By Gil Fried
Former star running back Reggie Bush suffered a season-ending knee injury in a 2015 game between the St. Louis Rams and the San Francisco 49ers at the Edward Jones Dome in St. Louis. Bush was pushed out of bounds by opposing players, then slipped and fell on a strip of exposed concrete. The concrete encircled the entire outside part of the field, behind the field and player benches. Bush’s lawsuit called that strip a “concrete ring of death.”
The suit was filed in 2016. It claimed that the Rams (who are now based in Los Angeles) were negligent in keeping that ring of concrete exposed. The suit alleged it was even more egregious because the team should have known that players regularly go beyond the out of bounds lines — in this case 35 feet outside the lines. Shortly after Bush’s injury, the Rams covered the exposed concrete with rubber.
A St. Louis jury agreed with the claim and they awarded Bush $4.95 million in compensatory damages and $7.5 million in punitive damages. The jury found the Rams’ organization 100 percent liable for the incident. Originally, the public agencies that own and operate the stadium were also sued, but they were dismissed from the suit after successfully arguing that the Rams control the stadium on game days.
According to a St. Louis paper, Dan Allmayer, a lawyer for the team, said they plan to file a motion for a new trial. According to the St. Louis Post-Dispatch, Allmayer indicated that “[F]ootball is risky and being pushed out of bounds is a risky part of the game…. Reggie Bush is one of the most talented running backs in the NFL. Why didn’t he swerve or do something to avoid the concrete? …. Why in 20 years had all sorts of running backs who had been pushed out of bounds not reach the concrete?”
Every facility executive needs to carefully review their facility as part of a risk management effort. The facility director should take into consideration not just the number of injuries, but possible severity, ease of correcting a problem, and other variables when exploring risks/solutions. While a risk matrix (examining likelihood and severity) can provide some insight, it is not the end of the analysis if the potential harm is something that should be analyzed in light of new technologies, new facility designs, or other variables that might need to be considered.
This brings me back to my law school days where we reviewed Learned Hand’s decision in T.J. Hooper v. Northern Barge Corp. 60 F.2d 737 (1932). One line in particular from the case reads: Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission.
Thus, if most in the industry do something one way, and there is a safer way that should/could be followed, then maybe the courts will intervene and force our industry to act in a given way. The more we can show that we are doing everything possible to make a facility safe, taking into account facts known to one facility or even facts known at other facilities or even throughout the world, we should try to see if we are providing as safe a facility as possible. There is no guarantee of safety, but we have an obligation to try and address issues that are or might represent a concern (or safety solution) before the issue of liability goes to a jury that might award millions of dollars.
Gil Fried is a sports law professor at the University of New Haven and Editor in Chief at Sports Facilities and the Law.
