May 30, 2019
By: Brian G. Miller with Diane Long
On June 12, 2018, a jury in St. Louis deliberated for two hours before awarding former NFL running back Reggie Bush 12.5 million dollars in damages from an injury he sustained playing against the Rams at the Edward Jones Dome in November 2015. Bush was pushed out of bounds during a play and while attempting to stop himself he slipped on the now termed “concrete ring of death” that encircled the field. A video of the play is available here (don’t worry it isn’t graphic).
If you watch the video, your response might be: “This doesn’t look like an eight-figure injury.” Granted, this video is not nearly as bad as some professional sports injuries of years past (Joe Theismann anyone?). Let’s break down the jury’s verdict to see how they may have come up with these numbers and why Bush’s verdict is not typical of a slip and fall case.
Bush was awarded $4.95 million in compensatory damages, that is, the losses he incurred due to his injuries. This number seems reasonable given Reggie Bush’s status as professional athlete.1 Bush’s complaint sought compensatory damages from lost wages, medical expenses, loss of future earnings, and pain and suffering. Bush’s attorneys likely argued to the jury that he received a lesser salary the following year due to his injury, that Bush ended his career early because of the injury, and certainly that he deserved compensation for his medical expenses and pain and suffering from the injury and subsequent recovery.2
However, the real payout here came in the form of punitive damages at $7.5 million. Punitive damages are not awarded to help make an injured plaintiff whole but solely to punish the conduct of the defendant. Here, Bush and his attorneys argued that the Rams organization should be subject to punitive damages because their actions exhibited a reckless indifference or conscious disregard for the safety of their invitees.3 Presumably, this argument was enhanced by the fact that a week prior to Bush’s injury another NFL player slipped on the “concrete ring of death” and was injured.4
Before you go running to a personal injury attorney next time you slip at the grocery store remember a few things. First, be realistic. You are not Reggie Bush and your lost wages will likely not add up to that of a professional football player’s. Furthermore, your defendant probably isn’t a professional sports franchise that angered an entire city by relocating away from it right before trial. Second, remember any amount you receive will have attorney’s fee, costs, and subrogation deducted from it.5 This will be a discussion your attorney should have with you in determining whether it is in your best interests to pursue the case.
Third, in many instances, the law makes it particularly difficult to succeed in a slip and fall case. There are varying levels of responsibility for landowners depending on what “type” of guest gets injured on their property landowners also enjoy the protection, generally, of the so-called “open and obvious” danger rule. Landowners generally have a duty of reasonable care to inspect the premises and warn their guests of any dangers they may encounter. However, this only applies to guests who, in Ohio, are deemed “invitees” (and require the highest level of care and protection). Furthermore, in most states, landowners are not liable to an injured person if the resulting injury was from a danger that is outwardly observable and thus considered “open and obvious.” An open and obvious danger is one that a reasonable person would be expected to discover and by its very nature does not require the landowner to warn the invitee.
The big takeaway here is this: If you have a slip and fall case do not expect a verdict like the one Reggie Bush received. However, even though the law can make slip and fall cases difficult to pursue, in a case that has sizeable compensatory damages, and/or the possibility of punitive damages it is worth discussing your potential claim with a reputable personal injury attorney to obtain some guidance with respect to what your rights and options might be.
1 Bush officially retired in December 2017 after a lackluster 2016 season with the Buffalo Bills, ending his 11-year professional football career. (http://www.espn.com/nfl/story/_/id/23773883/los-angeles-rams-ordered-pay-reggie-bush-125m-injury)
3 Two prerequisites for allowing punitive damages are (1) demonstrating some element of outrageous conduct; and (2) showing the defendant acted with a “willful, wanton or malicious culpable mental state.” Poage v. Crane Co., 523 S.W.3d 496, 515 (Mo. Ct. App. 2017).
5 It should also be noted that Reggie Bush will not receive the entire sum of his verdict. In Missouri, 50 percent of punitive damages paid by a defendant goes into a victim’s compensation fund to help tort victims who are unable to obtain damages from defendants.