Addressing the media before his team's first home game since
Brittanie Cecil's death, Columbus Blue Jackets coach Dave King
said, "We have to do as much as we can to help the family
through this." It was an admirable sentiment, but it was based
on social responsibility, not legal obligation. Under the common
law doctrine of "assumption of the risk," sports teams and
leagues are generally shielded from liability when fans are
injured in foreseeable ways during play.
The thinking: There are certain risks that are so inherent in an
activity that they cannot be eliminated. In the case of sports
spectators, that can include getting hit by a foul ball, a hockey
puck or a car part. "The law isn't favorable to fans," says
Harvard Law School professor Paul Weiler, an expert in both torts
and sports law. "It essentially says, Look, you know what you're
getting yourself into. If you don't like the risks, don't come."
Some fans struck by objects have overcome this presumption, but
the circumstances have been extraordinary. For instance, a Los
Angeles Kings fan won a $3 million settlement from the team, the
San Jose Sharks and Joe Murphy in September 2000 after the fan
was hit in the head by a puck that Murphy rifled into the stands
after an L.A. goal. Though it was reasonably foreseeable that the
fan might be hit with a puck during the action, that wasn't the
case once play had stopped. In Brittanie's case, however, no such
peculiarity was apparent.
Another possible legal gambit: Fans can't assume risks they don't
understand. In one of the few Ohio cases that could provide
favorable precedent to the Cecil family, a Cleveland man who was
attending his first hockey game, in 1948, was hit by a flying
puck. He successfully circumvented the "assumption of risk"
defense by maintaining that he didn't know that sitting in an
unscreened area was dangerous. Still, the attorney retained by
Brittanie's family last week would have a hard time maintaining
that Brittanie, an avid hockey fan, was unaware of the risks.
Spectators injured during play have also won cases on the grounds
that the teams' facilities were inadequate or unsafe. In 1999 a
Florida Marlins fan sitting near the bullpen was severely injured
by a wild pitch that flew over the screening and was awarded $2.5
million when a jury ruled that the team should have known the
netting was too low. The plexiglass in Columbus's Nationwide
Arena, however, conformed to accepted NHL standards. Given that
Brittanie was the first fan in league history to be killed by a
puck, it would be difficult to contend that the standards were
What of the language on the back of the tickets that warns fans
of flying pucks and usually claims to discharge the team of
responsibility? While no reasonable court would regard that as a
binding contract, it's a further indication that the risks have
been made apparent and foreseeable to fans.
Yet just because the Blue Jackets likely don't have to compensate
the Cecils doesn't mean they won't. Were the Blue Jackets to tell
the Cecils that, in so many words, "they're outta luck," the
public relations consequences could be disastrous. If the case
went to trial, legal doctrines be damned, it's the rare jury or
elected judge that would favor a deep-pocketed sports franchise
over the family of a deceased 13-year-old cheerleader.
E. Michael Kelly, a Chicago attorney, successfully defended the
White Sox in a recent $1 million suit brought by a fan hit in the
eye by a foul ball. If he were counseling the Blue Jackets, Kelly
would advise the team to proffer to the family $1 million,
minimum, for waiving their right to sue. "Maybe it would be
different if it had been a loudmouth with 15 beers in him," he
says. "But this? This is a tragedy beyond belief with the most
sympathetic plaintiffs imaginable." --L. Jon Wertheim
COLOR PHOTO: BRIAN BAHR/GETTY IMAGES ON THE SPOT Aside from sending condolences to the Cecil family, as of Monday, NHL commissioner Gary Bettman had not spoken publicly of the tragedy.
Legal doctrines be damned, it's a rare jury that would favor a
sports franchise over the family of a deceased 13-year-old