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Out of bounds injury tests stadium liability limits
TIMOTHY L. EPSTEIN
Law Bulletin columnist
Published: May 16, 2016
During a November 2015 game between the San Francisco 49ers and the St. Louis Rams at the Edward Jones Dome in St. Louis, 49ers’ running back Reggie Bush was pushed out of bounds in the direction of the stands.
After regaining his balance, Bush tried to slow his momentum in order to avoid colliding with the wall and fan seating. Before reaching the wall, however, Bush slipped and fell on an uncovered portion of concrete that divided the turf field from the stands. The exposed concrete was about 15 yards from the edge of the sideline.
As a result of the fall, Bush tore his ACL, which would cost him the remainder of the 2015 season and put his career in jeopardy.
Bush filed a lawsuit in St. Louis Circuit Court (currently removed to the Eastern District of Missouri) against the owners and operators of the Edward Jones Dome, the St. Louis Regional Convention and Sports Complex Authority and the St. Louis Convention & Visitors Commission.
His suit may test the bounds of the typical assumption of risk doctrine in sports.
The complaint alleges one count of premises liability and one count of general negligence. It seeks both punitive and compensatory damages. Specifically, Bush opines that as property owners, the sports complex authority and convention commission were negligent by allowing the concrete surface to remain uncovered without warning the players about this risk. See Bush v. St. Louis Regional Convention and Sports Complex, et al, No. 4:16-cv-00250 (E.D. MO. Feb 24, 2016).
Bush is represented by Shawn Holley, who has an illustrious and successful litigation career representing both athletes and celebrities in many high-profile cases. Most notably, Holley was a prominent member of former NFL star, O.J Simpson’s defense team in the notorious 1995 murder trial.
To establish his premises liability claim, Bush asserts his status as an invitee on the day of the incident, as his presence on the field was for the benefit of the sports complex authority and convention commission in their capacities as owners and operators. Thus, the sports complex authority and convention commission owed Bush the highest duty of care.
This duty required them to inspect the Edward Jones Dome for inherently unreasonable risks and, upon such discovery, either remove the danger or warn invitees about the potential danger they would not discover on their own.
At first look, the concrete ring around the football field seems innocuous and would have trouble living up to its’ nickname as the “concrete ring of death,” which Bush coined in his complaint.
Yet, the Sunday before Bush’s injury, Cleveland Browns’ quarterback, Josh McCown, slipped on the same “concrete ring of death” and injured his shoulder. That incident, Bush urges, gave the sports complex authority and convention commission notice that the concrete surface was inherently dangerous and similar injuries were likely to occur in the future.
In his negligence claim, Bush points to numerous omissions on the part of the defendants related to their failure to ameliorate the danger of the concrete surface. Specifically, Bush insists that failing to warn the players about the slippery nature of the concrete surface constituted a breach.
Furthermore, Bush also points to the fact that the sports complex authority and convention commission failed to cover the surface with anti-slip padding despite McCown’s slip and fall the week prior.
Looking at the face of the complaint, Bush should be able to prove he was not warned about the inherent danger of the concrete surface prior to the game. He asserts verbal warning was not given to him, or his team, by Edward Jones Dome officials. Moreover, no signs or other warnings were issued prior to kick off.
However, Bush’s situation is distinguishable from common premises liability and negligence disputes since the injury occurred during an athletic contest. Bush’s presence on the field was voluntary, and relevant Missouri case law reveals that persons who voluntarily participate in a sport assume the risks that are reasonably inherent to that sport, so long as such risks are obvious and usually incident to the game. McKichan v. St. Louis Hockey Club L.P., 967 S.W.2d 209, 213 (Mo. App. E.D. 1998).
In light of McKichan, Bush’s case will most likely turn on whether slipping on the concrete surface is an inherent risk of playing in an NFL game. The circumstances of this case are rather unique, though, since the injury occurred after a play and outside the actual playing field.
Bush’s torn ACL resulted from an unanticipated, dangerous, change in surface conditions, not from a football play. In fact, the danger’s existence directly resulted from the unreasonable and inadequate maintenance of the “concrete ring of death.”
It is beyond question that Bush assumed the inherent risks of playing in an NFL game, but this may not relieve the sports complex authority and convention commission of their duty to provide Bush a reasonably safe playing environment. Sheppard v. Midway R-1 School District, 904 S.W.2d 257 (Mo. App. W.D. 1995).
Even if slipping on concrete is not an inherent risk in football, the sports complex authority and convention commission may also refute Bush’s claims by contending the burden of making the concrete surface completely safe, in only one week, far outweighed the remote probability that Bush or any other player would suffer an injury of that magnitude.
Evidence that the Rams completely cover the “concrete ring of death” with rubber padding before their next home game will likely be excluded from evidence as a subsequent remedial measure.
Ultimately, Bush’s case is likely to settle, but if the case is tried, the case could be precedential with respect to the parameters of the inherent risk of sport. A critical question that will have to be considered is whether Bush’s injury was a natural extension of a football play.
Other sports may pay close attention as to whether the inherent risk of sport is limited to the space between the lines. Regardless of the outcome of the Bush case, the likely upshot is that stadiums across the country will take better care to ensure the sidelines, in addition to the playing field, are safe for athletes.
Timothy Liam Epstein is a partner at Duggan, Bertsch LLC and chair of the firm’s litigation practice group and a member of the firm’s sports and entertainment/festival/event practice groups. He also serves as an adjunct professor at Loyola University Chicago School of Law, teaching courses in sports law. His sports law practice is all-encompassing, but focuses on the litigation needs of players, coaches, teams and schools. He can be reached at tepstein@dugganbertsch.com.