It’s lacrosse season. I learned to love the sport while watching my youngest son Nico play in middle school. He went on to play JV and Varsity lacrosse at Geneva High School in Geneva, New York where we live. I witnessed many games. It’s a fast and furious sport, “the fastest game on foot” as its fans say.
As in any sport, especially one where a very hard ball is being tossed around at speeds above 60 miles per hour, lacrosse has its risks.
I remember back a few years ago a Buffalo NY Lacrosse player died when the ball hit him right in the solar plexus and caused his heart to stop. And that same thing has happened more than once. Naturally that’s a risk we as parents assume when we let our kids play the sport. And our kids assume that risk, too. We lawyers call this concept “assumption of the risk”. Here’s what that means: A sports participant who agrees to play a sport like lacrosse is legally consenting to the commonly appreciated risks that come with the sport. When the player is injured by one of those normal risks that everyone knows is part of the game, he or she is , naturally, barred from suing anyone for the injuries.
For example, no lacrosse field is perfectly level. Everyone knows that. So if a lacrosse player twists her ankle in a small depression on the field, generally she can’t sue whoever it was who maintained the field. Nor can she sue for getting hit with a stick or ball in normal play.
But we do not “assume the risk” of all injuries on the field. For example, if there is a timeout in a lacrosse game and my opponent comes up to me and smacks me over the head with a stick, this is not a risk I assumed. I assumed the risk of being accidentally hurt by a stick during play, but I did not assume the risk of being deliberately attacked during a timeout. As New York Courts have often said, a sports participant does NOT assume the risks of “reckless or intentional conduct”.
Moreover, New York Courts have long held that a sports participant does NOT assume the risk of a danger “over and above the usual dangers that are inherent” in the sport.
Now that we have the legal background, let’s play judge with a recently decided case. Don’t read the case yet (hyperlinked here). Pretend you are the judge. How would you decide the case described below. Remember, the issue is whether the danger was “inherent” in and “normal” for the sport of lacrosse, and thus the player assumed the risk, or whether the risk was “over and above the usual dangers” of the sport, in which case the player did not assume the risk and can sue.
Here are the basic facts: At a Syracuse University women’s team lacrosse drill, the players were instructed to run single-file down the sidelines as coaches rolled balls to them from about 20-25 feet away. The players were to scoop up the balls and toss them back to the coaches. The drill was obviously an exercise in handling ground balls. It was a common exercise they were all used to.
As the drill proceeded, the head coach apparently got bored with the drill and decided to suddenly throw a ball overhand – fast and hard — to one of the team member. She was unprepared for that, and the ball hit her in the head causing her to suffer a concussion.
The injured player sued SU.
Did the player assume the risk of getting smacked in the head with the ball? After all, isn’t getting smacked in the head with the ball one of the normal risks of the game of lacrosse? That’s obviously what Syracuse University argued.
Or did the coach, by surprising the player with a fly ball during a ground-ball drill, convert the normal risk of being hit with the ball into an “over-and-above-the-usual-danger” type of risk? This is obviously what the plaintiff — the player — argued.
Ready for the Court’s answer?
Drum roll please . . .
The Court said, “it’s up to the jury”. You see, this case came to the Court on a “summary judgment motion” brought by the defendant. SU wanted the judge to toss out the case without a jury. But to win that argument, the defendant was required to prove that no reasonable jury could possibly find the risk that defendant created to be “above and beyond” the normal risks of the game.
Essentially the Court said, “not so fast SU – a reasonable jury could find for the plaintiff. Let’s wait and see.”
So now the rest of us will have to wait and see, too.