American Sports As A Target of Terrorism: The Duty of Care after September 11th

I.Introduction

The American sports industry responded quickly and decisively in the wake of the September 11, 2001 terrorist attacks on the World Trade Center and the Pentagon.As the nation mourned, sports leagues, teams and venue operators postponed games.Giants Stadium was turned into a staging ground for volunteers and supplies for rescue workers at Ground Zero.With President Bush's call for the nation to get back to business, the American sports industry worked tirelessly to enhance security at events and venues throughout the country before resuming play.Working cooperatively with government officials, law enforcement, the military and security experts, leagues, teams and venue operators conducted threat and vulnerability assessments and took aggressive actions to "harden" or protect their "assets" - the athletes, the spectators and the venues.Extraordinary efforts were employed at the World Series, the Super Bowl and the Olympics to prevent further acts of terrorism, all with great success, all with enormous price tags.It is estimated by way of example, that security at the Winter Olympics in Utah cost $310 million.Steve Woodward, Street & Smith's Sports Business Journal, Security Effort is Always Olympic Event, Vol. 4, Issue 42, at 1, 23 (Feb. 4-10, 2002).

As we look toward the future, the American sports industry is faced with a number of difficult issues:

1)What is the continuing threat against American sports?

2)How do we balance the continuing threat against the need to "get back to business"?

3)What is the duty of care that leagues, teams and venue operators owe players, employees, and fans?

II.Balancing the Threat of Terrorism Against the "Need to Get Back to Business"

September 11^th has redefined the way in which Americans view the world and has literally brought "home" the realistic threat of terrorism.For many of us, we only learned in depth about the history of the threat posed by Osama Bin Laden, the Al Qaeda and other extremist groups after our attention was riveted to the collapsing World Trade Center Towers and the question of how could this have happened.Hopefully, we have learned that one of our greatest threats is "complacency."

Nonetheless, only six months after September 11^th, it was reported that some sports facility managers were "considering whether some of the extreme measures taken after the terrorist attacks should be eased or abandoned completely¿"See Steve Cameron Venues Revisit Safety vs. Cost as September 11^th Recedes, Street & Smith's Sports Business Journal, at 1 (March 11-17, 2002).A May 2000 article in Security Management entitledBuilding in Terrorism's Shadow written some eighteen months prior to September 11^th, however, gives us an ominous warning of the risk of complacency:

While the World Trade Center and Oklahoma City bombings may be gradually receding into the collective subconscious, leading the public to become complacent, more recent events indicate that the terrorism threat remains¿ (and is) a stark reminder that the physical protection of America's signature properties continues to be a critical security issue.

Michael Gips, Security Management, Building in Terrorism's Shadow, at 1 (May 2000).

American sporting venues must continue to be viewed as "American signature properties" subject to the real and present threat of a terrorist attack.We have routed the Taliban, but Osama Bin Laden's whereabouts are unknown.We have learned that the tentacles of the Al Qaeda network not only stretch across many nations but into our borders and that the hijackers lived quietly among us until they were summoned to carry out their holy war through acts of martyrdom with previously unimaginable consequences.As difficult as it is to comprehend, we must remember that these terrorists fundamentally believe in the destruction of America.

We must remain on heightened alert as a nation and we must continue to be vigilant. In testimony before Congress, on February 6, 2002, Mr. Dale Watson head of the FBI Counter-Terrorism Effort talked about the terrorism threat confronting the United States and warned that:

The Al-Qaeda and other groups associated with the international jihad movement will continue to focus on attacks that yield significant destruction and high casualties, thus maximizing world- wide media attention and public anxiety.As government and the military harden key assets the terrorists will move to others.

As high profile, large public gatherings that celebrate American popular culture, sporting events are, and will remain, a potential target of terrorism for the foreseeable future.So, as a sports lawyer, what should you be doing on behalf of your clients?As lawyers we prefer an analytical framework for approaching a subject.Here we suggest a four-prong test:

1.What is the threat to my client or my client's business?

2.What are my client's vulnerabilities to a terrorist attack?

3.What have we done, can we do, reasonably to protect against those threats?

4.What have we done to enhance our capability to respond to an incident?

In the aftermath of September 11^th, most leagues, teams and venues went through a comprehensive threat assessment and established updated security guidelines and practices to meet the increased threat.The National Football League, by way of example, created a security task force and issued to teams a "best practices guide" of recommended security measures before resuming play.Some of the new security measures included: heightened security on a twenty four (24) hour basis, use of hand held metal detectors and search of all small bags and personal items; bans on backpacks, large purses, coolers, bags, etc.; parking prohibitions, limited vehicle access near the stadium, and road barricades; increased security personnel; additional surveillance equipment; as well as other internal security measures.

One of the more difficult issues for operators of specific venues and events has been determining just what the potential threat level is that they are protecting against.Since September 11^th the nation has been warned to be on a heightened state of alert because of the continuing threat of a terrorist attack.Except for specific high profile events, such as the World Series, the Super Bowl or the Olympics, which logically are greater symbolic targets, the available threat information is general at best, causing leagues, teams and venues to prepare for a range of possible incidents at their facilities and to maintain close contact with federal, state and local law enforcement representatives regarding possible threats.

So far, the public has accepted the additional security and has come to expect it and even demand it.As the nation begins to accept increased security as a necessity in light of the continuing threat, it is important that leagues, teams and venues institutionalize security measures in policy and procedure guidelines, train personnel on the guidelines and stage exercises to drill and test incident response plans.It is also essential to educate the stakeholders - players, fans and employees - about the necessity of adherence to the new practices, the inconveniences that will be caused by the new practices, and, yes, the costs generated by the new practices.By conducting threat/vulnerability assessments, by establishing clear guidelines and procedures, by training personnel on those guidelines and procedures, and by conducting incident drills, leagues, teams and venue operators can take significant and effective measures to prevent and prepare for a terrorist incident and in so doing meet their duty of care to players, fans and employees.Whatever the after the fact analysis of the duty of care may be for a specific incident, the fundamental question will always be whether or not reasonable steps were taken to protect against an incident in light of the availability of security measures, the industry "standards" for security, and the potential threat of terrorism.

Just what is the duty of care that leagues, teams and venue operators owe players and fans?Obviously, since we have never experienced an attack of the magnitude of the potential threat posed by a terrorist attack against an American sports target, there is no specific guidance on the issue, but we can turn to duty of care cases generally to establish a framework for analysis.

III.The Duty of Care Owed By Sports Venue

Operators and Owners to Spectators and Players

The legal duty owed to spectators and players is usually determined by the nature of the relationship between such parties as the facility owner, facility operator, team, and/or event promoter.In most cases, the relationship among the parties and the legal duties towards third parties are dictated by contracts that clearly delineate the duties and responsibilities of each party and include liability shifting provisions such as insurance and indemnification.However, in the absence of clear, enforceable contracts that dictate the legal duties and obligations of parties involved in hosting or promoting a sporting event, such parties could be potentially liable to injured spectators or players, for the criminal, or terrorist acts of third parties.

An owner or operator of a sports venue, like any other owner or occupant of a premises, is under a duty to exercise reasonable care under the circumstances to prevent injury to those who come to play upon its field and to those who watch the games played upon its field.See Romualdo P. Eclavea, Sports Playing Fields or Arenas, N.Y. Jur.2d § 106 (2002).Like any premises owner, there exists a duty to exercise care to make the conditions of a sporting venue as safe as they appear to be.Id.Actions by injured sports spectators or players are almost universally based on a theory of negligence.Actionable negligence is comprised of three elements: (1) the existence of a duty on the part of one person to exercise care to protect another against injury; (2) the breach of that duty; and (3) an injury to the second person resulting from the breach of duty.Id.

Both spectators and athletic participants are considered invitees within the business visitor category of section 332(1) and (3) of the Restatement (Second) of Torts.A business invitee is one who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.See Restatement (Second) of Torts § 332(1), (3) and cmt. e.The owner of premises owes a duty to business invitees to use reasonable care and diligence to keep the premises in a safe condition, or, if the premises are in a dangerous condition, to give sufficient warning so that the danger can be avoided by the use of ordinary care.Wal-Mart Stores, Inc. v. Rolin, No. 1001048, 2001 WL 1105519, *1 (Ala. Sept. 21, 2001).This general duty encompasses the legal duty to business invitees to protect them from those dangers reasonably to be foreseen.Stanton v. University of Maine System, 773 A.2d 1045, 1049 (Me. 2001).In fact, "foresight of harm lies at the foundation of the duty to use care, that is the risk of injury to another person, reasonably within the range of apprehension, that is taken into account in determining the existence of the duty to exercise care."See 62 Am. Jur.2d § 491, at 39-40 (1990).

The first concept of foreseeability concerns the foreseeability of the specific injury that plaintiff suffered, and focuses on whether the defendant's actions were the proximate cause of the harm.The second concerns general foreseeable risk that is crucial to determining the existence of a duty and to limit the scope of the duty found.Stanford v. Kuwait Airways Corp., 89 F.3d 117, 125 (2d Cir. 1996) (airline had duty to protect passengers from risk of terrorists boarding connecting flight). The court of appeals in Stanford found that the hijacking of a plane was a generally foreseeable risk.Id.The reasoning was that the airline-defendant's complacency had created a "zone of risk," where had it not been inactive, passengers would not have been harmed.A duty of general foreseeable risk arose when the airline knew:

(1) of the threatened attacks by Hezbollah terrorists;(2) that terrorists were boarding flights in dirty airports to infiltrate other airlines; (3) that the Beirut airport had extraordinarily poor security; and (4) that the four hijackers who boarded in Beirut had tickets which teemed with suspicion.A jury could reasonably find, under these circumstances, that if [the airline] did nothing, it would create a zone of risk that stretched at least as far as the innocent passengers aboard flights with which the four hijackers would eventually connect.

Id. at 125.Thus, where the circumstances indicate that an extraordinary occurrence like terrorism is in fact foreseeable, the duty to protect invitees arises.

Many states recognize that the owner or operator of premises may owe business invitees the duty to protect them against the criminal acts of third parties, especially where they have knowledge or facts indicating that such protection is necessary.See, e.g., Nallan v. Helmsley-Spear, Inc., 407 N.E.2d 451 (N.Y. 2001); Wright v. Preston Resources, Inc., 639 N.W.2d 149 (Neb. Ct. App. 2002); Hopper v. Colonial Motel Properties, Inc., 762 N.E.2d 181 (Ind. Ct. App. 2002); Wade v. Findlay Management, Inc., No. A02A0724, 2002 WL 122825 (Ga. Ct. App. Jan. 31, 2002); Eric J. v. Betty M., 76 Cal.App.4th 715, 90 Cal.Rptr.2d 549 (Cal. Ct. App. 1999).As such, an owner or operator of a sports venue may be obligated to take reasonable precautionary measures to minimize the risk of criminal acts and to make the premises safe for visitors when the facts indicate that such a risk is foreseeable.The scope of this duty does not necessarily increase when owners or operators have taken some security precautions on behalf of invitees.Taking such measures does not transform owners or operators into insurer of their invitee's safety.SeeKnudson v. Lenny's, Inc., 413 S.E.2d 258, 260 (Ga. Ct. App. 1991) (undertaking measures to protect invitees does not heighten the standard of care).However, failure to take reasonable measures to protect invitees is actionable.

Following September 11^th, the United States has been on a heightened security alert status with current Al-Qaeda threats to American safety.In this age, terrorist attacks could very well be considered generally foreseeable, or "within the range of apprehension."Palsgraf v. Long Island R.R. Co., 162 N.E.2d 99 (N.Y. 1928) (Cardozo, J.).In particular, sports venue operators and owners should be more aware of the risk that an American sporting event that attracts thousands of spectators could be a target of terrorist attack.By failing to act or institute increased safety measures because of complacency or other reasons, venue owners and operators could be creating a zone of risk and be liable for a breach of the duty of care to invitees. While the owners and operators of sports venues are not insurers of their patrons' safety, they must exercise that degree of care exercised by persons of ordinary care and prudence engaged in a similar business, and must be vigilant and take such measures as reasonable prudence and foresight suggest.

IV.The Duty of Care Owed by Professional Sports Leagues to Spectators

Courts have found that there is "no rational basis" for holding a professional sports league liable when a spectator is injured.See Riley v. Chicago Cougars Hockey Club, Inc., 427 N.E.2d 290 (Ill. App. Ct. 1981).In other words, courts have hesitated to find that sports leagues owe a legal duty to spectators because the owners and operators are in the best position to ensure security and safety on the premises.However, where a league sponsors an event, such as an All-Star Game, a duty of care on the part of the league could arise similar to that of an owner or operator of the venue depending upon the specific nature of the relationships between the parties involved with the event and the contractual obligations of each party.

V.The Duty of Care Owed by Employers to Their Employees

The Occupational Safety and Health Act of 1970 ("OSHA") imposes two types of duties on employers.29 U.S.C. § 654 (1999).First, every employer shall comply with OSHA's enacted standards, rules, regulations and orders to the particular business or activity.Id. at § 654(a)(2) & 654(b).Second, and perhaps most significantly, every employer "shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."Id. at § 654(a)(1).The latter, is known as the "General Duty clause," which was intended by Congress to cover unanticipated hazards that were not otherwise covered by specific regulations.SeeTeal v. E.I. DuPont de Nemours and Co., 728 F.2d 799, 804 (6th Cir. 1984); Southern Ohio Building Systems, Inc. v. OSHRC, 649 F.2d 456, 458 (6th Cir. 1981).

OSHA currently does not impose any specific duties on an employer with regard to protecting employees from terroristic acts.[1]According to the Office of Compliance, OSHA is in the process of developing basic guidelines on workplace security to protect employees from terrorist acts; however, several commentators doubt that these guidelines will ever become OSHA regulations.See Occupational Safety & Health Daily, Advisory Committees: Nacosh Work Group Says Employers Need More Information To Prepare For Terrorism, BNA (March 15, 2002 ).

Despite the absence of specific OSHA regulations regarding security against terroristic threats, the General Duty clause requires each and every employer to provide a workplace free of a recognized hazard that causes, or is likely to cause, death or serious physical harm.See National Realty and Construction Co. v. OSHRC, 489 F.2d 1257, 1265 (D.C. Cir. 1973).The General Duty clause is exceedingly amorphous and subject to judicial interpretation.Courts have avoided a narrow interpretation of the General Duty clause for the sole purpose of better protecting employee health.See American Smelting & Refining Co. v. OSHA, 501 F.2d 504 (8th Cir. 1974).At the same time, courts recognize that employers cannot insure against all hazards.To find otherwise would be to hold employers strictly liable for any injury to an employee.See Industrial Union Dep't v. American Petroleum Institute, 448 U.S. 607, 642 (1980); Brennan v. OSHRC, 502 F.2d 956 (3d Cir. 1974); National Realty & Constr. Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973).While the General Duty clause requires the elimination of recognized and

preventable hazards from a workplace, hazards that cannot be prevented are not considered "recognized" under the General Duty clause.See Anning-Johnson Co. v. OSHRC, 516 F.2d 1081 (7th Cir. 1975).

The Second Circuit has held that employers are not required to rid their workplaces of possible or reasonably foreseeable hazards, but of "recognized hazards," defined to include only dangerous conditions that can be detected by the human senses and are generally known as hazardous.See Pratt & Whitney Aircraft v. Secretary of Labor, 649 F.2d 96, 101 (2d Cir. 1981).However, other courts have held that a reasonably foreseeable hazard is a "recognized hazard."See Kelly Springfield Tire Co., Inc. v. Donovan, 729 F.2d 317, 359 (5th Cir. 1984).Courts, however, agree that a "recognized hazard" may be identified by looking at the standard knowledge and practices in a particular industry.See generally, Ethel R. Alston, J.D., What is "Recognized Hazard" Within Meaning of General Duty Clause of Occupational Safety and Health Act, (29 U.S.C.A. § 654(A)(1)), 50 A.L.R. Fed. 741, at § 4 (1980).Where a recognized hazard is found, employers will owe a duty to protect employees regardless of whether or not the employer controls the workplace, is responsible for the hazard, or has the best opportunity to abate the hazard.See Ellis v. Chase Communications, Inc., 63 F.3d 473 (6th Cir. 1995); Teal v. E.I. DuPont de Nemours and Co., 728 F.2d 799 (6th Cir. 1984).However, where it is not economically or practically feasible to provide safety measures that abate the hazards, courts have found the employer not liable.See Alston, 50 A.L.R. Fed. 741 (citation omitted).As the Supreme Court has said, OSHA imposes on employers a duty to keep employees safe, but "safe" is not the equivalent of "risk-free."SeeIndustrial Union Dep't., 448 U.S. at 642.

At least several commentators have said that OSHA is unlikely to use the General Duty clause to ensure workplace safety against terrorist acts.See Occupational Safety & Health Daily, BNA (March 15, 2002 ).However, with the General Duty clause in mind, employers of large workforces have responded by enhancing security measures; making risk assessments; creating new emergency response plans, bomb threat and evacuation plans; training employees in security awareness; engaging in emergency drills and response critiques; taking mail and warehouse security measures; and ensuring physical security and access control.See id.

Moreover, sporting events and facilities are multi-employer worksites involving employees of many different employers, such as vendors, media personnel, etc.Hence, the OSHA Multiple Employer Worksite Doctrine must also be considered when evaluating a party's duty to employees.The Multiple Employer Worksite doctrine is an outgrowth of the Occupational Safety and Health Act of 1970 ("Act") and the special considerations arising out of multiple employer worksites.This Doctrine provides that, on a multiple employer worksite, an employer that creates or controls a hazardous condition is responsible under the OSHA standards, regardless whether employees exposed to, or having access to, the condition are its own employees "or those of other employers engaged in a common undertaking."See, e.g., Brennan v. OSHRC (Underhill Constr. Corp.), 513 F.2d 1032, 1038 (2d Cir. 1975).In support of the Multiple Employer Worksite Doctrine, courts rely on 29 U.S.C. § 651(a), "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions."United States v. Pitt-Des Moines, 168 F.3d 976 (7^th Cir. 1999); Beatty Equipment Leaving v. Secretary of Labor, 577 F.2d 524 (9^th Cir. 1978); Brennan, 513 F.2d at 1038.Courts find further support for the Doctrine in the General Duty clause.As the Seventh Circuit held in Pitt-Des Moines, "[t]here is no reason to conclude that the specific protection §654(a)(2) affords-freedom for safety violations- is limited to an employer's own employees"particularly, "when employees of different employers work in close proximity and all are subject to the risk those violations create."168 F.3d at 983.Moreover, the Second Circuit in Brennan pointed out the legislative history supporting the proposition that the Act is preventive in nature.513 F.2d at 1039 (citation omitted).This preventability emphasis supports finding liability where an employer created or controlled a hazardous condition.Brennan, 513 at 1039.In Brennan, the court rejected the Commission's position that an employer cannot be found responsible for failing to comply with OSHA standards when the only employees exposed to the violative condition were those of another employer.Id. At 1038-39.

Although the sports industry is not required to protect its employees against every "plausible" or theoretically possible condition or activity that can cause an employee to incur serious injury, employers associated with high profile sporting events must rethink safety and security by looking to the industry safety and security procedures, some of the precautionary and emergency measures taken by other facilities, and the recommendations of sport leagues to maintain a safe and secure event.Failure to do so could result in OSHA liability.

VII.Changes in Industry Standards and the Duty of Care Redefined

While it has been well established that sports venue owners and operators have a duty to spectators, participants, and employees, the scope of this duty now requires that reasonable measures be taken to protect against terrorist acts.Terrorist attacks may no longer be characterized as unforeseeable, creating a heightened duty of care owed by owners and operators to spectators, participants, and employees.

For this reason, sports venue operators and owners should continue to take reasonable steps in preventing terrorist acts in their facilities.Hiring practices should include adequate background checks and vendors and subcontractors should also be required to complete such checks.Owners and operators must institutionalize security measures in policy and procedure guidelines, train personnel on the guidelines and stage exercises to drill and test incident response plans.It is also essential to educate the stakeholders - players, fans and employees - about the necessity of adherence to the new practices, the inconveniences that will be caused by the new practices, and the costs generated by the new practices.By conducting threat/vulnerability assessments, by establishing clear guidelines and procedures, by training personnel on those guidelines and procedures, and by conducting incident drills, leagues, teams and venue operators can take significant and effective measures to prevent and prepare for a terrorist incident and to meet their duty of care to players, fans and employees.Whatever the after the fact analysis of the duty of care may be for a specific incident, the fundamental question will always be whether or not reasonable steps were taken to protect against an incident in light of the availability of security measures, the industry "standards" for security, and the potential threat of terrorism.