The 7th U.S. Circuit Court of Appeals has affirmed the ruling of a district court in a case involving a plaintiff who sued Ball State University and the manufacturer of a goalpost, after he was injured by the goalpost during a celebration on the field.
In so ruling, the panel of judges affirmed the lower court’s finding that Indiana law does not require a manufacturer to protect consumers and users “from themselves,” suggesting that by entering the field and attempting to grab the goalpost that the plaintiff, Andrew Bourne, knew the risk he was undertaking.
The incident that led to Bourne’s injury occurred in October 2001 as Ball State was securing an especially emotional victory. During the fourth quarter, the university began flashing signs on the scoreboard that read “the goalpost looks lonely.”
Taking the bait, Bourne joined a crowd that stormed the field. He initially tried to grab the goalpost, but missed. Walking away, the goalpost fell on top of him, causing him injury.
Bourne sued the school and goalpost manufacturer Gilman Gear. The school was able to settle for $300,000 because of a limit imposed by state tort reform in the 1970s. The court described the sum paid by the university as “paltry.”
Turning to the claim against Gilman Gear, the court wrote about the plaintiff’s argument that the goalpost suddenly and unexpectedly “snapped,” rather than gradually fell, which might have spared him an injury. But the plaintiff “offered only mere speculation to support his premise that social and cultural pressure misleads the average fan into believing that goalposts collapse slowly enough that ripping them down is safe.”
Bourne submitted the affidavit of an expert, Vaughn Adams, who has a Ph.D in safety engineering. Among Adams’ assertion was that the manufacturer switch to aluminum posts in the mid-1980s heightened the risk of a quick break in the goalposts versus a gradual break, which would allow revelers, presumably, to get out of the way. But the court was unimpressed, noting that Adams did not conduct any tests on goalposts manufactured by Gilman Gear.
The lower court recognized the deficiencies in the plaintiff’s case, granting the defendant’s motion for summary judgment. “The court reasoned that Andrew Bourne’s subjective failure to appreciate the magnitude of the risk that a collapsing post might strike his back and take away the use of his legs did not alter the fact that the risk of injury was obvious as a matter of law and, consequently, that the post was not unreasonably dangerous.”
Specifically, it pointed to the fact that Indiana’s so-called “Open and Obvious” rule discourages such claims against manufacturers where the risk is “open and obvious.”
On appeal, the plaintiff relied on Mesman v. Crane Pro Services, 409 F. 3d, 846, 849-852 (7th Cir. 2005) to claim that despite the obviousness of the risk that they can prove “through the application of the classic formulation of negligence that Gilman Gear should have adopted a reasonable alternative design.”
The appeals court noted a similar argument in another case – McMahon v. Bunn-O-Matic Corp., 150 F.3d at 651 (7th Cir. 1998) — where a woman was scalded by hot coffee and sued the manufacturer of the coffee pot, suggesting that the design was defective because it made the coffee hotter than necessary. That panel of judges found that “the expert’s conclusory assertions are of no evidentiary value.
“The Bournes’ case shares the same fatal flaw,” wrote the panel in the instant opinion. “Their expert’s affidavit is their only evidence that the design is defective” and that “testimony is comprised of mere conclusions.”
It further noted that the expert’s testimony was lacking because he did “not provide a basis on which a finder of fact could evaluate the frequency of injuries caused by goalposts, or calculate the extent to which risk would actually be reduced by the alternative designs, or justify the costs of those alternatives relative to the benefits of aluminum posts … .
“Finally, Adams does not even consider the possibility of unintended increases in risks to intended users, like the students or staff who would have to hurriedly lower the hinged post to police the crowd at the end of the game. The costs of these incidental effects must be weighed in the balance.”
Andrew Bourne, et al. v. Marty Gilman, Inc.; 7th Cir.; No. 05-3300; 6/20/06
