Robert Ackerman on Football Helmet Safety and Liability
By Steve Thorpe
sthorpe@legalnews.com
Earlier this year former Detroit Lions running back Jahvid Best filed suit in Wayne County Circuit Court against the NFL and football helmet maker Riddell, claiming they are responsible for his concussion-related injuries. In April, a Colorado jury awarded $11.5 million in a suit originally brought against Riddell and several high school administrators and football coaches over brain injuries suffered by a teenager in 2008. The ruling came as the company faced a similar lawsuit in Los Angeles, plus a complaint by thousands of former NFL players against the league and Riddell. Wayne State Law School Professor Robert Ackerman teaches courses in torts and dispute resolution. He also serves as the university’s faculty athletic representative. Ackerman, a cum laude graduate of Harvard Law School, recently returned to full-time teaching and scholarship after serving almost five years as dean at Wayne Law.
Thorpe: Is this a product safety issue, an employee/employer issue or both?
Ackerman: The suits brought against Riddell would be classified as products liability suits. One problem here is that the more padding the helmet manufacturer places in the equipment, the more safety it appears to provide, and the more the user thinks it will protect him from all harm. When football players used leather helmets (no, I’m not that old), they carried no such illusions.
Thorpe: Some experts are saying that the legal risks of full contact sports may cause these sports to change drastically. What sort of financial hit might the NFL take if these suits continue to succeed?
Ackerman: The settlement negotiated between the retired players and the NFL provides $675 million to a class of more than 20,000 players. The judge rejected the settlement (which may ultimately be approved), saying that the amount may prove insufficient to cover all the claims. Her math looks right to me. The NFL is a very lucrative operation, and for now, would appear to have plenty of money to cover lawsuits. But my law students who used to play college football often tell me that they will not allow their sons to play the game. I love football, but it may become a dying sport (similar to boxing) unless some drastic rules changes are made.
Thorpe: The jury in the Las Animas County case found that Riddell was negligent in failing to warn people wearing its helmets about concussion dangers. How would the company have warned athletes and what might they have said?
Ackerman: I’m not sure what, if anything, is imprinted inside the helmet, but I would be surprised if Riddell did not say something like, “This helmet provides some protection, but is not guaranteed to protect the wearer against all injury. Use proper tackling techniques at all times, and never lead with the head.” One problem here is that with wear, such a warning is likely to wear out over time. And a player issued a helmet by his team is unlikely to have received any kind of written instruction booklet that at one time accompanied the helmet (hence more potential for liability on the part of the team). I imagine the helmet itself has a limited life, and if so, there should be an additional warning to that effect. The problem is that it is impossible to make a fool-proof warning.
Thorpe: Athletic helmet design is much more sophisticated than it used to be, but we’re seeing these lawsuits now. Do users expect too much from this equipment?
Ackerman: I think so. We are a society in which many individuals wish to undertake risks but then do not accept the price of these risks. We expect to have our cake and eat it, too.
Thorpe: The harmful effects of repeated blows to the head may not show up in a player for years, even decades. How does that affect the legal strategies of both sides in these cases?
Ackerman: For one thing, it makes it very difficult to ascertain how much money will cover all the potential damages, especially for a large class of claimants. We’ve seen this elsewhere — asbestos, for example — where there is a large class of potential claimants, and some of the consequences are latent; i.e., they will not show up for years. There were many bankruptcies in the asbestos industry, and there has been a decline — often attributed to products liability cases — in the number of helmet manufacturers.
Note that, increasingly, insurance policies are written on a “claims-made” basis; that is, the insurance covers only claims (not injuries) made during the relevant policy period. Think of what that means for the length of time a sports equipment manufacturer might have to renew its insurance, even after it ceased making helmets, or how long a college might have to renew its insurance, even if it has terminated football as a sport. That is assuming insurance remains available.
Thorpe: How do you expect this issue to unfold over the next few years?
Ackerman: If I could answer that, I’d have made billions on the stock market by now. I think we’ll see more claims — against manufacturers, teams, leagues — at all levels and in several sports, such as hockey, soccer and lacrosse. We’re told that the younger the athlete, the more vulnerable he/she is to head injury, so think of all the pee-wee leagues out there. More manufacturers, schools and leagues will withdraw from this potentially liability-creating activity (e.g., fewer schools will field football teams), unless legislation is enacted protecting potential defendants from liability. We must consider just how seriously we take the concept of assumption of risk and then enforce that concept appropriately.
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