Pop Warner football lawsuit: Is kids’ football an abnormally dangerous activity?

Is Kids’ Football an “Abnormally Dangerous Activity”?

Is Kids’ Football an “Abnormally Dangerous Activity”?

The law, lawyers, and the court.
March 17 2015 10:14 AM

The Lawsuit That Could Threaten Kids’ Football

A court considers whether football’s “value to the community is outweighed by its dangerous attributes.”

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The plaintiff wants youth tackle football to be abolished.

Photo by Brian J. McDermott/Flickr Creative Commons

Is youth football an “abnormally dangerous activity”? And if so, should kids be allowed to play it?

The first of those questions is raised in a complaint recently filed in a federal court in Wisconsin. Debra Pyka, the bereaved mother of a young man who committed suicide, is claiming that her son’s involvement in Pop Warner football led to traumatic brain injury that eventually sent him into a spiral of paranoia and depression, culminating in his death. Her son, Joseph Chernach, played on a Pop Warner youth football team from the age of 11 through 14. An autopsy revealed that Chernach had chronic traumatic encephalopathy (CTE), a type of brain damage sadly predictable in middle-aged and older men who have played football, but rare for someone who died at age 25. (Concerned about the danger of such brain damage, San Francisco 49er Chris Borland just announced his retirement after his rookie year.) Briefing on the case should be completed this week, and then the court will decide whether the claim can proceed.

Pyka is also trying to answer the second question: She’s been quite vocal in her position that tackle football for kids should be abolished, and she hopes that her suit will lead to exactly that result, by making the activity too expensive to carry on. She’s not the first to make the argument against youth football. In late 2012, Slate’s own Stefan Fatsis reported on a high-level, roundtable discussion convened to answer the question: “How can football serve children, communities, and public health?” His answer: “By disappearing.”

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There are many sound reasons for that conclusion, but most important of them are these: Kids aren’t developed enough to withstand the concussive force of football collisions. The neurons in their brains haven’t yet fully myelinated—meaning their nerve cells’ connecting fibers aren’t fully sheathed to protect them. And kids’ heads are too big for their bodies, creating a “bobblehead” effect that leaves them more susceptible to injury, as their brains crash back and forth in their skulls. (A horrifying image, I know—but that’s sort of the point.)

These facts aren’t disputed, and Pop Warner has taken steps to reduce the danger, principally by enforcing a “heads-up” tackling rule, safer because the bodies, not the heads, are supposed to collide. Pop Warner has also limited the number of contact minutes the kids have each week, and done a better job training coaches to spot potential concussions and get the kids out of the game. But none of this prevented the disaster of a Massachusetts Pop Warner game in late 2012 that resulted in no fewer than five concussed kids. Football can be made safer, but perhaps not safe enough, and precautions are only as effective as the coaches and officials enforcing them.

The evidence presented by neurosurgeons and brain researchers isn’t likely to dislodge youth football from the precincts popularized by Friday Night Lights, but the constant chatter about risk has led many parents to rethink whether their sons should be allowed to suit up. This new lawsuit may turn out to be another flank in what looks to be a protracted, and occasionally heated, war over youth football, and about the sport more generally. The NFL’s troubles with head injuries have come to be well known, making it perhaps inevitable that the concern would seep down through college, high school, and youth football.

Debra Pyka is trying to shock the conversation into high gear. Ingeniously, the complaint leverages the emerging idea that football is inherently dangerous, no matter what precautions are taken. It does that through the bold claim that Pop Warner should be liable for carrying on an “abnormally dangerous activity”—in other words, an activity so dangerous that the defendant should be liable even if the plaintiff can’t prove negligent conduct. This theory of liability without fault (“strict liability” is the legal term) is well-established in tort law, but it is little known outside of legal circles—perhaps because courts have applied it rarely and unpredictably. For instance, while one court found that transporting flammable liquid via highway was abnormally dangerous, another court found that transporting volatile chemicals via rail was not. And as far as I’m aware, it has never been tried—much less has it succeeded—in the sports context.

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But given the factors courts look to in deciding whether to treat an activity as abnormally dangerous, Pyka’s claim is at least plausible. The federal court in Wisconsin can be expected to follow that state’s approach, which is the same as the analysis used in most states. There are six factors to consider, and a court can choose to assign each factor whatever weight it thinks makes sense in the case before it. They’re factors, not requirements.

The first three factors tilt heavily in Pyka’s favor. First, does the activity carry a high degree of risk? Second, is the harm resulting from injury likely to be great? Third, can the activity be made safe? When, as in this case, the answers to the first two questions are “yes,” and the answer to the third one is “no,” the plaintiff is off to a good start.

The next two, though, will be stronger for Pop Warner (and its insurer, also named as a defendant): Is the activity common? And is it appropriate to its location? These factors are important, because courts don’t want to make everyday activities, such as driving, occasions to impose liability without fault. Football is certainly common, and as long as it’s being played on a football field, appropriate to its location. In the just-filed motion to dismiss the complaint, Pop Warner emphasizes these weaknesses in Pyka’s case.

The last factor invites a court to throw the whole question into a blender of its own making, because it asks whether football’s “value to the community is outweighed by its dangerous attributes.” That’s really just another way of raising the question of whether youth football is too dangerous to be played, at least without compensating those who are injured through their participation. But will a court be willing to reach that conclusion, or will it punt the issue to other authorities, such as the state legislature? States have already begun to address the issue of concussions in youth sports (although mostly at the high school level).

The court might also try an end run (sorry!) around reaching a broad conclusion about whether football is an abnormally dangerous activity. It has two ways to do that. The first would be specific to this case. Pyka might have trouble showing that her son’s CTE was caused by playing Pop Warner football. She admits that he never had a concussion, and it might have been that Chernach’s high school football career was the CTE culprit. The second approach would be to hold that families assume the risks of serious harm when they allow their kids to suit up. That strategy might also allow Pop Warner to sidestep the deeper question whether higher-ups in the organization should have known of the risks to an extent that parents wouldn’t have been aware of.

It’s sadly predictable that Pyka’s efforts have been met with vitriol—some people have accused her of ruining a harmless activity; others have called her a child abuser, and even told her to kill herself. (Football builds character, apparently.) Pyka’s detractors needn’t worry, though. Even in the unlikely event that she wins her case, youth football isn’t going anywhere. But a finding that Pop Warner—or any other football organization—is carrying on an abnormally dangerous activity would surely drive up the cost of insurance, and therefore make the sport more expensive for participants. It might also make more parents question whether they want to risk their children’s safety, an ongoing conversation that Pyka seems happy to contribute to.

Maybe that’s the best outcome, at least for now—spreading the cost and compensating the most seriously injured. That would be a good start, but we’re a long, long way from making the sport disappear.