Reggie Bush, Dustin Fowler, and When the Law Goes in a New Direction

Back in April, I examined current A’s center fielder Dustin Fowler’s pending lawsuit against the White Sox, arising from the injury he suffered when he ran into a concealed electrical box whilst running after a fly ball. Fowler filed a negligence suit, which requires that a plaintiff plead and prove the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, an injury proximately caused by the breach, and damages.

On Tuesday, retired NFL running back Reggie Bush won a case that, as reader Sean Logue has anticipated, might be relevant to Fowler’s lawsuit. Here’s the pertinent information, per CBSSports’ Sean Wagner-McGough:

Midway through the 2015 NFL season, then-49ers running back Reggie Bush suffered a season-ending knee injury when he slipped on the concrete ring surrounding the field at the Edward Jones Dome, the Rams‘ former home in St. Louis. More than two-and-a-half years later, the Rams were found liable for the injury.

On Tuesday, a St. Louis jury ordered the Rams, who now reside in Los Angeles, to pay Bush $4.95 million in compensatory damages and $7.5 million in punitive damages for a grand total of nearly $12.5 million, according to the St. Louis Post-Dispatch. Dan Allmayer, a lawyer for the team, said that they plan to file a motion for a new trial.

Like Fowler has, Bush also sued in negligence. Here’s his complaint. The factual allegations of their cases differ: Fowler ran into a hidden electrical box, while Bush tore his ACL on a “slippery concrete surface” surrounding the playing field. (Here’s video of the injury, for context.) From a legal perspective, however, the lawsuits are remarkably similar. Both allege that the respective defendants had exclusive control over the respective stadia, that the defendants knew about the existence of a hidden dangerous condition, and neither defendant took any steps to warn players.

It’s worth noting that merely because similarities exist in the legal aspects of this case, that doesn’t necessarily mean a whole lot, because of something called precedent. You’ve probably heard that term thrown around, but it has a very specific legal meaning. For lawyers, a precedent means one of two things: (1) a prior decision on a particular point of law that requires other, usually lower, courts to follow that decision (called “binding authority”), or (2) a prior decision on a particular point of law that is not binding, but has analysis so insightful in a case so analogous that it could be considered persuasive to the court in another case (called “persuasive authority”).

A full explanation of which courts have to follow which precedents would take hours and bore you to tears, so here is your rule of thumb: written, published opinions on a rule of law by a court of last resort — i.e., the Supreme Court of a state* or the United States — is almost always precedential on all other courts in that system. And written, published opinions by intermediate courts — i.e., Appellate Courts or Courts of Appeals — are almost always binding on courts in their system below them. And there are lots of separate court systems in the United States – the federal courts and each state’s own court system and the court systems of the various territories.

*There are some outliers. For instance, as anyone who’s ever watched Law and Order knows, the court of last resort in New York is called the Court of Appeals (which is what most states call their intermediate courts), and the trial court is called the Supreme Court (which is what most states call their highest court).

What all that means is that a decision by a state Circuit Court judge sitting in Chicago generally (as always, there are exceptions) isn’t in any way binding on a judge on the Court of Appeal in New York or a member of the New York Court of Appeal. But it also means that a decision by the New York Court of Appeal is generally not binding on the Circuit Court in Chicago, either. And the same goes for a federal court: what a federal court decides in a given case isn’t usually binding on a state court, and vice versa.

All of this is relevant because, if Dustin Fowler’s lawyer decided he wanted to cite Reggie Bush’s case as a precedent in his own lawsuit, he won’t really get very far. That’s because Bush’s case was pending in the 22nd Judicial Circuit in Missouri. Fowler, meanwhile, filed his case in state court in the Circuit Court of Cook County, Illinois, and then it was removed to federal district court for the Northern District of Illinois. The Missouri court’s decision isn’t going to be in any way binding on the court hearing Fowler’s case. And as for the second type of precedent, persuasive authority, it doesn’t really hold a lot of water, either, because it’s a trial-court decision that hasn’t yet been subjected to appellate review.

Nor is that the only way in which Bush’s case might not be totally helpful for Fowler. Right now, the parties in Fowler’s lawsuit are awaiting ruling in Fowler’s motion to remand — his request to send the case back to Illinois state court. Reggie Bush’s case was dealing with a different CBA with different terms, so it doesn’t help Fowler in that regard. And even if Fowler wins the motion to remand, or gets past a motion to dismiss and gets to trial or summary judgment, Bush’s case is a bit of a mixed bag. While Bush won millions of dollars from the Rams, he originally didn’t sue only the Rams. He had also sued the St. Louis Regional Sports Convention Center and the Regional Convention and Visitors Commission, the municipal agencies which owned and operated the Edward Jones Dome, where the Rams played at the time. And Bush lost his case against those defendants on what is called a directed verdict, with the court finding that the municipal defendants didn’t exercise exclusive control over the venue at the time of Bush’s accident.

That ruling, if upheld, could throw Bush’s verdict against the Rams into doubt on appeal (for reasons we don’t have to address right now). But it also makes the case of limited value to Fowler’s lawyers. Remember that, like Bush, Fowler sued both Chicago White Sox, Ltd. (the limited partnership that owns the White Sox) and the Illinois Sports Facilities Authority (the Illinois government agency that actually owns Guaranteed Rate Field, where the White Sox play). If Judge Feinerman were to follow the Bush script, he’d end up ruling for the Illinois Sports Facilities Authority on Fowler’s claim against them. And that could be really damaging.

To be fair, the White Sox’ lease with the ISFA is almost assuredly different than the Rams’ was with St. Louis, and for that reason alone the ruling is probably inapposite. But the difficulty with precedents is that it’s hard to simultaneously analogize and distinguish the same case, even if it’s different facets of that case. In this business, you take precedents as you find them, for good and bad. Nevertheless, if I’m Fowler’s lawyer, I’m at least making sure my judge knows about this verdict: it can’t hurt, and it shows that Bush at least got past the traditional assumption-of-the-risk and labor law preemption arguments for dismissal that I noted when originally covering Fowler’s lawsuit. Beyond that, however, I wouldn’t call it a game-changer, at least for Fowler.

All of that said, this verdict could — I stress could — actually be a really important moment in the law, at least when it comes to the liability of teams and stadium owners relative to player injuries. Remember that it’s really hard — and therefore really rare — for a professional athlete to sue for an injury sustained on the field. Verdicts like the one in Bush’s case, for an injury sustained in game activity and without the intentional act of another, are incredibly rare in the modern law. So this could actually be a significant change in what duty courts impose on teams when it comes to opposing players. But its importance won’t be in the verdict itself, most likely. Instead, its importance will be if it’s upheld on appeal. That’s because the reasoning used by the Appellate Court — and whether they give the rule they use to uphold it a broad or a narrow reading — will determine how broad of a sweep it has on other circumstances. This verdict was confined to this set of facts; the appeal disposition won’t be.

And if it’s a broad reading, it’s at least plausible that far more than Dustin Fowler’s case will be impacted. The immediate fallout could be on things like artificial turf surfaces, like that in Tampa. At least some studies suggest that injury rates are higher on turf than grass, though the data is (to put it generously) inconclusive overall. Wall padding and warning-track surfaces could also be the focus of test litigation.

Right now, though, this is all speculation. Reggie Bush’s verdict means something for baseball: that much we know. As for what it means, we’ll have to wait for the appellate opinion to find out. And if Fowler wins his case, too, it could well spell a new direction in tort law moving forward.