Judge Grants Summary Judgment to Arena Football League
A federal judge from the Eastern District of Louisiana has granted partial summary judgment to Arena Football One (AFO) in a case in which it was sued by a player, who suffered multiple concussions while playing in the league.
In so ruling, the court relied on two pivotal findings; that the plaintiff had failed to demonstrate that AFO intended for the plaintiff to get hurt and second that there is no direct nexus between playing football and suffering a concussion.
By way of background, plaintiff Lorenzo Breland alleged that he sustained his initial concussion while playing for the Tulsa Talons in 2011, which is part of the AFO.
After the team doctor diagnosed Breland with a concussion, he alleged the team encouraged him to return and he started the following game. Subsequently, he played for the New Orleans Voodoo. The plaintiff alleged that he sustained a severe blow to the head during a game on April 11, 2014, which caused a second concussion. Breland claimed that, after the 2014 incident, he received inadequate medical attention and care and was pressured to return to playing football before he was fully rehabilitated. He alleged that, after complaining to the coach about his continued health problems, he was sent to a speech pathologist. The plaintiff alleged that this head injury caused him to remain bedridden for six weeks, and that he was ultimately suspended from the league and cut from the Voodoo. Breland claimed that the second concussion ended his career, and the defendants did not pay for his ongoing medical care or rehabilitation to allow him to return to play in a healthy manner. The plaintiff alleged that he continues to suffer long-term problems, including dizziness, memory loss, headaches, weight loss, neck aches and fatigue, and that he faces an increased risk for future disorders as a result of the injuries.
As part of his lawsuit, he asked for damages, past and future medical expenses related to the concussions, and medical monitoring to facilitate the diagnosis and treatment of future disorders caused by the injuries. The plaintiff claimed that the league knew of the potential risks associated with head trauma, but intentionally concealed them. Further, the league “fostered an environment of brutality and violence and ignored the wellbeing of its players for the sake of profit.” The plaintiff further alleged that the defendants breached their duties by failing to take appropriate steps to prevent or mitigate the potential for injury, avoiding such steps due to the expense and impact on league profitability. In addition, he claimed that the defendants falsely represented to him that he would receive excellent medical care, which they failed to provide. Finally, Breland alleged that the league players’ collective bargaining agreement created an obligation that the defendants pay all medical expenses resulting from any injury sustained while playing in a game, but that the defendants “have acted in bad faith and refused to pay any expenses incurred as a result of the plaintiff’s second 2014 concussion.”
AFO moved for summary judgment, claiming the suit is precluded because at the time of his alleged injuries, the plaintiff was an employee of AFO and therefore can only seek recovery through the Louisiana Worker’s Compensation Act (LWCA). The plaintiff countered that AFO acted with “specific intent to cause him injury and damages and because intentional torts are excluded from the LWCA, (that) his suit is properly before this court.”
In its analysis, the court noted that the “intentional act exception is narrowly construed. Reeves v. Structural Preservation Systems, 731 So.2d 208, 211 (La. 1999). There must be a strong link between the employer’s conduct and the employee’s injury for the intentional act exception to apply. Guillory v. Domtar Industries, Inc., 95 F.3d 1320, 1328 (5th Cir. 1996).”
Further, it wrote that “an employer is not liable under the intentional act exception when they simply have knowledge of prior injuries in that line of work, or are aware of statistical data regarding those injuries. Maddie v. Plastic Supply & Fabrication, Inc., 434 So.2d 158, 161 (La. App. 5 Cir. 1983), writ denied, 435 So. 2d 445 (La. 1983).”
In sum, the court found that the plaintiff’s allegation presents “insufficient evidence that AFO consciously desired the physical result of its act.”
Regarding whether the plaintiff’s injuries were substantially certain to occur, the plaintiff’s complaint “sets forth a litany of literature regarding the connections between brain injury and repeated traumatic impact.” The defendant countered that they are not aware of any study that indicates any injury is “substantially certain to follow from participating in a football game. This Court agrees.
“While it is undisputed that football is a dangerous sport that often causes harm to its participants, the connection between brain injury and football does not rise to the level of substantial certainty. Though this court acknowledges that it is not uncommon for football players to experience brain injury, such injury is not ‘inevitable’ as is required to meet the exception to the LWCA.”
Lorenzo Breland v. Arena Football One, LLC., et al.; E.D. La.; CIVIL ACTION NO. 15-2258 SECTION “L”, 2017 U.S. Dist. LEXIS 71732; 5/11/17
Attorneys of Record: (plaintiff) Galen M. Hair, LEAD ATTORNEY, Andrew K. Jacoby, Varadi, Hair & Checki, LLC, New Orleans, LA; Joseph F. LaHatte, III, LEAD ATTORNEY, LaHatte Law Firm, LLC, Metairie, LA; Michael S. Brandner, Jr., Brandner Law Firm, LLC, New Orleans, LA. (for defendant/cross claimant Arena Football One, LLC) Charles J. Duhe, Jr., LEAD ATTORNEY, Taylor, Wellons, Politz & Duhe, APLC (Baton Rouge), Baton Rouge, LA; Jason D. Bone, Paul J. Politz, Taylor, Wellons, Politz & Duhe, APLC (New Orleans), New Orleans, LA. (For defendant National Casualty Company and Federal Insurance Company) John Powers Wolff, III, LEAD ATTORNEY, Keogh, Cox & Wilson Ltd, Baton Rouge, LA. Steven W. Usdin, LEAD ATTORNEY, John W. Joyce, Laurence D. LeSueur, Jr., Barrasso, Usdin, Kupperman, Freeman & Sarver, LLC, New Orleans, LA.