By: John E. Tyrrell, Patrick J. McStravick, and Alexander M. Shaen of Ricci Tyrrell Johnson & Grey
On June 12, 2018, a St. Louis jury found the St. Louis Rams liable for Reggie Bush’s 2015 knee injury and awarded him $4.95 million in compensatory damages and $7.5 million in punitive damages, for a total award of $12.5 million. While the verdict signaled the end of the “St. Louis” iteration of the now Los Angeles Rams, it gave rise to a new liability risk for stadium operators and professional teams, while also creating a new class of plaintiffs: professional athletes injured by a stadium condition.
On November 1, 2015, the San Francisco 49ers played against the St. Louis Rams at what was then known as the Edward Jones Dome. Reggie Bush was a player for the San Francisco 49ers. During the first quarter of the game, Reggie Bush was pushed out-of-bounds and his momentum took him beyond the bench area and onto a section of concrete that ringed the perimeter of the stadium playing field. Reggie Bush slipped and fell backwards on the concrete surface, resulting in a torn ACL in his left knee. This knee injury effectively ended Reggie Bush’s playing career.
In 2016, Reggie Bush filed a lawsuit against the St. Louis Regional Convention and Sports Complex Authority (“RSA”), the St. Louis Convention & Visitors Commission (“CVC”), and the St. Louis Rams. RSA and CVC were later dismissed from the lawsuit. At the time of the injury, the Rams were in charge of operations of Edward Jones Dome on gamedays. The Plaintiff, therefore, asserted a premises liability and negligence cause of action against the Rams.
The Plaintiff argued that sports facilities owe a duty to invited guests, including players, coaches, referees, and journalists to remove or warn of any dangerous conditions and to maintain the playing surface so that it is reasonably safe. To further this argument, Plaintiff characterized the concrete perimeter as a “concrete ring of death” and relied upon the Rams’ awareness of the threat of danger that the concrete ring posed, based on a previous injury. Approximately one week before the Plaintiff’s injury, the Cleveland Browns played the St. Louis Rams at the Edward Jones Dome, and the Browns quarterback Josh McCown injured his shoulder after slipping on the concrete ring. Furthermore, two weeks after the Plaintiff’s injury, the Rams covered over the concrete ring with rubber padding. The Rams’ awareness of the dangers associated with the concrete ring, coupled with the Plaintiff’s argument that these dangers were neither obvious nor avoidable to a player running at full speed who might not be able to stop before reaching the concrete area, persuaded the jury.
The jury was not swayed by either of the Rams two main fact-based arguments (the Court had earlier ruled against the Rams on various legal arguments, including preemption of the tort suit by the Collective Bargaining Agreement). First, the Rams argued that it was not foreseeable that an athlete would slip on the concrete ring based on the twenty-plus years where no one had been injured. Second, the Rams argued that the Plaintiff was susceptible to the type of injury he sustained based on his long history of knee injuries. The jury rejected these arguments and returned a $12.5 million verdict for the Plaintiff.
Despite a questionable future in the National Football League and an unclear future earning potential, the jury was persuaded by Plaintiff’s closing arguments that Reggie Bush “lost his ability to do what he loved” and that playing football carries with it an inherent risk of injury that need not be enhanced by a concrete ring. In his successful argument for punitive damages, the Plaintiff convinced the jury that the Rams showed complete indifference and conscious disregard for his safety by failing to fix a known dangerous surface. Possibly also factoring into the jury’s decision was the Rams recent relocation to Los Angeles and the $3 billion valuation of the franchise at the time of trial.
While the floodgates for this type of lawsuit have not necessarily opened, there are presently two similar lawsuits pending. Another former professional football player, DeMeco Ryans, tore his Achilles in a game at the Houston Texans’ NRG Stadium after his foot landed in one of the seams of the turf. Ryans filed suit against the stadium operator and owner alleging in part that they were aware of previous injuries associated with the seams of the field. The action is currently pending in Harris County District Court in Texas. Another lawsuit stemming from a stadium condition involved Dustin Fowler, a former New York Yankees outfielder and current Oakland Athletic, who was injured in his first Major League Baseball game for the Yankees against the Chicago White Sox at the White Sox’s Guaranteed Rate Field. Fowler attempted to catch a fly ball, but his knee collided with an unpadded electrical box along the fence. The resulting collision caused Fowler to tear the patellar tendon in his right knee. Fowler brought suit against the Guaranteed Rate Field stadium operator based in negligence for failing to secure the unpadded electrical box. The action is currently pending in Cook County Circuit Court in Illinois.
Reggie Bush’s successful lawsuit presents a significant development in risk management and generates a potential new class of plaintiffs for stadium operators and professional sports teams to consider: the athletes themselves. Preventing tort liability for stadium conditions has generally focused on safeguarding against spectator injuries. The Reggie Bush verdict has opened the possibility of a professional athlete successfully suing a professional sports team or stadium operator for failing to warn about or remove dangerous conditions existing both in the stadium and on the playing surface.
Given that this type of lawsuit is still uncommon at this point, the following questions should be considered based on Reggie Bush’s successful jury verdict:
What steps can a stadium operator or professional sports team take to address and prevent certain stadium conditions that present a risk to athletes?
Will complying with the changing state of the art be more difficult when addressing risks in the playing area as opposed to spectator areas?
How does the relative wealth and future earning potential of the likely plaintiff factor into the outcome of a potential lawsuit?
How often would a plaintiff or stadium operator receive a fair trial given a jury pool’s animosity toward certain players and/or teams?
What added costs would a stadium operator or professional sports team incur to address the increasing possibility of a lawsuit by an athlete stemming from a stadium condition?
What other risk assessment or professional/legal expertise are necessary to evaluate these issues?
Should this relatively new risk cause stadium operators to reexamine their insurance coverage and levels?
What type of liability and economic expert witnesses will be required to successfully defend against a suit by an injured player?
Are operators prepared to respond effectively to the publicity generated by this type of lawsuit?
John E. Tyrrell is a founding Member of Ricci Tyrrell Johnson & Grey. He has decades of experience in representation of operators and managers of stadiums, arenas, entertainment venues and recreational facilities, including professional and collegiate sports teams, concert promoters, golf courses, ice rinks, gymnastics facilities, rowing associations, and paintball facilities. email@example.com
Patrick J. McStravick is a Member at Ricci Tyrrell Johnson & Grey who specializes in defending lawsuits alleging liability associated with the operation of sports and entertainment venues and recreational facilities. firstname.lastname@example.org
Alexander M. Shaen is an Associate at Ricci Tyrrell Johnson & Grey who works within the Sports, Event and Recreational Liability practice group. email@example.com
1. Brett Hartmann, a former punter for the Houston Texans, injured his knee after his foot became stuck in a seam at NRG Stadium (then known as Reliant Stadium) and sued the stadium operator and owner. The case settled for an undisclosed amount.