Massachusetts sports fans are smart, loyal, and enthusiastic, but we are much more than fans. We play hard, compete and socialize through sports. As athletes, we want to stay in shape, excel and prevail. From the weekend warrior to the New England Professional Athlete, we play tennis, football, basketball, soccer, hockey and baseball. We play with friends and in leagues, from the North Shore to Boston and Stockton. Our kids start in the youth sports leagues and we participate through our 70’s and 80’s.
Injuries and accidents from athletic participation are inevitable. The sources of the injuries vary. Some come from the inherent risk of the sport; twisted ankles, injured meniscus, concussions, bumps and bruises. Other injuries happen when the competitors or participants take things too far.
Playing sports carries inherent risks of injuries some of which are foreseeable-others not. Football and hockey players know that the physical contact of their sport could cause injuries from actions allowed under the rules of the sport. The participants know these risks and choose to play anyway. But, sometimes, athletes are injured by a competitor who breaches the rules of the sport.
In a Massachusetts case, Gauvin v. Clark, 404 Mass. 450 (1989), Robert Gauvin was injured during a collegiate hockey game between Worcester State College and Nichols College by a stick infraction called a “butt-end”. Gauvin was playing center forward for the Worcester State team and had lined up for a face-off against the Nichols’ center forward, Richard Clark. Gauvin and Clark vied for the puck and as the puck slid down the ice, Gauvin felt a jab in his mid-section from the back of Clark’s hockey stick; the “butt-end”. From the butt-end jab, Gauvin sustained serious injuries. He was hospitalized and underwent surgery to remove his spleen. Gauvin missed weeks of school and had continued pain in his mid-section. Butt-ending is against hockey rules and carries a major penalty and an ejection for the offending player. Since both players understood the rules of the game and know butt-ending is prohibited, (but it sometimes happens by a frustrated opponent) is there legal liability to Clark for the injuries he caused to Gauvin?
The Massachusetts Court had to decide the “duty of care on participants in a sporting competition (where) players agree to undergo some physical contact which could amount to assault and battery absent the players consent.” Restatement (Second) of Torts §50 comment b (1965). The Gauvin Case looked to other states who considered the question and found that “[t]he majority of jurisdictions have concluded that personal injury cases arising out of an athletic event must be predicated on reckless disregard of safety” Gauvin, id.; Massachusetts adopted that standard and allowed the athlete, injured by another player, to seek compensation for damages upon a showing that the other player had acted in a reckless disregard for safety.
In a case of even broader importance, there is an action pending from former National Hockey League players who are suing the NHL over concussion related injuries. Concussion sports injuries are a known high risk from contact sports like football, soccer and hockey.
Is it assumption of risk by the athlete? Is it an inherently dangerous activity that the athlete assumes? Who bears responsibility when an athlete incurs concussion related-injuries or permanent damage?
According to the Insurance Journal, the lawsuit that was filed by the former NHL players alleges that the NHL “had the knowledge and resources to better prevent head trauma, failed to warn players of the risks and promoted violent play leading to injuries.” In re: National Hockey Player(s) Concussion Injury Litigation, United States District Court, District of Minnesota MDL No. 14-2551;
It will be interesting to see how the NHL lawsuit is decided. Meanwhile, each of us has to decide for ourselves the level of risk we want to face in our sports activities. Even more important, what risks do we want our young family members to take?
If you have a sports injury or accident you should consider discussing it with your personal injury lawyer. An experienced injury lawyer can help you know your rights and how to protect yourself.