Sports Injury Law 101

James L. Paisley, Attorney at Law

 

Why Does Paisley Law Specialize in Sports Injury Law?

I personally can't mention sports injuries without mentioning my son, James and one of the scariest moments of his young baseball career. The sky was clear and the sun was setting on the horizon directly behind home plate – facing directly at the pitcher and middle infielders at eye level. Cap visors and sunglasses did nothing no increase visibility. Visibility was so poor the catchers were rolling balls back to the pitcher instead of throwing them. Line drives were hit screaming past the middle infielders and they weren't reacting to the balls because they couldn't see anything. Finally, my son playing 2^nd base took a ball straight to the head and he dropped like a rock. He was a fielder so he was wearing a cap – not a helmet. He never saw the ball before it hit him. Twenty minutes later he still couldn't get up, he was in intense pain, was highly disoriented and nauseous, and couldn't catch his breath. The EMT's took one look at him, stopped play in the baseball complex and called a life-flight helicopter to take him to the children's trauma center at CHOA in Atlanta. While we were waiting on the flight, someone that worked at the park told me this had been the fourth injury like this in the past month. I didn't realize it at the time, but it was that moment I became a sports injury lawyer – this should never have happened. I felt the need to take action and make sure kids are protected. 

After CT scans, X-Rays, tests, and blood work, my son was lucky enough just to have had a serious concussion, but it could have been so much worse. That night I couldn't stop thinking why the team was allowed to play in those conditions. A 15-20 minute delay would've given time for the sun to set and the game to continue. Weeks later I received the $89,000 helicopter bill, and the $10,000 bill for the hospital. 

Sports are a part of every human culture and race. Many of us live for them and they fulfill our lives. If you play enough, you will be injured, but we assume and accept the risk of injury that comes with each sport. Most of the injuries are predictable with each sport, but we try to limit those dangers with rules, equipment standards, and generally accepted safety guidelines. The vast majority of injuries are unavoidable, but some are and they are often tragic.  

Inherent Risks

Most injuries are inherent in the game itself and the law deems that you assume those risks. Football is a pure contact sport with armor to protect the athlete. Those injuries will be vastly different than track and field or swimming injuries. We expect head, spine, and fracture injuries with hard tackles as we would with strains, sprains, and ligament tears in the pure speed and agility sports. What we don't expect is when guidelines aren't followed, or something is done well outside the conventional rules of the sport. Proving liability can be difficult – with the injured person's assumption of risk, and often being required to show gross negligence, most cases are not actionable. Furthermore, one must figure out who may be liable. Umpires and officials are responsible for the overall safety of a game but Georgia has an immunity statute that protects them. Coaches could also be responsible but a good coach is like family to most players and there's immense social pressure not to bring a case against them. Beyond that, the organizations or promoters that put on the leagues or events could be responsible for the rules, regulations, and how those are carried out. 

What do you need to show to have a viable sports injury case in Georgia

1. A serious Injury (and/or significant medical expense), and
   
   
2. Obvious negligence and absence of diligence by someone in charge – and this showing of negligence might need to arise to gross negligence.

Seriousness of the Injury or Medical Expense

If an umpire, coach, or league director allows an unsafe environment, or if improper or deficient equipment is allowed in a game and it results in a minor injury like a contusion or something minor then it would not be worth it to pursue an injury claim. The claims and litigation process can be long, expensive, and the costs often outweigh the benefits. If there are serious injuries like traumatic brain injuries, concussions, fractures, or other injuries requiring surgery or significant bills, then the parents should talk to an attorney that specializes in serious sports injuries. 

Negligence must be Obvious and/or Significant

Every affirmative defense to a sports injury case will be that the Plaintiff assumed the inherent risks of his or her sport, and the injury was a result of those predictable and inherent risks. To overcome this presumption, a Plaintiff must show the injury was caused by a risk that could not have been assumed or understood. The negligence proven must be obvious: a blatant disregard of safety rules, systematic ignorance of someone with risks, putting a novice in an extraordinarily dangerous situation, extreme or over-conditioning of players, etc. Said more plainly – the negligent conduct must defy anyone's sense of safety in that particular situation. 

What is the Law on Sports Injuries and Assumption of Risk in Georgia?

Case Law in Georgia is limited with respect to sports injuries. It surrounds legal doctrines of assuming inherent risks in dangerous sports, and in some cases immunity statutes apply where a showing of gross negligence or recklessness would be required.  

The common law and analysis involves various factors that weigh on a court's understanding of whether a risk was assumed. Those factors include but are not limited to: basic safety rules recognized by leadership and institutions, whether those rules were followed, physical proximity of those in charge, the expertise, talent, and experience of the athlete involved, whether the plaintiff previously had experience in that situation, how much coercion came from coaches, and common sense. 

One example is competitive cheerleading. Any reasonable person would look at cheerleaders doing high flying stunts as inherently risky, but there is fine line between obvious inherent risk, and presenting a danger that cannot be assumed given the circumstances. Consider the following 2 cases:

 

1.      Prillaman v. Sark, 255 Ga.App. 781, 782, 567 S.E.2d 76 (2002). This case involved a girl taking a cheerleading stunt class through a private cheerleading academy. The matted portion of the gym had height clearance that was too low for 15–20-foot basket tosses, so the coach told them to practice them outside on the asphalt. Although Prillaman expressed concern about performing over the blacktop surface, Sark assured her, several times, that it was fine.

At the time of the injury, although Prillaman had been involved in gymnastics and cheerleading, she had never attempted full basket tosses prior to the day of her injury or any other stunt with more than one partner. Her instructor testified that there should be a natural progression of skills before more difficult stunts, such as the basket toss, should be attempted. Prillaman performed only two basket tosses and had never performed the back flip body layout toss prior to the lnjury. Prillaman was underrotated, her foot slipped through the arm of one of her partners, and she severely injured her heel when it hit the asphalt.

Assumption of the risk is a complete defense in a negligence action if (1) the plaintiff had some actual knowledge of the danger, (2) she understood and appreciated the risk, and (3) she voluntarily exposed herself to the risk.

The Court noted that for the defense of assumption of the risk of danger to apply, Sark must show that Prillaman had a full appreciation of the danger involved and without restriction of [her] freedom of choice either by the circumstances or by coercion, deliberately (chose) an obviously perilous course of conduct.

The knowledge requirement does not refer to a comprehension of general, non-specific risks. Rather, the knowledge that a plaintiff who assumes the risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury. Whether a party assumed the risk of his injury is a jury question that should not be decided by summary adjudication unless the defense is conclusively established by plain, palpable and undisputed evidence.

The Court noted that Prillaman was not experienced in cheerleading stunts other than single partner stunts, had not performed the full basket toss prior to the day of her injury, was not a member of the AACCA, and was not knowledgeable about the AACCA safety guidelines or appropriate progression of skills necessary to perform the basket toss safely.

In reversing the trial court's ruling, the Court ruled there is a genuine jury issue of material fact as to whether Prillaman clearly understood the risk of the basket toss on the blacktop and whether she voluntarily and without coercion chose a perilous course of conduct.

2.      Alternatively, in 2010 the same court ruled the other way in Christian v. Eagles Landing Christian Academy, 692 S.E.2d 745, 303 Ga.App. 113 (2010). This case also involved a high school student performing cheerleading stunts for her private high school. In this case the injured girl was highly experienced, had performed the “extended liberty” over 500 times, and was very accomplished. The coach directed them to the football field to “warm up and stretch” with no further instruction and then left the general area. A few minutes into the warmups the squad unilaterally decided to practice their stunts. With the coach 40 yards away, Christian dismounted, fell back and was dropped on her arm causing serious injuries.

Plaintiff argued that because AACCA rules articulate a coach must always be present, able to see and hear the activity, and capable of intervening – the coach/school should be held liable. The Court ruled that Christian knew the stunt well, having performed it at least 500 times. Her coach did not encourage the team to practice the stunt on their own; in fact, they knew they were not supposed to do so. Students playing or practicing such games may injure themselves or each other, despite reasonable precautions. Hale v. Davies, 86 Ga.App. 126, 129, 70 S.E.2d 923 (1952). The Court affirmed the lower court ruling and granted the Defense summary judgment. Christian's experience as a cheerleader and with the stunt in question without coercion from her coach gave her enough subjective knowledge about the situation to understand the risk she was undertaking.

Liability Waivers     

Most leagues and events would require the parents to sign a waiver on behalf of their child in order to participate in sports. In Georgia, “a party may waive or renounce that which the law has established in his or her favor, when it does not thereby injure others or hinder public interest. Furthermore, exculpatory clauses (those that waive your claims of negligence) in Georgia are valid and binding, and are not void as against public policy when a business relieves itself from its own negligence.” SFG Venture v. Lee Bank, Inc.332 Ga.App. 894, 775 S.E.2d 243 (2015). The first three requirements below aren't the issue of most litigation and case law but the last is the most relevant in a youth sports injury and whether it could be worth proceeding.  

 Requirements of a Valid Waiver

There are several requirements for a liability release, waiver, or exculpatory clause to be upheld in court:

1. The release must be clear and unambiguous. Dep't of Transp. v. Arapaho Constr., Inc., 257 Ga. 269, 357 S.E.2d 593, 594 (1987). Any ambiguity will be interpreted against the drafter. See Id.
   
   
2. The agreement must be voluntary, the product of his own free will, unencumbered by anything remotely resembling duress or undue influence. Williams v. Cox Enterprises, 159 Ga. App. 333, 283 S.e.2d 367 (1981).
   
   
3. The exculpatory clause must comply with public policy. A contract cannot be said to be contrary to public policy unless the General Assembly has declared it to be so, or unless the consideration of the contract is contrary to good morals and contrary to law, or unless the contract is entered into for the purpose of effecting an illegal or immoral agreement or doing something which is in violation of the law. The Georgia General Assembly has enacted no statute which either expressly or impliedly forbids contractual waivers of liability by participants in sporting or recreational events. Williams v. Cox Enterprises, 159 Ga. App. 333, 283 S.e.2d 367 (1981).
   
   
4. The waiver cannot waive gross negligence. Georgia law allows a party to exempt itself from simple negligence by contract, but not gross negligence. Per O.C.G.A. § 51-1-4, gross negligence is the absence of that degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances.  
   
   In Flood v. YWCA of Brunswick, 398 F.3d 1261 (11^th Cir.2005), Flood presented evidence that the Red Cross lifeguarding standards require lifeguards observe each swimmer every ten seconds. Flood contended that the YWCA lifeguards were grossly negligent because they violated the Red Cross standards by leaving their observation posts and failing to surveil the pool patrons for at least three minutes. Flood was considered an expert swimmer. Georgia courts have ruled that even a failure to apply certain safety standards does not necessarily rise to the level of gross negligence. Barbazza v. Int'l Motor Sports Ass'n, Inc., 245 Ga.App. 790, 538 S.E.2d 859, 861-62 (2000). Though Barbazza presented evidence that the IMSA did not follow safety guidelines from a top motor sports authority, the court affirmed the grant of summary judgment to the IMSA because there was no evidence the IMSA was required to apply those standards. See Id. In the Flood case, there was no evidence YWCA was required to apply the Red Cross lifeguarding standards. Though the lifeguards may have been inattentive, their actions did not rise to the level of gross negligence.

In applying the gross negligence standard to rules and safety violations in a sports injury waiver case, it would be imperative to show that the violation was reckless, defied logic, was oblivious to the consequences and the rules with which the organization themselves applied. Practically speaking, the case law seems to suggest that a Plaintiff's complaint and discovery can allege gross negligence with factual allegations consistent with an absence of due diligence, and from there it should pass summary judgment and be a question for the jury. 

With or without a valid waiver - any sports case with merit would have to allege facts that show something more serious than ordinary negligence to warrant initiating the case. Inherent risks in sports assume a certain amount of unpredictable circumstances and those in charge can't possibly foresee every possible risk. Actionable injuries in youth sports are ones that are obvious, flagrant, often arising to recklessness, so whether there is the best and most well written waiver might not matter at all if the deviation in care is bad enough.

Who is liable in a Sports Injury Case? 

A viable sports injury case will involve multiple defendants as sporting events and safety failures are a usually a progression and pattern many layers deep. Furthermore, having more parties to suit can yield more information about culpability. Depending on who the Defendants are can impact duty of care owed, and who may ultimately be liable. 

Private Institutions/Schools 

Private schools or private academy clubs are afforded no statutory immunity protection, and are subject to general negligence theories. These coaches and institutions have a duty to follow safety guidelines of their sport and common-sense principles. In these cases, we look at the leagues, the particular sport, and evaluate the specific generally accepted safety publications and to what degree those safety guidelines were followed. These publications become the basis of forming a reasonable duty of care owed to the athlete. 

Public Schools 

Bringing an action against a public school system or publicly employed coach for a sports injury should be evaluated on a case-by-case basis. In addition to all the questions of inherent risks, assumptions of risk, etc. – there is the added gauntlet of state, city, and county sovereign immunity issues.  

Most actions would arise against the school's coach for their negligence involving a players injury. Specifically, Article I, Section II, Paragraph IX of the Georgia Constitution states that [coaches] can be subject to suit and liability for not performing or negligently performing their ministerial duties, but they cannot be subject to suit or liability when performing discretionary acts, unless they are performed with malice or intent to cause injury. Negligence related to supervision would typically be a discretionary duty, and therefore immune from suit. If there were specific coaching rule safety violations, that would likely be considered a ministerial duty and therefore actionable. A more practical approach might be to inquire whether the coach also receives money from an independent organization other than the school i.e. an athletic association – there could be an insurance policy that covers him 

Volunteer Coaches

The “Rec League Rule” protects coaches from any personal liability exposure absent gross negligence. In these cases, we find that most reputable organizations and leagues carry liability insurance to protect their organization and coaches, and we pursue recovery for our clients through their liability policy.

Per O.C.G.A.  § 51-1-20.1, “no person who is a volunteer for a sports program or safety program of a nonprofit association, or any employee or officer of such nonprofit association conducting or sponsoring such sports or safety program, shall be liable to any person as a result of any acts or omissions in rendering such services or in conducting or sponsoring such sports or safety programs if such person was acting in good faith within the scope of his or her assigned duties and unless the conduct of such person amounts to willful and wanton misconduct or gross negligence; provided, however, the defense of immunity is waived as to those actions for the recovery of damages against such persons for which liability insurance protection for such claims has been provided, but such waiver shall only apply to the extent of any liability insurance so provided.”

 

Practically speaking, the hardest case to bring is against an injured kid's coach. Your child's coach is like a family member and a distant father/mother figure that deeply cares for and has a profound desire for the child's success. I have seen coaches make terrible mistakes that result in catastrophic injuries to child, and the parents would understandably refuse to bring an action against the coach because of emotional connection, and social pressure. When the family and the coach understand that liability insurance is the only monies being pursued, this alleviates the concerns of the parties involved. 

Officials, Referees, Judges, Umpires

Just like volunteer coaches, referees have the benefit of conferred immunity by statute absent showings of gross negligence per O.C.G.A. § 51-1-41 (2023). Absent law enforcement telling people what to do on the field, officials, referees, umpires, have ultimate authority on how a game is played, who can be there, and the safety guidelines for competition. Even with their immunity, the most useful tool is their own safety rules that they are responsible for knowing as part of their qualification training. Ideally a plaintiff's attorney would use these rules as evidence of what duties of care are owed to teams and the respective deviations in conduct. Unlike the immunity for coaches, there is no language that allows pursuing liability coverage. To pursue the officials, the safety deviation would have to be plainly obvious to any ordinary person to successfully argue gross negligence. \ 

Promoters/League Directors/Facility 

Every sport has its own private industry of leagues that generate revenue and hold events or tournaments. These are typically for-profit corporations and they are required to carry liability insurance by the venues that hold their events. Event hosts are almost always a party to a case because they are responsible for playing conditions, logistics, scheduling, hiring appropriate staff for fair competition, and the general rules and safety guidelines for these sporting events. An example would be baseball – they set policies for lightning/weather delays, legal bat specifications, and mandatory protective equipment guidelines.

For facilities, the Recreational Property Act could apply depending on whether the purpose of the event is commercial or purely recreational purposes.  It provides that “an owner of land who either directly or indirectly invites or permits without charge any person to use the property for recreational purposes does not thereby ... assume responsibility for or incur liability for any injury to person or property caused by an act of omission of such persons.” The statute actually says there is no duty of care to make the premises safe for invitees.
 

The RPA defines "charge" to mean "the admission price or fee asked in return for invitation or permission to enter or go upon the land." So, in order to determine whether immunity is available to a property owner under the RPA, a court must make a determination "of the true scope and nature of the landowner's invitation to use its property." And in making this determination, the analysis is "properly informed" by "two related considerations: (1) the nature of the activity that constitutes the use of the property in which people have been invited to engage, and (2) the nature of the property that people have been invited to use." In other words, "the first asks whether the activity in which the public was invited to engage was of a kind that qualifies as recreational under the Act, and the second asks whether at the relevant time the property was of a sort that is used primarily for recreational purposes or primarily for commercial activity." Nash v. Gwinnett Athletic Assoc., 220 Ga. App. 116, 117 (1), 469 S.E.2d 276 (1996).

Common actionable injury circumstances

·         Equipment

·         Practice standards

·         Excessive Conditioning

·         Unsafe conditions

·         Abuse

·         Failure to protect from known dangers

·         Weight room accidents

 

Actionable Injures

·         Fractures

·         Traumatic brain injury

·         Concussions

·         Ligament/tendon/muscle tears

·         Heat stroke

·         Disability

 

Expert Witnesses

In my son's case I reached out to one of the foremost experts on baseball safety, John Pinkman in Virginia. I wanted to know more than anything whether I was crazy or not thinking that this wasn't just another inherent risk and it shouldn't have happened. He explained each person's role and duty of care, how fields are conventionally designed and laid out in relation to the sun, who is in charge, and what should have been done. He agreed – my son and the other players should have been protected. An expert witness like this is necessary in a sports injury case for providing testimony related to duty of care owed, sport and recreation safety, equipment design, coaching and training practices, and risk management. The expert witness establishes on the record how a great a deviation of conduct was that caused an injury. 

Conclusion

Every sports injury case would require taking an expansive look at the safety culture, and guidelines set forth in the host's own league policies, procedures, and documents. From these, we would use their own criteria to establish their own duty of care owed to athletes. Furthermore, an attorney must inquire into previous incidents, and whether a pattern could be established. 

In 2023 Johns Hopkins released a study that over 3.5 million kids were injured while playing sports that year. This includes traumatic brain injury, fractures, facial injuries, torn ligaments, and sprains as well. Football as you may predict was the most dangerous with the greatest number of head injuries, but baseball was a close 2^nd. Sports are inherently dangerous, kids are unpredictable, but common-sense safety guidelines can save lives. Knowing the danger points and appreciating the risks before they happen keeps sports fun and the moments memorable for a lifetime. 

When a kid is hurt outside the typical norms of the sport, the family should reach out to a sports injury lawyer to assess whether there could be an actionable case. The attorney can also be a health advocate helping make sure the child's recovery has the best doctors and therapies available to them.