By Allen P. Wilkinson
A participant in a sporting event or activity, whether on the professional or college level, intramural leagues, organized baseball and football leagues, and even impromptu pick-up basketball or ice hockey games, assumes many risks of being injured in a myriad of ways. However, the participant does not assume that the products he or she will be using are dangerously defective and can cause harm to or even the death of the participant.
By taking part in a sport, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and which flow from such participation. This is due to the doctrine of “primary assumption of risk,” whereby the participant is legally deemed to be aware that he or she may be hurt in the course of the sport, even if the injury is due to another player’s negligence.1
A risk is inherent in a sport if its elimination (1) would chill vigorous participation in the sport, and (2) would alter the fundamental nature of the activity. A defendant owes no duty of care to protect a plaintiff against risks inherent in a particular sport voluntarily played by the plaintiff. However, the defendant does owe a duty to participants not to increase the risk of harm over and above that inherent in the sport.2
When sports equipment malfunctions, breaks, or conceals hidden defects that render the equipment unstable and weak, the resulting injuries can be serious, even fatal. A sport participant does not ordinarily assume the risk that the product he or she is using while engaging in the sport is defective in its manufacture or design, thereby increasing the risk of harm or danger that the participant will be hurt.
There are several different types of defective products:
Those that have been defectively manufactured, such as a faulty weld or an inferior substance. In this situation, there is nothing wrong with all of the products made except for individual products that were improperly fabricated;
Those products that have been defectively designed, so that they are reasonably dangerous and will cause injuries even though there is no manufacturing defect in the fabrication of the product. There are two alternative tests for identifying a design defect: (1) the product does not perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner (the “consumer expectations” test); or (2) on balance the benefits of the challenged design outweigh the risk of danger inherent in the design (the “risk-benefit” test)3;
Those products that do not adequately warn of the product’s dangers even when used properly; or
Those products that do not come with proper instructions regarding its assembly (if any) and use.
Under strict products liability law, the manufacturer and all others in the “stream of commerce”—the distributor, wholesaler, retailer—owe a duty to produce, distribute, and sell defect-free products. The ultimate user of the product does not assume its being defective and does not assume a hidden or unknown risk that is inherent in its proper use.4
For example, the blade on an ice-skating boot may be improperly attached to the boot causing it to come loose, resulting in severe ankle and leg injuries to a hockey player or figure skater. A pole vaulter’s pole may break due to a defect while the athlete is in mid-air, causing him or her to miss the landing pad and land on hard ground, sustaining serious injuries. A race car driver assumes many risks of being injured or killed, but does not assume the risk that a product in the car is defective in design or defective, causing the vehicle to go out of control, flip over numerous times, hit the restraining wall, and bursting into fire resulting in the driver’s injury or death. Mountain bikes are designed to withstand vigorous use. But a defect in the designing or making of, say, the front forks causing them to break, sending the rider flying and being seriously injured when he or she lands, is not an inherent part of terrain riding. A faulty binding on a snow ski may cause the skier to go out of control and crash into a tree or chairlift tower. An all-terrain vehicle (ATV) may be improperly designed, resulting in injury to or death of the riders.
Where a person is injured while properly using a product that is not defective, there is no liability on the part of the manufacturer. For example, if a plaintiff has cut himself while using a non-defective knife in a reasonably anticipated way, the person assumes the risk of being cut. However, as applied to a defective product, a defendant manufacturer is not relieved of liability. Indeed, a defective product is one that causes injury when it is used in a reasonably foreseeable manner, and the tort and implied warranty doctrines of products liability were designed to compensate plaintiff for those very injuries. Although the manufacturer cannot escape liability for injuries caused by its defective product, it can reduce its exposure by showing that the person was misusing the product at the time of the injury under the doctrine of comparative or contributory negligence (“secondary assumption of risk”).5
One of the leading causes of injuries due to a defective product in a sports setting is a defective helmet that fails to adequately protect the user from head, neck, and spine injuries, causing the helmet to fall off the participant’s head, leaving him or her vulnerable to suffer head injuries, traumatic brain injuries, spinal cord injuries (including quadriplegia and paraplegia) and a fractured skull. Helmets are used in all types of sports to protect the participant from head injuries: football, ice hockey, bicycling (including special helmets for racing, downhill mountain bike riding, and bicycle motocross [BMX]), baseball, horse racing, skateboarding, car racing, motorcycle racing, and snow skiing, to name a few. Football helmets were the topic of the day especially in the 1970s and 1980s, when coaches told players to hit the opposing quarterback or running back head-on in the chest. With players being taught and trained in making tackles leading with their shoulders, and the technological advances in the design and manufacture of football helmets, the number of head injuries due to defectively made or designed helmets has decreased significantly. However, football players, hockey players, fencers, baseball catchers and others continue to be at risk for punctured or crushed helmets, or damage to the bars or shield of a mask, exposing the participant to potentially serious facial and eye injuries.
Chin straps must be strong enough to keep the helmet on the athlete’s head and in the proper position during a fall or collision. Over the past few decades, the threat of a lawsuit for injuries resulting from a defective helmet has forced manufacturers to adopt stringent and stricter designing, manufacturing, and testing for their helmets, drastically reducing the number of injuries due to defective helmets. This is a prime example of how tort cases can bring about change that will result in fewer people being injured or killed by defective products.
In one college baseball game, a pitcher for California State University, Northridge was struck in the temple by a ball hit by an opposing player using an aluminum bat called the Air Attack 2, which allowed a batter to hit a ball at speeds in excess of that which would give the pitcher time to avoid being struck by a ball hit right back at him. The ball came off the bat so quickly that the pitcher could not avoid it and suffered a fractured skull and traumatic brain injuries as a result. An expert in kinesiology testified that, in his opinion, the ball was traveling between 101 and 107.8 miles an hour when it hit the pitcher. This would have given the pitcher a reaction time of only .32 to .37 seconds to avoid the ball, which was below the minimum reaction time of .39 seconds accepted by the NCAA and other organizations.
At the time of the accident, the NCAA allowed the use of metal bats and the bat in use was apparently in compliance with NCAA standards. It was undisputed that the Air Attack 2 was designed to cause the ball to come off the bat at a higher launch speed than with wooden bats and older aluminum bats. It was also undisputed that the inventor of the Air Attack 2 bat believed it substantially increased the risk of a pitcher being hit by what he termed a “come backer” and that he complained to his employers at defendant company about these increased risks.6
One case involved a softball player who broke his leg when he slid into second base. The base in question was a Saf-T-Slider, which was a stationary base with a 1 1/2 –inch anchor and 4-inch stanchion. The advertisement for the base stated that its unique beveled corners sat flush with the ground to allow players to safely slide up and over the base, and that the base was ideal for use and recreational play. It was not a break-away base. The plaintiff claimed he was injured when his foot caught on the base while he was sliding feet first into it, that the base had therefore had not functioned as it was designed to, and its design was unreasonably dangerous. However, the court upheld the verdict in defendants’ favor, finding that there was evidence from which the jury could conclude the plaintiff knew the base was stationary and assumed the risk created by sliding into the base.7
Weight rooms are equipped with the latest machines to build and tone muscles. Unfortunately, sometimes the apparatus fails or breaks, causing the user to be violently thrown off the machine or have hundreds of pounds fall on his chest, causing severe injury. Fitness centers, gyms, and the like, whether paying membership is involved or not, are not generally subject to strict products liability, as they are deemed to provide only a service to their patrons. The fitness center is deemed to be the end user in the stream of commerce insofar as the law of strict products liability is concerned.
Accordingly, a member of a 24 Hour Fitness center could not recover on a theory of strict products liability for injuries she suffered when both “steps” of the stair step equipment she was using lost all resistance, causing the woman to fall backwards off the machine onto the floor, suffering injuries. The court found that the dominant purpose of the plaintiff’s membership in the fitness center was to provide fitness services. In addition to enabling her to use exercise equipment, the plaintiff’s agreement entitled her to engage in a variety of activities, including aerobics, dance classes, and yoga. The court stated that the evidence showed that the defendant fitness center was in the business of providing fitness centers and made exercise machines available to members as an incident to those services, and therefore the law of strict products liability did not apply.8
The fact that a particular product used by a participant in a sporting activity may prove to be defective is not an occurrence that is typically known, apparent, or reasonably foreseeable from the standpoint of the participant, nor is it ordinary, necessary, or inherent in the activity itself. To the contrary, a defective or unreasonably dangerous condition of the product is almost always a “concealed” condition, representing an unreasonably increased risk and hence one that would remain unassumed by the participant.9 Accordingly, when a sport participant has been injured due to the failure of a piece of equipment to do its job properly, the manufacturer and others in the stream of commerce can be held liable for injuries.
FOOTNOTES
1.Souza v. Squaw Valley Ski Corp., 138 Cal.App.4th 262, 41 Cal.Rptr.3d 389 (2006); Auwarter v. Malverne Union Free School District, 274 App.Div. 528, 715 N.Y.S.2d 852 (2000).
2. Sanchez v. Hillerich & Bradsby Co. 104 Cal.App.4th 703, 128 Cal.Rptr.2d 529 (2002).
3. Anderson v. Owens-Corning Fiberglas Corp., 53 Cal.3d 987, 995 (1991).
4. Ford v. Polaris Industries, Inc., 139 Cal.App.4th 755, 43 Cal.Rptr.3d 215 (2006).
5. Larsen v. Pacesetter Systems, Inc., 71 Haw. 1, 837 P.2d 1273 (1992).
6. Sanchez v. Hillerich & Bradsby Co., supra, 104 Cal.App.4th 703, 128 Cal.Rptr.2d 529.
7. Martinez v. Schutt Sports, No. 2 2006-0133 (Ariz.App.Div.2 04/30/2007) (unpublished opinion).
8. Ontiveros v. 24 Hour Fitness Corp., 169 Cal.App.4th 424, 86 Cal.Rptr.3d 767 (2008).
9. Repka v. Arctic Cat, Inc., 20 App.Div.3d 916 (2005).
Allen P. Wilkinson was admitted to the California State Bar in November 1979 and immediately went to work for the legendary San Francisco Melvin Belli for 10 years. He now writes articles, chapters, and books both for the legal profession and the lay public, and serves as a consultant to other lawyers. The author lives in Laguna Woods, California.
