In the event of a serious head or neck injury, the plaintiff’s attorney will likely sue the helmet manufacturer/ distributor; add on product manufacturer / distributor; team / league; individual administrators; coaches, managers, trainers, and referees; and possibly the sanctioning body organization. Each will likely point the finger at the other defendants and will plead all the legal defenses that are available such as the absence of negligence, the other defendants were negligent, assumption of risk, waiver / release, etc.
What does product liability case law say about the legal defenses that are available to helmet manufacturers that may be triggered by the unauthorized use of add on products? Here is a list of such defenses:
- Improper Use Defense — Helmet was not used in manner intended by helmet manufacturer when plaintiff (injured party) was injured.
- Product Labeling And Directions Defense – The plaintiff or other responsible parties (parent, team, league, etc.) ignored the written warnings, directions, and risks that were communicated in helmet manufacturer’s materials.
- Altered Product Defense – The helmet manufacturer is not responsible for plaintiff’s damages if the plaintiff or other party altered the product once it left the helmet manufacturer’s control and furthermore the alterations caused the plaintiff’s injury rather than the original unaltered helmet.
Should Players, Parents, Teams, and Leagues Use Add On Products Due To Concussion Concerns?
Based on the analysis above, from a legal and risk management perspective, it is safest to follow the recommendations of the helmet manufacturers as regards the use of add on products. If you follow their recommendations, they will be the deepest pocket in the event of a catastrophic head or neck injury in your program. The major helmet manufacturers likely carry a combined General Liability / Excess Liability insurance limit in the range of $10M to $25M. On the other hand, the add on product manufacturers likely carry much lower limits of liability insurance due to their restricted start up budgets.
However, if your sports program is going provide or allow the use of add ons that are declared by the original helmet manufacturer to void the NOCSAE certification, despite the liability risks of doing so, it is recommended that your program carry its own General Liability / Excess Liability policy with combined each occurrence limits of at least $5,000,000 such as the insurance program provided by American Youth Football. In addition, the requirement that players and parents sign an appropriately worded waiver / release agreement that specifically warns of the dangers of violating the manufacturer’s instructions as regards add on products should be considered.
Additional research may vindicate many of the add on product manufacturers to the point where public demand will force the major helmet manufacturers to accept their products if they are proven to promote safety.
