By: Dr. Kevin Boully
“There is danger in all sports, anyone who plays them takes that risk for themselves.”
-Mock Juror in recent sports litigation research
Athletes choose to play sports that involve risk. Athletic teams, coaches and organizations are aware of the risk just like players. So, how much personal responsibility does an individual athlete have for safely participating in his or her chosen sport? What must the player and the organization do to make sure all possible safeguards are in place to reduce risk? Who should be held most responsible?
Jurors (and judges, arbitrators and mediators) confront these basic but critical questions in sports-related lawsuits like that of former college football player Stafon Johnson. This week, Mr. Johnson sued the University of Southern California and ex-assistant conditioning coach, Jamie Yanchar, claiming negligence in the 2009 weightlifting incident that resulted in severe injuries to Mr. Johnson’s throat, threatening his life, ending his college football career, and potentially limiting his professional career.
As John Wolohan notes in a recent post, athletic teams and organizations like USC must carefully manage facilities and understand the associated risk of injuries occurring within their walls – particularly understanding who is at risk. Identifying the who is also important at trial. Jury research in sports-related litigation highlights a few concepts relevant to sports injury cases spanning from personal injury to products liabilit and beyond.
(1) Show personal responsibility. Jurors think in terms of who has taken greater personal responsibility for the player’s safety – the individual athlete or the defendant organization and/or individual agents. The more a juror believes your client took appropriate responsibility for safety prior to the injury, the greater the likelihood that juror will perceive those responsible steps as adequate protection that could only have been circumvented by another’s negligence (obviously, jurors strongly perceive equipment or product misuse as evidence of plaintiff negligence). Show the steps your client took in advance to prove they were holding themselves accountable for safety. Since jurors differ markedly in their perceptions of personal responsibility, identify those more likely to perceive the injury in a way that benefits your story.i
(2) Tell the safety story. Treat safety as a character in your trial story. It has a history. It has successes, failures, innovations and ongoing challenges personified by its current state. Demonstrate your client’s diligence in meeting or exceeding safety policies and standards, in responding quickly and appropriately to knowledge of increased risk (i.e. prior incidents, prior warning, etc.), and adapting behavior and leveraging consequences when the status quo puts safety at risk. Identify knowledgeable witnesses who can tackle these issues credibly and comprehensively.
Attorney William Staar notes in his article on concussion litigation, that when a superior safety option becomes clear, helmet manufacturers that do not employ it will become litigation targets. The same principle applies more broadly to plaintiff and defendant. Jurors want to know the state of the safety art, and want to know your client is meeting or exceeding the current standard – in the weight room and on the field.
(3) Strategically ‘control’ the blame game. Jurors are reluctant to place ‘blame’ for an ‘accident’ perceived to be beyond anyone’s control. Instead of attacking your opponent, increase the perception of their control by endorsing their power and sophistication, highlighting their safety knowledge (especially when knowledge is contrasted by a poor track record of safety performance), and their available resources to know about or prevent increased risk. For a Defendant, this may mean highlighting the number of times the athlete has safely and effectively completed a weight –lifting workout with or without assistance. For a plaintiff, it may mean describing the resources (financial, research, personnel) a team or organization has available to increase staff, conduct cutting edge research, or otherwise reduce risk.
i Research shows that jurors in differing positions of power explain accidents and their causes very differently. See Kouabenan, D.R. (2009). Role of beliefs in accident and risk analysis and prevention. Safety Science, 47, 767-776. http://www.lip.univ-savoie.fr/uploads/PDF/919.pdf
Kouabenan, D. (2009). Role of beliefs in accident and risk analysis and prevention Safety Science, 47 (6), 767-776 DOI: 10.1016/j.ssci.2008.01.010
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