August 16, 2020 at 5:14 pm #74660
On today’s Outkick VIP call Clay discussed the liability argument surrounding college football – and why the argument we can’t have college football for liability reasons is a non-starter.
First year law students take a course on Torts – things you can sue over like negligence, wantonness, trespass, etc. One of the basic tort cases law students study is the 1928 case of Palsgraf v. Long Island Railroad Company. I’ll summarize:
A lady, Ms. Palsgraf was standing on the platform owned by the railroad. Another passenger, a man carrying a package, jumped onto a moving train on another platform nearby. A guard reached out to help the man into the rail car and a guard on the platform pushed the man from behind. The man dropped the package, which fell onto the rails and exploded. The shock from the explosion caused a scale to fall onto Ms. Palsgraf, injuring her, so she sued the railroad for negligence.
Note: Negligence is the most common tort. Negligence has 4 elements and the Plaintiff has to prove them all: 1) Duty; 2) Breach of Duty; 3) Causation and 4) Damages. Duty and Breach of Duty usually depend on the standard of care for a particular situation, e.g., if the speed limit is 65 mph you have a duty to not to exceed the speed limit. If you drive 100 mph there, you’ve breached your duty to other motorists.
Back to Palsgraf, the case went to trial and Ms. Palsgraf won. Then the case was appealed to an intermediate court. But the case was reversed by the Court of Appeals of New York, the highest court. Why? The Court said the railroad could not have reasonably foreseen that its employees actions – pushing the man with the package – would have resulted in Ms. Palsgraf getting hurt.
Another basic legal doctrine is Assumption of Risk, which wasn’t an issue in the Palsgraf case but it’s taught in first year Torts class. Assumption of Risk is a defense someone has when they get sued that the Plaintiff knowingly and voluntarily assumed the inherent risks involved in the activity they were participating in at the time of their injury.
How does this apply to college football? First of all, the conferences will set guidelines for players, coaches and fans (if they get to attend). Whatever those standards are – faceguards, cleaning, testing, reduced fan capacity, temperature checks, social-distancing and so forth, is basically the standard of care. If and when this happens, the duty is established and then the colleges have a duty to follow these protocols. Causation is the big hurdle here. How someone can prove where they got a virus seems nearly impossible, especially the Coronavirus, since scientists there is conflicting data and scientists still don’t know all there is to know on how it transmits.
So, could you catch the Coronavirus at an SEC football game this fall? Yes you could. You could take your mask off for a sip of Coke while at the same time an asymptomatic positive fan 3 rows above you sneezes, boom, just like the falling package, you’ve got the virus. If the colleges are following protocols and fulfilling their duties, then it’s hardly foreseeable that anyone could be infected because of anything they, the colleges, did. There may be bizarre accidents as described that spread the virus but legal proof demands much more.August 16, 2020 at 6:09 pm #74668
Thanks for that explanation very informative and i always thought how can you prove legally where you got a virus seems to me utterly impossible. Considering incubation times you may have got it a week ago having turkey at grandma’s who knows.August 16, 2020 at 9:34 pm #74687
I asked that question today.
I get the basics and your post and Clay’s explanation are awesome.
But what I’m really interested in knowing is if the schools are so concerned with liability for Covid, and canceling because of it, does this open them up to being held liable for the real injuries and the dire consequences for college athletes.
Using the ACL example, NCAA athletes have a ridiculously high chance of suffering an ACL injury compared to the general population and the outcomes are always bad; retears, arthritis, knee replacement. So, knowing this, and having these institutions recognizing liability in the face of the fake Covid scam, what’s stopping players from suing for damages from these known issues.
When you get in to concussions and submaximal repetitive blows, this could be a real problem for college football, and sports in general.August 16, 2020 at 10:13 pm #74690
Thank you for replying to my post. I think you raise an important point: does the overreaction to the Coronavirus expose colleges to the REAL risks of college football, that athletes take every Saturday, getting crippled or maimed to be blunt. If you look at the data, the risks of incurring permanent damages from an ACL tear or a concussion are greater than long-lasting effects from the Coronavirus (based on what we know now). And unlike Coronavirus, you aren’t asymptomatic if you have an ACL tear. You aren’t asymptomatic if you have a concussion, generally. But you may very well have damages in terms of losing an NFL contract. I believe an athlete willingly playing football is classic assumption of the risk that I talked about earlier; but I think you’re onto something with the point that colleges are potentially creating liabilities on fronts that didn’t exist before by their responses to the Coronavirus – with some being stronger and more sensical than others.August 16, 2020 at 10:35 pm #74692
From how I understand the liability issue as explained by you and Clay, the problem with establishing Covid liability means you’d have to be able to point to a specific instance where someone was exposed and then got sick.
Especially since the virus/flu could be picked up anywhere, not just on a field of play.
And let’s forget for a moment that there’s absolutely zero data that shows that young people are at risk of anything other than mild cold symptoms and the long term risks are similar to that of the flu.
However, with regard to ACL, an athlete can say here’s the precise moment the ACL tore, your doctors did the surgery, your AT/PT staff did the rehab, your doctors returned me to play. In the case of a retear the above continues with the added knowledge that there’s an exponentially higher risk of retear.
Then there’s the known progression that results from the surgery; arthritis and eventual knee replacement. Same for head injuries. The school is responsible for all treatment, in the vast majority of cases.
Just seems to me this illogical and irrational concern with Covid liability could create real problems when dealing with real injury issues.August 16, 2020 at 10:56 pm #74700
I agree all the way on this. If a player gets hurt, a doctor will explain the risks and make a recommendation as to whether the player should be cleared to play or not. And they usually err on the cautious side. Let’s hope the people qualified to make medical calls continue to do so – and no one else.
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