Insurance has a primary purpose of working for the common good.
Can products liability insurance save football? Underwriters often will make recommendations to insureds to eliminate or mitigate risk. They often will reward those who comply with their recommendations with reduced premiums or lowered deductibles. Should insureds not follow recommendations the underwriter might elect not to take on the risk, or in some instances, cancel a contract that is already in place. The underwriter might also decide to surcharge the premium.
Private passenger auto premiums are often adjusted according to driving records. Those who are habitual speeders will more than likely feel the economic consequences, in the impact on their insurance premiums.
An unintended consequence of the underwriting process is a positive impact on society as a whole. As the underwriter seeks profits by prompting individuals to live more responsible lives, society as a whole benefits. For example, a fire underwriter might require up-to-date fire extinguishers in buildings they insure, resulting in fewer large fire losses.
Another example would be the waterpark. When waterparks were first started for mass recreation I was an excess and surplus lines underwriter. Conventional wisdom at that time was to have a rather deep “catch” pool at the bottom of the waterslides. Insurance company underwriters noted the frequency of losses and soon demanded shallower pools that would allow people to move away from the bottom of the slide quicker, resulting in a lot fewer injuries and deaths that were being caused by people colliding in the catch pool and not being able to get out.
Often positive social change is the result of the combined intelligence and wisdom of the insurance community.
There Is a Need for Drastic Change in Football.
Football is a wonderful sport that is a part of the fabric of life in The United States. It is almost inconceivable to think of Friday nights and Saturday and Sunday afternoons in the fall without the Big Game. Yet, the game is currently being threatened, with less than half of retired NFL players recommending that children play the game.
Will insurance become the mitigating factor that steps forward to create changes in the game to make it safe once again for participants?
The Sunday Minneapolis Tribune of September 8th, 2013 contained a story about a young athlete who was injured making a tackle during a game against our local high school’s team. The day after the game surgeons removed the right half of his skull to address swelling and allow his brain to heal.
Our local coach reviewed the game film and stated it didn’t appear the injury resulted from helmet-to-helmet contact. He said, “Our running back was high-stepping, and it looked like it was more a thigh to the helmet.”
The junior athlete, who suffered another concussion his freshman year and sat out the rest of that season, is in serious condition.
On October 1, 2011 Gustaves Adophus College played its homecoming game against Concordia. My nephew played middle linebacker for Gustaves and was at that time number two in total tackles for the Minnesota Intercollegiate Athletic Conference. Late in the third quarter he was injured tackling and paralyzed for thirty long minutes while he sprawled on the field. Later he was diagnosed as having a sprained neck. He made the decision not to play again even though he made a full recovery.
Recently I attended a Professional Insurance Agent’s seminar. One of the speakers was a good friend who played six seasons for the Vikings. During one of the breaks he told me that he is, unfortunately, part of the NFL concussion study and that he is experiencing some “problems”.
What Is Causing the Increase in Football Injuries?
The problem with football is directly related to the increase in size of the average player and the speed at which they play. When I was a high school player in the 60’s I was a large player and at 145 pounds I was a fullback. A huge high school player in my day was in the area of 200 pounds. Elite high school players of today are now starting to be 40 to 50% larger than that size.
Grand Valley State University studied the average height, weight, and body fat percentage of college and professional football players from 1942 to 2011. College centers, guards, and tackles gained about 1 to 2 pounds per year over 60 years, and professional players gained up to 1.5 pounds per year over 7 decades.
In 1912 the world record for the 100-meter dash was 10.6 seconds. In 2009, Usain Bolt ran the 100-meter dash in 9.6. seconds.
With larger, faster athletes colliding, a basic understanding of physics allows us to understand the tremendous increase in the force of impact. Injuries have always been part of football. The extent of those injuries has become much more serious.
What Is Products Liability Insurance and How Does It Apply to Football?
Products Liability Insurance is defined as:
“Protection from financial loss arising out of the liability incurred because of injury or damage resulting from the use of a product.”
Currently some helmets carry the following warning on its label “No helmet system can protect you from serious brain and/or neck injuries including paralysis or death. To avoid these risks, do not engage in the sport of football.” The labels for lacrosse, softball, and hockey helmets have similar warnings . . . that nothing can prevent all head injuries.
I was raised on a farm. Our tractors and farm implements were covered in warning signs and guards, until they got in the way of normal maintenance and were removed to gain efficiency. People who worked around farm machinery knew of the inherent risks, but the reality of farm life over-rode what many might think would be common sense.
My cousin first started driving tractors at the age of three. He was starting to spend extended periods of time in their fields driving tractor . . . before he attended school . . . at the age of five. It wasn’t at all uncommon for children in our community to drive grain trucks to the local elevator on public roads when they were ten, even though a farm-use only license wasn’t available until you were thirteen.
Contrast that with our state’s child labor laws, which prohibit the commercial operation of a lawn mower by those under 16.
Good people established the ethics of my family’s farm community. They never would have believed they were being abusive in asking their children to contribute to their family’s welfare. One of my cousins did fall off a tractor in the field when he was ten. He was run over by the engaged plow behind him and suffered a broken hip. He recovered fully. Trips to the emergency room by my brothers and I were frequent with many tetanus shots for feet impaled by pitchforks and set bones.
Although some aspects of youth sports have clearly crossed the line to child abuse, I’m not suggesting allowing children to play football is abusive. I’m merely stating that people have much different ideas of how children should be raised and what they need to experience.
There are many who consider football to be a necessary rite of passage. Like dangerous farm life, sports injuries seem to be considered inevitable by many. That is, until a horrible injury occurs and then the power of law is brought against the manufacturer of helmets and others.
How Can Products Liability Insurance Mitigate or Prevent Football Injuries?
Manufacturers have a duty of care to all those who can reasonably be expected to use their product. This care might include a duty to: prevent product flaws, properly design the product, carry out effective testing, provide effective warnings, and properly recall defective products.
Insufficient labeling has led to many large product liability cases. It might be considered cynical when plaintiff attorneys complain that labels on football helmets are a “smokescreen”. Those labels are a desperate attempt by manufacturers to meet the disclosure standards required by law.
Our legal process is not perfect. Attorneys shouldn’t be unduly criticized for advising their clients on ways to avoid court.
The first year I was in the insurance business I worked for a company that insured a lot of school districts. A teenager broke through a skylight of a school building and hurt himself on a power saw in a school shop. A case was brought for damages against the school district. The insurance company’s defense attorney presented an argument that included the discussion of the teenager’s status as a trespasser. The judge said, “Don’t talk to me about matters of liability. That boy is hurt and someone has to pay for it. The only party to this action who has money is the school’s insurer and they need to accept their responsibility.”
Later that same year I witnessed my company fly in the top defense lawyer in the nation at that time to defend a school district in a corporal punishment case. The facts seemed to support a large award and our company did not want a precedent set. They spent a great deal of money for courtroom magic to win that case.
Poor judges and fat pockets create bad law and unjust decisions. Staying out of court should be the first order of business for any attorney.
Will Football Manufacturers be Faced with Strict Liability?
There is a legal theory of strict liability, which imposes liability without fault. An example of this might be the strict liability imposed by statute on owners of certain breeds of dogs. A product manufacturer incurs strict liability if it knows a product to be defective before it reaches the plaintiff.
It is possible that insurance underwriters might soon reach the conclusion that helmet manufacturers are aware they’re shipping defective helmets in that they do not prevent head injuries, which is seemingly their function. If this were to happen the other parties would be put at risk.
When a loss occurs many entities are sued, including schools, coaches, helmet conditioners, sporting goods stores, and others in addition to the manufacturer. If the manufacturer doesn’t have sufficient insurance to pay claims and legal defense, the plaintiff attorneys will look to the other parties.
If the manufacturers of helmets can’t obtain products liability insurance, it is very unlikely the other parties will be able to find insurance for that risk.
Can Football Change?
When I played football, a main area of concern for football players was knee injuries. I was taught by my high school coach to block effectively in the open field by making initial contact as low as possible on my opponents body. We were to continue the blocking motion by rolling up the leg. Our coach used to tell us to hit them at the shoelaces and roll up to their knees. That was before arthroscopic surgery so most knee injuries resulted in long scars and marked the end of a person’s athletic career.
Fifteen years after graduating from high school a friend talked me into becoming a football official. I was shocked by how much the game had changed. For example; players blocking outside the blocking zone and after the initial contact of the play, had to make initial contact above the waist.
Through changes in rules, football has reduced the frequency and severity of knee injuries. Drastic changes might be needed to keep as much of the game as possible while reducing the frequency of traumatic brain injury.
Will Football Change?
Two decades ago I was coaching youth soccer and serving on the local soccer board. The soccer community at that time was deep in controversy over “headers”. Serious brain injury can result from the repetitive damage to the brain from hitting the soccer ball with your head. My daughter played collegiate soccer and she had a teammate who eventually dropped out of college because her short-term memory had been impaired by too many headers.
Twenty years ago the soccer world conducted study after study and finally concluded that making players wear helmets would cause more injuries than it would prevent.
My first boss in the insurance industry attended Notre Dame on a football scholarship. I was kidding him one day about playing without a helmet. He said they started using helmets two years before he got there. I believe he was pulling my leg in that helmets were widely used in the 20’s, but the salient point is that football was played for decades without helmets.
In 2009 a Wall Street Journal article called for the ban of football helmets or the removal of face bars. They pointed to Australian football, which is just as rough as American football, but has 25% fewer head injuries . . . with no helmets. Opponents state it wouldn’t be football without helmets.
My high school would say that what kids are playing today isn’t football. The second year I was an official “spearing” became illegal. Up until that time, players were taught to tackle by hitting the opponent with the crown of your helmet . . . aimed between the numbers on his jersey.
Things change because they have to change.
My crystal ball foresees a court ruling that saddles helmet manufacturers with strict liability. That will render them uninsurable for products liability. When that happens the game will either change or will end at the school level. The NFL needs the schools to provide a feeder program of talent. Those who say it wouldn’t be football without helmets would be faced with a choice . . . football without helmets or no football at all.
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