On October 9, 1994, plaintiff Miriam Delgado was injured during a game of flag football when, as she contended and the jury accepted, her right ring finger was caught in the D-ring fastening mechanism of an opposing player's flag football belt, manufactured by defendant Mason City Tent and Awning Company and distributed by defendant Markwort Sporting Goods Company. The jury also agreed with Ms. Delgado that the Mason City/Markwort flag football belt was defectively designed because the D-ring fastening mechanism was not reasonably safe, and awarded her damages of $1.6 million for past and future pain and suffering.

The Court considered Defendants' motions for judgment as a matter of law. In so doing, the Court noted:

A jury verdict rests on legally insufficient evidence where there is simply no valid line of reasoning and permissible inferences which could possibly lead rational individuals to the conclusion reached by the jury on the basis of the evidence presented at trial.

Under New York law, a design defect may be actionable under a strict products liability theory if the product is not reasonably safe. Liability is determined by a "negligence-like risk/benefit" inquiry that includes such factors as:

(1) the product's utility to the public as a whole, (2) its utility to the individual user, (3) the likelihood that the product will cause injury, (4) the availability of a safer design, (5) the possibility of designing and manufacturing the product so that it is safer but remains functional and reasonably priced, (6) the degree of awareness of the product's potential danger that can reasonably be attributed to the injured user, and (7) the manufacturer's ability to spread the cost of any safety-related design changes.

The openness and obviousness of the danger should be available to the defendant on the issue of whether plaintiff exercised that degree of reasonable care as was required under the circumstances. However, in this case the jury ultimately determined that Ms. Delgado was free of contributory fault in failing to appreciate any danger presented by the D-ring design.

The plaintiff, of course, is under an obligation to present evidence that the product, as designed, was not reasonably safe because there was a substantial likelihood of harm and it was feasible to design the product in a safer manner.

The Mason City/ Markwort flag football belt is a webbed belt with two "D-rings" at one end; a "D-ring" is simply a metal ring that resembles the letter "D." Attached to the belt are two plastic loops that can slide along the belt; the fabric "flags" are affixed to the plastic "sliders" by Velcro. During play, removal of a flag from the belt of the runner in possession of the ball works as a tackle, and brings the down to an end. The uncontradicted evidence showed that the D-ring flag football belt has been produced and sold at least since the early 1950s, and is still produced and sold today.

There is also no dispute that alternative designs for flag football belts have been available since the early 1980s, approximately a decade before the game during which Ms. Delgado was injured. The alternative designs share two related characteristics: the "flags" are permanently attached to the webbed belt, and the fastening mechanism is an alligator clip or some other device that does not utilize D-rings, and that opens when sufficient force is applied to one of the flags.

Indeed, at the time Ms. Delgado was injured, Defendants were marketing both the D-ring flag football belt that the jury found defective, as well as "quick release" flag football belts that were equipped with a different fastening mechanism.

Mason City charged Markwort $1.67 for each D-ring belt, and $2.10 for the quick-release belt; Mason City's costs were approximately half the price to Markwort. There was no evidence as to the price Markwort charged its dealers, or of the cost to the ultimate purchaser/user.

According to Mason City's president, Mason City produced and marketed the quick-release belt to satisfy the preference of the "collegiate market"; other users, including lower-level schools, the armed forces, and prisons, continued to purchase the D-ring belt. There was no evidence that the preference of the "collegiate market" for the quick-release design was grounded in safety.

The most that can be said of the evidence on utility is that some users of flag football belts find the quick-release mechanism more useful, while other users prefer the D-ring design. Plaintiff made no attempt to quantify any preference of the alternative design.

Plaintiff's primary, if not exclusive, evidence of design deficiency came from the testimony of an expert witness with experience as a director of recreation and intramural sports at a state university.

Prior to trial, Defendants moved to preclude this expert’s testimony at trial because of his lack of experience as a designer or manufacturer of flag football belts, and because he did not perform any testing or studies on the Mason City/Markwort belt or any similarly-designed D-ring belt, or any studies on injuries resulting from use of a D-ring belt.

After a hearing the Court concluded that, by reason of both his training and practical experience with the use of flag football belts, plaintiff’s expert was qualified to testify as to the risk of danger presented by the Mason City/Markwort belt and the risk of danger presented by other available flag football belts.

Based upon his training and experience, including observation of "tens of thousands" of flag football games, plaintiff’s expert testified that the Mason City/Markwort belt was not reasonably safe, and that the quick-release belts were of safer design. The only stated basis, however, for his opinion that the D-ring belt was not reasonably safe was that it presented an "opportunity" for finger entrapment or entanglement and a "potential to cause harm."

And to the substantial extent that his expert opinion was based on his experience and observation, plaintiff’s expert acknowledged that most of the tens of thousands of games he observed were played with quick-release belts and only a "limited number" were played with a D-ring belt. However many that "limited number" represented, plaintiff’s expert never observed anyone's finger become entrapped or entangled in the D-rings, and he provided no other evidence that, except for this case, it had ever happened either before or since.

Where a qualified expert opines that a particular product is defective or dangerous, describes why it is dangerous, explains how it can be made safer, and concludes that it is feasible to do so, it is for the jury to make the required risk-utility analysis. But those statements must be limited to cases in which the expert's opinion is supported by "foundational facts" sufficient to give it probative value [such as the results of actual testing of the product, a deviation from industry standards, or statistics showing the frequency of consumer complaints or injuries resulting from the alleged defective product].

Even if, however, plaintiff’s expert’s opinion is given probative value, it is insufficient to establish that the D-ring design was not reasonably safe. An "opportunity" or "potential" for harm is not the same as a "substantial likelihood of harm."

Plaintiff’s expert provided no evidence as to "the magnitude and seriousness of the danger in using the product." Accepting, as the jury did, the seriousness of the injury suffered by Ms. Delgado, there was no opinion offered as to the nature and degree of injury presented by the D-ring design if finger entrapment or entanglement were to occur.

Defendants offered the expert testimony of a consultant in physical education and sports recreation. Defendant’s expert testified to his experience with flag football in schools, primarily elementary through high school, since the mid-1950s, and to his use of D-ring flag football belts for over 30 years, "somewhere between 90 and a hundred thousand usages." Defendant’s expert never witnessed any finger entrapment in the D-ring.

Defendant’s expert’s testimony is described, not to be weighed against Plaintiff's evidence, but to emphasize the glaring absence of evidence as to any likelihood of harm, and the continued preference for the D-ring belt among some users.

The D-ring flag football belt has been in use for more than 50 years, approximately 40 years to the date Ms. Delgado was injured, and more than a decade since. An incalculable number of flag football games have been played during that time with D-ring belts, but there is no evidence in the record of any finger entrapment or entanglement, or any other injury resulting from the D-ring design, other than for Ms. Delgado's.

The absence of reported injury does not, of course, establish that no injury has ever occurred. It may be that minor injury, particularly in the context of sports activity, would be accepted and forgotten. Even so, however, the implication for an assessment of the severity of the likely injury is obvious, particularly in the absence of expert evidence of likely severity.

Plaintiff's evidence of defect, at bottom, amounts to little more than the availability of a safer alternative, without any evidence as to the consequences of the difference in price. Perhaps the lower price of the D-ring belt explains the continual preference for it among some users. Where the likelihood of serious injury is apparent, evidence of a feasible alternative design may be enough to present a question of fact for the jury.

But a producer is not an insurer and its product need not be accident proof; its duty is to design a product that is "reasonably safe", not the "safest possible." Where, as here, there is no evidence that any injury, never mind serious injury, was likely, the availability of a safer alternative alone is not sufficient to support a finding of design defect.

The only inference from the evidence at trial is that the risk of injury presented by the D-ring design of the Mason City/Markwort flag football belt was "negligible," akin to the likelihood that lightning would strike a camping tent equipped with metal poles.

As a matter of law, on the evidence presented the jury could not find that the D-ring design was not reasonably safe, and its determination, in effect, that the Mason City/Markwort flag football belt must be removed from the range of choice in the market is not supported by the evidence.

Defendants' motions for judgment as a matter of law are granted. Judgment is awarded to Defendants, dismissing the Complaint.

Dr. James C. Kozlowski is an Associate Professor in the School of Recreation, Health, and Tourism at George Mason University. He is a licensed attorney who has written and lectured extensively on the legal and legislative aspects of parks and recreation administration in general and the issue of recreational injury liability in particular.

If you have questions about this case study or any other law-related questions, contact Dr. Kozlowski at jkozlows@gmu.edu. If your topic is selected to appear in a future column, your name and institution will not be published. Keep in mind that any information in Legal Q&A is general in nature and should not be construed as legal advice or a legal opinion in a particular situation or jurisdiction. Any such questions should be directed to local counsel.

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