Their use can trigger legal defenses
When an athlete suffers a serious head or neck injury, this or her 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 others and will plead every legal defense possible, such as the absence of negligence, the other defendants were negligent, assumption of risk, waiver/release, etc.
Here’s what product liability case law say about the potential legal defenses helmet manufacturers can use when lawsuits are triggered by the unauthorized use of add-on products:
- Improper Use Defense. Helmet was not used in manner intended by the helmet manufacturer when plaintiff (the injured party) was injured.
- Product Labeling and Directions Defense. The plaintiff or other responsible parties (parent, coach, team, league, etc.) ignored the written warnings, directions, and risks that were communicated in the 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. Furthermore, the alterations caused the plaintiff’s injury rather than the original unaltered helmet.
Use of add-on helmet products in light of 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 to the use of add-on products. If you follow their recommendations, they will be the deepest pocket defender 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 $10 million to $25 million. 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 the helmet manufacturer declares will 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 million, 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 regarding 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. In the meantime, we encourage you to read our other articles regarding helmet safety and add-on products.