Friday, September 3, 2010

Brain injuries among athletes and the preventative role appropriate lawsuits serve to make the coaches, trainers, and medical personnel more vigilant

Appropriate lawsuits in these instances can make sports safer.

I have represented brain injured and spinal injured athletes and recreators for many years.

The Supreme Court, however, issued several precedential decisions in 1993, and there are government immunities in place per statutes, in an attempt to severely limit liability for sports programs and other "risky" activities. I wonder if the aftermath of those cases and statutes, and their more recent progeny and refinements, have helped to increase the risk for athletes like you describe, and thus cause what appears to be a greater incidence of injuries.

In the United States we accept that people/companies generally tend to do the right thing, or at least more of it more often, when they otherwise risk civil or criminal liability for their failure to do the right thing, keep people safe, fix defective products, etc. Think about car manufacturers and manufacturers of other products, or wayward financial institutions, for examples.

The development over the years of the immunities available to government entities, like school districts, perhaps have allowed the administrators to become complacent in their duties to keep kids safe and to make sure that training and competition is done in the safest manner and method possible.

Perhaps the greater incidence of injuries, and difference in attitude, you describe in your articles is directly or indirectly the result of years of immunities taking their toll. These things seem to go in cycles and the current state of the law and immunities should be reviewed and evaluated in light of the serious and dangerous effect on our children. The Supreme Court and Legislators attempt to impose personal responsibility on those that engage in sports and recreation. Personal responsibility for one's actions and activities is certainly a laudable goal, but particularly when we are talking about children (even older college age "children"), subject to authority figures like coaches, trainers, and administrators perhaps requires more oversight and legal liability for those that do become complacent in satisfying those duties to our kids. Perhaps the personal responsibility should be that of those responsible for the training and programs, those that are tasked with increasing safety and reducing risk.

Appropriate lawsuits in these instances can make sports safer.

Stephen A. Jamieson, Esq.


  1. Stephen

    Your article parallels the arguments put forth by the legal community regarding malpractice lawsuits and against imposing limits to the amounts awarded litigants.

    There is always a balance in all such instances. There is always a "point of diminishing returns." when such lawsuits become far more costly to society than their benefits. It raises insurance costs to the programs and it threatens to eliminate sports programs altogether because organizations such as schools and colleges, PeeWee sports programs, AYSO and other after school programs who operate mainly on meagre amounts of donations simply are unable to pay for them.

    Thus one needs to find a happy medium, between lawsuits, adequate insurance, limits on liability and understanding of the risks by those who choose to participate and their parents and or guardians, and finally, those who are entrusted to use commonsense and reasonable precautions to guard and protect against obvious injuries.

    We have accepted placing the risk of smoking, driving boats and cars, and drinking upon those who choose to partake of these.


  2. Sburbnman

    Thanks for your viewpoint. I happen to agree for the most part. Particularly on the issue of "balance". The difficulty is finding the balance, and who bears the risk. What makes it even more difficult is when children are involved, and among that class of persons we need to further discern by their ages, i.e. 6 years old versus 17 years old. And of course assumption of risk is also different where someone chooses a recreational sport without supervision versus where our children are placed in an expert's care for training and competition.