About a year-and-a-half ago, I wrote a post about how assumption-of-risk principles might apply to the claim that ex-NFL players were suffering from dementia and other chronic brain problems due to repeated blows to the head. I didn’t realize at the time that we would see a lawsuit against the league along these lines so soon. While extensive discovery is still ahead, there is a decent chance that the NFL will be found liable for not doing more to protect players.
One issue in the case is “What did the NFL know and when did they know it?” If this is like the tobacco litigation and NFL officials knew, say, 20 years ago, that there was a problem and did nothing, then liability is all-but-certain. It is more likely, though, that this is not true. What then? Product liability suits with a long latency period (the time between exposure and symptoms) pose very tricky problems. One way of viewing the issue is that it is unfair to hold a firm liable when the consensus was that the product was safe–how were they supposed to know better? Another thought is that a firm that puts a product into the stream of commerce and injures people should always pay because they profited and to do otherwise would force an innocent victim to bear the loss. Complicating that is the extent to which the consumer is aware of a risk, though not THE risk, of the product. Obviously football players knew that they could get seriously hurt. But does it matter that they did not know that they could get hurt in the way that, say, Dave Duerson was?
This is actually not a bad topic for a symposium, but in the meantime what do you think? (The prospective question of how you can make football safer is a separate issue.)