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, ii would be difficult to contend that the standards were negligent.
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."