Recently a St. Louis jury awarded Reggie Bush, a former NFL running back, a total of $12.5 million in damages for a 2015 slip-and-fall that ended his performance in the season and likely contributed to his retirement in 2017.
While I don't write too much about sports, I think in this case Mr. Bush is more than entitled to damages paid by the Los Angeles Rams (who were still the St. Louis Rams at the time of his injury). The circumstances of his career-damaging injury could have been avoided with appropriate caution taken by the Rams. Because they did nothing, he had every right to seek damages under premises liability law, as anybody would if they were hurt by the negligence of property owners.
Let's look a little closer at the lawsuit.
Reggie Bush was injured playing football at St. Louis' Edward Jones Dome on November 1, 2015. Bush's team, the San Francisco 49ers, played against the St. Louis Rams shortly before that franchise moved to Los Angeles.
During a punt return Bush was pushed out of bounds, where he slipped on a wide strip of exposed concrete a short distance beyond the 49ers' bench (Bush's suit called it a "concrete ring of death.") You can watch it happen below:
At the end of the clip you can see Bush clutching at his leg. Following the slip and fall he was diagnosed with a torn Medial Collateral Ligament (MCL), a serious injury to major connective tissue in the knee. Obviously this would be a problem for almost any athlete, but for a football player whose position is actually defined by running, leg injuries are even more disastrous.
The torn MCL required surgery, ending Bush's ability to play for the rest of the season. His contract expired when the season ended, and his negotiating position for renewal was severely hampered by the injury. He played one more season with the Buffalo Bills in 2016, but reluctantly announced his retirement from the game the following year. Believing the injury to be the main reason his career derailed--and knowing the Edward Jones Dome incident to be the source of that injury--Bush filed suit in 2016 and recently won.
Premises Liability: Edward Jones Dome Edition
Because the Rams were hosting the 49ers at the Edward Jones Dome, Bush and the visiting team were invitees. The premises' owner/operator owed a certain duty of protection and safety to invitees, meaning that the 49ers had every reason to believe the Dome would be safe for a football game. It's no different than walking into a grocery store expecting not to slip on a puddle of water because the store's operators should mop it up. The 49ers assumed the normal risks of playing a contact sport, but dangerous terrain isn't usually one of them.
Bush's five-page suit against St. Louis was pretty straightforward: His attorneys argued 1) that the "ring of death" was dangerous (hard to argue with a name like that), 2) that the Rams knew it, and 3) that they did nothing to correct the problem. Bush, an invitee, was hurt because St. Louis knowingly ignored a hazard (we'll get to the "knowingly" part in a minute). That's pretty much the textbook definition of a premises liability claim, and given his award the St. Louis jury seems to have agreed.
Where Does the $12.5 Million Come From?
The jury award to Reggie Bush can be broken into two parts: actual damages and punitive damages.
Actual damages are awarded to plaintiffs based on provable financial losses like medical bills or lost wages. In Bush's case, the MCL injury affected his ability to renegotiate his contract after it ended in 2015. An athlete in his prime is in a much better position to negotiate a high salary than one with a debilitating injury that cut his previous season short. Bush's attorneys successfully argued that his earning potential was negatively affected by the knee injury, and the money he could have earned without the surgery was factored into the jury award. Bush was granted $4.95 million in actual damages.
Punitive damages are awarded when a defendant is found to have demonstrated gross negligence--that is, a conscious disregard of the need for reasonable care. That disregard often causes grave harm that could have been foreseen and avoided. It's different from ordinary negligence because it's not just a careless failure to exercise reasonable care--it's an outright refusal to do so. Whether the Rams felt that covering the concrete would be too expensive or just unnecessary, they looked at a potential risk and chose to dismiss it.
The Rams' defense attorney protested, saying that Bush's chosen profession just carries with it a high risk of injury. The attorney denied any negligence on the part of the team, but his argument was pretty weak due to a couple of points:
Bush was not actually on the playing field when he slipped; he was out of bounds in the area surrounding it. That may sound like hair-splitting, but it's actually important: The risks he agrees to are ones directly related to the gridiron, not the whole darn complex. Slipping and falling on concrete around the field is no more a normal hazard of Bush's job description than a locker falling on him or a bear mauling him at the hot dog stand. Point being, the way in which he was hurt had almost nothing to do with the specific risks of his profession, so "assumption of the risk" defenses don't really work.
As argued by Bush's attorney, it's not unusual for a football player to need space to slow down after a fast-paced play. Bush was returning a punt when he was pushed out of bounds, meaning he was likely running all-out. He can't just stop on a dime (thanks, physics), so he used all the available space to slow down, including the the exposed concrete where he slipped. It's not his fault the stadium wasn't designed for this very common happenstance.
If the Rams want to argue that Bush was simply "doing what athletes do" when he was hurt, they also have to admit they needed to provide a safe environment for him to do so. That means taking reasonable care in its setup and removing or mitigating hazards (like, say, something so dangerous it was called a "ring of death."). Shortly after Bush's injury the Rams covered the concrete surface with slip-resistant rubber; if they were so confident it had nothing to do with his fall, why do that?
In many premises liability cases defense attorneys might argue that a danger couldn't realistically have been predicted. They suggest that "nobody could have seen it coming," and because it was such a surprise they couldn't have prepared for it. Even if this argument's only partly successful, it could get the charge reduced to ordinary negligence. Arguing it down from gross negligence means punitive damages are no longer on the table, which would have saved the Rams millions of dollars. The "whodathunkit" gambit costs the defense almost nothing to throw out there; if they can make a jury doubt their culpability, they're closer to getting off the hook.
As it happens, that argument won't work here because just one week before Reggie Bush fell, New York Jets quarterback Josh McCown had a similar moment on the Edward Jones Dome's concrete. McCown was pushed off the field during a play; as he struggled to stop he entered the "ring of death" and, unable to plant his cleats in the surface, skidded directly into the stadium wall and injured his shoulder.
With a clear and recent precedent, it's basically impossible for the Rams to call Bush's fall a "freak accident."
Because of these problems with the Rams' defense (in the courtroom, not on the field), it's unlikely the jury had to deliberate too hard before deciding in the plaintiff's favor. They awarded Bush $7.5 million in punitive damages, mostly to punish the Rams for failing to act on their knowledge of a risk.
Premises Liability Protects All of Us
Some readers may not feel much sympathy for Reggie Bush's injury; it can be tough to feel bad for a millionaire. However, it's important to look past that and see that the law that helped him helps all of us the same way--maybe not always to the tune of millions of dollars, but with the same goal.
When we go to public places run by private businesses--the grocery store, the gym, and even the Edward Jones Dome --we are invitees, protected by the rules of premises liability law. The owners of those premises are required to maintain a safe and risk-free environment for their attendees. Visitors to these locations can reasonably expect to buy frozen waffles, do bicep curls, or slow from running to stopped without getting hurt in the process. If the owners fail to maintain their premises in a way that satisfies those expectations, they could be considered negligent.
Millionaires or not, anyone hurt by the action or inaction of another party deserves the chance to be made whole. One person may slip on a puddle in the aisle of a grocery store, and another may do so on exposed concrete in a $280 million stadium during a nationally-televised football game. Both are right to seek redress from the parties responsible for not fixing the problem before the injury could ruin their day, their career, or their life.