Monthly Archives: May 2013

Concussions: Assuming the Risk

In legal circles, the term is “assumption of risk.” That is certainly going to come into play, one way or another, in the massive NFL concussion lawsuit currently before the courts.

On another front in Western Pennsylvania, one court has already rendered an opinion regarding a concussed athlete and assumption of risk.

The incident causing the plaintiff’s concussion occurred when she was a senior on her high school’s cheerleading squad. The plaintiff was “participating in a stunt and suffered a concussion after she was struck in the head by a flyer.” Her coach “was allegedly aware of the plaintiff’s injury and the accompanying symptoms. The athlete subsequently “received medical treatment and was medically restricted from practice for two weeks.”

The athlete, after being cleared to return to her squad without restriction, then suffered another concussion in practice while performing a stunt. Her coach “allegedly observed the injury and failed to file a written report of the injury with the high school’s athletic director.”

What followed were additional incidents of concussion-like injuries. What eventually ensued was the family filing suit against the coach and the school district.

You can read the complete story and learn of the court’s decision involving this case in the upcoming June 2013 issue of Concussion Litigation Reporter.

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Swope Scenario Illustrates One of the Legal Challenges NFL Plaintiffs May Face

There are any number of hurdles the attorney for the NFL plaintiffs may need to clear.

One of which may be to determine how much of the damage, if any, was inflicted on an NFL player, while he was under contract to an NFL team.

Take Phoenix Cardinals rookie receiver Ryan Swope, who fell in the draft “because he had four concussions at Texas A&M,” according to a report on Pro Football Talk (PFT).

Swope’s teammate Larry Fitzgerald went so far as to suggest on SiriusXM radio (via that Swope has missed practice time while working through issues related to the concussions he suffered in college, according to PFT.

“Fitzgerald’s comments are the first we’ve heard that Swope’s college concussions are still an issue, but they were definitely an issue for him heading into the draft,” Mike Mayock said on the NFL Network. “Swope would have been a third-round pick if he had a clear medical history, but he fell to the sixth round because of those concussions.”

How many other players suffered concussions in college that weren’t properly diagnosed? And where do you draw the line between what damage was done in College, or high school, and the NFL?

If more and more college players fall in the draft because of the concussions they suffered in college and their effects, will they become more inclined to seek legal recourse if their treatment was questionable?

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Increasing the Risk of Legal Liability, Cause for Concern in Today’s Concussion Crisis

Non-school sports teams, particularly at the youth level, have always relied heavily on volunteerism. Many of us have coached our sons and daughters at one point or another, and the though of legal liability over a child being concussed never crossed our minds—until now.

Such is the case with some Oregon legislators who have concerns about Oregon Senate Bill 721, which expands the current law to include “youth sports teams that are unaffiliated with schools and gives responsibilities to youth coaches and umpires, who are often volunteers.”

Rep. Jason Conger of Bend, Oregon is one legislator “concerned about the unintended deterrent the law might create, reducing volunteerism by increasing the risk of legal liability.” Conger, an attorney, states, “When you set a standard in a statute … there’s a presumption of fault, if the standard is not met.”

Dan Gilbert, legislative counsel, took exception to Conger’s legal opinion, saying, “It will make it easier for coaches to know what they should be doing and give them legal cover if they acted properly.”

However, “Gilbert was unable to answer concerns about incidental coaches and umpires who may fill in for a game but do not regularly coach or referee games.”

To read more about this particular issue, go to –

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