I. Sports Injury Litigation-New Frontier for the Trial lawyer…………………………………………..4
A. Overview and introduction…………………………………………………………………………………..4
B. Legal theories for consideration in sports or recreation related injuries…………………………4
C. Areas of Consideration for sports or recreation-related injuries…………………………………..5
2. Ski resort injuries………………………………………………………………………………………6
3. Swimming pool injuries……………………………………………………………………………..6
4. Baseball injuries ……………………………………………………………………………………….8
5. Hockey injuries…………………………………………………………………………………………8
b. Water skiing…………………………………………………………………………………..9
c. Roller skating…………………………………………………………………………………9
d. Ice skating…………………………………………………………………………………….9
II. Recent Developments in Sports Litigation…………………………………………………………………10
A. Early view of liability in the professional sports arena……………………………………………..10
B. Evolving liability in the sports arena……………………………………………………………………..11
C. Recreational amateur sports………………………………………………………………………………..13
D. New Horizon…………………………………………………………………………………………………..16
III. Rudy Tomjanovich, Sophie Tomjanovich, and Houston Rockets, Inc. v. California Sports, Inc., dba Los Angeles Lakers…………………………………………………………………………………..17
A. Plaintiff’s approach……………………………………………………………………………………………17
B. Punitive damages………………………………………………………………………………………………17
C. Defendant’s position…………………………………………………………………………………………..17
D. Court’s charge to the jury…………………………………………………………………………………..17
E. Applicable law………………………………………………………………………………………………….17
IV. Areas of Liability to Be Considered in Contact Sports………………………………………………….17
A. Franchise owner: individual, corporation, or business entity……………………………………..18
B. Participant or player: individually or within the course and scope of employment………..18
C. Person or party in charge for supervision or operation of the game or league………………18
D. School or municipal authority: immunity; waiver of immunity; extent of waiver………….18
E. Referee as defendant………………………………………………………………………………………….18
F. School board as defendant………………………………………………………………………………….18
G. Spectator as plaintiff………………………………………………………………………………………….18
H. Prohibition of act or conduct by rules of game, by-laws and constitution…………………….18
V. Suggested Approaches for Handling the Sports Injury-Related Cases……………………………..18
A. Product liability………………………………………………………………………………………………..18
B. Contact sports injury case – negligence or intentional tort………………………………………..18
VI. Importance of the Deposition of the Defendant Corporate Representative, Owner, or
Manager and the Defendant Player-Employee…………………………………………………………….20
A. Approaching the deposition of the defendant corporate representative, owner or manager, and the defendant player-employee…………………………………………………………………………..21
1. General consideration………………………………………………………………………………21
2. Purpose of the deposition…………………………………………………………………………21
3. Strategy for taking the deposition – consideration and variable which can
affect each deposition………………………………………………………………………………22
B. Successful deposition techniques…………………………………………………………………………22
3. Total knowledge and understanding of topics and areas to be considered………….24
4. Acquisition of all material pertinent to the case…………………………………………….25
5. Case law development……………………………………………………………………………..26
C. Video Deposition……………………………………………………………………………………………..26
D. General recommendations and suggestions for the sports recreation deposition……………27
E. Deposition check lists………………………………………………………………………………………..28
1. Check list for deposition of defendant player-employee………………………………….28
2. Check list for defendant corporate representative owner or manger………………….33
3. Deposition checklist for product liability cases……………………………………………..39
VII. Approaching Jury Argument in the Sports Injury Cases………………………………………………..45
A. Basic fundamentals and guidelines……………………………………………………………………….45
B. General argument outlines-general comments………………………………………………………..46
IX. Deposition Examples – Exhibit “A”…………………………………………………………………………..48
A. Authority and chain of command from the defendant player-employee……………………….48
B. Admissions regarding NBA rules and regulations from defendant player-employee …….49
C. Knowledge of defendant player-employee, lack of overall general attitude of
D. Admission of defendant player-employee to fine, penalty and suspension……………………52
E. Pregame publicity……………………………………………………………………………………………..52
F. Violence and fighting: not part of basketball…………………………………………………………..54
G. Chain of command from defendant corporate management………………………………………54
H. Failure to discipline defendant player-employee: permission given following
incident to participate in further NBA games……………………………………………………………..56
I. Admission of defendant corporate management: injury to plaintiff and damage to
team’s overall productivity………………………………………………………………………………………57
J. Publicity angle: admissions…………………………………………………………………………………..58
K. Overall admissions by management regarding discipline, violence, and fighting………….59
L. Defendant corporate management admissions; lack of negligence; intent of plaintiff and permissible conduct of plaintiff………………………………………………………………………………..64
X. Sample Jury Instructions – Exhibit “B”………………………………………………………………………67
Reproduced by permission, 1 st Published in Civil Trial Practice: Winning Techniques of Successful Trial Attorneys, M.P. Papadakis, Esq., Lawyers & Judges Publishing Company, Inc., 2000.
TABLE OF AUTHORITY
Arnold v. Riddell, Inc., 882 F.Supp 979 (1995)
Babych v. McRae, 567 A.2d 1269 (Conn. Super. Ct. 1989)
Bartley v. Childers, 433 S.W.2d 130 (Ky. 1968)
Bayer v. Crested Butte Mountain Resort, Inc., 960 P.2d 70 (Colo. 1998)
Benitez v. New York City Bd. of Educ., 541 N.E.2d 29 (N.Y.1989)
Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743 (Tex. 1980)
Bourque v. Duplechin, 331 So.2d 40 (La. Ct. App. 1976), cert. denied, 334 So.2d 210 (1976)
Brown v. San Francisco Ball Club, 222 P.2d 19 (Cal. Ct. App.1950)
Brown v. Tulsa Exposition & Fair Assn., 429 P.2d 767 (Okla. 1967)
Byrns v. Riddell, Inc., 550 P.2d 1065, (Ariz. 1976)
Carabba v. Ancortes School Dist. No. 103, 435 P.2d 936 (Wash. 1968)
Caroll v. Aetna Casualty & Surety Co., 301 So.2d 406 (La. Ct. App.1974)
Diker v. City of St. Louis Park, 130 N.W.2d 113 (Minn. 1964)
Dotzler v. Tuttle, 449 N.W.2d 774 (Neb.1990)
Dudley Sports Co. v. Schmidt, 279 N.E.2d 266 (Ind. Ct. App. 1972)
Durkee v. Cooper of Canada, Ltd., 298 N.W.2d 620 (Mich. App. 1980)
Everett v. Bucky Warren, Inc., 380 N.E.2d 653 (Mass. 1978)
Filler v. Rayex, 435 F.2d 336 (7th Cir. 1970)
Fisher v. Mt. Mansfield Co., 283 F.2d 533 (2nd Cir. 1960)
Ford v. Gouin, 834 P.2d 724 (Cal. 1992)
Fort Worth v. Barlow, 313 S.W.2d 906 (Tex.Civ.App.–Fort Worth 1958, writ ref’d n.r.e.)
Friedman v. Houston Sports Ass’n., 731 S.W.2d 572 (Tex.App.-Houston [1st Dist.] 1987, writ ref’d n.r.e.)
Gauvin v. Clark, 537 N.E.2d 94 (Mass. 1989)
Gifford v. Bogey Hills Golf & Country Club, 426 S.W.2d 98 (Mo. 1968)
Ginsberg v. Hontas, 545 So. 2d 1154 (La. Ct. App. 1989)
Graven v. Vail Assocs., Inc., 909 P.2d 514 (Colo. 1995)
Greathouse v. Wolff, 360 S.W.2d 297 (Mo. App. 1962)
Griggas v. Clauson, 128 N.E.2d 363 (Ill. App. 1955)
Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (1979), cert. denied, 100 S.Ct. 295
Harris v. LaQuinta-Redbird Joint Venture, 522 S.W.2d 232 (Tex.Civ.App.–Texarkana 1975, writ ref’d n.r.e.)
Harrop v. Beckman, 387 P.2d 554 (Utah 1963)
Hoar v. Great Eastern Resort Mgmt., Inc., 506 S.E.2d 777 (Va. 1998)
Holdsworth v. Nash Mfg., 409 N.W.2d 764 (Mich. Ct. App. 1987)
Hopfinger v. Kidder Int’l Inc. 827 F.Supp 1444 (W.D. Mo. 1993)
Kabella v. Bouschelle, 672 P.2d 292 (N.M. 1983)
Kasnick v. Cooke, 842 P.2d 440 (Or. Ct. App.1992)
Kennal v. Carson City School Dist., 738 F.Supp 376 (D. Nev. 1990)
Kopera v. Moschella, 400 F.Supp. 131 (S.D. Miss. 1975)
Lamphear v. State, 458 N.Y.S.2d 71 (N.Y. App. Div. 1982)
Langheim v. Denison Fire Dept. Swimming Pool Assn., 21 N.W.2d 295 (Iowa 1946)
Lawson v. Salt Lake Trappers, Inc., 901 P.2d 1013 (1995)
Lederman v. Pacific Indus., Inc., 119 F.3d 551 (7th Cir.1997)
Lowe v. Texas Tech Univ., 540 S.W.2d 297 (Tex.1976)
Lovitt v. Concord School Dist., 228 N.W.2d 479 (Mich. App. 1975)
Mackey v. Island Bob-Lo Co., 197 N.W.2d 151 (Mich. Ct. App. 1972)
Marietta v. Cliff Ridge, Inc., 189 N.W.2d 208 (Mich. 1971)
Maytnier v. Rush, 225 N.E.2d 83 (Ill. App. 1967)
McDaniel v. Dowell, 210 Cal.App.2d 26 (1962)
McKichan v. St. Louis Hockey Club, 967 S.W.2d 209 (Mo. Ct. App. 1998)
McLeod Stores v. Vinson, 281 S.W. 799 (Ky. 1926)
McWilliams v. Parham, 160 S.E.2d 692 (N.C. 1968)
Miller v. Bike Athletic Co., 687 N.E.2d 735 (Ohio Sup. Ct. 1998)
Moore v. Sitzmark Corp., 555 N.E.2d 1305 (Ind. Ct. App. 1990)
Nabozny v. Barnhill, 334 N.E.2d 258 (Ill. App. Ct. 1975)
Niemczyck v. Burleson, 538 S.W.2d 737 (Mo. Ct. App.1976)
Ninio v. Hight, 385 F.2d 350 (10th Cir. 1967)
Nissen Trampoline Co. v. Terre Haute First Nat’l Bank, 332 N.E.2d 820 (Ind. App. 1975)
Olson v. Hansen, 216 N.W.2d 124 (Minn. 1974)
Pate v. Skate Country, Inc., 682 So.2d 288 (La. Ct. App. 1996)
Pleasant v. Blue Mount Swim Club, 262 N.E.2d 107 (Ill. App. Ct. 1970)
Rawlings Sporting Goods Co. v. Daniels, 619 S.W.2d 435 (Tex.Civ.App.–Waco 1981, writ ref’d n.r.e.)
Riffe v. Black, 548 S.W.2d 475 (Ky. App. 1977)
Rolson v. City of Meridian, 691 So.2d 440 (1997)
Ross v. Clouser, 637 S.W.2d 11 (Mo. 1982)
Ryan v. Parker, 812 S.W.2d 190 (Mo. Ct. App. 1991)
Salk v. Alpine Ski Shop, Inc., 342 A..2d 622 (R.I. 1975)
Savino v. Robertson, 652 N.E.2d 1240 (Ill. Ct. App. 1995)
Schamel v. St. Louis Arena Corp., 324 S.W.2d 375 (Mo. Ct. App. 1959)
Sewell v. Southfield Public Schools, 576 N.W.2d 153 (Mich. 1998)
Sims v. Etowad County Bd. of Educ., 337 So.2d 1310 (Alaska 1976)
Taft v. Sports Page Shop, Inc., 640 N.Y.S.2d 698 (App. Div. 1996)
Thomas v. Shaw, 124 S.E.2d 396 (Ga. 1962)
Thompson v. McNeill, 559 N.E.2d 705 (Ohio 1990)
Tomjanovich v. California Sports, Inc., No. H-78-243, 1979 U.S. Dist. LEXIS 9282 (S.D. Texas Oct. 10, 1979)
Trauman v. City of New York, 143 N.Y.S.2d 467 (Trial Term 1955)
Wertheim v. United States Tennis Association, Inc., 540 N.Y.S.2d 443 (App. Div.1989)
Wilson v. Duever, 373 S.W.2d 339 (Civ.App.–San Antonio 1963, writ ref’d)
Wussow v. Commercial Mechanism, Inc., 293 N.W.2d 897 (Wis. 1980)
Yamaha Motor Corp., U.S.A. v. Calhoun, 116 S.Ct. 619 (1995)
THE BASICS OF RECREATIONAL INJURIES
I. Sports Injury Litigation – New Frontier for The Trial Lawyer
A. Overview & Introduction
Our community, our society and our country have developed a strong connection and interest with sports, recreation, and sports related activities. This connection and association with sports and sports related matters are found in every stratum of our community and society. From the high school, college, and professional athlete to the company slow pitch team and the neighborhood Monday night football gathering, we have become a nation deeply associated and connected with sports and sports related matters as a participant, fan, or interested party. In short, we have become a sports conscious, recreation oriented society with interests centered on health motivated activities and physical fitness and, more so, on proper utilization and enjoyment of our leisure time. The growth of this interest and emphasis on sports and sports related activities has propelled the sports arena and sporting goods business into multibillion dollar businesses.
The phenomenal growth of the sporting goods business alone in the last 25 years is indicative of our society’s strong affiliation with sports and sports related activities. The rise, expansion, and development of sporting goods businesses, such as Oshman’s, and brand names, such as Nike, point out the successful business end of this connection.
Furthermore, the college and professional sports arena has enlarged the public’s association with sports. This area has enjoyed a fantastic growth in the last 25 years with emphasis on national television, but also involving all forms of media coverage of local colleges and universities, sports franchises, and professional athletes’ salaries. Sports have become a large part of our everyday living and continue to be “America’s Pastime”.
With such tremendous growth of this interest and emphasis on sports and sports related matters, the number of sports participants has increased dramatically. These participants utilize not only the “rules of the game” but also the products or equipment for the games and the arenas or facilities. As a result, a new area of litigation has emerged with different and various theories of liability. Responsibility for many of these areas has been placed upon defendants ranging from the defective equipment manufacturer to the negligent franchise operator. For the trial lawyer, sport injury litigation has presented a new frontier at the courthouse and is alive and well proceeding through our legal system.
B. Legal Theories For Consideration in Sports or Recreation Related Injuries
With the tremendous emphasis on sports and sports related activities, the number of injuries associated with the area has reached enormous figures. Approximately 17 million injuries will occur each year as a direct result of sports related activities including injuries arising from contact sports, equipment failure, defective unsafe products, improper equipment design, and failure to warn. See Restatement of Torts §§ 402A, 402B.
C. Areas of Consideration for Sports or Recreation Related Injuries
Many areas may relate directly to products liability and a case for defective or unsafe equipment. A negligence theory may also exist, depending upon the actions of the participants or individuals involved, the conduct of the owner or organization, and the actions of the party in charge of supervision or operation. Some examples are:
a. Helmet and face guard attachment: damage to the skull and spine, flexion extension injury, paralysis, spine damage, or subdural hematoma can result:
Miller v. Bike Athletic Co., 687 N.E.2d 735 (Ohio Sup. Ct. 1998);
Arnold v. Riddell, Inc., 882 F.Supp 979 (1995);
Rawlings Sporting Goods Co. v. Daniels, 619 S.W.2d 435 (Tex.App.–Waco 1981, writ ref’d n.r.e.);
Durkee v. Cooper of Canada, Ltd., 298 N.W.2d 620 (Mich. App. 1980);
Everett v. Bucky Warren, Inc., 380 N.E.2d 653 (Mass. 1978);
Byrns v. Riddell, Inc., 550 P.2d 1065, (Ariz. 1976); and
See generally, 18 Am. Jur. 2d Proof of Facts 2d § 217; 22 Am. Jur. 2d Proof of Facts § 287.
b. Contact injuries: Consider the act – within or without the accepted rules and customs of the game, i.e., legitimate conduct or contact vs. “sucker punch” or blind side block:
Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (1979), cert. denied, 100 S.Ct. 295;
Tomjanovich v. California Sports, Inc., No. H-78-243, 1979 U.S. Dist. LEXIS 9282 (S.D. Texas Oct. 10, 1979);
Dotzler v. Tuttle, 449 N.W.2d 774 (Neb.1990);
Griggas v. Clauson, 128 N.E.2d 363 (Ill. App. 1955); and
See generally, Products Liability: Annotation, Liability for Injury to or Death of Participant in Game or Contest, 7 A.L.R. 2d 704 (1997); Annotation, Protective Clothing and Equipment, 27 A.L.R. 4th § 815; and Stanley L. Grazis, Annotation, Liability of Participant in Team Athletic Competition for Injury to or Death of Another Participant, 55 A.L.R. 3th 529 (1999).
2. Ski Resort Injuries:
a. Control of ski slopes and ski facilities; business invitee theory:
Hoar v. Great Eastern Resort Mgmt., Inc., 506 S.E.2d 777 (Va. 1998);
Graven v. Vail Assocs., Inc., 909 P.2d 514 (Colo. 1995);
Salk v. Alpine Ski Shop, Inc., 342 A..2d 622 (R.I. 1975);
Marietta v. Cliff Ridge, Inc., 189 N.W.2d 208 (Mich. 1971);
Ninio v. Hight, 385 F.2d 350 (10th Cir. 1967); and
McDaniel v. Dowell, 210 Cal.App.2d 26 (1962).
b. Ski-mobile: product liability theory:
Olson v. Hansen, 216 N.W.2d 124 (Minn. 1974).
c. Ski lifts and gondolas: business invitee, products liability, and negligence:
Bayer v. Crested Butte Mountain Resort, Inc., 960 P.2d 70 (Colo. 1998); and
Fisher v. Mt. Mansfield Co., 283 F.2d 533 (2nd Cir. 1960).
d. Equipment – products liability: bindings, skis and ski poles; negligence: fitting and adjusting of skis and bindings at ski resorts and ski shops:
Taft v. Sports Page Shop, Inc., 640 N.Y.S.2d 698 (App. Div. 1996);
Moore v. Sitzmark Corp., 555 N.E.2d 1305 (Ind. Ct. App. 1990); and
See generally, I. J. Schiffres, Annotation, Skier’s Liability for Injuries to or Death of Another Person, 24 A.L.R. 3d 1447 (1998).
3. Swimming Pool Injuries:
a. Robin Cheryl Miller, Annotation, Liability of Owner of Private Residential Swimming Pool For Injury or Death Occasioned Thereby, 64 A.L.R. 5th 1 (1999).
b. Standards for construction and standards for safety equipment – United States Swimming Pool Association; National Swimming Pool Institute; National Swimming Pool Foundation; and local, city, and state standards:
Riffe v. Black, 548 S.W.2d 475 (Ky. App. 1977); and
Harris v. LaQuinta-Redbird Joint Venture, 522 S.W.2d 232 (Tex.Civ.App.–Texarkana 1975, writ ref’d n.r.e.).
c. Placement of slides, ladders, ropes, markings, drains, etc.:
Sewell v. Southfield Public Schools, 576 N.W.2d 153 (Mich. 1998);
Bartley v. Childers, 433 S.W.2d 130 (Ky. 1968); and
Fort Worth v. Barlow, 313 S.W.2d 906 (Tex.Civ.App.–Fort Worth 1958, writ ref’d n.r.e.).
d. Diving board placement and construction:
Pleasant v. Blue Mount Swim Club, 262 N.E.2d 107 (Ill. App. Ct. 1970).
e. Negligent supervision and operation:
Kopera v. Moschella, 400 F.Supp. 131 (S.D. Miss. 1975); and
Langheim v. Denison Fire Dept. Swimming Pool Assn., 21 N.W.2d 295 (Iowa 1946).
Lederman v. Pacific Indus., Inc., 119 F.3d 551 (7th Cir.1997);
Wilson v. Duever, 373 S.W.2d 339 (Civ.App.–San Antonio 1963, writ ref’d); and
See generally, 15 Am. Jur. Proof of Facts § 411.
4. Baseball Injuries:
a. Sunglasses provided not shatterproof:
Filler v. Rayex, 435 F.2d 336 (7th Cir. 1970).
b. Pitching machine throwing bean balls caused facial and head injuries:
Wussow v. Commercial Mechanism, Inc., 293 N.W.2d 897 (Wis. 1980); and
Dudley Sports Co. v. Schmidt, 279 N.E.2d 266 (Ind. Ct. App. 1972).
c. Stray foul ball – fan usually held to assume risk:
Friedman v. Houston Sports Ass’n., 731 S.W.2d 572 (Tex.App.-Houston [1st Dist.] 1987, writ ref’d n.r.e.);
Brown v. San Francisco Ball Club, 222 P.2d 19 (Cal. Ct. App.1950); and
See generally, Karen L. Ellmore , Annotation, Baseball Player’s Right to Recover for Baseball-Related Personal Injuries From Nonplayer, 55 A.L.R. 4th 664 (1999).
5. Hockey Injuries:
McKichan v. St. Louis Hockey Club, 967 S.W.2d 209 (Mo. Ct. App. 1998);
Savino v. Robertson, 652 N.E.2d 1240 (Ill. Ct. App. 1995);
Babych v. McRae, 567 A.2d 1269 (Conn. Super. Ct. 1989);
Gauvin v. Clark, 537 N.E.2d 94 (Mass. 1989); and
Diker v. City of St. Louis Park, 130 N.W.2d 113 (Minn. 1964).
Yamaha Motor Corp., U.S.A. v. Calhoun, 116 S.Ct. 619 (1995);
Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743 (Tex. 1980); and
Caroll v. Aetna Casualty & Surety Co., 301 So.2d 406 (La. Ct. App.1974).
b. Water Skiing:
Hopfinger v. Kidder Int’l Inc. 827 F.Supp 1444 (W.D. Mo. 1993);
Ford v. Gouin, 834 P.2d 724 (Cal. 1992);
Ryan v. Parker, 812 S.W.2d 190 (Mo. Ct. App. 1991);
Holdsworth v. Nash Mfg., 409 N.W.2d 764 (Mich. Ct. App. 1987); and
Harrop v. Beckman, 387 P.2d 554 (Utah 1963); and
Greathouse v. Wolff, 360 S.W.2d 297 (Mo. App. 1962).
c. Roller Skating:
Pate v. Skate Country, Inc., 682 So.2d 288 (La. Ct. App. 1996); and
Mackey v. Island Bob-Lo Co., 197 N.W.2d 151 (Mich. Ct. App. 1972).
d. Ice Skating:
Brown v. Tulsa Exposition & Fair Assn., 429 P.2d 767 (Okla. 1967); and
Schamel v. St. Louis Arena Corp., 324 S.W.2d 375 (Mo. Ct. App. 1959).
e. Gymnastics – Trampoline:
Nissen Trampoline Co. v. Terre Haute First Nat’l Bank, 332 N.E.2d 820 (Ind. App. 1975); and
See generally, B. C. Ricketts, Annotation, Liability of Owner or Operator of Trampoline Center for Injury to or Death, 8 A.L.R. 3d 1427 (1966).
f. Golf – Golf Carts, etc.:
Thompson v. McNeill, 559 N.E.2d 705 (Ohio 1990);
Gifford v. Bogey Hills Golf & Country Club, 426 S.W.2d 98 (Mo. 1968);
McWilliams v. Parham, 160 S.E.2d 692 (N.C. 1968);
Thomas v. Shaw, 124 S.E.2d 396 (Ga. 1962);
Trauman v. City of New York, 143 N.Y.S.2d 467 (Trial Term 1955); and
See generally, David M. Holliday, Annotation, Liability to One Struck by Golf Ball, 53 A.L.R. 4th 282 (1999); Boyd J. Peterson, Annotation, Liability for Injury Incurred in Operation of Power Golf Cart, 17 A.L.R. 3d 1430 (1974).
Kasnick v. Cooke, 842 P.2d 440 (Or. Ct. App.1992); and
Nabozny v. Barnhill, 334 N.E.2d 258 (Ill. App. Ct. 1975).
Ginsberg v. Hontas, 545 So. 2d 1154 (La. Ct. App. 1989);
Lamphear v. State, 458 N.Y.S.2d 71 (N.Y. App. Div. 1982); and
Bourque v. Duplechin, 331 So.2d 40 (La. Ct. App. 1976), cert. denied, 334 So.2d 210 (1976).
Andrea G. Nadel, Annotation, Liability for Injury or Death of Participant in Automobile or Horse Race at Public Track, 13 A.L.R. 4th 623 (1999); David M. Holliday, Annotation, Tennis Club’s Liability for Tennis Player’s Injuries, 52 A.L.R. 4th 1253 (1999); Caroline R. Krivacka, Annotation, Tort Liability of Public Schools and Institutions of Higher Learning for Accidental Occurrence During School Athletic Events, 68 A.L.R. 5th 663 (1999).
II. Recent Developments in Sports Litigation
A. Early View of Liability in the Professional Sports Arena
The protective shield of the professional sports arena has allowed the defenses of assumption of the risk and consent to be successfully put to use by defense counsel. The result has been near total isolation and immunity from civil liability and the judicial process. The participating player was, in practically all cases, held to assume any and all risk of the sport at hand and to consent to all injuries that flow from the sport or contact with the sport. See McLeod Stores v. Vinson, 281 S.W. 799 (Ky. 1926)(a participant assumes the risks inherent to a race). Thus, historically, very few recoveries by the injured participating player were upheld. Assumption of the risk and consent, together with some governmental or other recognized immunity situations, prevented or barred most recoveries. The legal status of the sports arena was typically accorded full protection through these standard defenses.
B. Evolving Liability in the Sports Arena
Many injuries occur in all areas of sports related activities, including professional sports. As demonstrated by the cases discussed below, there has been an evolution towards successful recoveries in cases arising from injuries incurred in connection with professional sports. As a result, cases are often presented on a negligence theory depending upon the acts of the participants or players, the conduct of the owner or organization (including agents, representatives, servants, or employees), and the actions of the party in charge of supervision or operation of the event. Cases are also litigated on an intentional tort theory with assault, battery, and reckless disregard as appropriate legal pathways for recovery when injuries were the result of “unsportsmanlike conduct” or wanton behavior.
1. Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (10th Cir. 1979), cert. denied, 100 S.Ct. 275.
Facts: The incident that made the basis of this suit occurred during a September 16, 1973 game between the Denver Broncos and the Cincinnati Bengals. The incident occurred near the end of the first half when the Denver Broncos were leading by a score of 21-3. Following an interception by Denver free safety Billy Thompson of a pass intended for Cincinnati offensive back Charles “Booby” Clark, Dale Hackbart attempted to block Booby on the runback of the interception. After the attempted block, Hackbart remained on the ground, turned, and with one knee on the ground, watched the play following the interception. Clark stepped forward and struck a blow with his right forearm to the back of Hackbart’s head and neck and with sufficient force to cause both players to fall forward on the ground. A game film showed clearly what occurred, though no official viewed the incident at the time. After two weeks, the pain caused Hackbart to seek medical help where it was discovered that he had a serious neck fracture.
The trial court ruled as a matter of law that the game of professional football is basically a business that is violent in nature; thus, the available sanctions are the imposition of penalties and expulsion from the game.
In reversing the trial court, the United States Court of Appeals for the Tenth Circuit held:
1. The principles of law governing infliction of injuries are not to be disregarded merely because the player’s injury occurs in the course of a professional football game. With regard to the issue of consent, the court noted that it is highly questionable whether a professional football player consents to injuries caused by conduct that is not within the rules of the game. The court specifically looked to the rules of football and found that punching and hitting with the arms about the face and head were prohibited by the rules and that undoubtedly, these restraints were intended to establish reasonable boundaries so that one football player would not intentionally inflict a serious injury on another.
2. The Tenth Circuit Court also determined that since it is essential that citizens be able to look to their government for redress, every injury wrongfully inflicted must be afforded some redress under the common law. The court found that the Colorado legislature had not chosen to change any of the common law areas for redress. Thus, the court stated that it was bound to follow the common law rules of redressing the injury inflicted.
3. In determining that the intentional tort of assault and battery was not the sole standard to be applied in a case involving players of professional sports, the court stated that “recklessness is an appropriate standard and that assault and battery is not the exclusive one, … these two liability concepts are not necessarily opposed to one another. Rather, recklessness under Section 500 of the Restatement might be regarded, for the purpose of analysis at least, a less included act.” The court went on to make the traditional distinction between assault and battery and recklessness, noting that with recklessness, the actor intents to do the act but does not intent to cause any particular harm.
4. Significantly, the court also directed that “on retrial, the admissibility of prior unrelated acts should be very carefully considered and should not be received merely for the purpose of showing that the defendant himself had violated rules in times past since this is not per se relevant.”
In analyzing a set of facts, the attorney should concentrate on the specific act or particular conduct in question and on how that conduct relates to or is connected with the particular sport. Also, the attorney should focus on any provocation by the plaintiff or the promotion of the event and the particular role of the plaintiff concerning the event. In violent situations, such as when a team fights, the investigative questions should include:
a. Who started or provoked the situation?
b. What role did the plaintiff play?
c. How could entire affair have been avoided?
The principal inquiry as it related to the facts of the Hackbart case was: “was the act an accepted, usual, legitimate part of the game and traditionally considered a part of the game, i.e., was it a legitimate or fair hit?” This standard has become known as ” Hackbart test” and should be applied to the underlying facts in each similar case. For other factors to consider in a sports injury case, see Niemczyck v. Burleson, 538 S.W.2d 737 (Mo. Ct. App.1976)(ages and physical attributes, skill level, knowledge of game, amateurs or professionals, protective uniforms or equipment, zestfulness of players). See Ross v. Clouser, 637 S.W.2d 11 (Mo. 1982)(application of Burleson factors).
2. Lowe v. Texas Tech Univ., 540 S.W.2d 297 (Tex.1976).
Facts: Prior to the 1972 season, Andy Lowe received an injury to his left knee while playing football at Texas Tech University. He continued to play football, using a knee brace and athletic tape to protect the injured knee. During a game in the 1972 season, Lowe was not “cutting” well enough. The coach took Lowe out of the game and had Lowe remove the knee brace. The coach then put Lowe back in the game, without the knee brace. During one of the following plays, Lowe’s left knee was injured, resulting in total and permanent disability. Lowe brought suit against Tech for those injuries, alleging that the staff and trainers at Texas Tech were negligent in the following respects:
a. Failure to provide proper equipment, braces, and supporting devices;
b. Failure to permit plaintiff to wear the proper equipment, braces, and supporting devices that were available;
c. Furnishing defective equipment, uniforms, and pads; and
d. Refusing to permit plaintiff to wear proper and correctly prescribed equipment, braces, and supporting devices.
The trial court dismissed Lowe’s claims for failure to allege an injury for which governmental immunity had been waived by the Texas Tort Claims Act. The trial court’s determination was affirmed by the Court of Civil Appeals in Waco. Lowe v. Texas Tech Univ., 530 S.W.2d 337 (Tex.Civ.App.-Waco 1995), rev’d, 540 S.W.2d 297 (Tex. 1976).
On further appeal, the Texas Supreme Court reversed, holding that Section 3 of the Texas Tort Claims Act provided an adequate waiver of governmental immunity for such an action. See Tex. Rev. Civ. Stat. Ann. art. 6252-19 § 3, as codified, Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (Vernon 1997).
Important in the area of sports litigation, the Lowe Court noted that athletic protective devices, both standard and specifically designed for the individual player, were an integral component of a single football uniform. The Court stated:
A football uniform is composed of various items of individualized equipment, and the protective equipment furnished players may vary with the individual because of his physical characteristics and hazards of the particular position he plays. Football uniforms are designed to protect players from injury and players who have suffered a previous injury are commonly furnished special protective devices are integral parts of the football uniform, e.g., special taping or knee braces furnished a player with an injured knee are as much a part of his uniform as his helmet, or shoulder pads, or whatever. So we also hold that Lowe’s allegations of the negligent failure to furnish him proper protective items of personal property, to be used as part of the uniform furnished him, brings this case within the statutory waiver of immunity arising from some condition or some use of personal property.
C. Recreational Amateur Sports
As in professional and college sports, a similar trend has emerged in recreational amateur sports. The courts have addressed injuries, which otherwise would be actionable on a mere showing of negligence, and have held that those injuries would be actionable in a sports arena only if the injured person proves gross negligence or reckless disregard by the defendant.
One recent example of the stricter burden of proof was set forth by the Nebraska Supreme Court in January of 1990: Joseph Dotzler and Bruce Tuttle were playing on opposing teams in a pick up basketball game at the Omaha Southwest Y.M.C.A. Dotzler, an adult, sustained fracturing of both wrists as a result of a collision with Tuttle, also an adult. Dotzler alleged that he had made a shot and was running back to play defense when Tuttle pushed him. Tuttle alleged that he was moving down court on a fast break, when he inadvertently collided with Dotzler. Tuttle denied any intentional acts or acts of pushing.
The trial court dismissed Dotzler’s negligence cause of action on the grounds that the plaintiff must prove more than mere negligence to bring a claim arising from a contact sport. In Dotzler v. Tuttle, the Supreme Court concurred, holding that:
A participant in a game involving a contact sport such as basketball is liable for injuries in a tort action if his or her conduct is such that it is either willful or with a reckless disregard for the safety of the other player, but is not liable for ordinary negligence.
Dotzler, 449 N.W.2d 774, 779 (Neb. 1990).
In 1989, the Louisiana Court of Appeals in Ginsberg v. Hontas, 545 So.2d 1154 (La.Ct.App. 1989), held that participants in athletics owe a duty to other participants “to act reasonably, that is, to play fairly according to the rules of the game and to refrain from any wanton, reckless conduct likely to result in harm or injury to another.” Id. at 1155. In Ginsberg, Harley Ginsberg was playing second base in a recreational adult softball league game. Mark Hontas slid into second base as Ginsberg tried to tag him out. Ginsberg suffered a serious fracture of his right leg.
The trial court dismissed the case finding that Hontas did not slide into or collide with Ginsberg in a reckless manner. The court of appeals affirmed. This decision followed the 1976 decision of Bourque v. Duplechin, 331 So.2d 40 (La.Ct.App. 1976), which also involved an adult softball game. In that case, Bourque was playing second base in a softball game and Duplechin was on first base. Duplechin’s teammate hit a double play ball to the shortstop, who fielded the ball and threw it to Bourque, who stepped on second base for the shortstop. Bourque then stepped away from second base and threw to first place to complete the double play. After Bourque had thrown the ball, Duplechin ran full speed into Bourque, bringing his left arm up under Bourque’s chin, fracturing his jaw and breaking his teeth.
The Louisiana Court of Appeals held that Bourque could not recover for injuries sustained as a “part of the game.” However, the court found that the injuries sustained by Bourque were not “part of the game” and that Duplechin acted recklessly by running into Bourque off the base path and putting his arm under Bourque’s chin in violation of softball rules. Thus, the trial court’s damage award was upheld.
In 1983, the New Mexico Supreme Court examined the conduct that took place in an informal tackle football game. In Kabella v. Bouschelle, 672 P.2d 292 (N.M. 1983), the New Mexico Supreme Court continued the trend noted above and found that plaintiff must prove that the opposing player acted with reckless disregard for the safety of others.
The Kabella court noted that one who voluntarily participates in athletics implicitly consents to normal risk accompanying bodily conduct permitted by the rules of the sport; however, that consent does not include contact that is prohibited by the rules and customs of the sport. Thus, the court held that a plaintiff could recover if it can be shown that the defendant acted in reckless disregard of the safety of the participants.
In dicta, the Kabella court made the following social statement:
Vigorous and active participation in sporting events should not be chilled by the threat of litigation. The players in informal sandlot or neighborhood games do not, in most instances, have the benefit of written rules, coaches, referees, or instant replay to supervise or reevaluate the players’ actions.
Id. at 294.
State legislatures have also become involved in setting the standard for the burden of proof for players who are injured by opponents. Although, the legislatures have generally encouraged volunteer participation in sports, lawsuits have been permitted for activities that involve more than ordinary negligence. These laws generally incorporate reckless disregard of gross negligence standards for the actions of athletes, as well as for the acts or omissions of athletic volunteers such as coaches, managers, non-profit organizations, referees, and umpires.
With grievous and seriously injured plaintiffs, clearly there is a concern by individuals and organizations who may provide a deep pocket when the defendant/opponent does not have the resources to adequately compensate an injured participant. Sports tort cases often include athletic institutions or organizations, non-profit organizations, coaches, athletic administrators, schools, and sports officials as target defendants. These potential defendants in the athletic arena are attempting to obtain some type of limited immunity from liability lawsuits in a number of state legislatures. As an example, the National Association of Sports Officials has lobbied state legislatures to pass statutes that require players to prove gross negligence to maintain an action against a sports official, referee, or umpire, whether or not they are volunteers or paid professionals.
As sports torts gain increasing visibility, courts are likely to see as plaintiffs injured individuals other than the players in the athletic event itself. For example, Richard Wertheim was officiating as a linesman in the junior finals of the United States Tennis Association (USTA) tournament. The USTA required tennis linesmen to be in the “ready position”, that is, bent forward with their hands on their legs or near their knees. Ed Berg’s serve was an ace, striking Wertheim in the groin. Wertheim toppled over and struck his head on the surface of the tennis court. Four days later, Wertheim died as a result of a stroke.
Wertheim’s estate brought suit against the USTA alleging negligence for the USTA’s requirement of tennis linesmen assuming the “ready position”, rather than the previous method of sitting in a chair. A New York jury found the USTA 25% responsible, however the appeals court in Wertheim v. United States Tennis Association, Inc., 540 N.Y.S.2d 443 (App. Div.1989), reversed the trial court’s award, finding the plaintiff failed to meet the burden of proof showing the USTA acted with gross negligence.
The precedent seems clear that courts are requiring a player or participant, claiming to have been injured by an opposing player, sports official, or other participant during a game may recover only upon showing of gross negligence or reckless disregard by the defendant.
D. New Horizon
The overall majority of sports injury litigation involves the participants of a sport, but the causes of actions are not limited exclusively to the players or participants. Across the country, more and more incidents of spectator/parental injuries are occurring. This epidemic involves the parents and spectators of youth sports leagues.
In the past, this problem was rare; however, today the frequency is on the steady increase. The spectators and parents of the youth participants in sports are involved in arguments and skirmishes that are resulting in serious injury or even death. Some recent examples of spectator/parental violence are:
1. Thomas Junta beat Michael Costin to death on July 5, 2000 in Reading, Massachusetts. Junta apparently was upset at Costin for allowing rough play in a youth hockey game continue. Shortly after the game, Junta knocked Costin down and began to pound Costin’s head with his fists. Finally, a bystander pulled Junta off. Costin was hospitalized and pronounced dead two days later. Junta and Costin both had children playing in the game.
2. In Swiftwater, Pennsylvania, fifty parents were involved in a brawl following a youth football game.
3. In Albany, Georgia, Ray Knight engaged in a heated argument with the father of a girl on his daughter’s opposing softball team. After approximately fifteen minutes, Knight punched the man in the head. The girls were twelve years old.
4. Matteo Picca of Staten Island, New York, allegedly struck his son’s hockey coach in the face with two hockey sticks and bloodied the coach’s nose. The hockey team was for eleven to twelve year-old boys.
5. April 1999, in Sacramento, California, a man coaching his son’s baseball team attacked the opposing manager.
6. In Eastlake, Ohio, a man was charged with assault after he punched a fourteen year old boy. The boy was involved in a scuffle for the ball with the man’s son.
7. In La Vista, Nebraska, a man was sentenced to thirty days in jail after assaulting the sixteen year old referee of a flag football game for six to seven year old boys.
These types of sports-related injuries are adding new frontiers to sports litigation and torts at the courthouse. The spectators and parents of youth sports participants are no longer the innocent bystanders. They are the tort-feasor.
III. Rudy Tomjanovich, Sophie Tomjanovich, and Houston Rockets, Inc. v. California Sports, Inc., dba Los Angeles Lakers, No. H-78-243; In the United States District Court for the Southern District of Texas, Houston Division.
Facts: On December 9, 1977, plaintiff, Rudy Tomjanovich, was injured in a National Basketball Association game between the Houston Rockets and the Los Angeles Lakers in the Los Angeles Forum in Inglewood, Los Angeles, California. Plaintiff Tomjanovich was struck in the face by a blow delivered by a Los Angeles Lakers player during the second half. Tomjanovich sustained the following injuries: a fractured skull; leakage of spinal fluid from the brain cavity; a LeFort II facial fracture; shatter of all sinuses; brain concussion; retina tear; tear duct rupture; broken facial bone; broken nose; damage to all teeth and supporting gum structure; and other serious complications. Tomjanovich’s injuries required five surgical procedures and gave rise to medical expenses in the excess of $21,000,000.
A. Plaintiff’s Approach
The plaintiff’s approach to establishing liability included the following: player-employee was an of the Lakers acting within the course and scope of his employment; intentional tort, battery had been committed on the plaintiff; the player-employee had not acted in self-defense in striking Tomjanovich; player-employee acted with reckless disregard for the safety of others; defendant California Sports, Inc. was negligent in failing to obtain and adequately supervise its employee; and defendant California Sports, Inc. was negligent in retaining the employee after receiving knowledge of violent tendency and proximate cause.
B. Punitive Damages
Entitlement to punitive damages was established by proof that the player-employee struck plaintiff, Tomjanovich, with malice and that there was ratification of such act by the defendant, California Sports, Inc.
C. Defendant’s Position
The defendant, California Sports, Inc. defended based on the following theories: course and scope – questionable; self-defense due to acts of plaintiff; the occurrence was started by another player; and. mitigation of damages.
D. Court’s Charge to the Jury
See the attached sample charge.
E. Applicable Law
1. Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (10th Cir. 1979), cert. denied, 100 S.Ct. 275;
2. Various tort cases from California;
3. Player contract at Texas (collateral source rule).
IV. Areas of Liability to Be Considered in Contact Sports
A. Franchise owner: individual, corporation, or business entity.
B. Participant or player: individually or within the course and scope of employment.
C. Person or party in charge for supervision or operation of the game or league.
D. School or municipal authority: immunity; waiver of immunity; extent of waiver.
E. Referee as defendant
Kennal v. Carson City School Dist., 738 F.Supp 376 (D. Nev. 1990);
Rolson v. City of Meridian, 691 So.2d 440 (1997); and
Carabba v. Ancortes School Dist. No. 103, 435 P.2d 936 (Wash. 1968).
F. School Board as Defendant
Benitez v. New York City Bd. of Educ., 541 N.E.2d 29 (N.Y.1989);
Lovitt v. Concord School Dist., 228 N.W.2d 479 (Mich. App. 1975);
Sims v. Etowad County Bd. of Educ., 337 So.2d 1310 (Alaska 1976).
G. Spectator as plaintiff
Lawson v. Salt Lake Trappers, Inc., 901 P.2d 1013 (1995);
Maytnier v. Rush, 225 N.E.2d 83 (Ill. App. 1967);
Brown v. Polis, 4 Sports L. Rep. 7 (April 1982).
H. Prohibition of act or conduct by rules of game, by-laws and constitution
Nabozny v. Barnhill, 334 N.E.2d 258 (Ill. Ct. App. 1975) (goalkeeper injured by contact outside scope of the rules).
V. Suggested Approaches for Handling the Sports Injury Related Cases
A. Product Liability
1. Obtain the product (helmet, turf, shoes, skis, etc.);
2. Purchase a new product or piece of equipment;
3. Obtain all available information on said patent, promotion, papers, brochures, literature, prior complaints;
4. Discuss the product and the occurrence in detail with knowledgeable person;
5. ATLA resources; ATLA Product Research;
6. Available cases on the particular product in case; and
7. Recent product liability law
B. Contact Sports Injury Case – Negligence or Intentional Tort
1. a. Hackbart Test – acceptable part of the game; within the rules; legitimate conduct. Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (10th Cir. 1979), cert. denied, 100 S.Ct. 275.
b. Nabozny Test (scope of consent) – when rules are set up to conduct and are designed to protect the player, a player does not consent to contact outside these rules. Nabozny v. Barnhull, 334 N.E.2d 258 (Ill. Ct. App. 1975);
c. Foreseeability Test – player only consents to acts which were reasonably foreseeable when he entered the game. See R. Horrow, Sports Violence: The Interaction Between Private Lawmaking and the Criminal Law. (1980) pp. 180-81.
2. Game films and photos; television coverage; movies: review, edit, and enlarge;
3. Obtain still photos from television and movies and enlarge;
4. Complete understanding of the rules, by-laws, constitution of the organizational framework for the association, league, or organization in question;
5. Complete understanding of the player contract, if in existence;
6. History of the player, other incidents, reputation in the league, reputation in the team, conduct outside the leagues and sport;
7. History of the defendant club or organization: other acts of violence, illegal conduct and general activity – history of training and discipline, if any;
8. Records of fines and suspensions;
9. Records within the league and team: fines, suspensions, reprimands, directives, and orders;
10. Official action taken by the league, administrative chief, or team concerning conduct in question (fines, suspensions, reprimands, directives, or orders):
b. Records; and
c. Team memoranda.
11. Complete evaluation of plaintiff’s conduct at the time of the occurrence;
12. Review and obtain all league or organization investigation:
f. Directive; and
13. Consider the law of the state where the occurrence took place versus the law where the case is tried and the law where the contracts, if in existence, are signed;
14. Review and investigate position of the defendant, including:
a. Owner, administrator;
b. Management, executive officers;
c. Coaches; and
d. Player personnel.
15. Consider the role of the referee/umpire or league official not affiliated with either team;
16. Consideration of punitive damages – close look at the conduct in question, past history of the club, subsequent activities of the club, and history of the player. Does the evidence support a finding of gross negligence and allocation of punitive damages?
VI. Importance of the Deposition of the Defendant Corporate Representative, Owner, or Manager and the Defendant Player-Employee
Obtaining the deposition of the principal defendant or the person(s) in charge, as well as certain employees including the defendant player-employee in a team sport, can serve a multitude of purposes in the development of the case. These depositions can prove to be the most useful tools in establishing liability. The importance and usefulness of these depositions cannot be overemphasized for the trial lawyer in the discovery stage of the sports and recreation case.
The critical facts of the litigation can be developed with these witnesses through depositions which can easily affect the entire complexity of the lawsuit. The position of the parties in the lawsuit and their stand with regard to all aspects of the case can be established. The necessary facts required to establish liability both in negligence and intentional tort sports and recreation cases, as well as the sports products liability case, may be obtained in this procedure. Also, the deposition procedure can become important by way of confrontation of the defendant and the defendant’s counsel to check the preparation and position of your opponent and their overall knowledge of the background of the case.
Finally, the deposition of the defendant and defendant player-employee may serve as the beginning step toward settlement or settlement discussions. The deposition procedure itself, as in any liability case, permits the interrogator to confront and question the defendant or witness under circumstances where their responses are more free from any type of direct influence or control of the opposing counsel. Furthermore, the deposition allows the interrogator to pursue areas of inquiry and follow up on answers that may be pertinent to each issue in the case. Of course, during this time, the trial lawyer is in a position to evaluate the demeanor of the witness as well as the skill of the opposing counsel.
From a strategy standpoint, it is extremely important for the case to be completely researched and full knowledge gained by the interrogator. The questions posed to the witness should clearly indicate full preparation, organization, and total knowledge of the subject matter. This works to the benefit of the interrogator in more ways than one, especially in informing opposing counsel and witnesses that the case at hand is one which has been thoroughly researched and organized. Such an approach sends the message to the opposing counsel that you, as the plaintiff’s attorney, are well prepared and ready for trial.
A. Approaching the Deposition of the Defendant Corporate Representative, Owner or Manager, and the Defendant Player-employee
1. General Consideration
An overall view regarding the deposition of the defendant player-employee or the defendant corporate representative, owner, or manager in a sports and recreation case can parallel and follow the normal route taken in any other type of deposition. Generally, the plaintiff’s attorney must have a comprehensive working knowledge of the sport or sport product at hand and understand all aspects of the game or the use and operation of the product. The deposition procedure should be approached with the idea of obtaining information or admissions which can solidify the plaintiff’s theory of the case and committing the witness to a particular set of facts or circumstances in order to eliminate any surprise at the time of trial. Also, the deposition should be approached with the idea of obtaining testimony which can effectively be used in framing the theme of the case. Certainly, if beneficial to the plaintiff, the facts pertinent to each witness’s knowledge or familiarity should be brought forth in the deposition to secure relevant material and facts to be used as evidence. Furthermore, questions pertaining to documents and physical evidence should be asked in order to obtain ascertain additional material to be obtained. The deposition procedure also permits the plaintiff’s counsel to become familiar with the witness and the opposing counsel’s style and techniques of litigation, as well as gaining information regarding the opponent’s expert witnesses and non-testimonial evidence that the defendant intends to use.
2. Purpose of the Deposition
a. Obtain facts, admissions, and material in order to establish liability for the plaintiff;
b. Seek basic overall information regarding the witness, club, franchise,
company, or product – a full discovery deposition;
c. Preserve the testimony of the witnesses for trial, eliminate the problem of
trial appearance, distance, age, infirmity, and convenience;
d. Commit a witness to a particular version of the story, tie down any loose
ends, and prevent the defendant from opening new doors at the time of trial;
e. Obtain background information on similar acts or problems with the client, plaintiff, player-employee, franchise, or products;
f. Ground work leading to punitive damages in such areas as:
– subsequent occurrences;
– warnings or failure to warn; and
– other lawsuits, verdicts, litigation;
h. Introduction of general theme and theme material;
i. Evaluation of the witnesses including the defendant corporate representative and the defendant player-employee;
j. Evaluate opposing counsel, familiarize yourself with adversary’s style and techniques;
k. Establish your position in the case with an impressive presentation in the deposition: knowledge of the case, interrogation procedure, and competency as a lawyer;
l. Set the time or open the door for settlement discussions by showing a strong case through an organized, prepared interrogation of the witness; and
m. Establish admissions in an attempt to weaken your adversary’s case.
3. Strategy for Taking the Deposition – Consideration And Variables Which Can Affect Each Deposition
a. Use of the deposition at the time of trial versus full discovery deposition;
b. Framing of questions;
c. Admissions geared to be read to the jury versus for gathering information only;
d. Avoid: disclosing plaintiff’s full case, “don’t tip your hand”, and needless interrogation;
e. Limit defenses;
f. Lay ground work for impeachment;
g. Lay ground work for rebutting defenses;
h. Length of deposition – gut issues versus personality development; and
i. Open doors which may lead to relevant evidence.
B. Successful Deposition Techniques
The key to a successful deposition in any case, but more so in this author’s opinion, in a sports and recreation lawsuit, is preparation for the deposition by the attorney. This preparation must be approached with the idea that the interrogator should know as much or more about the subject matter, as the witness to be deposed, and should at least have a general and thorough working knowledge of the game or product at hand. Incomplete preparation leads to incomplete victories and often, defeat. In this respect, the trial lawyer must be fully committed to complete a full and thorough investigation and preparation as this deposition is approached.
The subject matter at hand, ranging from negligence, intentional tort, gross negligence of the defendant player-employee and the defendant corporation, to the manufacturer, designer or supplier in a products liability case, must be thoroughly researched and completely understood by plaintiff’s counsel. All aspects of the game or contest must be digested and completely outlined and studied. Every rule, regulation, and bylaw must be researched as it applies to the particular sport and the activities of the sport, as well as the governing bodies within a franchise or team organization. Special attention should be given to any section of the rules pertaining to violence, infractions, fines, penalties, and prohibited acts. Orders should be placed for rule books and other information pertaining to the sport, such as yearbooks or official publications available on the particular sport. Game films, reports, and articles should be reviewed and studied. From the defendant corporate representative standpoint, all records including corporation charter, franchise agreement, contracts, rules and regulations, bylaws, corporate minutes, and investigation reports should be reviewed. Personnel files on all pertinent players and employees should be requested and a complete workup should be conducted on the defendant player-employee, if such an individual is involved. All interoffice correspondence, together with all league correspondence or documents directed to the particular team or player should be obtained.
Any type of independent investigation or league investigation, report, file, memoranda, and other similar material should be obtained and in addition to any materials exchanged between franchise headquarters and each team or player involved in the incident. Copies of fines, penalties, assessments, or suspensions should be reviewed and placed in admissible form. The history of the individual player, club, or franchise concerning the particular type of conduct or act in question should be obtained. All game films concerning the particular incident, photographs, witness statements, and other material should also be obtained and reviewed in order to have full knowledge of the event.
Additionally, any articles and photographs pertaining to the particular player in question which may have been published in any sports magazines should be obtained. These materials can be easily obtained through a national clipping service or public library. Sports groups may also offer such these sorts of materials.
From a products liability standpoint, a full and complete understanding of the product at hand, its acceptable use, and the manner in which the product was being used at the time in question is essential. A complete working knowledge of the product, together with a complete history of the product, its existing problems, incapacities, or defects should be acquired by plaintiff’s counsel. The history of the product from its inception and patent, up until the time of the occurrence in question, followed by any changes, modifications, or alterations in either the product or the warning system should be researched and investigated by plaintiff’s trial counsel.
The theory of the plaintiff’s case should also be deeply imbedded with counsel’s total and full understanding of the scope of the litigation in preparation for the deposition in order to lay the necessary ground work for establishing liability. A complete history of claims, lawsuits, and overall problems with the product should be explored. Counsel should look into all other lawsuits and depositions pertaining to the particular product in order to understand other theories and claims, as well as similar fact situations, that may have arisen. Also, a review of the patent, patent application, and other product information is a prerequisite and should provide additional information for use in the deposition.
In a products liability case involving sports and recreation products, plaintiff’s expert must have a clear understanding of the plaintiff’s theory and a full discussion of all liability aspects should be conducted by the plaintiff’s counsel with plaintiff’s experts prior to the depositions of the parties. The plaintiff’s expert can lend a great amount of knowledge to plaintiff’s counsel and the expert is often present during the depositions, depending on the strategy and style of the plaintiff’s counsel. In an effort to thoroughly understand the product, its use, misuse, design defects, warning problems, and overall operation, the expert and plaintiff’s counsel should have a close working relationship in order to instill enough knowledge with the plaintiff’s counsel to efficiently depose the witnesses. Priority time with the experts should be allotted long in advance of the depositions so that plaintiff’s counsel may gain from the expert’s inside experience and expertise and incorporate the expert’s knowledge in his deposition preparation. Inquiries should also be made of the plaintiff’s expert regarding questions to ask and information to be obtained in these depositions. In a sports and recreation products case, plaintiff’s counsel should be as familiar with the product and its intended use as the defense counsel.
Recent product activity and subsequent changes made to the product or the warnings should be documented and organized before these depositions. A complete chronological history of the product’s warnings or labels should be obtained and documented, including any and all anticipated developments and warning changes that have not yet been issued. Often a critical letter, memorandum, or interoffice note, known as the “smoking gun”, can be exposed during this stage of discovery. Furthermore, warnings on similar products, by the same manufacturer and other manufacturers, should be in plaintiff counsel’s file. Also, all litigation products cases involving the same or similar product should be researched for any type of information that would be similar to the case at hand or could prove beneficial to trial counsel.
While preparation remains the key factor to a successful deposition, the organization of all pertinent material in a chronological working order is also an important ingredient for a successful deposition. An organized cross-examination with material prepared and readily at hand can succeed many times whereas a “shotgun” or rambling approach fails. An outline or checklist with full document identification can be extremely helpful to the interrogator, especially when several witnesses are involved, or when several witnesses have similar backgrounds. (See Section E – Deposition Check List)
On the other hand, a fully organized checklist may be overruled for the “shotgun” or “jugular” approach, depending on the facts of the case. However, in the long run, the organized approach will probably obtain more admissions, establish more crucial facts, and better set the limitations for the witness’ testimony. Furthermore, such organization will hopefully eliminate the possibility of the interrogator overlooking major points, or failing to question the witness on a certain topic or area. An organized attack plan including a checklist or outline often reminds the interrogator of topics to be covered or areas to be investigated in order to fully utilize the deposition procedure and obtain as much information as possible or as needed.
Total organization of the material can also be extremely helpful when numerous documents are involved in the questioning of the witness. This organizational aspect can be extremely important in cases involving the particular sections of sports rules, regulations, bylaws, franchise agreements, contracts, photographs, and organization minutes. Particularly in a sports products liability case, this organization is critical when it comes to documents involving application for patent, corporate memoranda, directives, blueprints, schematics, reports, and official documents.
3. Total Knowledge And Understanding of Topics And Areas to Be Considered
In addition to the preparation and organization mentioned above, the interrogator should also have a full and complete working knowledge of the topic and areas to be covered in the deposition. In cases involving sports and recreation injuries, this author suggests that the interrogator actually attend several athletic contests similar to the area involved in the case. A full knowledge and understanding of the manner in which the game is conducted, the rules and regulations, the fowls, penalties, and violations can only be fully comprehended by attending and attempting to understand such an event as conducted in an athletic arena. The “climate” of the athletic event can only be understood by the trial counsel by being in attendance and witnessing the activities associated with this type of contest and the actual activities of players in a competitive arena. The physical confrontation aspects that appear in the intentional tort or negligence area can be difficult to understand without seeing the confrontation “in effect”. This will familiarize counsel with the physical aspect of the contest, the borderline assaults, and the generally permitted rough play that is often seen in modern athletic contests.
From an intentional tort standpoint, these near-misses and near-assaults may be permitted by some referees. On the other hand, these are considered infractions or violations of the rules by other officials. Modern athletic contests involve many confrontations and contacts that occur without breaching the applicable rules and being considered a violation or infraction. Understanding this is extremely important for the litigator in coming to grips with the true aspects of the case and also from an evaluation standpoint of the case at large. It will also assist trial counsel in making an acceptable presentation of the case to jurors who may not be familiar with all areas of the particular athletic contest. Becoming familiar by attending athletic events involving the sport in question will assist the litigator in distinguishing allowable physical contact from the unprotected assault, blind-side blow, or sucker punch. Likewise, this distinction is also important for the jury to completely understand.
In a products liability case, as in sports and recreation litigation, the same considerations should be given concerning a total understanding and comprehension of the product at hand. If possible, the author would suggest purchasing a new version of the product, i.e., helmet, ski, jet ski, or trampoline, in order to work with this product, understand it and use it, and be totally familiar with its use, misuse and any problems that might exist. It is also very important for the trial attorney to be fully familiar with the warnings that are present, not only those accompanying the product, but also with all the information, warranty, and material that is either produced by the manufacturer or supplier and normally included with the product or equipment. The attorney should have some idea of the manner in which the product might be used and the probable consequences of a defective product or with improper use. The utilization of the products expert, his experience and expertise, can be invaluable at this point. Both the trial attorney and the expert witness need to fully understand the product, all of its uses, and any problems that may exist. The expert witness may be extremely helpful by providing a full understanding of the product and the problems, failures, and defects that may exist and that may not be readily apparent to plaintiff’s counsel.
4. Acquisition of All Material Pertinent to the Case
In all cases involving sports and recreation injuries, a thorough search and investigation must be made in an attempt to locate all material, publications, photographs, movies, video tapes, , documents, and other information, both legal and nonlegal, that may be pertinent to any aspect of the case or the subject matter in question. This involves contact with all information sources, litigation groups, fellow lawyers who have handled same or similar cases, and a review of all files and information which would lead to material that could assist in handling the litigation. Various litigation groups may offer information on the particular type of injury, athletic contest, or game involved, or the particular sports product that may be at issue. Articles and publications relevant to the case or product involved may be obtained and researched through various means. Some sources that may provide such information are as follows:
a. ATLA Exchange;
b. Local trial lawyer associations;
c. Fellow attorneys;
d. Case research;
e. Article research;
f. Litigation resources, such as groups organized for specific products;
g. Westlaw©, Lexis©, and other computer research services;
h. Proof of Facts – may identify the case or attorney;
i. Art of Advocacy Series (Matthew Bender) – may identify the
case and attorney, along with valuable pointers on numerous cases that
have been tried;
k. American Law Reports;
l. Product Liability Reporter;
m. Sports publications;
n. Trial Lawyers for Public Justice;
o. The Internet; and
p. Product information.
5. Case Law Development
A working knowledge of present case law and any recent developments in the jurisdiction in which the case is pending is absolutely essential as it relates to the deposition of the defendant player-employee or the defendant corporate representative in sports and recreation litigation. An understanding of the most significant and recent cases concerning negligence, intentional torts, gross negligence, punitive damages, and products liability is a prerequisite for successful interrogation and recovery. Unless the legal theories are understood, unlimited amounts of time and expense may be spent or wasted on areas in which the law would not permit a recovery. A full working knowledge and comprehension of the legal authorities pertaining to the particular case and the act or product involved will enable the trial counsel to concentrate on specific inquiries, questions, or issues that may be submitted to the jury, and tailor the case accordingly. This becomes an invaluable tool during the interrogation of these important witnesses as they pertain to liability and all other aspects of the case. Also, there is an advantage to sifting through other’s needless and excessive questioning of a defendant which is immaterial or inadmissible in court . A review of such materials permits the plaintiff’s attorney to move directly into the heart of the lawsuit. With a thorough legal support and background, admissions or facts can be established to fix liability that even the most stringent witness rehabilitation often cannot effect.
C. Video Deposition
Depending on the particular case involving sports and recreation injuries and the specific defendant player-employee or the defendant corporate representative, consideration should be given to videotaping the deposition of these witnesses. Trial counsel should consider the video depositions of all witnesses involved in the occurrence, especially the defendant player employee, the defendant corporate representative, and their employees with the idea of what impression each witness might make on the jury through the videotaped deposition. The case must be carefully evaluated on its own facts and the decision to video tape all witnesses must be given special consideration. This author would suggest the review of all depositions existing in same or similar cases as this may assist in making this decision. If it appears that a valuable witness for the defense might be unable at trial, of course, a videotaped deposition would be in order if such testimony would also be beneficial to the plaintiff. Trial lawyers often feel that the depositions of all witnesses that are defendant employees or defendant corporate representatives should be videotaped. However, careful selection should be made here since such practice could be very costly.
1. A video record carries greater impact to a jury, and even a judge, than a cold transcript and avoids the tedium that benumbs the mind on hearing large quantities of deposition transcript. A video record may even entice judges in bench trials to watch rather than require that the deposition testimony be submitted in writing.
2. Furthermore, a videotaped deposition can capture the attention of a jury better than a transcript read aloud by relays of dispirited lawyers. The new generation of jurors who receive their truth from the tube and internet may prefer video to live testimony and even for the print generation, video can be powerful. These factors should be taken into consideration by the trial lawyer in a sports recreation injury case.
D. General Recommendations and Suggestions for the Sports Recreation Deposition
3. Complete understanding of recent law;
4. Central theme consideration;
5. Jugular questions regarding liability;
6. Game plan organized and ready;
7. Admissions on plaintiff’s conduct;
8. History of:
– player and
9. History of product;
10. Outline or checklist – considered but not total reliance;
11. Approach witness with friendly and straightforward manner;
12. Establish rapport with witness depending on style and approval;
13. Avoid lawyer intramural warfare;
14. Plan to control and direct witness;
15. Save “prize cow” for the jury;
16. Consider video deposition versus trial appearance;
17. Planning and strategy regarding other similar depositions – “fire big shot at the 12 pointer”;
18. Objections ready for talkative witness;
19. Prepare to certify questions, if jurisdiction recognizes that procedure;
20. Consider Hawaii;
21. Evaluate witness and opposing counsel;
22. Consider Settlement Picture; and
23. Establish Witness Respect for this Interrogation;
In a personal injury case, the single most valuable discovery tool is, most often, the deposition. This is because it is the only one discovery device that allows plaintiff’s counsel: (1) to confront and question a defendant or witness in circumstances where his or her answers are largely free of the direct influence, editing, and control of defense counsel; (2) to pursue areas of inquiry and follow up on answers; and (3) to evaluate how the witness will hold up in court.
E. Deposition Check List
1. Check List for Deposition of Defendant Player-Employee
b. Background in formation;
c. Experience in professional athletics;
d. History of the player:
– Draft position
– Reason for changing teams;
e. Present Position Employment
-Period of employment
f. Establish Course and Scope:
– Time of the occurrence was employed by the defendant corporation
– Paid and received compensation
– Working at that time, doing his job
– No question on the job at that time
– Place in the course and scope at the time of the event
g. Contract of the Individual Player Employee:
– Obtain a copy
– Review in detail before deposition
– Be familiar with terms of the contract
h. Establish Compensation:
– Establish clause in contract whereby the player agrees to abide by the rules and regulations of the league and of the franchise;
i. Place the Particular Players:
– General familiarity with the game or rules of the particular sport in question and his utilization of those rules throughout his playing career
– Move into the particular rules of the game as it pertains to professional sports
j. Chain of Command – Authority of the Defendant Corporation as Seen by the Defendant Player-Employee:
– General statement regarding the league, franchise, team and players
– Defendant employee-player’s understanding of the chain of command
– League, franchise, team
– Officers, commissioner, president, general manager, assistant manager, coach
– Team chain of command – owner, general manager, president, coach, assistant coach, scout, players;
k. Establish Authority of The Team Regarding The Player:
– Power to fine
– Power to suspend
– Power to reprimand
– Overall power of the owner or general manager regarding fines, suspension, penalties, sale, trade, and contract negotiation
– Defendant player-employee’s understanding of the duties of the owner, general manager, and coach
– Relationship of management, ownership to the player
– Relationship of the league, commissioner, board of governors to the player;
l. Policies of Authority and Organization:
-Defendant employee-player’s understanding of the operation of the club regarding structure and authority
-Establish the defendant player-employee operates within the framework of the organization
m. Establish the Structure and Authority and the Various Duties:
-Define the present status of the entire franchise so the jury can understand the operation of the league from the owner, board of governors, franchise, team coaches, players and the various contracts involved
-Establish that under the contract agreement and the franchise agreement, both the franchise and the players agree to be governed by the rules of the particular organization; admit the rule and regulations;
-Establish that the franchise or league consists of small corporations or companies within a large framework all governed by the bylaws, rules, and board of governors with the chief person in authority being the commissioner
-Establish the view or understanding of the witness that the teams are left to run their own organization
-Establish the responsibility for governing the players regarding violence, discipline, and fighting
-Duties of the commissioner
-Rules of the league Board of governors duties appeal from a sentence or suspension
– complete authority
– disciplinary rules
– maintain discipline and proper conduct of the player
-Request all written documents regarding discipline, fighting and violence:
– rules and regulations
– posters and pamphlets;
n. Club and Team Rules for Discipline, Fines. Fighting and Violence:
-Establish the authority of the team to set the rules and regulations regarding discipline, fighting, and violence
-Fines, penalties, and suspension: team, league, franchise
-Establish the team rules on fighting, discipline, and violence:
– Do any rules exist?
– How are they carried out?
– examples of when they have been carried out
– what fines are paid
– who pays the fine
– Coach and team authority
– Prior history of fighting, altercations, and discipline problems from the team player:
– Description of altercation or incident
– Manner in which each incident was handled – Record of such incident
– Establish a policy for discipline within the team
– What action the team takes regarding fighting, violence
– Authority of the coach
– Review the club’s action:
– other fights or altercations
– documents, written material, and conversations
– fines, discipline;
o. Description of the Incident by the Defendant Player-Employee:
– Description by the defendant player-employee, detailed words
– Commit defendant player-employee to position, action, and involvement
– Attempt to establish aggressive position of the defendant player-employee
-establish rule violation for admissions, establish defendant player-employee’s full knowledge of ejection from the game and suspension
– Employee at the time of the occurrence was member of the team, league
– Specific action, movement, location of all witness, action of the plaintiff
– General description regarding what defenses would be available, i.e., self-defense, protection, did not start altercation
– Conversations during or following the incident with the player, referee, team mates, opposing team mates, management, coach, and others
– Diagram by the defendant player-employee:
– explanation again of the events
– location of all parties
– location of the witnesses, all players
– Diagram of all movements:
– specific diagram
– specific listing of the action of the defendant player-employee;
p. Admissions Regarding the Incident in Question:
– Not part of the game
– Incident was against the rules
– Agree that such acts would be a violation
– Show player’s response if he was struck or hit
q. Establishing The Policy of The Particular League Regarding Fighting, Discipline, and Violence
– Individual player-employee’s understanding
– History of any meetings that were attended
– Nature of the conversations regarding the subject of fighting, violence, and discipline;
r. Attitude of Management:
– Toward fines, fighting, and violence
– Subject of fines, fighting and violence
– Memoranda of directives
– Written material;
s. Any Meetings:
– Regarding specific fights
– Fights other than incident in question
– Meetings following the fight or incident in question
– Details of the meetings:
– exactly what happened
– response of management
– any action taken by the league;
t. Conversation With or Directions From Management Concerning the Incident in Question:
– Any statement regarding the particular defendant player-employee
– Instructions to stop fighting or stop punching
– Conversations between management and the player-employee;
u. Conversations with the Plaintiff:
– Any discussion with the plaintiff at any time
– Identify the time, place, location, and exact conversation
– Any expression by the defendant player-employee of regret or sorrow
– Any apology or public apology, ever say “I’m sorry”
– Conversation with management, any statement to coach, general manager, commissioner, or board of directors
– Any written position or paper made by the player or received by the player
– Any confrontation with management regarding a particular act, specific conversations, and the manner in which it was handled
v. Action of the Particular Defendant Player-Employee after the Game:
– Conversation in the dressing room
– Discussion leading up to the next game
– Defendant player-employee permitted to play in the next game
– Defendant player-employee continued to be employed by the defendant corporation;
w. Action Regarding the Defendant Player-Employee Remaining on the Payroll:
– Establish lack of activity by the defendant club or team, i.e., the team or club did nothing until the league penalty was handed down;
x. Articles of Publicity Prior to the Incident in Question:
– Impartial articles or similar publication
– Establish defendant player-employee as aggressive player or perhaps enforcer in the league
– Any quotes or photographs
– Obtain information regarding photographs or interviews for enforcer articles
– Quotes or comments regarding violence, discipline, or enforcer position
– Quotes or comments that have been made, articles, depositions, i.e., “I’m real mean. I get mean”;
y. Publicity Following the Incident in Question
– Use the same specific quotes or activities
– Review of material
– Comments regarding fighting, violence, and discipline
– Written material
– Defendant player-employee as power forward, etc.
– Articles that Defendant player-employee has access to regarding the event in question
– All articles containing defendant player-employee quotes or contributions
– List of all previous altercations involving any type of fight, fine, suspension, or disciplinary action:
– generally describe event, time, and location
– fines, suspensions, or reprimands: include games, practices, and playground
– any history of fighting, violence, or discipline prior to participation in the professional sports
– inquire as to the handling of fines or suspension with the team
– any particular memos directives concerning fine or suspension that were handed down
– obtain all information attached to the deposition concerning fines or suspension
– inquire in detail regarding the specific memorandum or order handed down by league officers or league commissioner regarding the particular act in question
– make inquiry as to the defendant player-employee’s understanding and reaction regarding the management response to this fine or suspension;
z. Present Status of Plaintiff:
– Plaintiff to attend trial
– Any other depositions pending
2. Check List for Defendant Corporate Representative Owner or Manager
b. Preliminary Questions
– Prior depositions
– Deposition familiarity and participation
– Description of case, attorney, location, result for all prior lawsuit involvement
– Preparation for deposition, documents reviewed, material looked out, conversations held with other counsel;
c. Background Information:
– Athletic history of the player:
– College and professional honors awards
– All-Star teams
– All-American teams
– All-pro team
– Coaching history
– School league team
d. Administrative Position:
– General manager
– Assistant coach
– Other positions
– General manager
– Assistant coach
– Other positions
f. Establish the Chain of Command
– General manager
– Assistant coach
– Publicity chairman
– Associate the participation of the players with each defendant corporate representative
– Relationship with management and ownership
– Relationship with players:
– witness’ role
– witness’ duty and authority
g. Define the Boundaries and Authority:
– Regarding the job position and involvement
– Specific activities regarding the position of officers and corporate representatives concerning the event in question
h. Chain of Command:
– Power structure
– Franchise duties and general organization
– Detail questioning regarding:
i. League or Association:
– Chairman and commissioner
– Manager of the team
– Team representatives
– Specific body set up within the league to govern violence and fighting.
j. Written Policy and Documents of Authority and Organization:
– League bylaws, rules and regulations
– Franchise agreement and contract
– Player contract and agreement
– General rules and regulations of the league or division
– Rules of the game, rule book
k. Meetings and Organization:
– Within the league, franchise, and clubs regarding discipline, fighting and violence
– Regular meetings:
– topic discussed
– written documents
– Before and after practice:
– individual conference with a particular player
– topic of conversation
– Response and handling of disciplinary problems
– Individual or team communication with league office regarding discipline or violence:
– explain how it is handled
– any messages to the players or various team representatives that talk with the league office
l. Rules Infractions:
– Fines, penalties, and technical fouls
– How a fine is handled:
– does the club pick up the fine?
– what happens to the money that’s paid to the club?
m. Violence and Fighting:
– Recognize and discuss
– Meetings with individuals
– Obtain documents
– Any written record concerning any type of meetings conducted concerning the prevention of fighting or violence
n. Game or Incident in Question:
– Inquiries regarding witnesses to the occurrence
– Eyeball witnesses:
– what was seen
– what was heard
– full description of the incident or information received pertaining to the event
– Commit the witness to a particular story or position:
– make specific inquiries as to time, location, and actions before and after
– what particular event did the witness see
– establish a full and complete witness version to eliminate any trial surprises
– Activity immediately following the incident:
– conversation or discussion
– Review of the incident:
– game films
– video tape
– radio broadcast
– commit witness to specific or particular version and limit
– witness version of the violence, fighting, punching
– establish the position that the defendant player was aggressive
– inquiries as to who-was throwing punches
– recollection of the first punch thrown
– overall inquiry as to which player was throwing punches or fighting
– important to eliminate the intentional neglect of the plaintiff
– establish the defendant player as aggressor
o. Action of the League or Team Following the Incident
– League communication
– when, where, content, fine, suspension
– Explain in detail the fine and suspension
– size of fine and suspension
– Establish rating regarding the amount and length of the suspension
– what action is taken by the team
– when, where
– team had authority to discipline
– Establish whether team acted or did not act
– Emphasize inaction, condolence of fighting, or lack of discipline
– Meeting pertaining to the incident concerning action of the league or team
– Conversations by the player and/or members of the league
– Team meetings
– Any meetings specifically with management and players regarding:
– fighting, discipline, or violence
– other fights or incidents of violence
– Meetings or lack of meetings, discussion, or concern about fighting
– franchise officers present
– conversation with the players or officers regarding fighting, violence, or discipline
p. Violence and Other Fights Within the Club by Team Members:
– List various fights including name, game, suspension
– Action of league
– Action by team
– Regular activity
– Establish that nothing was done to stop or prevent
– If something was done to stop or prevent:
– describe in detail
– request all written material pertaining to other fights by defendant player-employee
– Establish the particular occurrence in question
– action by the league
– team meeting
– Any disciplinary actions on behalf of the team to prevent fighting by this player-employee
– Specific activity with the particular employee who has had several fights
– Any conversations or meetings regarding the various fights
– Specific position taken by the club regarding the fights
– Particular conversation with the individual player
q. Position of The Team Regarding Discipline:
– Commit defendant to a particular position or stand
– Examples of other disciplinary problems
– No rule or provision to prevent the team from taking a stand on discipline, fighting, or violence
– Nothing to prevent
– Power and authority; fines and suspensions on previous occasions – i.e., they could have taken action
– Could control the player who is a trouble maker or discipline problem
– Rules of the league regarding fighting and violence:
– players know and understand
– franchise knows and understands
r. League Rules:
– Enforcement of the rules by the team and the league
– Other fights, altercations, and discipline problems with the defendant player-employee
– General description of the incident
– time and place
– documentation of the event
– penalty for each event
– fine, suspension, or removal from the game
– Action by the club or by the league:
– obtain documents regarding specific memoranda from the league to the particular franchise or club
– obtain documents regarding specific memoranda from the club to the player
– permission to play following the incident
– lack of action by the team concerning the individual player
– Questions regarding why the witness or members of the defendant corporate organization did not prevent the defendant player-employee from playing:
– power of the owner, officer, or coach to stop and prevent
– easily could have stopped the player from participating
-Hypothetical question to the corporate representative regarding the ability of the corporate representatives to prevent the player from playing if the subject matter included narcotics, illegal contraband, or felony activities as compared to fighting, discipline problems, or violence. Bottom line: could have stopped anytime, any place, for any violation.
s. Action by the League – Fine, Penalty. Suspension:
– Description of the terms of the fine, penalty, or suspension including:
– time, amount of money, and restrictions
– The date handed down and the date it went into effect
– Time between the particular event or occurrence and the date of the official action by the league and the lack of any action on behalf of the team
– Fine paid by the team
– Any appeal made to the league or board of directors
– Appeal process considered:
– obtain all written information
– Any other fines, suspension or activity by the player or the team
– Action by the team on any appeal
– Information from the defendant corporate representative concerning the defendant player-employee:
– personnel file
– biographical material
– years with the team
– Establish a strong aggressive player:
– fights or altercations establishing a prior history of violence and lack of discipline
– Number of occurrences, description, practice for game
– Allowed to play after each fight, no penalty or action by the team
– Inquire as to publicity or photographs pertaining to the specific player, i.e., “enforcer” article encouraged by the team for publicity, public relations, and marketing
– Establish the enforcer:
– tough guy
– aggressor role
– may sell more tickets
– certainly not bad for the defendant player-employee’s image
– Comments regarding the fight, attack, or blow
– Admission and proper conduct:
– not a part of the game
– clear rule violation
– not a part of the game or any aspect thereof
– unacceptable conduct was/is never part of the game
– Establish the witness as being against on-court violence
– Establish the subject of fighting as being a topic of conversation among the players, managers, and fans of the particular team
– Conversations and discussions by corporate representatives and any action pertaining to the same
– Inquire as to any policy changes that might have been made since the incident in question by the team or the league
– Inquire as to specific details
– Obtain written material
– Inquire as to how such policy is changed regarding the team or the league
– Any action since the occurrence in question by the team or the league:
– anything changed?
t. General Comments Regarding the Plaintiff:
– Establish plaintiff as sports veteran:
– respected in the league and franchise
– fine person
– reputation: no fighting and no problems before this incident
3. Deposition Checklist for Product Liability Cases
a. Preliminary Questions:
– Occupation or profession
– Name of employer
– Designated representative of defendant corporation for deposition purposes
b. Personal Data:
– Specific job title
– Length of time in that position
– Length of time with defendant company
– Other jobs held with defendant company
– Employment history, other employment
– Educational background
– Specialized training regarding product in question
c. Defendant Company
– Exact name
– Company’s usual or regular business
– Size and scope of company
– Company’s geographical area of operation and distribution
– Where incorporated
– Home office
– Principal place of business
– Location of production plant where product manufactured
– Company’s sales outlets or means of selling products
– Name of product
– When designed
– Name of designer(s): individual and company
– When first sold
– Cost of production of product
– Sales price of product
– Number of units sold
– Configuration in which sold
– Whether time of manufacture of specific product identifiable (i.e. does product have a serial number, etc.?)
e. Design of Product:
– Availability of original design plans
– Whether design was or is patented
– Whether safety considerations were included in original design
– Any changes in design over the years
– Whereabouts of original designer
– Current responsibility for design of product
– Whether design currently being or has been re-evaluated
– Any post-accident changes in design
– Any similar product lines of defendant company with major design variations from specific product in question (i.e., presence of safety devices on more expensive line of products)
f. Manufacture of Product:
– Who manufactured
– Where manufactured
– When manufactured
– Component parts by other manufacturers
– Whether assembled at place other than where manufactured
– Configuration of product as manufactured
– Changes in manufacturing process:
– over the years
– currently being considered
g. Sale of Product:
– Date of sale
– Through whom sold
– Where sold
– Volume of sales
– Length of time on the market
h. Testing of Product:
– Any testing
– How, protocol
– By whom
– Purpose of testing
– Results of tests
– Records of test results
i. Applicable Standards:
– Safety standards governing design of product
– Safety standards governing manufacture of product
– Applicable safety codes
– Applicable custom in the industry
– Applicable “minimum standards”
– What organizations have promulgated applicable standards (i.e., A.N.S.I.)
– Applicable safety principles
– Efforts made to determine applicable standards
– Generic class or category of specific product for purpose of determining applicable standards, codes, and principles
– How widely were the applicable standards disseminated in the industry at the time the specific product was sold
– Whether such standards, codes, bulletins, etc., were authoritative sources for a design engineer in the year of design and year of occurrence
j. Applicable Regulatory Laws:
– Name of governmental agency responsible for monitoring the design, manufacture, and sale of specific product
– Any specific laws or agency rules governing the specific product
k. Product Warranties:
– Written warranties
– Oral warranties
– General representations known by manufacturer to accompany sale of product
l. Advertising and Sales Literature:
– When and where advertised
– Amount spent advertising
– Representations made in advertising:
– intended use
– expected product life
– accompanying sales literature
– representations made in sales literature
– Nature and extent of warnings given by defendant company
– Whether warnings attached to the product
– Whether warnings accompanied product
– Warning labels
– Warning placards
– Warnings in operator’s manual
– Warnings in inserts
– When warnings were conveyed
– When learned of need for warnings
– How learned of need for warnings
– Whether need for warnings evaluated before sale of product
– Whether post-sale evaluation made for possible need for warnings
– Whether post-accident evaluation of need for warnings
– Specific dangers warned against
– Gravity of danger or seriousness of risk included in warning
– What expert or technological assistance received to evaluate the adequacy of the warning (or need for warning)
n. Intended Use of Product:
– Purpose for which product sold
– Whether product being used for such purpose at the time of accident
– Intended environmental use
– Intended users of product
– Intended means of use
o. Foreseeable Uses and Misuses:
– Known users of product
– Known environments in which product used
– Known varying skill and experience levels of users
– Known dangers involved in use of product
– Known risk of contact of product with user or bystander so as to cause injury
– Known dangers of users and bystanders being in close contact with product
– Anticipated changes and alterations in product:
– aging process
– by user to accomplish foreseeable uses of product
– Unusual uses of product
– Whether product being operated within design limits of product, notwithstanding such use being dangerous
– Foreseeable use by person without access to warnings, instructions for use
p. INSTRUCTIONS FOR USE:
– Nature and extent of instructions provided
– Whether instructions being followed at time of accident (“Are you contending…?”) (“Is it your understanding that …?”)
– Location of instructions
q. Product Failures:
– Known accidents
– Accidents heard of but not verified
– Investigation by defendant company of reported failures or accidents
– Claims against defendant company regarding such accidents
– Lawsuits against defendant company regarding such accidents
– Access to government statistics indicating hazard and risk of use of product
– Any government investigation of product
r. Safety Devices:
– Evaluation of product for need for safety devices to guard against risk involved in use of product:
– when accomplished
– whether need recognized
– availability of guard or device
– exist in the market
– existence of patent
– within state of existing technology to create guard or safety device
– economic feasibility of guard or safety device
– Impact on utility of product:
– will not hamper usefulness of product
– will not make product unduly expensive
– Preferred design option as between elimination of risk and guard against risk
s. Elimination of Risk:
– Identification of risks inherent in use of product
– Consideration given to design alternatives that would eliminate risk:
– within state of existing technology
– on the market
– economically feasible
– no restriction on utility or usefulness of product
– Consideration given to manufacturing and production alternatives that would eliminate risk of defect:
– within state of existing technology
– economically feasible
– no restriction on utility or usefulness of product
– preferred design options as between elimination of risk and guarding against risk
t. Post-accident Inspection of Product:
– Whether witness has inspected product
– Who at defendant company has inspected product
– When inspected
– Tests of product
– Photographs of product
– Reconstruction of accident
– Any movies or videotapes made or anticipated
– Any similar products tested or inspected for like failures
– Any attempt to recreate similar failure
u. SIMILAR PRODUCTS:
– Produced by defendant company
– Produced by competitors
– Designed but not produced
– Differences between product in question and similar products:
– from safety standpoint
– from design standpoint
– in warnings given with product
– advantages of competing designs or manufacturing process or means of warning
The beginning steps to victory when representing the plaintiff in a sports and recreation injury case can be the discovery process with the deposition of the defendant player-employee and the deposition of the defendant corporate representatives, including the general manager, president, coach, and other members of the organization. The scope of the interrogation and the area for gaining admissions, establishing facts both favorable and unfavorable, and setting the “tone of the lawsuit” can be established during these proceedings.
From a liability standpoint, the facts which can be established and the material that can be uncovered from the defendant corporate representatives and the defendant player-employee can be very decisive factors in establishing negligence, an intentional tort, gross negligence, and punitive damages, as well as all aspects of a sports and recreation product liability case. This procedure should be approached by plaintiff’s counsel similar to any other aspect of trial, from voir dire examination of the jury to closing argument, with an organized and comprehensively prepared plan of attack.
The entire success of the lawsuit may depend upon the results of these very important depositions, given the admission of facts and the material and information that can be obtained. The importance of this procedure should never be overlooked or underestimated by plaintiff’s counsel. Total preparation with a full and complete understanding of the area of inquiry, the subject matter, and all aspects thereof are mandatory for these depositions to be a success. Thorough research of the law with emphasis on the specific questions or inquiries to be submitted to the jury or the judge should be accomplished in order to “frame” questions in a language suitable to the jury, including voir dire, opening statement, interrogation of the witnesses, cross-examination, and closing argument.
Organizing the deposition plan with a “theme” to be used throughout the trial can give a distinct advantage toward successful completion of this discovery procedure. Also, a first look “eyeball to eyeball”, sizing up the defendant player-employee and the defendant corporate representatives, as well as opposing counsel, becomes an extremely important factor in this area. Such confrontation will also permit the plaintiff’s counsel to demonstrate to opposing counsel the overall knowledge, research, background, expertise, and seriousness with which the plaintiff’s case will be presented at the time of trial.
VII. Approaching Jury Argument in the Sports Injury Cases
A. Basic Fundamentals and Guidelines
The basic fundamentals and guidelines of presenting jury argument on behalf of an injured plaintiff also apply in sports injury cases. While each case would depend entirely on its own set of facts, as a general rule, sports injury cases involving negligence, intentional torts and/or products liability require the same general approach as required for each theory outside of the sports environment.
Preparation, organization, and total understanding of the principal issues to be decided by the jury rank as priority items in the argument of a sports injury case. Demonstrative evidence which has been utilized in the trial, such as contracts, warnings, patents, game films, or models, can be very beneficial at jury argument time.
In the negligence or intentional tort case involving a sports injury, if the event itself, such as a hit, blow, or illegal action, has been captured on film or videotape, such evidence can be overwhelming in argument. Other areas to be considered are:
1. Game films
3. Contracts of the players involved
4. Lack of discipline
5. History of player problems
6. History of franchise practices
9. League penalty or fine
10. Payment of penalty or fine
11. Punitive damage elements
Product liability cases such as those involving football helmet and defective sports products offer unique opportunities for jury argument. Certain evidence which may be utilized successfully during jury arguments and which often has a positive effect on the jury includes the following:
4. Catastrophic injury report
5. Testing information
6. Investigation report/file
7. Memos or correspondence
9. Recall reports
10. Reviews of competing products
11. Expert’s testimony
12. Recap of damages
From a presentation standpoint, the use of a central theme of the case can be very advantageous in jury argument. The central theme of the case should be introduced in voir dire, carried through in opening statement, and concluded in jury argument. The central theme utilized properly in jury argument can reestablish and reaffirm the plaintiff’s position and theory of the case and further present in layman’s terms “A Total Picture of the Case”.
As the high points of the evidence and the testimony are presented in jury argument, it must be remembered that the jury argument is basically a speech geared to motivate and persuade the jury. This requires preparation and organization with the idea in mind that the jury argument should advance the case.
If a case has facts which warrant a claim for punitive damages it should be asserted. The value of such a claim is clearly seen and the proper argument using the facts and associated evidence may even be a very powerful weapon for the trial attorney. The urging of punitive damages offers jurors an area unavailable with other argument areas. Such argument offers the jury a chance to “right a wrong” or “send a message” and can be a motivating factor with the jury.
B. General Argument Outlines – General Comments:
1. Total organization and preparation – checklist outline
2. Personal approach – sincerity, honest manner, right & wrong
3. Present a central theme of the case – a total picture
4. Blend and harmonize the evidence into argument, emphasis on liability aspects of defendant
5. Emphasis on most important parts of case – ability to conclude argument and anticipate opponents approach and argument
6. Dilute opposition arguments with reasons why they are invalid
7. Purpose is to motivate and persuade the jury to take action on your behalf
8. Emphasis on physical facts and exhibits
9. Emphasis on lack of action by defendants
10. Organize argument
11. Make full and complete Opening Argument. First impressions are hard to erase.
12. On rebuttal – prepare for defense argument, principal defenses, and normal prejudicial comments.
13. Outline argument:
c. General theme or picture
d. Evidence in the case
14. Blend voir dire, opening statement, and jury argument
15. Group issues and interrogatories together while arguing
16. Punitive – if possible discuss wealth and power of defendant. Urge a message approach, not “wrist slap” – punish them.
17. Damages – rescue time. Bill Colson’s “Final Four” Stock damage argument. Large salary increase may be necessary.
The sports injury case and representation of the plaintiff involved in such litigation offers a unique experience and challenge for the practicing trial attorney. The basic approach to a regular negligence, intentional tort, or products liability case may be utilized in the sports injury case with the additional facts and information that may accompany such litigation. The injured player, participant, spectator, fan, or product user is gradually becoming a fairly familiar party in the courtroom and in our legal system today, and this writer predicts that it will continue.
IX. Deposition Examples – Exhibit “A”
A. Authority and Chain of Command from the Defendant Player- Employee
Q: In the chain of command we have been discussing here, does anybody in the organization ever sit down and talk with the team about physical encounters, fights, violence, or anything like that?
Q: You have never heard any of that from the assistant coaches or from or from ?
Q: Nothing like that as long as you have been here?
Q: In the organization, in the chain of command that we have been talking about, has anybody ever sat down and talked to the team at all about discipline?
Q: Has anybody ever gone over the physical aspects of the game or told you all not to fight or anything like that at regular meetings?
Q: And I assume that you would not know of any records of a meeting like that if it ever did occur?
Q: So the jury would understand, we are going to be talking about the evening of . But before that time had there been any physical encounters or fights occurring not with yourself, but with other members of the team?
Q: Do you remember specifically the encounter between and ?
Q: Is there any interim person outside of the Commissioner that can hand down some type of punishment or something for a rule violation?
A: Club officials could do it to their own player.
Q: In the chain of command of the NBA is there anyone beneath Commissioner that you know of that would have jurisdiction or authority to reprimand, suspend, or eject a person?
A: Owner or general manager, as far as I know.
B. Admissions Regarding NBA Rules & Regulations from Defendant Player-employee:
Q: All of you are operating with the framework of the organization that you agreed to work with or work for and be a part of, I take it?
Q: In my law firm — and I am a partner in a partnership agreement — there are certain rules and regulations by an agreement that we try to follow. And I assume that the N8A is a large corporation or organization that has its own rules and bylaws and things of that nature
Q: — and of which you are a member?
C. Knowledge of Defendant Player-employee, Lack of Overall General Attitude of Corporate Defendant
Q: After this happened with the organization, what was the series of events as far as you know that led up to the suspension and the fining?
A: Series of events that led up to it. Oh, I immediately knew that I would be suspended. I didn’t have to be told that.
Q: But something has to be official in an organization. How was that communicated to you?
A: I was called — it was two days later in New Orleans — and told that I had been suspended.
Q: Did you go with the team, then, for the New Orleans game?
Q: You were ejected from this game and then didn’t have another game until two days later?
A: Two days later, correct.
Q: And you were playing the in ?
A: No. We played the Jazz two days later at New Orleans.
Q: In Utah ?
A: No. We played the Jazz two days later at New Orleans.
Q: Did you play in that game?
A: Yes, I did.
Q: You were then still on the payroll following this fight as an active player?
Q: I believe you had indicated that you had awareness that as soon as the swinging started, you were going to be ejected.
A: Most emphatically, yes, I knew.
Q: You knew what was going on around you?
A: I knew what was going on around me.
Q: And what you were doing?
A: And what I was doing.
Q: After this occurred, there were three days before the Commissioner handed down his ruling? Did anyone in the organization or chain of command talk to you about violence or altercations on the courts?
A: — it didn’t need to be said. Automatically I knew that I was going to be suspended. They knew I knew what happened, and it shouldn’t happen again. And some things don’t have to be said. They are understood.
Q: Please don’t get me wrong. I am not saying what should have happened or what was the correct course of action. I am just asking you if they called you in and had any conversation with you other than what you have told me about Coach .
Q: When you went out to play in the game, did anybody from the management or the organization give you any instructions on fights, violence, physical encounters, or anything?
A: No, they didn’t.
Q: Before you went, then, to , did you get the notice before you got to ?
A: No. I got it when I was there.
Q: You had already started practicing, or what?
A: No. We were just waiting for the game the next day.
Q: But as far as you know, you were going to play in that game if they hadn’t come down?
A: I knew I wasn’t going to play in the game, but as a formality, I went down anyway because the decision wasn’t until 4 o’clock that evening. But I knew you can’t say that I was going to be suspended or not. But I knew that I wasn’t going to play.
Q: Actually, the Commissioner’s ruling did that and nothing the did; is that right?
Q: If the Commissioner had not handed down any suspension or punishment, so to speak, I assume you would have continued to play?
D. Admission of Defendant Player-Employee to Fine, Penalty and Suspension
Q: So the jury would understand, then, the Commissioner handed down a fine of $5,000 and a suspension of 40 days to you?
A: Without pay.
Q: What happened after that as far as the payment of the fine?
A: I paid the fine with a check.
Q: You paid it yourself, not the check coming out of —
A: I paid my check.
Q: Whatever occurred, if it did, between your attorneys and the Commissioner, you abided by his ruling and paid the fine within the time limit?
A: Yes, I did.
Q: And you yourself did not in any way contest this ruling that you know of?
A: I don’t know how to answer that question because I really don’t understand what you mean, did I protest. So I don’t know – you know, I just can’t say – when you say “protest,” to who?
E. Pre-Game Publicity
Q: I hate to drag this on, but if for some reason you could not be at the trial, if Plaintiff’s No. 4 is an exhibit, that was taken from , an article on the enforcers in the NBA; is that correct?
Q: You are pictured in the article as being one of the enforcers; is that correct?
Q: I have read to you some portions from the article; some you agree with and some you do not agree with; is that correct?
Q: The portion I have marked A, , is the portion that you do not agree with as far as your actual conversation and your statement; is that correct?
Q: And the portion that I have marked B is what I did read to you that was pretty well taken from what you said or a tape recording; is that correct?
Q: So there won’t be any question about this — and I hate to belabor this — but in order to have the legal formalities correct, these were your words and you agree with them: “I’m not a policeman. I’m not a fighter. I’m just trying to make a living for myself and my family. If I think someone is going to be taking food off my table, away from my family, I get mean. You have to establish yourself in this league. They will push you around if you can be pushed around. Some of us don’t have the talent of the and the , so we have to do our jobs the best way we can. I’m just
an aggressive guy trying to survive. Really.” Those were your words and you agree with those words?
A: When you say “aggressive” — I mean it depends how you say aggressive. I mean aggressively, not physically. I mean a man that takes the initiative. ___________ takes the initiative. He is a very aggressive player, but he’s not physically aggressive.
Q: You agree those were the words you said that this reporter put into this article?
Q: From the ‘s standpoint and your position on the team, this article itself, as far as you know, certainly didn’t hurt any attendance out here, did it?
A: I don’t know. I don’t know the figures about attendance, but I don’t think it would hurt attendance.
Q: From a PR standpoint it kind of has an interesting theme if you are a sports fan and want to know what is going on?
A: True. But, if I may say, the people in know me, and they have seen me play for four-and-a-half years. So this wouldn’t shock them or make them think differently of me, because they have seen me play too long to let one article come up and change their minds about me.
Q: There was no complaint made to about the article in and how it depicted you?
A: No, I did not do anything about it.
Q: Were you ever kidded by your teammates or anything like that about being an enforcer?
A: Very much. Very much so. I think I was too embarrassed to even read the article.
Q: Before the fight occurred, did they get on you sometimes in practice and jibe you around a little bit?
A: They knew basically — a few of them did kid me but they did know it was going to have bad connotations later on. I told this article would be very bad because it would make people aware or think I’m an enforcer and cause problems. When something is out, and after it’s been out, there is no way you can change people’s minds with another article saying something different.
Q: There is no question that this article did depict you as being physical and violent and an enforcer. did it not?
A: I don’t know about violent, but maybe aggressive.
Q: Aggressive, physical, and an enforcer. I will leave the word violent out.
A: Enforcer. Who is to describe it? They describe it one way, and I describe it another.
F. Violence and Fighting: Not Part of Basketball
Q: Generally speaking, you would agree with me that violence in the sense of punching another player has no place in professional basketball, wouldn’t you?
A: Yes, I do agree.
G. Chain of Command From Defendant Corporate Management
Q: Let me ask you a little bit about the organization as it exists now. If you can, give me a going from your status up the pyramid to the chain of command and how you operate there.
A: Well, naturally, the first in the chain of command would be , and the second person in the chain I would assume would be . And when it comes to making most of the final decisions, would be the man. And then, of course, would participate in some of the discussions. Now, if it would get to trades, involving trades of players, player movement, it would probably be between , , myself, and my two assistants. And those would be the people that would be in the basketball discussions, particularly if pertaining to player movement.
Q: What title besides owner is , chairman of the board also or just-
A: I’m not sure. I think he might be president of Sports, Inc. I’m not sure.
Q: What is Mr. ?
A: Mr. , I would think he may be vice president. I’m not sure about that either.
Q: I think I know that is the general manager.
A: That’s correct.
Q: And you are the head coach. What is ?
A: He’s the assistant general manager, radio announcer, and sometimes assistant coach.
Q: Do you all meet fairly regularly as a management group, or is that kind of like my law firm; we have a hard time getting together?
A: It’s difficult, because in the off season — in professional basketball you work for someone under a whole year’s contract, but the duration usually involves from seven to nine months, possibly. So there would be three months where you communicate, but not necessarily as frequently as when your season is in effect.
Q: If in your opinion somebody really got out of line, I guess – well, if I am saying this correctly, you, together with and , could have some disciplinary action?
A: I guess, but it’s never been any cause for that.
H. Failure to Discipline Defendant Player-Employee: Permission Given Following Incident to Participate in Further NBA Games
Q: It was not really considered between you and Mr. and Mr. ________ if the should bench or suspend from playing then?
A: It would have to come from Mr. , not me.
Q: Did Mr. discuss that possibility with you, or was It even considered?
A: To my recollection, I don’t remember him saying anything about that.
Q: You don’t remember any discussion of that idea?
A: As to whether or not he should play or not, I don’t remember him saying anything about suspension or anything, no.
Q: Certainly no suspension by the as distinct from the league?
A: Again, I don’t think the could do that. I think the Players Association would probably jump upon that immediately.
Q: I understand that he did regret what happened and there is no question about that, and I don’t mean to be repetitious, but as far as you know, there was no conference with him or any disciplinary action or statement by anybody in management? And the answer at the top of Page 45: “No, there was no disciplinary statement, but it was talked about.”
Q: And it was your decision to go ahead and play him in that one more game until the league acted?
A: It was solely my decision. I absolutely 100 percent would have encouraged him to play, yes.
Q: And you did play him in that game?
A: I sure did.
Q: Obviously, the incident itself, as well as , had become a petty good or bad newsworthy item that people were doing a lot of writing about?
A: Well, I think this year that was the only thing people could talk about with our team, our fights. And it got to the point it was not very much fun to hear, particularly from a coaching standpoint.
Q: You said you got around to the conversation that all the people would talk about would be the fights. Did you ever have any meetings just to discuss, “Let’s cut out fighting. Let’s cut out slugging or whatever we are doing”?
A: Well, I don’t think we have ever specifically talked about someone punching somebody in the mouth. But what I always say is the one way you are going to remove yourself is for not playing hard, when I think you are playing hard, and secondly, if you foul. And if you foul, you are going to leave the ball game because you cannot play under those conditions. And if you hit someone, you are going to leave, and you are going to be reprimanded by the league office. And we have had no — because I don’t consider fighting a part of any sport. I didn’t fight. I didn’t see any reason to fight, and I still don’t.
Q: After the incident occurred with and , did the organization do any type of disciplining or suspending of ?
A: They did not have to. He had a broken hand and couldn’t play.
Q: If his hand weren’t broken –
A: I don’t think they would have.
Q: After the – incident on , did– and I think the answer is negative — but did the organization take any action regarding ?
A: Not to my knowledge.
I. Admission by Defendant Corporate Management: Injury to Plaintiff and Damage to Team’s Overall Productivity
Q: Let me focus on . Would you feel able to make a judgment, in any event, on the question whether ‘s loss to the did hurt their play?
A: Oh, there was no question.
Q: It did hurt their play, didn’t it?
A: That’s right.
J. Publicity Angle: Admissions
Q: Did you have an occasion to read the enforcer article that was in by ?
A: I sure did.
Q: There were questions asked about that today. How is a sports writer able to get in and talk to the people from a mechanical standpoint? Does he get clearance first? When he went in and talked to , I assume he went in the dressing room.
A: Our publicity director I know was telling me about — they were talking about they were going to have and talk about his exploits. And they were going to have , I think, with his shirt off, or have he and boxing or showing them fighting at one time or something like that. And I told him at that time that I really didn’t think that was the image this league wanted to portray. I didn’t think it had anything but a negative effect. Certainly people like to say this guy is tough, that guy is tough. And I think the players in the league are well aware who is a tough person in this league because they play hard every night. And regardless of whether or not they have a reputation for being fighters or not, those people have earned reputations as being tough players. And I am talking about tough when playing. When the game is over, most of these people are quiet, almost meek people. When they are out there, they are defending their positions; they are defending their salary. And that’s the way it is. I really have a tremendous aversion to this league portraying players in that vein. And also, our television coverage, I don’t think we should have a connotation of gambling, and we have on halftime. I think that is a terrible image for this league to apply.
Q: Would that article have to have cleared through public relations department before the information could be obtained?
A: did not want that article. He asked me about it. I do not know how he got in there, but I know that he did not want to do it.
Q: Who was the gentleman you said that knew that the article was coming?
A: I think our publicity director, .
Q: Does he have authority —
A: I think people feel any publicity is good publicity for a league, and I don’t necessarily agree. I think his job is, as with all publicity directors’ jobs, to get as much space in any newspaper, magazine, or periodical that he can possibly get. And in a lot of cases they do a fantastic job. And I think in this case when the article was read — I’m sure every player in the league read it, and I’m sure possibly millions of people have read the thing. And the people that involved probably would never hear a word unless there was some reaction as far as a fight, and then they would hear something
Q: From a publicity standpoint, I guess that article would gain some type of interest by the manner it was phrased or things like that?
A: I don’t think there is any question it would gain, I think, a tremendous amount of response to it.
Q: When I read it, I wanted to take a look at the fellows in a game –
A: And see how they play.
Q: — and read some of the quotes and see if they were an enforcer or followed some of the lines that this fellow wrote about.
A: I think they were enforcers.
K. Overall Admissions by Management Regarding Discipline, Violence, and Fighting
Q: Has it been a policy, at least since 1976, for any league fines in the way of technicals to be said by the club?
A: Yes, we have been paying technicals, at least that’s my understanding.
Q: From a discipline standpoint, as far as you are concerned, do you get into that portion, or is that pretty much left up to the coaching staff?
A: Mainly left up to the coaching staff.
Q: I guess that goes without saying there are no official rules or anything in writing from the organization to the players regarding fighting or punching or violence, or anything like that, that you know of?
A: No. That’s you know, pretty well spelled out from the league.
Q: But just so we will have the answer, the don’t have a set of rules on that themselves, that you know of, that’s in writing?
A: Not that I know of in writing.
Q: In the ’80 season, indicated that, at least from his standpoint in coaching, there had been a lot of conversation about the fighting and the fights involved. Did you yourself have any discussion with about fights and the fighting during that season, or was that left up to and Mr. ?
A: I don’t know if I quite understand. You mean before the season started, was there a discussion, or after some of the fights occurred?
Q: After the season started and some of the fights occurred.
A: Naturally there was discussion after and .
Q: Did you talk with Mr. about this?
A: Well, it was in the conversations, yes.
Q: Did Mr. , with regard to the conversation about fighting, ever send any type of written correspondence or letter to you that you might have in the office?
A: You mean anything referring to the fight?
Q: Referring to either one of these fights or the fighting.
A: I don’t think so, nothing in writing.
Q: There had been discussions, I take it, that you knew of between and Mr. regarding that?
A: I knew that they spoke, so I’m sure it came up.
Q: And you had talked to Mr. about it, also?
A: In conversation, say.
Q: Does he call you to check — I know he gets the numbers and everything, but does he call you to see how the team is going or what it looks like.
A: Well, sometimes he calls me and sometimes I call him, just depending.
Q: I understand, but from the standpoint of the team, the organization, the or the Sports Association, they did nothing either as far as a reprimand, suspension or fine?
A: Nothing on top of the league and what they did.
Q: Following the incident and the ruling that was handed down by Commissioner at that time, I think it was $ that we’ve talked about.
Q: If I am correct, I believe that’s the largest amount that had ever been handed down at that time for a fine?
A: That was my understanding of it.
Q: There had never been anything that large in the NBA while you were playing or coaching, that you recall; is that correct?
A: None that I can remember.
Q: I am about to wind down here, but there was — I think you have answered this, but there was no warning, reprimand, fine or suspension at all levied by the organization, the organization being the or the Sports Association against either or as a result of these fights; is that correct?
A: The league levies it, but it affects us, of course, and it’s the same thing. I don’t know if that’s what you are asking.
Q: No. I just want to ask you again. I want to ask you if the Sports Association or the fined, reprimanded, suspended, or did any disciplinary action, to either or as a result of any of these fights.
A: No, none that I know of.
Q: I think what you are saying is the action of the league did affect the club?
A: Yes, definitely.
Q: But the club itself took no disciplinary action of its own in that regard?
A: None that I know of.
Q: Mr. not only is chairman of the board, but — I work for some people, and if my boss says to do something, usually you follow out his orders. Is that correct?
Q: If Mr. , following this incident with , had told you, as the general manager, to keep him out of the games, would there be any problem in following his orders on that?
A: No, I don’t think so. Of course, he would have a discussion with the coaches, too, but he’s the owner.
Q: He is the owner and would have the authority to make that decision, I take it, as far as you know?
A: Well, yes. He could instruct the coaches not to do it and then the coaches could refuse, but I don’t think they would.
Q: It wouldn’t be very good basketball sense, would it, if he owned the club?
A: No, I don’t think so.
Q: “The player agrees to observe and comply with all requirements of the club respecting conduct of its team and its players at all times, whether on or off that playing floor. The club may, from time to time during the continuance of this contract, establish reasonable rules for the governing of its players at home and on the road, and such rules shall be part of this contract as fully as if herein written and shall be binding on the players at home and on the road, and such rules shall be part of this contract as fully as if herein written and shall be binding on the player; for any violation of such rules or for any conduct impairing the faithful and thorough discharge of the duties incumbent upon the player; the club may impose reasonable fines upon the player and deduct the amount thereof from any money due or to become due to the player”
A: Yes, to my knowledge, that is a set of rules in the play books established by the coaches.
Q: Those are the only ones, to your knowledge?
Q: In your duties as assistant manager have you had an occasion to attend any team meetings or get-togethers with the players regarding violence, fighting physical outbreaks, or anything like that on the court?
A: I have not, and to my knowledge such a meeting has never been held.
Q: Do you know of any memo or directive or anything that came down from the ‘s office to the players or the coaches regarding fighting or violence or occurrences like that?
A: Came down from our management?
Q: Yes, sir.
A: No, I do not know of such a memo.
Q: Within the range of management, who would have the authority, if you know, to discipline or reprimand players for fighting or physical violence on the court?
A: Well, I think you would have the step-ladder there again. I think it would go to , , , in that order.
Q: All right.
A: In other words, I think would report to Mr. — in the case of a severe incident like you are apparently referring to.
Q: Following the fine regarding the – incident, did management in any way appeal that ruling of the Commissioner, if you know?
A: To the best of my knowledge they did not.
Q: Are you aware of any procedures that management or a player could go through to appeal a decision of the Commissioner?
A: No. I think it would have to originate probably with ownership; meaning, — or better yet, I should rephrase that. I believe it would go through the player’s association, and in turn, their legal representative . That would be probably the appeal route.
Q: Do you know of any appeal that made following that matter, if you do?
A: . No. I do not. He held a press conference here to give his views of it, but appeal, I don’t think so.
Q: Following the – incident, did management or anyone in the organization other than make any appeal of his fine and suspension?
A: Not to my knowledge.
Q: I understand that he did regret what happened, and there is no question about that. And I don’t mean to be repetitious, but as far as you know, there was no conference with him or any disciplinary statement or action by anybody in management?
A: No, there was no disciplinary statement, but it was talked about.
Q: Was the talk not to let him play, or to sit him down and talk to him, or just let him work it out pretty much himself, or do you think it was stronger than that?
A: I think the only thing we had to go on — we knew the Commissioner would make a decision and that we were going to play him as long as he was physically able to play and help our ball club.
Q: There is no question, then, he was under contract with the until the ruling came down — well, I guess he stayed under contract until he was traded?
A: That’s correct
L. Defendant Corporate Management Admissions; Lack of Negligence; Intent of Plaintiff and Permissible Conduct of Plaintiff
Q: After you saw them squared off with their hands up or something, what did you see happen then?
A: Well, to the best of my recollection, it looked like to me that Came toward and then swung the punch. And that was it.
Q: Was there anything that was doing that you recall that would have given any indication that he was going after ?
A: I – listen, I can’t answer that. There is no way I can answer that.
Q: Before we leave this particular area, outside of moving, do you remember anything else that he did?
Q: Outside of getting hit.
A: No, I really don’t because it happened so fast. And when you see something like that happen, I think the tendency is to look away and see what else is going to happen.
Q: Before we leave this area as far as anything was doing, he was moving but that is about all you recall because it happened so fast?
A: That’s correct.
Q: Have you ever seen a fight before in the league?
A: No. And my investigation indicates he has never been in a fight.
Q: Do you have any evidence that you can pass on to us that he was going to hit ?
A: Oh, of course not.
Q: If he –
A: I did notice in the film — in all fairness, now, I told you that now as I looked at the film, I thought had turned and was facing him. But also, I will say something else, that I did not think — I did not know before that, and I just saw on the film, is that ‘s left hand was raised. Now, for what purpose, I don’t know. Sometimes when you run, your arms go up, but sometimes you are going to throw a punch and you cock your arm. So I wouldn’t be fair to myself or any of you gentlemen if I gave you anything different than that.
Q: Do you know or have you heard of any evidence that was going to strike —
Q: – ?
Q: And you don’t know of anything that he might have as a reputation of a fighter in the league, do you?
A: No, sir.
Q: Has he ever been ejected from many games that you have broadcast that you know?
A: Never for fighting. Possibly on fouls. I’m not even sure on that, but never for fighting.
Q: Following the – incident, did the team — not the NBA – take any disciplinary action against ?
A: Not to My knowledge.
X. Sample Jury Instruction – Exhibit “B
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
SOPHIE TOMJANOVICH, and
.HOUSTON ROCKETS, INC.
|CIVIL ACTION NUMBER
INCORPORATED, DBA LOS
COURT’S INSTRUCTIONS TO THE JURY
Members of the jury, now that the evidence has been closed and the attorneys have had the opportunity to argue the case to you, it becomes my duty to give you the court’s instructions as to the law of the case, discuss with you your function as jurors, and perhaps discuss the evidence with you to some extent You, the jury, are the fact-finding arm of the court. In performing this function, you will weigh and consider the testimony and determine, under the instructions as given to you by the court, what are the true facts of this case.
You, the jury, are the sole and exclusive judge of the facts You should determine the facts without prejudice! fear, or favor and solely from a fair consideration of the evidence. You are not bound by any opinion which you think I have about the facts in the case for a determination of the facts is exclusively the function of the jury, and the court has no desire to intrude on this function. In connection with any statements or comments I made during the course of this trial, if any one or all of you were led to believe that I have any opinions about the facts of the case, the lawyers involved, or feel a certain way about the credibility of any witness, please dismiss from your mind any such beliefs You should not attach any significance whatsoever to the fact that I asked some of the witnesses questions and did not ask others questions, nor should you attach any special significance to the questions that I did ask I have no desire whatsoever to attempt in any way to influence your decisions.
Statements and arguments of counsel are not evidence. Such are only intended to assist the jury understanding the evidence and the contentions of the parties. During the course of the trial it often becomes the duty of counsel to make objections and for the court to rule on them in accordance with the law. The jury should not consider or be influenced by the fact that such objections have been made or of the rulings of the court relating to such objections. The evidence in this case consists of the sworn testimony of the witnesses, and all of the exhibits which have been admitted into evidence or stipulated to You will have the exhibits with you in the jury room.
During the trial of this case, certain testimony has been read to you by the way of deposition, consisting of sworn written answers to questions asked of the witnesses in advance of the trial by one or more of the attorneys for the parties to the case The testimony o£ a witness who, for some reason, cannot be present to testify from the witness stand may be presented in writing under oath in the form o a deposition Such testimony is entitled to the same consideration and is to be judged as to credibility and weighed and otherwise considered by the jury, insofar as possible, in the same way as if the witness had been present and had testified from the witness stand.
The attorneys for both sides have agreed to stipulate to certain matters involved in this case. You are instructed that the matters so stipulated or agreed to must be accepted by you as true.
It is the province of the jury to determine the credibility of each witness and the weight to be given to his testimony In weighing the testimony of each witness, the jury should consider his relationship to the parties in this case; his manner of testifying; his candor, fairness and intelligence; and the extend to which he has been confirmed or contradicted, if at all, by other credible evidence.
We normally think that if a witness tells a straight-forward story, if he seems to try to answer the questions clearly and concisely and fully, those are some indications that he is a credible witness On the other hand, if he equivocates, if his testimony does not seem to make sense, or if not in accord with our common experience, these are some indications that his testimony should be taken with some reservation You jurors will rely upon your own good judgment, your own common sense, and the experience you have gained as you have gone about your everyday affairs in weighing the evidence and determining the weight to be given to it You are the exclusive judges of the facts proved, of the credibility of the witnesses, and of the weight to be given to their testimony.
A witness may be discredited or impeached by contradictory evidence, or by evidence that at some other times the witness has made statements which are inconsistent with the witness’s present testimony. The earlier contradictory statements are admissible only to impeach the credibility of the witness and not to establish the truth of these statements. If you believe any witness has been impeached and thus discredited, it is your exclusive province to give the testimony of that witness such credibility, if any, as you may think it deserves. If a witness is shown knowingly to have testified falsely concerning any material matter, you have a right to distrust such witness’s-testimony in other particulars, and you may reject all the testimony of that witness or give it such credibility as you may think it deserves.
The testimony of an expert witness is admissible where the subject matter involves required special study, training, or skill not within the realm of the ordinary experiences of a layman. However, the fact that an expert opinion is given does not mean that such opinion is binding upon the jury or that the jury is obligated to accept the expert’s opinion as to what the facts are. It is the province of the jury to determine the credibility and weight that should be given to an expert opinion in the light of all the evidence. Although the jury may not arbitrarily disregard the testimony of an expert witness, if the jury finds that his opinion is not based on the facts, or is contrary to the evidence, such opinion may be disregarded.
Any fact may be established by circumstantial evidence or direct evidence, or both. A fact may be established by direct evidence when proved by witnesses who saw the acts done or heard the words spoken or by documentary evidence. A fact may be established by circumstantial evidence when the fact sought to be proved is fairly and reasonably inferred from other facts proved in the case
Evidence which is termed circumstantial consists of the proof of facts and circumstances which support or reinforce the fact that is sought to be established and from which the reasonable mind may conclude that the main or o ultimate fact sought to be established actually existed Generally speaking, any fact may be based upon circumstantial evidence, and the fact that evidence is circumstantial does not render it incompetent nor destroy its probative force.
As an example of what is direct evidence and what is circumstantial evidence, suppose that an important issue for you as a jury to determine is whether or not it was raining at a particular time of the day. A witness in these testifies that it was raining during a critical period involved in the case but that at the time he, the witness, was in a home with the shades drawn in a room in which he could hear no outside noises. The witness further testifies that a person entered the room wearing a wet raincoat, and because of that fact, he concluded that it was raining at that time. Since the shades were drawn and the room was built in such a manner that the witness could hear no outside noises, the witness could not see or hear or otherwise use any of his senses to determine whether or not it was actually raining. You jurors, if you felt the witness to be credible, could determine that the witness was correct and that it was raining outside at that time because
of the circumstances of a person entering the room with a wet raincoat. In making that determination, you would be relying upon circumstantial evidence. In order to determine that it was raining outside at the time from any direct evidence, you would have had to have heard testimony from that witness that he, the witness, actually raised the shades in the room and saw that it was raining outside or that he went outside and stood in the open air and felt the rain
I will now give you a series of legal definitions of terms used in these instructions.
PREPONDERANCE OF THE EVIDENCE
As used in this charge, “preponderance of the evidence” means the greater weight and degree of credible evidence before you. To establish by a preponderance of the evidence means to prove that something is more likely so than not so. In other words, a preponderance of the evidence in the case means such evidence as, when considered and compared with that opposed to it, has more convincing force and produces in your minds belief that what is sought to be proved is more likely true than not true. In determining whether any fact in issue has been proved by a preponderance of the evidence in the case, the jury may, unless otherwise instructed, consider the testimony of all witnesses, regardless of who may have called them, and all exhibits received in evidence, regardless of who may have produced them
A battery is any willful and unlawful use of force or violence on the person of another. It is not necessary that the actor intended to cause the particular injury that results, but he must have the intent to do the act in question, here the act in question is Kermit Washington striking Rudy Tomjanovich, on the occasion in question.
Self-defense is a defense to an allegation of battery. A person acts out of self-defense when he uses necessary force to protect his person from wrongful injury. In order to find that a person was acting in self-defense you must find by a preponderance of the evidence that he reasonably believed he was in danger of bodily harm from the person he used force against. A person acting in self defense must use only such force as appears reasonably necessary under the circumstances to prevent the impending injury
RECKLESS DISREGARD FOR THE SAFETY OF OTHERS
To establish reckless disregard for the safety of others it is necessary to show two things. First, that the actor, here Kermit Washington, intended to do a certain act. Secondly, the act must be one that the actor knows or has reason to know or should know as a reasonable person creates an unreasonable risk of injury to another, here Rudy Tomjanovich. It is not necessary that the actor have a specific intent to injure another.
This concept concerns the causal relationship between an injury and alleged damage. Proximate cause means that cause which, in a natural and continuous sequence, produces an event, and without which the event would not have occurred; and in order to be a proximate cause the acts or omissions complained of must be such that a person using ordinary care would have foreseen that the event or some similar event might reasonably result therefrom. There may be more than one proximately cause of an event.
For example, “A” suffers an injury as a result of an accident with “B” “A’s” injury is proximately caused by an act or omission of “B” whenever it appears that the act or the omission of “B” played a substantial part in bringing about or actually causing A’s injury and A’s injury was either a direct result or a reasonably possible consequence of the act or omission of “B”. This does not mean that the law recognizes only one proximate cause of an event. To the contrary, many factors or things or conduct may operate at the same time either independently or together to cause an event, and in such a case each may be a proximate cause of the event.
Negligence is defined as a failure to do that which a person of ordinary prudence, in the exercise of ordinary care, would do under the same or similar circumstances. Negligence is also the doing of that which a person of ordinary prudence, in the exercise of ordinary care, would not do under the same or similar circumstances
LIABILITY OF THE DEFENDANT CALIFORNIA SPORTS, INC.
This lawsuit was occasioned by an occurrence at the Forum in Los Angeles, California, on December 9, 1977, during a basketball game between the Los Angeles Lakers and the Houston Rockets.
Sometime shortly after the second half began Rudy Tomjanovich, a player for the Houston Rockets, was struck by Kermit Washington, a player for the Los Angeles Lakers.
Rudy Tomjanovich and his wife Sophie Tomjanovich and the Houston Rockets, Inc have brought this lawsuit against the Los Angeles Lakers claiming that the Los Angeles Lakers are liable for the damages allegedly suffered by them.
Rudy and Sophie Tomjanovich and the Houston Rockets, Inc base their cases on two legal theories.
The first is called “respondeat superior”, which may hold an employer responsible in compensatory damages for injuries a third person suffers which are proximately caused by certain wrongful acts of one of the employer’s employees. Under this rule, an employer is responsible for both the negligent and intentional acts of its employees which cause harm to third persons if the act is committed in the course and scope of the actor’s employment.
An act is committed in the course and scope of employment if the act is committed during the employee’s performance of duties which he was employed, ordered, or empowered to perform. It is not necessary that the specific act in question was previously authorized by the employer nor that the specific act had the effect of advancing the employer’s interest.
However, an act of an-employee is not within the course and scope of his employment when he acts from a purely personal motive which has no connection with and is not caused by the employment. If, however, the act is bound up with the employee’s service to his employer or is sufficiently connected with the employment so that the act can be said to have arisen out of the performance of duties of the employment, then the act is within the course and scope of the actor’s employment.
The plaintiffs Rudy and Sophie Tomjanovich and the Houston Rockets, Inc have the burden of proof in each of the following questions, except question 3. The defendant California Sports, Inc has the burden of proof in question number 3. In order to answer a question “yes” you must find that the party with the burden of proof has brought sufficient credible evidence to establish the point by a preponderance of the evidence, as that term has been defined in these instructions.
1. Do you find that Kermit Washington committed a battery, as that word has been defined in these instructions, upon Rudy Tomjanovich upon the occurrence in question?
Answer Question 2.
2. Do you find that Kermit Washington committed a battery, as that word has been defined in these instructions, upon Rudy Tomjanovich upon the occurrence in question?
If you have answered question number 2 “yes” answer the following question. Otherwise do not answer question 3.
3. Do you find that Kermit Washington was acting in self-defense, as that term has been defined in these instructions, when he struck Rudy Tomjanovich on the occasion in question?
Answer Question 4
4. Do you find that Kermit Washington acted with reckless disregard for the safety of others, as that term has been defined in these instructions, when he struck Rudy Tomjanovich on the occasion in question?
The second legal theory upon which Rudy and Sophie Tomjanovich and the Houston Rockets, Inc base their cases is the claimed negligence of California Sports, Inc. in training, supervising and retaining an employee
An employer is negligent if it fails to adequately train and supervise its employees in such a way that they will not commit unlawful and intentional acts of violence against opposing players. The term “unlawful”, as used in this charge, means contrary to law. So to do an act “unlawfully” means to do willfully something which is contrary to law. An act is done willfully if done voluntarily and intentionally. In addition, an employer is negligent in retaining an individual in its employment if the employer either knew or by the exercise of ordinary care should nave known that the employee had violent or dangerous propensities which were likely to result in harm to other players. In connection with your consideration of whether California Sports, Inc was negligent in failing to adequately train and supervise its employees you may consider what you find from the evidence to be a custom or practice of other teams and players in the National Basketball Association. In order to find California Sports, Inc. liable under this theory you must find that California Sports, Inc. was negligent in either its failure to Adequately train and supervise Kermit Washington or in its retaining Kermit Washington in his position if they became aware that he had a tendency for violence while playing basketball. In addition you must find from a preponderance of the evidence that this negligence, if any, was the proximate cause of injuries to the plaintiffs Rudy and Sophie Tomjanovich and the Houston Rockets, Inc.
The burden of proof in each of the following questions is on the plaintiffs Rudy and Sophie Tomjanovich and the Houston Rockets, Inc. In order to answer any of these questions “yes” you must find from the credible evidence that the plaintiffs have established the point in question by a preponderance of the evidence, as that term has been defined in these instructions.
5. Do you find that California Sports, Inc. was negligent, as that term is defined in these instructions because it failed to adequately train and supervise its employee, Kermit Washington?
Answer Question 6
6. Do you find that California Sports, Inc was negligent, as that term is defined in these
instructions, by retaining Kermit Washington if they became aware that he had a tendency for violence while playing basketball?
If you have answered either Question 5 or 6 “yes” answer 7.
Otherwise do not answer question 7.
7. Do you find that the negligence on the part of California Sports, Inc. was a proximate cause, as that word has been defined in these instructions, of injuries suffered by Rudy and Sophie Tomjanovich?
At this time you are to consider only the damages, if any, of Rudy and Sophie Tomjanovich. Further evidence with respect to the damages, if any, of the Houston Rockets, Inc.
in their suit against California Sports, Inc. may be presented. You will consider these damages, if any, when instructed to by the court and you will not discuss them at this time.
Under the first legal theory described on pages [ ] if you have answered:
1. Question 2 “yes” and question 3 “no” or
2. Question 4 “yes”
or under the second legal theory described on pages [ ] if you have answered:
1. Question 5 or 6 “yes” and
2. Question 7 “yes”.
then you must fix an amount of money which will compensate the plaintiffs, Rudy and Sophie Tomjanovich, for injuries proximately caused by the blow Rudy Tomjanovich received from Kermit Washington on the occasion in question. In this regard you are to consider the following elements of damage and none other:
Numbers 8-15 concern Rudy Tomjanovich’s damages:
8. hospital, doctor and medical expenses in the past
Amount in Dollars and Cents
9. hospital, doctor and medical expenses in the future
Amount in Dollars and Cents
10. physical pain in the past
Amount in Dollars and Cents
11. physical pain in the future
Amount in Dollars and Cents
12. mental anguish in the past
Amount in Dollars and Cents
13. mental anguish in the future
Amount in Dollars and Cents
14. lost earning capacity
from the time Rudy
Tomjanovich was injured
until he returned to play
for the Houston Rockets
Amount in Dollars and Cents
15. lost earning capacity in the future
Amount in Dollars and Cents
Question 16 concerns Sophie Tomjanovich’s damages:
16. loss of aid, comfort, and companionship
Amount in Dollars and Cents
If and only if you answered question 2 “yes” and question 3 “no” under the first legal theory of liability called “respondeat superior” should you answer the following questions. If you did not answer question 2 “yes” and question 3 “no” under the first legal theory called “respondeat superior” do not consider or answer the following question.
In addition to the compensatory damages above, the plaintiffs, Rudy and Sophie Tomjanovich, also seek recovery of punitive or exemplary damages against the California Sports, Inc. Punitive or exemplary damages are damages authorized by law intended to punish or set an example for others
Punitive damages may only be awarded for malicious conduct.
Malice means a motive and willingness to vex, harass, annoy, or injure another person. Malice may be shown by direct evidence of hatred or ill will or it may be inferred from acts and conduct, such as by showing that the conduct was intentional and done in reckless disregard of its possible results.
Ratification is conduct or lack of conduct by the party who allegedly ratified an act which expressly or impliedly condones the act in question. If it is shown by credible evidence that an employer has retained an employee following the commission of a wrongful act, this may be
considered as some evidence of ratification, but it is not necessarily conclusive proof of ratification.
The burden of proof in each of the following questions is on the plaintiffs, Rudy and Sophie Tomjanovich. In order to answer “yes” to any of the following questions you must find that the point in question has been proved by Rudy and Sophie Tomjanovich by a preponderance of the evidence.
17. Do you find that Kermit Washington struck with malice or maliciously, as that term is instructions, on the occasion in question?
If you answered question 17 “yes” answer the following question 18. Otherwise you must disregard 18 and 19.
18. Do you find that California Sports, Inc., ratified, as that word has been defined in these instructions, the act of Kermit Washington referred to immediately above in question 17?
If you have answered question 17 and 8 above “yes” answer the following question, 19. Otherwise do not answer question 19.
19. Considering the particular nature of Kermit a Washington’s act, the total amount of damages you have found under the preceding section covering compensatory damages (that is, the section containing questions about physical pain in the past and future, mental anguish in the past and future, etc.) and the wealth of California Sports, Inc., what do you find to be the amount Rudy and Sophie Tomjanovich are entitled to as punitive damages?
Amount in Dollars and Cents
Ladies and gentlemen, the court is not only reading these instructions to you but the instructions are written and you will be permitted to take them with you to the jury room. I wish to emphasize to you that every single sentence and word of these instructions are important in your deliberations, and you should not, and I order you not to, attach any particular significance to any particular part of these instructions or any particular sentence or word of these instructions. It should be considered by you as a whole and your deliberations of the facts should be conducted within the context of the law as given to you in the entirety of these instructions.
Now keeping in mind each and every one of these instructions and definitions and applying each of them to the facts of this case as you find the facts to be, you will answer the questions on the verdict sheet attached to these instructions. The answers to these questions must be based upon a preponderance of the evidence.
I further instruct you, ladies and gentlemen, as to your verdict and as to each of the questions I have asked you, you must all agree to your verdict and to the answer to each of the questions asked.
This concludes what I have to say to you, ladies and gentlemen. You may take these instructions with you to the jury room, as well as the exhibits which the court has admitted into evidence. Attached to these instructions are the questions that the court asked you. You will write your answer to each of these questions. The answer sheet will be signed by the foreperson and, at the conclusion of your deliberations, returned to the court along with these instructions.
M , I believe I will ask you to serve as foreperson of our jury, if you please.
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