Expert Witness: Expert Plays Key Role in Judgment

This case discussion is provided by Dr. Leonard K. Lucenko, a sports and recreational facilities safety expert.

Case Facts:

In September 2002, the plaintiff was playing a recreation hockey league game on the Red Rink at the defendant ice hockey facility.  This was the first time the plaintiff had played a league game at this venue.  Management had failed to warn the plaintiff or the other players that the kick plate on this rink was broken and cracked in several areas around the rink.

At the second-period face-off the plaintiff skated after the puck at top speed.  As he attempted to control the puck, his left skate became lodged in a crack in the kick plate while his momentum carried his body forward.  At that point there was a loud snap and he felt excruciating pain.  The plaintiff fell to the surface and remained there until medical assistance arrived.   He sustained a compound fracture of the left ankle and underwent several surgeries, one of which required the insertion of screws and plates in the ankle.

Inspections and Discovery:

Several months after the injury, I traveled to the defendant facility and conducted an unofficial inspection of the rink on behalf of the plaintiff.  The plaintiff’s wife was able to show me the location of the accident site.  We discovered that the defendants had replaced the kick plate in the area of the injury, but had not replaced other areas of the kick plate that also had cracks.  We found the pieces of the kick plate that had been replaced in another area of the facility and I was able to take photographs depicting the defective conditions.  (Click on photos to enlarge or create a slide show)

In September 2004, I submitted a preliminary expert report expressing my opinion that defendants should have established and followed an appropriate inspection and maintenance program that would have enabled them to detect and correct the cracks and other hazards present in the kick plate.

Several years after submitting my report, I was provided with additional materials generated during discovery.  Among the materials provided were the Official Rules of USA Hockey. Rule 102 states the following:

The boards shall be constructed in such a manner that the surface facing the ice shall be smooth and free of any obstruction that can cause any injury to players.

As the defendant facility was an approved facility for USA hockey league games, it had to follow all USA Hockey rules, including Rule 102.  My initial inspection clearly showed that the kick plate did not follow the above rule.  Additionally, a review of the depositions of the management and staff of the facility indicated that they had no knowledge regarding fundamental risk management safety principles in the operation of a recreational sports facility.  They did not recognize the need for inspection and maintenance procedures and did not take a proactive stance in providing a reasonably safe facility for the public. They had no clue that the hazardous condition of the kick plate was an accident waiting to happen.

I was able to conduct official inspections of the facility in September 2006 and January 2007.   During these inspections, I observed that the defendant had not corrected any of the hazards I had noted during my inspection in 2002.  Among the defects that I found, was that the kick plate was not flush in some areas of the rink.  I also found that there were large open cracks, buckling, and other hazards along the kick plate. In addition, the ice surface was not even around the entire circumference of the rink and the surface was irregular and contained ruts.  Clearly, the condition of the defendant facility did not comply with the USA Hockey rules.

It was also revealed during discovery that the youth hockey league using the rinks was so concerned about the hazards at the rink that they requested that USA Hockey conduct an inspection.  USA Hockey conducted the inspection in the summer of  2003, one year after the plaintiff was injured.  The inspector reported that there was lack of inspection and maintenance of the facility as well as a hazardous condition on the ice in the Blue Rink.  The inspection resulted in USA Hockey prohibiting any youth hockey games from being played on the Blue Rink.

I was deposed after submitting my reports and testified that the defendant failed to establish any inspection or maintenance procedures.  I also testified that the hazards that were allowed to exist on the ice skating rinks created the dangerous conditions that led to the plaintiff’s injury.

Trial:

Unlike many personal injury cases, this case went to trial. Prior to testifying, I selected several photographs that clearly depicted the defective condition of the kick plate.  These photographs were blown up and during testimony I was able to not only show the jurors the hazards existing with regard the kick plate but also explain how these defects were directly responsible for the plaintiff’s injuries.  The jurors were able to see and understand how this injury occurred, as well as the defendant’s negligence in permitting these conditions to exist.

After testimony, the jury found the defendant 100 percent negligent and awarded the plaintiff $1.3 million.  The jury found that the defendant failed to inspect and maintain the rink in a proper and safe manner and that it failed to record  any maintenance or inspection records for the rinks.

Conclusion:

As an expert witness, I was able to show the jury that the defendant facility failed to discharge its legal responsibility and duty to provide a facility that is reasonably safe and free from hazardous and dangerous conditions.  It also failed to provide for the health and safety of the patrons and public using its facility and in fact created the dangerous conditions that placed the public at unacceptable risk for injury.

Leonard K. Lucenko, PhD is an experienced expert witness, having consulted for more than 20 years for defendants and plaintiffs in over 300 cases in education, sport, recreation and camp management.  He is a former soccer and track coach as well as the coordinator of the Recreation Professions Program at Montclair State University. Dr. Lucenko taught the ASEP coaching course as well as undergraduate and graduate courses in Administration and Supervision of Physical Education and Athletics.  He has presented papers at ASTM’s International Symposia concerned with Football, Baseball, and Ice Hockey.  He presented a risk management and safety lecture to elite coaches at the US Olympic Training Center in Colorado Springs.  He was also invited by Major League Baseball to present risk management and safety programs for its RBI Division.  Dr. Lucenko is a Diplomate of the American College of Forensic Examiners and many other professional organizations such as AAHPERD, NRPA, NSCAA, American Camp Association and more.  Dr. Lucenko’s web site is: www. lucenkoleonard.com.