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Chmiel and Josefiak Win on Appeal Regarding Assumption of Risk and Football


December 2016 --- In the matter of Butchello vs. Herberger, the plaintiff Travis Butchello, suffered a serious injury (specifically, the loss of an eye) while playing junior varsity college football. Butchello argued that our client, Michael Herberger, was lined up across from him as a defensive end. Butchello was playing the position of offensive tackle. In a running play, Butchello fell to the ground. As he was getting up to his feet, but before the whistle blew to signify the end of the play, Herberger blocked Butchello by placing his hand in the vicinity of Butchello’s facemask. Unfortunately, he inadvertently injured Butchello’s eye.

The Appellate Division, Fourth Department, ruled that Herberger’s actions did not represent a “flagrant” infraction unrelated to the normal method of playing football. Specifically, it was found on appeal that Butchello assumed the risks of injury by voluntarily playing football.

This decision is significant in that it affirms the doctrine of primary assumption of risk. This doctrine holds that experienced participants in sports assume the risk of injury, providing they were caused as a normal part of the game. We argued to the court that, if it did not apply this principle to the matter before it, it would set a precedent whereby anyone could successfully sue for virtually any injury incurred in sports, so long as they could show even the slightest infraction of the rules. This could, of course, lead to additional lawsuits.

The appellate brief was written by our associate, Rebecca R. Josefiak, Esq. The appeal was argued by partner, Michael J. Chmiel, Esq.

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