwing intentionally to hit the batter. In 2006, the California Supreme Court held that intentionally hitting the batter is actually a fundamental part of the game and therefore is not a battery.

Instructors might also ask students to consider battery and other offenses committed by team mascots. To inject some humour into an otherwise serious discussion, one might present videos showing comically dressed mascots involved in physical altercations on and off the court. YouTube and the Internet generally are rife with videos and lists of other examples that can demonstrate how mascot behaviour might turn into a tort lawsuit, including, for example, the otherwise simple act of tossing hot dogs into the stands to eager fans, such as occurred recently during a Kansas City Royals game. A basic search on YouTube of ‘mascot fights’ yielded 1,410 entries.

Courts differ on whether mascots and their crazy antics during a sports contest are actually part of the games at hand, so that fans assume the risk of such injuries. A 2010 lawsuit filed against the Philadelphia Phillies baseball organisation may provide an apt example. The suit was brought by a 75 year-old fan who claimed that she was injured by the team’s mascot, the Phillie Phanatic, during a 2008 minor league game in Reading when the mascot stepped on her legs in the stands.

Another useful example is the now-infamous Sausage-gate incident of 2003. In this incident, Pittsburgh Pirates first baseman Randall Simon was cited for disorderly conduct, fined $2,000 by MLB and fined $432 for disorderly conduct by the local sheriff’s office for knocking the Italian Sausage character-participant to the ground with his bat during the Milwaukee Brewers’ famous sausage race. This incident is a prime opportunity for the instructor to bridge the relationships between tort law, criminal law, the role of trial lawyers, and the state of the American legal system generally, especially after informing the students that the only thing the woman who played the Italian sausage character wanted was an apology and an autographed bat from Simon for the incident.

Fraud may arise in a sports context in the form of academic fraud, résumé fraud, or recruiting fraud. There are also incidents of participation fraud, such as the alleged cheating at the Boston Marathon by Rosie Ruiz, who apparently used a subway train to enhance her performance to win the race in 1980. A more recent example of participation fraud includes the case of Jerry Joseph, who led his Texas high school team to the state playoffs in 2010. In addition to misrepresenting his name and identity, he also lied about his age and failed to disclose that he had already graduated from a high school in Florida in 2007.

The phrase ‘right of publicity’ was first used in 1953 by Judge Jerome Frank in a sports-related case, Haelen Labs, Inc. v Topps Chewing Gum, Inc. In that case, two competing chewing gum manufacturers each claimed that they had the exclusive right to use a baseball player’s photograph in their marketing efforts. One might also discuss whether fantasy sports violate professional athlete’s rights of publicity by using their names and statistics.

With the arrival of social media and networking sites such as MySpace, Facebook, Twitter, and others, including easily accessible video postings on YouTube, students will likely have different perceptions regarding the right to privacy than previous generations. Students may be particularly interested in learning about how concerns over privacy and potential liability have driven various colleges and universities to address issues involving student athletes and the Internet. For example, various NCAA schools have considered conducting background checks on student athletes prior to awarding them an athletic scholarship, known as a grant-in-aid. At the same time, concerns over publicly displaying private thoughts or matters have given college coaches pause as to whether the use of such sites are merely a distraction or even appropriate for student athletes at all who already live in the spotlight.

There are relatively few cases involving sport-related torts and defamation. Still, this intentional tort is worthy of exploration. Most recently, Brian McNamee, former trainer for MLB all-star pitcher Roger Clemens, has filed a defamation lawsuit against Clemens, who continues to deny that he used illegal performance-enhancing drugs that McNamee claimed he provided to Clemens. This litigation is ongoing.

In addition to the foregoing tort claims, the instructor can explore product liability claims arising out of defective sport-related products. One notable set of product liability cases concerns the safety debate between using wooden baseball bats in professional baseball and the metal or aluminium bats in college baseball. In a recent case, in 2009, a Montana jury awarded a judgment of $850,000 against Hillerich & Bradsby (maker of the Louisville Slugger), in favour of the family whose son was hit in the head by a line-drive hit from the batter, finding that the manufacturer failed to warn about the dangers of aluminium bats, though the jury did not find the bat itself defective. In addition to this baseball bat litigation, other sports-related product liability cases worthy of exploration concern allegations of defective helmets, trampolines, artificial turf, and the design of protective hockey Plexiglas.

Finally, in connection with coverage of product liability under tort law, instructors may choose to discuss issues connected with misleading advertisements of sports-related products such as weight-loss supplements.

Strict liability for ultra hazardous or abnormally dangerous products or activities is the least common basis for tort liability in a sports law context. Class discussion of strict liability in sports torts relies heavily on the hypothetical, as one could imagine such liability from flying debris or exposure to unsafe compounds during the blasting activity for a stadium demolition or keeping a domestic or wild animal as a mascot or from malfunctioning pyrotechnic devices. Recently, a fireworks malfunction injured two spectators at the home stadium of the Hudson Valley Renegades, a minor league baseball team in New York. The instructor can explore whether spectators who are injured by fireworks displays consented to a known risk and whether the pyrotechnic display involved an abnormally dangerous activity.

Introducing students to the relationship between torts and sports can have a positive impact on the learning environment. Even if the instructor is not an avid sports fan, the sports world can provide vivid, relatable examples to illustrate tort concepts for students, and such examples are readily available. Classic sports tort cases and more recent or less well-known cases are all possibilities.

Finding and incorporating sport-related illustrations, whether judicial decisions, Internet articles, or videos, is simple with today’s technology. With Google, YouTube, and other Web sites, the utilisation of sports torts is an effective way to guide the class through this segment of the course, and no athletic skill is required to cover all the bases.