The Sports Esquires Putting Sports on Trial
The NFL is planning a two-hour schedule announcement show to be aired on ESPN tonight. Fans will inevitably start marking their calendars and aiming to get tickets for the juiciest matchups. Let this article serve as a public service announcement for those fans to reconsider. The NFL’s problems with violence aren’t limited to Ray Rice or Adrian Peterson or Greg Hardy. The NFL’s dirty secret, the one it doesn’t want you to think about, is that across the league it has become dangerous to attend an NFL game.
If actions speak louder than words then neither the NFL, nor its teams, are particularly concerned with fan safety at an NFL game. The NFL is greatly concerned that you think it cares deeply about issues like domestic violence, in order to make sure that fans will keep showing up to games, shelling out $10 a beer, and hoping to avoid being drawn into one of the many, many incidents of fan-on-fan violence. This article will highlight recent incidents and articulate how the growing trend of fan on fan violence could be a legal problem for teams and the league. While the NFL is certainly not alone in ugly incidents of fan violence, it does have a problem as outlined below.
2014 – A Year in Review of Fan-on-Fan Violence at NFL Games
It seems that the NFL rarely escapes a Sunday without a cell phone video of a fan fight. Last October saw a particularly brutal bathroom brawl at a 49ers game. In fact, that’s just one of several ugly incidents at 49ers games. Including a fight which left one man partially paralyzed. Stadium security is often too far away, too few, or too busy (as in the case of the video below) to help fans subjected to such violence. The violence isn’t even limited to fans of different teams fighting each other. For example, in this fight, neither wearing Eagles green, nor being near stadium security keeps these fans from trying to beat the living crap out of each other.
The level of fan violence has gotten so out of control that this video of a Giants fan getting pelted with garbage seems tame. Sometimes the fights aren’t even over the game or fandom. These Jaguars fans brawl over a free T-Shirt. Even team executives (whom one would think would have heightened security) can be victimized at games. The Packers seem to regularly have a double-digit number of fans arrested at their games.[i]
Moreover, the violence isn’t even contained to within the stadium. A brawl outside the Buccaneers stadium involving Bengals and Buccaneers fans is exceedingly disturbing for a number of reasons. None of the fans seem to care that the brawl is taking place feet from a busy street. Apparently people were so drunk or angry that they’d rather accidentally kill someone and ruin their own life than behave in a civilized manner. Meanwhile, the guy videotaping the fight, seems to have no interest in breaking it up, getting help, alerting security or doing anything other than making snide comments. The outside of NFL stadiums on game day now more closely resembles an amateur WWE event than fans trying to enter or leave a game.[ii]
And, the violence extends beyond fistfights. Just ask these two Bears fans who were stabbed at a game. Even where violence doesn’t occur, innocent fans may be subjected to idiocy and extremely drunk behavior. The most disturbing fact about all of the above incidents is the fact that the ALL OF THEM OCCURRED DURING THE 2014 NFL SEASON. And these are just the incidents reported or caught on tape. Just imagine how many more incidents went unreported.
After reviewing the above, do you want to attend an NFL game anytime soon? If you have kids, can you bring your kids to a game confident that they will be safe? For a league that spent the whole year shamelessly reacting to violence instigated by its players, why does the NFL not seem to care about the safety of its fans at games? Should the NFL care? The Dodgers, and Bryan Stow would seem to paint a pretty convincing picture that the NFL should care – a lot.
The Case of Bryan Stow
The damages a team, stadium owner, or the league may owe a fan injured at a game can be extremely high. Teams and stadiums have been found liable for large damages resulting from fan on fan violence. On March 31, 2011 Giants fan Bryan Stow attended Dodgers Opening Day. After the game, outside of the stadium in a parking lot, Stow was brutally accosted by two assailants. His list of injuries was lengthy, and suffice it say his life will never be the same. Stow filed a lawsuit against his assailants, the Dodgers and the Dodgers owner Frank McCourt. According to the testimony,
“Bryan Stow wears a catheter at night and must be helped to the bathroom during the day. He wears adult diapers in case of accidents. Around the house, he relies on a walker and outside he’s dependent on a wheelchair. He wears compression stockings to prevent blood clots. A damaged pituitary gland required injections. A bone growth in his left elbow has limited the use of his arm.
And his medication list is lengthy: Ritalin for lethargy, Celebrex for pain, Keppra to prevent seizures, Ambien for sleep apnea and more.”
In July of 2014, Stow was awarded over 18 Million dollars in damages, including 13 million from the Dodgers.[iii] While the Dodgers did not attack Stow, the court found that they were negligent in their security measures.[iv] The Dodgers, found 25% responsible for the incident by the court, were responsible for 25% of the 5 million in pain and suffering awarded, but were responsible (jointly and severally) for the whole amount of the medical bills and lost wages awarded.[v]
Even for an NFL team, 18 million dollars is a substantial sum of money. Certainly enough to incentivize the NFL and its teams to do more to protect its fans. While the Stow case involved a baseball team, the situation is analogous to the violence occurring at NFL stadiums on game day. Additionally, the Stow case is important because it represents a jury verdict as opposed to a settlement. A fan was severely beaten in the Dodgers parking lot. The Dodgers did not think they were liable, and fought the case in court. A jury found otherwise and teams in all sports should take note.
Tort Law and Stadium Safety
Stow was awarded damages from the Dodgers based on a theory of negligence. At law negligence claims revolve around four points. A plaintiff must show that a defendant: (1) owed a duty of care to the plaintiff, (2) that the defendant breached that duty, and that this breach of duty (3) caused the (4) harm to the plaintiff. For an action involving fan violence at a stadium, the analysis will focus mainly on the duty of care owed to the injured as well as the cause of the injury elements. While every state’s tort law analysis may differ slightly, this section will analyze some of the common elements in determining duty and cause under a negligence action.
According to the Second Restatement of Torts, a landowner is not an insurer of visitor safety against the acts of third parties, but may be required to exercise reasonable care to use means of protection that are available because of the likelihood that third parties may act in a way to endanger the safety of the visitor.[vi] Furthermore, a landowner’s duty to actively police the premises may exist when the landowner knows or has reason to know that there is a likelihood of third party conduct that may endanger a visitor.[vii] Courts have established two tests to determine when there is such a likelihood of danger; the “prior similar incidents” rule, and the “totality of the circumstances” rule.
When looking at prior similar incidents, courts have ruled that a duty to protect visitors exists where third party acts of violence are foreseeable. Foreseeability exists where prior similar incidents are either specifically similar or generally similar enough to put the landowner on notice of the potential for third party dangerous conduct.[viii]
Some courts have shifted away from the prior incidents test because it gives property owners one free pass.[ix] Thus, some courts have allowed recovery for negligence even where there was not a prior history of incidents, which would have put a property owner on notice. Based upon the above evidence from 2014 alone, it seems unlikely such an analysis would be necessary for the NFL. Thus, tort law would seem to indicate that NFL stadium owners, or teams, owe a duty of care to their patrons to protect them from third party violence.
The causation analysis of a negligence claim is much more difficult for a plaintiff to prove. Even though a stadium owner will owe a duty of care, that duty will be balanced against what is reasonable in light of the business. Having enough security to insure the safety of each and every fan is likely not feasible from a cost or logistics standpoint. Courts have noted two competing concerns in causation analysis, the interest in compensating persons for injuries and the reluctance to impose unrealistic financial burdens on property owners.[x] In reality, the causation element will likely be determined on a case-by-case basis by a jury as to whether or not an insufficient amount of security caused (or at least proximately caused) a plaintiff’s injury.
Conclusion
Given what appears to be a clear duty owed by stadium owners, skimping on security may be a multimillion dollar game of Russian Roulette. What exactly stadium owners should do is a more nuanced topic for another article; however, the role of alcohol in aggression should be noted.[xi] The larger point of this article is that teams need to take an active, vested, and serious approach to fan safety at games. If the NFL cares half as much about the actual safety of its fans at games as it does about appearing to care about domestic violence, then the league, teams, and stadium management need to step up and take action.
[i] According to Deadspin, 36 fans were ejected and 11 more were arrested during a December contest against the Falcons. 44 fans were ejected during a September game against the Jets, and 16 were arrested when the Bears visited Lambeau in November.
[ii] Fans fought both in and outside of the Dolphins stadium on October 12, 2014. The game saw 45 ejections and eight arrests.
[iii] Corina Knoll, “Dodgers, not McCourt, found liable in Bryan Stow beating case.” L.A. Times
[iv] Id.
[v] Id.
[vi] Restatement (Second) of Torts 344 (1965).
[vii] Id.
[viii] Delgado v. Trax Bar & Grill, 113 P.3d 1159, 1172. (Cal 2005). While this article does not address it, one interesting point of law would be to determine how far the “premises” extend. To the parking lot? The surrounding area? Or limited to the stadium proper? Obviously in the case of Bryan Stow, the premises included the parking lot.
[ix] See Isaacs v. Huntington Mem’l Hosp., 695 P.2d 653, 658-659 (Cal. 1985).
[x] Saelzler v. Advanced Grp. 400, 23 P.3d 1143 (Cal. 2001)
It is about time someone brought to light this issue instead of focusing on the grandstanding teams do to try and mitigate bad PR over domestic violence. Violence is violence - enough said.