MLB Umpire Ed Hickox Wins Product Liability Lawsuit

In 2005 umpire Ed Hickox was working home plate and wearing a mask given to him by a Wilson Sporting Goods representative. According to a complaint filed in the Superior Court of the District of Columbia, during the game at RFK Stadium "a foul ball struck the throat guard of Plaintiff's mask. The impact dislodged the mask's metal frame from the rest of the mask. The ball's force pushed the frame into Plaintiff's ear canal, then pushed the entire mask completely off of Plaintiff's head and onto the ground. The Plaintiff suffered numerous injuries, including but not excluding, a concussion, broken bones in his left ear, and an inner-ear fluid leak from his right ear."  Hickox had surgery to remove the broken ear bone and have it replaced with a titanium prosthesis.

Nasty business.

Hickox sued Wilson Sporting Goods claiming the company was responsible for failing to adequately test the mask before issuing it to him, and because the mask failed to adequately protect his face. Hickox wrote in his complaint “An ordinary customer would expect the umpire’s mask, built to protect the umpire’s face from stray baseballs, not to harm Plaintiff when a baseball strikes the mask.”

Last Friday a D.C. jury awarded Hickox and his wife Lisa $775,000.

Patrick Regan, attorney for Hickox and his wife, told The Blog of Legal Times that Wilson performed more tests on the mask after the injury to Hickox, but did not say what, if any, changes were made to the mask’s design. Attorneys for Wilson say an appeal of the jury verdict is likely.

2010 Umpire Insurance Review

Well, it’s that time again. My first college games are approaching soon, as is the high school baseball season. Time to start thinking about insurance for the year. Last year I reviewed insurance policies from NASO, ABUA, ASA, USSSA, and NFHS. Not much has changed (insurance is rarely exciting), but here it is for 2010:

NASO Insurance
Cost: $97.00 annually included in membership fee
General Liability: $3,000,000 per occurrence with a $4,000,000 aggregate
Errors and Omissions: $50,000 per occurrence
Heart or Circulatory Malfunction Death Benefit: $5,000
Assault Protection: up to $3,000 in attorney fees on a 60/40 basis (you pay the 40% until the plan has paid out $3,000).
Game-fee-replacement insurance: up to $100 for each game lost within 21 days after an assault injury up to $500 total.
Accident medical plan: None
For an additional fee NASO provides Optional Game Fee Loss Insurance for injuries not related to assault. This plan pays up to $1,000 to $2,000 depending on the plan selected. Covers all sports official activities

ABUA Insurance
Cost: $45.00 annually included in membership fee
General liability: $1,000,000 limit
Errors and Omissions: None
Heart and Circulatory Malfunction Death Benefit: None
Assault Protection: None
Accident medical plan: $100,000
Game-fee-replacement insurance: $2,000 maximum benefit
Covers while working any level of amateur baseball AND softball

ASA Insurance
Cost: included in registration fee
General liability: $5,000,000 per occurrence with a $8,000,000 aggregate
Errors and Omissions: None
Heart and Circulatory Malfunction Death Benefit: None
Assault Protection: None
Accident medical plan: $100,000 with $100 deductible, $2,000 accidental death, $4,000 accidental dismemberment
Game-fee-replacement insurance: $2,000 maximum benefit
Covers while working ASA contests

USSSA Insurance
Cost: included in registration fee
General liability: $2,000,000 per occurrence with a no aggregate and legal defense fees included with no deductible
Errors and Omissions: None
Heart and Circulatory Malfunction Death Benefit: None
Assault Protection: None
Accident medical plan: $20,000 per occurrence with $500 deductible
Game-fee-replacement insurance: None
Covers while working USSSA sanctioned events with USSSA registered teams.

NFHS Insurance
Cost:
General liability: $1,000,000 per occurrence and $5,000,000 Aggregate
Errors and Omissions: None
Heart and Circulatory Malfunction Death Benefit: None
Assault Protection: None
Accident medical plan: $50,000 Accident Medical/Dental Limit per injury with a $250 Deductible per injury; $2,500 Accidental Death & Dismemberment Benefit
Game-fee-replacement insurance: None
Covers officials currently registered with a member state association, or with an affiliate of the NFHS (if that association registers officials), in order to be eligible for the NFHS Officials Association insurance benefit.

Umpire Liability: Should You be Concerned?

Every year players are hurt on the ball field. Sometimes the injury is unavoidable. In 1976 Steve Yeager of the Los Angeles Dodgers was standing on deck when a shattered bat hit him in the neck and pierced his esophagus. Sometimes the player assumes the risk of injury. Pete Reiser crashing into an outfield wall chasing a fly ball comes to mind. Sometimes the injury is avoidable and results from another’s negligence.

It is this third category that we worry about as umpires. The court system has seen its share of lawsuits against umpires. In his special report for the National Association of Sports Officials, entitled Limited Liability for Sports Officials, Steven Ellinger states:

“Negligence claims can arise based on an official’s failure to: inspect the playing field; control the game; keep the playing area free of equipment and spectators; stop a game because of inclement weather conditions; inspect equipment; protect and warn participants[.]”

Courts have been reluctant to assign any legal liability to umpires for player injuries unless the umpire acted in a reckless or intentional manner. In most cases the dangers are open and obvious and the athlete is said to “assume the risk” of participating under those conditions (such as a muddy field, or in some cases when lightning is present). Some states have enacted legislation to provide protection to sports officials from acts of negligence.

While umpires have generally escaped liability for their acts of simple negligence, the costs involved in a lawsuit are considerable. Even if called as a witness, your time and involvement in court and during depositions, etc. can be extensive. So who pays for the defense of the lawsuit when little Johnny is injured? As an independent contractor it is your responsibility to pay for your defense. The “American Rule” is that each party pays its own legal fees. That means you will either pay for a lawyer out of your own pocket or you had better have insurance. Homeowner’s insurance will likely not cover this type of action. Often association insurance will not pay anything, or a reduced rate, for attorney fees.

The best way to protect yourself from liability is to maintain liability insurance and take your responsibility to protect the players seriously. When in doubt, err on the side of safety. The old saying goes, “an ounce of prevention is worth a pound of cure.” Steven Ellinger suggests:

“Sports officials can help to protect themselves from possible litigation by following the checklist below:

1. Inspecting the playing surface and adjacent areas for hazards prior to the game.
2. Determining if weather conditions are appropriate for beginning or continuing the game.
3. Inspecting game equipment prior to and during the game.
4. Inspecting players’ equipment for safety and compliance with game rules prior to the game.
5. Controlling the game and properly enforcing playing rules.”

As an umpire I suggest that during every pre-game meeting you tell the coaches that “we are going to have good sportsmanship and a safe game.” With that, ask whether the teams are properly equipped. Even though the Fed rules require it, many umpires fail to ask this simple question. Especially for softball, tell the coaches to have their players remove all jewelry. It is easy to imagine a lawsuit from an injury resulting from illegal equipment. Go over the ground rules and pay special attention to any area that may be a safety issue. Inform coaches that they are to have “buckets and bodies” in the dugout. Sure they don’t like it, but if the coach or player is seriously injured from a foul ball, the plaintiff’s lawyer will want to know why you allowed such a dangerous condition to exist on your field.

By emphasizing safety you set the tone for later penalties for unsportsmanlike conduct infractions and encourage the cooperation from the participants. Many game management issues can be handled under the pretense of safety, for instance: policing equipment, keeping gates closed, or delaying or suspending games for weather. Emphasizing safety may be the difference between spending time on the field or in the courtroom.

Further reading:
Limited Liability for Sports Officials, by Steven Ellinger

STEPPING IN TO STEP OUT OF LIABILITY: THE PROPER STANDARD OF LIABILITY FOR REFEREES IN FORESEEABLE JUDGMENT-CALL SITUATIONS, by Michael Mayer, Journal of Sports Law & Contemporary Problems

Official's Legal Liability, Arizona Football Officials Association

Do you need a business license to umpire?

Apparently you need a business license if you umpire in San Diego! Here is an amazing story from San Diego about a municipal requirement for independent contractors to obtain business licenses in order to conduct business (i.e. officiate) within the city limits.

In many cities independent contractors are required to obtain a license. High school sports officials are considered independent contractors. That mostly results from an IRS determination in the 1960's, however many states including Alaska, California, Delaware, Florida, Georgia, Idaho, Minnesota, Missouri, Montana, Nevada, New Mexico, Oregon and Virginia have enacted statutes that classify sports officials as independent contractors — at least for the purposes of workers' compensation. In other words, if you are seriously injured while umpiring, your employer owes you nothing. The school does not pay your medical expenses, lost wages, etc.

Now San Diego has added this insult - a level of bureaucracy that is uncalled for, unnecessary, and quite frankly asinine. It is also easily correctible through local legislation, although this local ordinance should have never been enforced against sports officials in the first place. What's next, arresting the six-year-old for violating health code ordinances by selling lemonade on the corner? Apparently San Diegans (San Diego-ites? San Diego-ins? San Diego-uns? San Dieg-ons? San Diegans? Done in my best Ron Burgundy voice) have no common sense.

You stay classy, San Diego.

Tax Receipts and Records

I keep my tax receipts and records in a spiral bound notebook. Every receipt is stapled into the notebook on a different page. I also keep track of my mileage in this book (using mapquest for miles), games worked, and my paychecks.