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Wednesday, December 20, 2006
Titans Sued for Mascot's Behavior

This story isn't as interesting as Tara Conner, but last Friday, ex-Saints fourth string quarterback Adrian McPherson filed a lawsuit against the Tennessee Titans because their mascot hit him with a golf cart while he was warming up on the sidelines before the second half of an August exhibition game. The short 4-page complaint (actually three because the fourth page contains the signature block), which can be accessed at The Smoking Gun, does not state what his injury was, but does seek $5 million in compensatory damages and $15 million in punitive damages. It's unusual to make a request for relief for that amount of money without even describing the injury. But according to an AP release, McPherson incurred "a deep bruise" in his right knee, and the Saints cut him three weeks after the incident. The complaint, however, spins it a little differently stating that McPherson was forced to miss the remainder of the pre-season, and was ultimately placed on injured reserve which meant he was forced to miss the entire NFL season.

Assuming the person performing as the mascot is an employee of the Titans and not an independent contractor, the Titans would be vicariously liable for personal injury proximately caused by his unreasonable conduct. Driving a golf cart into an opposing team's player warming up on the sidelines is most likely negligent. But McPherson has the burden of proving his damages. What's a knee bruise worth to a fourth string quarterback? Definitely not $5M. McPherson alleges that the injury forced him to miss the entire NFL season. However, the Titans will argue that the reason he missed the season is that he was cut by the Saints as the fourth string QB and would have been cut anyways, not because of the knee bruise. The Titans can also point to the fact that he now plays in the Arena Football League, and no other NFL team was interested after he was cut.

What is unfortunate for the Titans, however, is that damages are typically a question of fact for a jury to decide, especially in this situation because it involves determining McPherson's worth as a player as well as the issue of whether he would have made the Saints' roster if he had not been injured. So unless this mascot is an independent contractor, the court would probably not dismiss it as a matter of law on the liability issue.

My prediction is that the Titans will sit on this case for awhile. If McPherson continues playing in the AFL, it tends to establish that the injury he incurred was not that severe. And if he doesn't ultimately get picked up by an NFL team, it tends to show that he would have been cut by the Saints anyways.


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Blogger ciscoblog -- 12/20/2006 12:55 PM  

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Anonymous Anonymous -- 12/20/2006 1:16 PM  

I believe that the Titans have a very good arguement in this situation. McPhearson was hurt however, it seems to have been a huge accident by whoever was the mascot. Of course for the involvement in this accident it is only fair that the person who was acting as the mascot receive huge punishment for their involvement in this incident. I just do not beleive that this accident is worth five million dollars.
Five million dollars is a huge amount to ask for for a fourth string quarterback. McPhearson is presently playing in the Arena League which doesn't show much for an injury. If someone was injured five million dollars worth they would not be able to play any type of football. I jujst do not think this injury is worth 5 million dollars because McPhearson is now playing football.

Channing Brown

Anonymous Anonymous -- 12/20/2006 8:56 PM  

On the issue of vicarious liability, was the mascot entertaining the crowd with some stunt or was it just driving around? Could the club be held liable at all for some stupid action by its mascot that had nothing to do with its job description?

Anonymous Anonymous -- 12/21/2006 11:02 AM  

For vicarious liability, the test is whether the employee was acting within the scope of employment at the time. The incident occurred during halftime, and the mascot was carrying out his job duties as a mascot when he was driving around on the golf cart as well as carrying out stunts. It doesn't matter whether he was performing a stunt or not at the time. Doing something "stupid," as you mentioned, is another way of saying he was negligent. But if he intentionally hit McPherson, then there would be no vicarious liability.

Blogger Rick Karcher -- 12/21/2006 2:04 PM  

Michael,et all:

I would be interested in your take on the article in edntitled: Is Your Blog Exposing You to Legal Liability by Lawrence Savell?

Blog site is

Thank you.

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Anonymous Mark Elkmand -- 12/23/2006 6:26 AM  

As I understand it, the Titans should be held liable for their mascot's actions, as they were a mere, and negligent, detour from his duties as a mascot entertaining the crowd.

Would it be logical for McPhereson, in proving this injury impeded his ability to compete well-enough to make the Saints, to argue that he would have played in the second half and had a chance to prove he is worthy enough for the Saints to keep him on the regular season roster? Or would that type of argument be unnacceptable speculation?

Anonymous Anonymous -- 12/23/2006 11:38 PM  

I believe that whatever really happened that 5 million dollars is way to much to ask for. It sounds like McPherson is probably never going to make the big bucks again. In response to him being cut he is taking advantage of the legal system and trying to get his retirement money the easy way.

I personally have being seriously injured in a car accident. I was almost killed by a drunk driver. All I am asking for is that the drunk in the other car pay for all damages and be put in jail for being a irresponsible person. I will probably only get 10,000 dollars, if I'm lucky. Now, this McPherson guy got a bruise on his knee, in my eyes he is just a big baby that looks to no longer have a career in the NFL.

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Anonymous Anonymous -- 12/26/2006 12:26 AM  


Thanks for the link. The author provides a great summary of the laws applicable to blogs. Lawyers operating blogs may also be exposed to potential risk of violating the ABA rules of prof. conduct, e.g. unethical advertising of their services.


I don't think it would help him to argue his damage claim in such a narrow context. In other words, I think he is better off arguing that his injury prevented him from being able to showcase his talents for the remainder of the entire pre-season schedule, including the games as well as all of the practices that he missed or was unable to participate at 100%.

Blogger Rick Karcher -- 12/26/2006 7:39 AM  

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