Eugenie Bouchard initiates personal injury claim against the US Open

Author(s): Stephen M. Birman

December 7, 2015

On October 13, 2015, Canada’s 21 year old female tennis star Eugenie Bouchard initiated a civil lawsuit against the United States Tennis Association and National Tennis Center(“USTA”) arising from a slip and fall accident that occurred during the United States Open Tennis Championships (US Open) on September 4, 2015.

The lawsuit arises from an incident involving Ms. Bouchard that allegedly occurred in the physiotherapy room located adjacent to the women’s locker room at the tournament, sometime after 10:00 p.m., on September 4, 2015.  Ms. Bouchard completed 2 tennis matches earlier that day.  After completing those matches, it is alleged that she fell on a “slippery, foreign dangerous substance on the floor”, of the physiotherapy room and that she, “sustained a severe head injury”, forcing her to withdraw from the tournament. It is alleged that the USTA failed to provide any warning of the “dangerous condition” in the physiotherapy room.

Earlier in the day, Ms. Bouchard won an exciting third round singles match.   She followed up that performance with a mixed doubles victory. By the end of the day, she was the only player remaining in all 3 events at the tournament (singles, doubles and mixed doubles).  Her performance up to that point in the tournament was especially promising in light of her poor performance during the preceding months when her world ranking fell from number 5 to number 25.

Two days after the accident, Ms. Bouchard withdrew from the US Open as she was unable to play her fourth round singles match due to the symptoms of her head injury. Subsequently, in the fall of 2015, she attempted to return to the tennis tour but was forced to withdraw or retire from 4 tournaments. As a result, her ranking fell even further to number 38 in the world. It is unknown whether she will be able to return to professional tennis in 2016.

Mrs. Bouchard’s claim against the USTA was filed in the United States District Court of New York. If it proceeds to trial it will be decided by a jury. Her claim alleges that the USTA failed to meet its duty to keep the women’s locker room and physiotherapy room in a reasonably safe and suitable condition and to warn players of any unsafe or hazardous conditions existing.

In its Defence, the USTA alleges that Mrs. Bouchard should not have entered the physiotherapy room “without the express consent of, or accompaniment, of authorised personnel,” which it claims is standard procedure for professional tennis players. The USTA argues that Ms. Bouchard knew these procedures and protocols and did not follow them. The USTA states that it has insufficient knowledge about the substance alleged to have caused the fall; it does not even admit that the fall itself took place.

Ms. Bouchard seeks damages, which focus on her loss of prize money at the US Open and thereafter. She highlights in her claim that the winner’s prize money in the singles event alone was $3,300,000.00 (USD). Having withdrawn in the fourth round, Ms. Bouchard earned $225,000.00 (USD) in prize money (and lost the opportunity to earn an additional ($3,075,000.00). Ms. Bouchard alleges that as a result of her withdrawal from the US Open and subsequent tournaments, “her world ranking has dropped thirteen spots, and is likely to continue to drop.” The USTA argues that Ms. Bouchard’s damages claims are “entirely speculative.”

The litigation is in its preliminary stages and the facts will need to be fully explored in these unique circumstances (there is not a lot of case law involving athlete injuries in a locker room!). To succeed, Ms. Bouchard will need to prove that the USTA was negligent in maintaining the physiotherapy room and that its negligence caused her fall and her subsequent injuries.

The USTA may succeed in its defence, if it can establish that it maintained the facility to a reasonable standard of care. It may also succeed if its argument that Ms. Bouchard “voluntarily assumed the risk of injury” by entering the locker room/physiotherapy room without an attendant is accepted by the jury. However, that defence is typically restricted to cases involving activity that carries a high risk of injury, which is accepted in advance by the injured party (not typically the case when one enters a physiotherapy room). The USTA may have greater success arguing that Ms. Bouchard was contributorily negligent for her losses (in which case her losses would be discounted by the amount of fault attributed to her).  The USTA also argues that any injuries and damages sustained are exaggerated and points to Ms. Bouchard’s social media activity (which, for example, includes photos of her dressing up on Halloween) in support of this argument.

An interesting aspect of the case arises out of Ms. Bouchard’s potential damages if she is successful in her claim. The USTA claims that her losses are “speculative” as she cannot prove that she would have won the US Open or any other tournament for that matter. Ms. Bouchard counters that by pointing to her forced withdrawal from the tournament and other events thereafter as well as her ranking decline, which carries a financial impact.  A jury will ultimately need to reconcile these contrasting positions and quantify Ms. Bouchard’s damages, if she is successful at trial. The unpredictably of a jury award in these circumstances creates risk for both sides, which may help propel settlement negotiations in the future.

Ms. Bouchard can mitigate any damages by successfully returning to tennis in 2016. However, recent cases involving head injuries and professional athletes demonstrate that is no certainty. From a legal perspective it will be interesting to see how these issues unfold as the case proceeds.

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