Injury, risk and litigation - lessons from Major League Baseball

Professor Gil Fried

Posted: October 15, 2014

Tagged: baseball / legal / risk / venue

The Stow v. Los Angeles Dodgers case is one of the most visible crowd management cases in United States history. While it involved a single fan incident, the resulting injuries and media attention made it one of the most followed personal injury cases in years.  The final verdict held the Dodger’s partially responsible for Stow’s injury and the final verdict would require the Dodgers to pay around $14 million to Stow.  This is on top of the possible millions spent on attorney fees and other litigation costs.  While the glitz of the media coverage showed the interest of the media and the public in sensationalizing an assault that could have happened at many different venues, there are some serious lessons that can learned by any public assembly facility manager.   This article will examine the inner workings of the case from an expert witness for the Plaintiff who also has worked on over 30 crowd management cases over the past 20 plus years.

When working on these major cases, the truth is in the facts that can be proved. There were a number of issues where there were no hard facts.  The Dodgers could claim, as an example, that new employees each received 16 hours of training before working.  However, numerous witnesses could not verify that amount.  Some testified to having such training while others indicated they did not receive any training as they were hired mid-season and only engaged in shadowing.  Yet others could not remember what was covered other than general policies and procedures.  Thus, any documentation from employee time cards (which were used during some testimony) to having a detailed syllabus, educational material, examination results,  and sign-in sheets can add factual value if they were available.

It should also be noted that not all evidence can be used during a trial. Attorneys regularly fight over what evidence can be presented at trial.  Thus, any documentation undertaken after an incident, to highlight changes made as a result of the incident, normally cannot be used at trial.  In this case an external evaluation by a neutral party was undertaken shortly after the assault, but such findings could not be used at trial.  This is one reason why undertaking regular risk audits and following those recommendations can be one of the best pieces of evidence to show a jury that various risks had been identified, evaluated, and acted upon.  Whenever there exists extemporaneous documentation showing what a facility has done, attorneys will attempt to use such documentation to prove the facility did something correct or failed to act appropriately.  That is why risk management advocated encourage documenting what a facility is doing.  Those who might advocate not documenting anything, to avoid a paper trail, will create significant trouble.  The facility will be in trouble if an expert from the industry can show that it is the law, industry standards, or best practices to have undertaken documentation whether for management to know about risks, respond to risks, or better train employees.

The concepts below represent some of the keys that could be gleaned from the case, without disclosing any sensitive or classified information.

1) You need training, training, and more training. A team, facility, concessionaire, or others need to provide appropriate training for all employees.  Every employee is important, and training just the top or perceived most important personnel can lead to a disaster.  The weak link in the armor can make the entire suit fall apart.  The Dodgers provided training, but it was hard to prove the quality of that training.  Thus can a facility manager answer the following questions:

-What is covered in the training? (make sure copies of all PowerPoints, exercises, exams, sign-off forms, etc… are kept for future records)

-Who receives training? (have all attendees sign-off that they attended and give an exam so that test scores can be used to show that attendees were required to pass or had to go through retraining until they passed) Just because someone has a guard card, as an example, does not mean they know how to handle situations with intoxicated fans at a ballpark.

-When is training received (dates/times- such as only pre-season or at other times)? If training is received on-the-job or just a couple days before opening day is it really effective?

-How is retaining conducted and for how many hours?

-Who conducts/attends the training? It is critical to have senior management present to help highlight how critical the role of safety preparation is for the entire organization.

-Is the training program customized to the facility and/or does it contain a broader program such as TIPS/TEAM training?

2) With the advent of incident management systems (IMS) there is a lot more data that can be used to analyze incidents in and around a facility. One of the keys to such a system is how well data is entered and in what form.  Many facilities complete incident cards and then enter that information into a computer system.  Others enter data immediately into online forms.  Key concerns with such systems include:

-What data is being sought? Some information might be confusing. If fans are being prevented from entering due to being intoxicated, the incident should be reported as occurring outside the stadium, but if ticket information is collected then it might appear that the incident is attached to a specific location inside the stadium. The data must be as clear as possible to effectively mine the data. As an example, the information might not just indicate what time the incident occurred, but also when exactly during the game it occurred.

-What are the terms that will be consistently used in reports? If a fight is called a battery than every fight should be classified the same. If instead it can be called an assault, verbal fight, physical fight, disturbing the peace, shoving, pushing, fan misconduct, etc… then it will be harder to truly determine the total number of fights that might have occurred. This can also impact determining where additional resources are needed to prevent potential fights, as an example.

-What is done with the information? Information that is collected just to be collected has very little value. Is information from IMS shared with the widest breadth of stakeholders, how often is it shared, and how is the information shared?   While some facilities share material with upper management, that is a significant lapse in the opportunity to truly communicate successes and possible short comings. Similar to how open book management is transforming many businesses, when a facility shares critical information across all employees and stakeholders, it is easier for low paid employees to internalize the value of what they are doing and why they are doing it.

3) Management fundamentals need to be consistent and appropriate. Management needs to be involved from hiring the right people, training them, properly positioning them, properly reviewing them, and to possibly terminating them if they are not doing their job well.  Every step in the process is important and failing in one of the areas can lead to significant problems.   For example, a deployment sheet is a critical part of the planning process.  However, what happens if employees do not show-up.  If a facility has indicated in advance that it is important to assign someone to a given area, then significant questions can be raised if that area is not covered (i.e. why develop a deployment sheet to cover certain areas if there is no coverage of those areas on a consistent basis).    Could the team have had extra employees to fill in to make sure an area is covered?  If employees are supposed to be roaming can the facility prove they actually visited areas that otherwise would not be covered?  Does a manager or supervise regularly visit deployed personnel to make sure they are in the right place at the right time?  If employees will need to be redeployed, are they given enough time and assistance to make sure areas that are supposed to be covered are in fact covered at the right time? Are employees regularly evaluated to make sure they are doing their job (if employees have not been evaluated in years can the team/facility prove they are capable employees who do the job well and follow policies and procedures)?

The key is that under examination can a team or facility prove that someone who was supposed to be in a given place (and they are supposed to be there to insure fan safety) are in fact there or had enough time to get there when needed.

As I testified at the Stow trial (in reference to quotes from one of my textbooks), there is no way to guarantee a 100% safe event. But that doesn’t mean that a facility should not take every reasonable step to make sure a facility is as safe as possible.  A facility owner/occupier is ultimately responsible for their property and that is a non-delegable duty.  Even with significant law enforcement presence, the facility manager needs to make sure the facility is reasonable safe.  Criminal conduct can occur at almost any location.  Liability is normally only imputed to a facility if they knew about a hazardous environment or could reasonably identify such an environment and do not implement steps to minimize the potential criminal conduct.  Thus, if a facility does not know where incidents are happening, does not know where employees are located, does not insure safety personnel are properly trained/supervised and in the right spots and doing their job, then they can possible held responsible for a climate where a crime might not have happened if the facility and its employees knew and addressed these risks/issues.

About Professor Gil Fried

Gil Fried is a Professor and Chair of the Sport Management Department at the University of New Haven. He regularly writes and lectures on sport/concert risk management issues and has served as an expert witness in sport/venue related cases since 1993.   His consulting web page is www.gilfried.com.