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NFL Concussion Claims And The Assumption Of Risk Doctrine; You Know What They Say About Assumptions

In today's blog post, I thought we should discuss the assumption of risk doctrine and how it could affect your personal injury case. One situation where I could foresee this being an issue is with the NFL cases regarding concussions. Most recently, the Hall of Fame running back Tony Dorsett has been diagnosed with signs of chronic traumatic encephalopathy or CTE. If he were to file a claim against the NFL, and it was not precluded by the worker's compensation doctrine, the NFL would certainly argue that he assumed the risk involved in playing football. What is the assumption of risk doctrine ? Well, it is a legal theory that a defendant will use in a personal injury case in an effort to demonstrate that the plaintiff knew of the risks involved in the activity and that, as a result, their damages claim should be reduced.

The New York pattern jury instructions state that in a case where a defendant owes a duty of reasonable care to a plaintiff but the plaintiff voluntarily engages in an activity involving a risk of harm and the plaintiff knows and fully understands, or should have known or fully understood the risk of harm, the plaintiff's damages must be reduced by the extent to which those damages were due to the plaintiff's own conduct. If a jury finds that a plaintiff knew and fully understood or should have know and understood the risk of injury, the jury must find that the plaintiff assumed the risk of injury and the jury must consider to what degree the assumption of risk contributed to the injury.

New York is a comparative negligence state. What does this mean ? It means that juries are permitted to consider the comparative fault of both parties and a plaintiff can recover for the comparative amount of fault placed on a defendant. Many years ago and still in some states in this country, there is a concept of contributory negligence which would prohibit a plaintiff from recovering if the plaintiff contributed, in any way, to the occurrence of an accident. How is this relevant to an assumption of risk blog topic you ask ? Well, if a person assumed the risk of an activity, in New York the assumption of risk would be a theory considered by the jury that could increase a plaintiff's comparative fault. In a state where contributory negligence state, if a jury were to find that a plaintiff assumed the risk, then a plaintiff would be barred from recovering at all. So, the assumption of risk theory will not bar recovery in New York but it could reduce a recovery.

So how would this affect an NFL player's claim for chronic traumatic encephalopathy like Tony Dorsett ? I suspect, without having read everything about Tony Dorsett's case, that if he filed suit against the NFL for personal injuries and he was not barred by the worker's compensation doctrine, the NFL would also argue that Tony assumed the risk of acquiring CTE because he voluntarily assumed the risk by agreeing to play football. Tony's attorney would, of course, argue in response that he could not have know and fully appreciated the risk of injury involved in participating in football and suffering multiple concussions when he played because medical science did not fully understand the causal connection between concussions and CTE until very recently. As a result, Mr. Dorsett could not have known or fully understood the risks of suffering multiple concussions and the affect it would have on him years after he retired from football. Again, if worker's compensation did not bar Tony's claim, I suspect that his attorneys would prevail with this argument because there really is no way that he could have known and fully understood the risks involved in suffering multiple concussions. For all of our sports fans out there, I would venture a guess that this argument is exactly why the NFL has taken a hard line on head to head collisions in recent history and prohibited this type of in game contact. The NFL realized a few years ago that there could be substantial liability to its veterans and players for these type of injuries and they are doing what they can to remedy this issue.

What is CTE ? CTE is a form of encephalopathy that is a progressive and degenerative disease. It is most commonly found in professional athletes who participated in boxing, football, ice hockey, professional wrestling and other contact sports. It is also something that is seen in soldiers that have been exposed to blast injuries. What does CTE do to an individual ? You will see symptoms of dementia, memory loss, aggression, confusion, and depression which often occurs many years after the exposure to the head injury.

With all of this in mind, I would just urge our readers to give us a call if you or someone you love has suffered a head injury and has experienced some of the symptoms that I have discussed herein. As I always say, I hope no one has to be a plaintiff, but I know that it does and will continue to happen. If you find yourself in this spot, please pick up the phone and call us for a free consultation and free case evaluation at 1.800.900.6204. Our attorneys have over 150 years of combined experience to put to work for you and we will fight for you.