Sports injuries don’t just happen to professional athletes. Thousands of people are injured each year in pickup basketball games, playing touch football, during high school athletic competitions, and while exercising at their local gyms. While injured pro athletes normally receive pay while recovering from their on-the-field injuries, the rest of us may have to contend with missed days at work, medical bills, and a painful recovery.
In some cases, our medical insurance covers the costs of treatment. But medical insurance doesn’t cover lost wages or pain and suffering. When the accidental, negligent, or malicious acts of a third person cause your injuries, you may be able to recover your losses from the third party personally, or through his homeowners or business liability insurance policy.
Sports injuries from a third party’s negligent or willful conduct may entitle the injured participant to compensation for damages. Damages include medical bills, lost wages, out-of-pocket expenses for medicines, crutches, etc., and pain and suffering (emotional distress).
Accidental injuries may not entitle the injured participant to full damages, but instead only to medical coverage for up to about $1,000 under no-fault insurance policy provisions (known as Medical Payments, or MedPay). In these accidental cases, there’s no need to show negligence. Mere proof of the injury and costs of treatment are all that’s necessary for limited coverage under MedPay policy provisions.
Sports Injuries and Assumption Of Risk
Most sports injuries occur without negligence. When we voluntarily engage in a sport, we know, or should know, there always exists the possibility of injury. It goes with the territory. The law calls it Assumption Of the Risk (you take responsibility). When we step onto the playing field, whether it’s our neighbor’s backyard or the local basketball court, we accept the risk inherent in the sport.
We know, for instance, when running to catch a football we may twist our knee or accidentally run into another player. These are injuries common to the competitive nature of the sport. As a result, when we do twist a knee or sprain an ankle, the injury isn’t anyone’s fault. We knew it could happen, and it did. Under these circumstances, we get limited medical coverage under the property owner’s homeowners policy, if that.
Exclusions to Assumption Of Risk
Willful or malicious conduct
To compound the injuries, someone may accuse a participant of willful or malicious conduct. When someone proves willful or malicious intent, insurance policies will normally wholly exclude coverage for the policyholder and the injured participant. Under Part F of most homeowner policies, if the homeowner causes intentional damage, the insurance company specifically excludes payment.
For example, in a friendly pickup game of basketball, one player became violent and threw a punch, breaking another player’s nose. Insurance won’t cover this kind of injury under the legal doctrine of assumption of the risk, nor will it cover the injury under the personal liability section of the aggressor’s insurance policy.
Although a pickup basketball game can become very physical, throwing a punch is not a natural or expected consequence of the game. In this case, the injured player will have to file a lawsuit seeking damages from the aggressor personally, since it’s unlikely he’ll agree to pay.
Faulty or defective equipment
Another exclusion to the assumption of risk doctrine is faulty or defective equipment. When your child steps onto the playing field, there’s an understanding he may get hurt during the normal course of play. We accept that or don’t allow our children to play.
But, what if your child is hurt because of an unanticipated, intervening force? An intervening force can be accidental, negligent, willful or malicious. Does the legal doctrine of assumption of the risk bar a sports injury claim in these circumstances? The answer is usually no.
Example: Sprinkler head causes fall
During a high school soccer game, a player, while running down the field, suddenly tripped and fell, sustaining a serious leg injury. Under normal conditions, where negligence or willful conduct doesn’t cause the injury, the school may only have to provide coverage limited to about $1,000 for the injured player’s medical bills.
Upon further inspection, someone noticed the player tripped over a sprinkler head sticking up from the ground. That’s clear evidence of negligence. There’s no credible reason for the sprinkler head to stick up from the ground while the soccer game was being played.
In this example, it’s possible the school is responsible for paying the player’s medical bills, out-of-pocket expenses, lost wages (if she had a part-time job) and for her pain and suffering.
Note: If it was a public high school, the injured player’s parents might have to file their injury claim by using the Tort Claim Act procedure. In tort claim actions, there’s a very limited amount of time to file a sports injury claim – sometimes as short as 30 days.
Releases of liability
In some cases, before getting permission to engage in a sport, the owner of a sports field may require participants, or in the case of minors, their parents, to sign a release form indemnifying the owner from liability for injuries. Sports injury release forms are controversial and prone to years of litigation.
If you signed a release form and you or your child was subsequently hurt because of the accidental, negligent, or willful conduct of the school or property owner, the release form you signed may be subject to scrutiny.
If the injuries were truly accidental, and not negligent or willful, the release may be valid and enforceable. However, if the property owner’s negligence or willful conduct caused the injuries, the release may be invalid. In cases of serious injuries involving release forms, it’s always a good idea to speak with an experienced personal injury attorney.
Example: When a release form is invalid
A high school student played for his school’s varsity football team. One day during practice, the young man tripped and fell on the playing field, sustaining serious knee injuries. Upon closer inspection, it turned out the young man tripped over a piece of Astroturf that had torn away from its base.
The school and its insurance company declined to pay for the player’s medical bills and related damages, claiming the release the player’s parents signed fully indemnified them. The case went to trial. Evidence showed the maintenance supervisor knew of the tear in the Astroturf and reported it to the school’s coach before the player’s injury. The coach ignored the notification and allowed his players to practice.
The courts ruled the release was invalid. The court stated the school, via its coach, knew a dangerous condition existed and ignored that condition, knowing it might result in injuries to his players. The failure to repair the Astroturf and allow the practice to continue was negligent and “pierced” the release.
Example: When a release form is valid
In a similar case, a high school soccer player tripped and fell on a piece of Astroturf and was hurt. Her parents had previously signed a release form indemnifying the school against injuries. The evidence showed the turf had torn sometime between the maintenance crew’s last scheduled maintenance and the time of practice, a period of about 12 hours.
The court said the release indemnifying the school against the player’s injury claim was valid, and therefore barred the parents from a lawsuit against the school for damages. The court went on to say the school did everything reasonably possible to ensure the safety of its players. Its judgment stated…
Because the Astroturf was over 100 yards long and almost 30 yards wide, and because the tear couldn’t have been otherwise timely discovered, we hold the release to be fully effective, and hereby dismiss the plaintiff’s claim under the defendant’s motion for summary judgment.”
As you can see, releases of liability are not always valid. If you signed one and you or a loved one was subsequently injured, look closely at the circumstances of the injury to decide whether the injury’s cause was accidental or negligent.
Homeowners Coverage for Injuries
Homeowners insurance covers more than you might think. Did you know your homeowners policy may cover accidental sports injuries to others while off your property? Most homeowners policies provide coverage for policyholders and their loved ones (who live in the home), when they accidentally or negligently cause injury to someone while on or off the homeowner’s property.
If you or a loved one causes injury to another person while playing sports at a location away from your property, your homeowners insurance will likely cover the injured participant’s damages. The amount of coverage depends on the circumstances of the injury and whether the injury’s cause was accidental, negligent, willful or malicious.
Let’s look at some of the standard language under most homeowners’ insurance policies…
Part II: Liability protection
A. Personal liability
This section protects against a claim or lawsuit for bodily injury… to others caused by an accident on your property or by your personal activities anywhere. This coverage… protects you and all family members who live in the home.”
Under this section, the policy will cover the medical bills, out-of-pocket expenses, lost wages, and the pain and suffering of a person you unintentionally injured while playing sports away from your home. This also means your insurance company should defend you if someone sues you. In the end, it’s up to the lawyers to determine whether the circumstances entitle the third party to damages more than just medical bills.
Example: Parking lot touch football game
You and other parents traveled with your daughter’s soccer team to an out-of-state tournament. During a break in the scheduled games, you and some of the other parents engaged in a touch football game in the hotel’s parking lot. While running to catch the ball, you accidentally ran into another parent, who broke his leg.
When you returned home, the parent filed a lawsuit alleging you were negligent when you ran into him. The lawsuit demanded compensation for medical bills, out-of-pocket expenses, lost wages, and pain and suffering.
In this case, your homeowners insurance covers the cost of an attorney to defend you. And in the event you lose or eventually settle the case, the insurance company will pay for the injured party’s damages up to your policy limits.
No coverage for policyholders and loved ones
While Part II of the homeowners policy covers sports and other injuries to third parties, the coverage DOES NOT cover injuries to the policyholder or his loved ones, whether on the property or not. Private medical insurance, Medicare, or Medicaid will cover treatment for sports injuries and may cover the resulting damages.
In cases where the policyholder or his loved ones are injured as a result of a third party’s action, coverage will be provided under that person’s homeowners insurance policy or separate personal liability policy.
Dealing With the Insurance Company
Insurance companies don’t like paying people money. For the company to even consider paying your sports injury claim, you must convince the claims adjuster their insured was negligent, and the negligence was the direct and proximate (legally acceptable) cause of your injuries.
When you first speak with the adjuster, it’s likely she’ll ask to take your recorded statement. That’s normal. Although you aren’t required to give a recorded statement, not doing it may result in a delay processing your claim. If you do give a statement, stick to the facts and don’t editorialize. It’s a good idea to prepare your statement ahead of time.
Also, make sure you don’t say anything that would lead the adjuster to believe you may have contributed to your own injuries. For example, abstain from statements like, “I wasn’t paying attention,” or “I didn’t know how to use the equipment,” or other statements that tend to make you partially or wholly responsible for your own injuries.
Personal Injury Attorneys
If your injuries are the less serious, soft tissue injuries, you can probably handle your own sports injury claim. Soft tissue injuries include muscle sprains, ligament and tendon strains, minor cuts and bruises, etc. With soft tissue injuries, you can either negotiate a settlement with the insurance company or file a small claims lawsuit.
However, if your injuries are the more serious hard injuries, you need an experienced personal injury attorney. Hard injuries include broken bones, head trauma, deep gashes, burns, scarring, and so forth. Experienced attorneys can file lawsuits, engage in pretrial discovery, subpoena records, take depositions (recorded, sworn statements), and other actions to get the highest possible settlement or jury verdict.
In hard injury cases, it’s highly likely even after deducting attorney’s fees, your net settlement will be substantially higher than one you might have gotten on your own.
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