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Boogaard wrongful death suit poses question of inherent risk

Many New York residents know the name Derek Boogaard; if not because they are hockey fans, then because his name has been in local news, on and off, for the past two years. Boogaard’s story is a tragic one, a man who loved hockey and fulfilled a niche role on the ice as an “enforcer:” a guy who makes hard hits, stands up for his teammates (by being physical) and, usually, getting into fights.

Boogaard died in the summer of 2011 after overdosing on pain killers. The pain killers he had that night were just some of “thousands” he got during his six-year NHL career, according to the wrongful death lawsuit brought by Boogaard’s family against the league. He got these pills because of the concussions and injuries he sustained due to the inherent nature of hockey, but also because of that niche role he filled.

Boogaard’s family claims that the league negligently continued to give Boogaard pain killers, even when they were aware that he had an addiction to them. The crux of the lawsuit, though, may rest with the lawsuit’s claim that Boogaard was “not aware of the greater potential for injury” that comes with being an NHL enforcer.

That claim — which essentially implies Boogaard was unaware that checking another player into the boards at high speeds and taking punches in a fight on a routine basis would cause him extra injury — will be difficult to prove. That’s not to say it can’t be proven; but any 5-minute reel of hockey footage will show the potential dangers of the sport.

We don’t bring this up to shoot down the claims of the Boogaard family; we bring it up because this is a crucial part of any wrongful death litigation: proving that the risk of injury or death was not inherent to the event. For example, a skydiving company could be sued for wrongful death because someone dies on a jump. But the activity has an inherent risk of death or injury, meaning it is tough to prove that the death was indeed “wrongful.”

Source: Bleacher Report, “Will the Derek Boogaard Wrongful Death Lawsuit Be a Game-Changer for the NHL?,” Steve Silverman, July 30, 2013