Tripping on the sidelines: inherent or increased risk of playing football?

It's Monday Night Football, and fans across the country are tuned into ESPN. The visiting Denver Broncos are playing the Los Angeles Chargers during week 7. DeAndre Carter returns the punt for the Chargers as overtime begins. He is chased out-of-bounds by the Broncos' Aaron Patrick. The 6 '4, 245 lb linebacker is running full speed, and his momentum carries him several yards past the sideline, where he collides with an ESPN television employee. Patrick then steps awkwardly on a raised floor mat covering television wiring used for the broadcast. He falls to the ground, grimacing in pain. He is carted off the field, unable to walk or bear weight on his left leg.

Not only did Aaron Patrick tear his ACL, or anterior cruciate ligament, but he will miss the rest of this season and possibly part of next season too. He will lose his base salary of $370,000, plus an estimated $200,000-$400,000 in player bonuses this year alone. Patrick will become a free agent after the 2022 season. If his knee does not heal in time for the 2023 season, his future career prospects could be limited. It is not a stretch to suggest that his loss of earnings alone stand to exceed $1 million dollars.

This is part of the reason why Aaron Patrick is suing everyone and anyone affiliated with the Oct. 17 Monday Night Football game. The defendants in his lawsuit include the floor mat manufacturer; ESPN; the ESPN television employee he collided with; the Los Angeles Chargers, SoFi Stadium; and even the National Football League. The premises liability case alleges that the floor mat was a dangerous condition, and SoFi Stadium and the Los Angeles Chargers were negligent in maintaining the floor mat so close to the sideline in a way that directly caused Aaron Patrick's knee injury.

Timeout. Doesn't a professional football player who is paid a fortune assume the risk of this type of injury? We all learned in first year Torts class that athletes assume the risks of injuries associated with playing their particular sport. Under the primary assumption of risk doctrine, Aaron Patrick's case is out-of-bounds, isn't it? Not so fast.

Knight v. Jewett

The primary case delineating the contours of the primary assumption of the risk doctrine in the sports context is Knight v. Jewett, 3. Cal.4th 296 (1992). There, the California Supreme Court explained the difference between primary and secondary assumption of the risk. Under primary assumption of the risk, a defendant does not have a duty to protect the plaintiff from inherent risks or to take steps to reduce those risks. A defendant will only have a duty to not increase the risks to a co-participant over and above those inherent in the sport. The doctrine ensures that the fervor of athletic competition will not be chilled by the constant threat of litigation from every misstep, sharp turn, or sudden stop. Cheong v. Antablin, (1997) 16 Cal.4th 1063. Primary assumption of the risk serves to completely bar a plaintiff's claims as a matter of law.

Collisions are part of football. Players collide with other players and with personnel and coaches on the sidelines. Players suit up with pads, helmets, and athletic tape each week precisely because the game is so physical. The question in Aaron Patrick's case becomes this: Did any or all of the defendants unreasonably increase the risks of injury by placing an elevated floor mat so close to the field-of-play? In other words, is a player running full speed and tripping on a raised surface concealing television wiring so close to the field-of-play an inherent risk of playing in the National Football League?

Duty Not to Increase Risks

Razio v. Fairbanks Ranch Country Club, 233 Cal.App.4th 1053 (2016) might be instructive. In that case, a musician sued the music venue where he was scheduled to perform after he fell through a gap on the stage. The trial court granted summary judgment to the defendant, but the Court of Appeal reversed. The Court held that falling off a stage is an inherent risk for all stage performers, but summary judgment was improper because evidence should have been presented to determine whether the defendant increased the risks of the plaintiff falling off the stage.

Bush v. Parents Without Partners (1993) 17 Cal.App.4th 322 might also be on point. There, a dancer was injured after slipping on a dance floor. The venue operator had cleaned the dance floor with cleaning products, and the Court held that by doing so it had increased the plaintiff's risks of falling. Interestingly, the Court also held that while falling on the dance floor is an inherent risk of dancing; slipping on a foreign substance is not.

Conclusion

The doctrine of primary assumption of the risk in the sports context can be a difficult hurdle to overcome for athletes who get injured while playing. Nevertheless, the doctrine does not grant unbridled legal immunity to all defendants, and an owner or operator still has a duty to use due care not to increase the risks to a participant over and above those inherent in the activity. Fazio v. Fairbank (2016) 233 Cal.App.4th, 1059-60. In 2018, Mac Williamson of the San Francisco Giants was injured after tripping on an unusually-placed pitching mound just past the right-field line while running to catch a fly ball. He claims the injury ended his career, and his suit against Oracle Park is still pending. In 2015, former NFL running back Reggie Bush tore his ACL after slipping on a concrete pathway on the sidelines of the then-St. Louis Rams stadium. The facts and mechanism of injury in that case are eerily similar to Aaron Patrick's case. The jury awarded Bush $12.5M in that case. The defendants in Aaron Patrick's case might want to take notes.