Last month’s column, and the recent death of “Marvelous” Marvin Hagler got me thinking of sports-related cases I’ve been involved in, and I thought I would share some stories this month, as well as discuss some legal issues involved. My own “Marvin Hagler” case had to do with a washing machine, which my client had bought from Sears.
Unlike most of their products this one was defective and would vibrate so much it would move around when in operation. My client tried to have it replaced, but Sears only offered to repair it, trying unsuccessfully on several occasions. At one point my client tried to shut the machine off, and it lunged forward, knocking him off his feet, hurting his back. We brought a personal injury claim against Sears, and the lawyer hired to represent them was Matthias “Matt” Reynolds, an experienced senior partner at the law firm then known as Devine, Millimet, Stahl & Branch. He was a brilliant lawyer, but also loved life and had a great sense of humor. He was known for taking full advantage of cases that had witnesses in desirable locations, so that when he traveled to take their depositions; he could mix some pleasure with business; word had it that he even took a deposition by the side of a pool. He dubbed my client’s washing machine the “Marvin Hagler washing machine”.
Although you may think my client’s claim was a little far-fetched, it illustrates the important legal principle of foreseeability. In general, people and corporations have no duty to refrain from negligent conduct if it is not foreseeable that it could cause harm to someone else. For example, if I leave my car key in the ignition, I am being careless, but if a thief steals it and gets in an accident with another driver, that driver cannot hold me liable, because his injury was not foreseeable (at least according to our Supreme Court). That legal principle is based on a 1928 case decided by New York State Supreme Court Judge Benjamin Cardozo, who later became a distinguished member of the United States Supreme Court. The case, known as Palsgraf v. Long Island Railway, involved a woman who was hurt because a railway porter accidentally dropped a package handed to him by a passenger, which, unknown to the porter, contained fireworks. The fireworks exploded on the track, and the force knocked over some scales on the train platform, which hit and injured Mrs. Palsgraf. Justice Cardozo held that even though the porter’s conduct may have been negligent, he could not be held liable because it was not foreseeable that his negligence would hurt someone in this manner. In my “Marvin Hagler” case, my client’s injury was foreseeable, because he had previously reported the washing machine coming in contact with him to Sears, and their employees’ negligence caused it to happen again. Foreseeability is also important in some sports injury cases.
I recently represented a college baseball player who was hit in the face by a batted ball while pitching during an indoor practice. Although he was pitching from behind an “L” screen, his head apparently extended beyond the screen in his follow-through motion, so the screen did not protect him. He was not aware this was happening, and the college argued that it should not be held liable because it was not foreseeable that pitchers would fail to stay behind the screen and therefore the coaches had no duty to warn them or to make sure the screen was in proper position. This argument was contradicted by evidence from the coaches themselves that they frequently warned players to stay behind the screen (although my client, a freshman who was inexperienced in using the screen in this manner, had not been warned), and from other coaches, including some who had posted videos on You Tube, that pitching from behind an L screen is extremely dangerous unless players have been carefully instructed how to do it safely. I should emphasize, however, that a case like this, where a participant in organized sports is able to make a successful claim for his or her injury, is quite rare. Most of the time the doctrine known as “inherent risk”, that is, that some risks are inherent to the sport and cannot be prevented even with reasonable precautions, bars such claims. Thus, spectators at baseball games hit by foul balls, golfers hit by an errant drive, and others in similar situations cannot sue no matter how severe their injuries. The ski industry is so important to New Hampshire’s economy that the Legislature passed a statute preventing lawsuits for any injuries caused by the “inherent risks” of skiing – icy trails, rocks, snowmaking equipment, etc. So, although you may hear claims of too many frivolous lawsuits, rest assured that the law is not without common sense, especially here in New Hampshire.