Articles Posted in Sports Injuries

I am in my final days in Costa Rica where I have been exploring rain forests, volcanos, and beaches. Some of the exploring is (just a little) risky.  Costa Rica is famous for its “environmental tourism” also called “adventure tourism”.  But where there is adventure there is a risk of misadventure.  In other words, s— happens.  And since I can’t go anywhere without taking my lawyer brain with me, I have been thinking a lot about the “assumption of the risk” doctrine, which protects sport facilitators from lawsuits by participants who might get hurt while engaging in the sport. This includes of course adventure sports.

I have had some “misadventures” here already.  Read on and find out about them!

But first, a little about the assumption of risk doctrine.  In New York, this means that if you are injured in an adventure sport such as zip-lining, hiking, bungee jumping or whatever, it is difficult to bring a claim and get compensation in court against the entity that provided or facilitated your participation in the activity.  It is pretty much universally the rule – in New York and everywhere – that you “assume the risk” of dangerous activities you choose to participate in.  This is based on a fundamental concept of law . It’s called “common sense”.

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.

A week or so ago, at Yankee Stadium, a foul ball flew off Todd Frazier’s bat at 110 miles per hour and clocked a toddler in the face.  She was seated in the stands behind the third-base dugout with her grandpa.  It hit her face so hard that players and fans alike grasped.  The game stopped.  It was a horrible scene. This video shows only the reaction of the players, not the impact itself:

When I saw this video, my first thought, like everyone else’s, was, “oh my god, I hope she’ll be all right, that poor girl!”.  My second thought was less emotional and more lawyerly: “can the Stadium be held liable”?  But then, before I had even finished that second thought, my third thought overtook it: “No, it can’t be held liable”.

A new case demonstrates how tough it is to sue for kids’ sports injuries.

Normally a participant in a sport – even a child – assumes the risks inherent in the sport and therefore can’t sue to recover for injuries. There are some exceptions to the rule. For example, You don’t “assume the risk” of a danger you would not normally expect to find in the sport (example: a puddle on an indoor basketball court).

So here’s a summary of that new case: In Cvijenovich v Beacon Kids Wrestling Club, a child wrestler’s opponent suddenly did “an illegal or unreasonably dangerous wrestling move” causing him injury. An illegal or dangerous move like this is not covered by the “assumption of risk” doctrine because no one joins a wrestling club with the expectation that illegal, dangerous moves will be used. Participants assume the risk only of legal moves.

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