Lawsuit because a ski helmet failed to protect a plaintiff from concussion.

Is this, the beginning of an avalanche of lawsuits for concussions from people wearing helmets?

Rogers v. K2 Sports, LLC, 2018 U.S. Dist. LEIS 217233

State: Wisconsin: United States District Court for the Western District of Wisconsin

Plaintiff: Steven Scott Rogers, by his guardian, Tracy Rogers, Tracy Rogers, Samba Health Benefit Plan, Blue Cross Blue Shield of Wisconsin, and State of Wisconsin Department of Health Services

Defendant: K2 Sports, LLC, Lexington Insurance Company, and AIG Europe Limited

Plaintiff Claims: negligence, strict product liability, and breach of warranty

Defendant Defenses:

Holding: Mostly for the Plaintiff

Year: 2018


This appears to be the first lawsuit over a ski helmet not protecting the skier from a brain injury. This is just a motion hearing. However, it provides some insight into the claims and defenses that will spring up in the future if people continue to believe that human-powered recreation helmets are going to protect against concussions and fatal head injuries.


Scott wore a K2 Phase 08 helmet while skiing with his stepson Coby at the Afton Alps Ski Area in Washington County, Minnesota, on New Year’s Eve 2015. Around 8:40 p.m., Scott and Coby skied down a beginner’s run called Nancy’s Nursery. Scott fell about halfway down the hill near some small mounds called “rollers.” Coby was in front of Scott and did not witness the fall. Another skier did witness the fall, but he was not able to recall any details about it, except that the fall did not seem unusual.

The fall left Scott unconscious and bleeding from his left ear. Scott was taken by ambulance to a hospital, where doctors conducted tests including a CT scan of Scott’s head. The accident caused brain hemorrhages and fractured Scott’s skull, left clavicle, and numerous ribs along Scott’s left side. As a result of permanent brain damage caused by the accident, Scott now lives at a VA hospital where he receives round-the-clock care.

The K2 helmet was certified as compliant with the standards of ASTM International, which is an organization that develops and [*4] publishes technical standards for a wide range of products.2 Compliance with ASTM standards is voluntary. The K2 helmet has three layers. The exterior layer is a hard-plastic shell. The shell is lined with an Expanded Polystyrene (EPS) energy-attenuating layer, which is supposed to absorb and dissipate shock from a blow to the head. The third layer is a comfort liner that can be adjusted to fit on the user’s head. After Scott’s accident, the lower left rear of the exterior shell was cracked. And, in the same area, the shock-absorbing EPS layer was flattened, and chunks of the EPS were missing.

Analysis: making sense of the law based on these facts.

This was a motion’s decision. A Motion for summary judgment was filed by the defendant who was denied and motions to exclude witnesses, expert witness testimony, etc., which were denied in part and granted in part for both parties.

The main issue is, it is a lawsuit against the manufacturer of a human-powered recreation helmet manufacturer for a concussion.

The motions covered a broad range of topics; this discussion will look at the important points from an outdoor recreation perspective.

The court started by looking at the Wisconsin Product Liability statute.

Wisconsin product liability law is codified under Wisconsin Statute § 895.047.5 A product liability claim has five elements: (1) the product was defective; (2) the defect rendered the product unreasonably dangerous; (3) the defect existed when the product left the control of the manufacturer; (4) the product reached the consumer without substantial change; and (5) the defect caused the claimant’s damages.

The substantial change requirement is interesting. That reasoning provides a defense for the manufacturer if the retailer makes modifications to the helmet for a sale. At the same time, it is how all people in the chain of custody of a product are held liable for a product liability claim. Any of the people in the chain of custody, manufacture, distributor, retailers could have identified the defect and prevented the defective product from reaching the consumer.

Generally, product liability claims are one of three types: “design defects, manufacturing defects, and warning defects.”

Design defects are levied when the product is designed badly from the beginning. Although there are a lot of design defect claims, there are rarely judgments based on design because most manufacturers understand safety issues.

One area that does pop up in design defects is when a product is used differently from what it was originally designed. If the manufacturer leans about the misuse of the product, then the manufacturer may be held liable for injuries due to the misuse of the product.

Manufacturing defects are simply a failure of quality control. Although in this day, you would think, manufacturing defects would be rare, they occur constantly. A manufacturing defect is usually the reason for a recall of a product.

The final defect, warning defects, are the easiest and toughest at the same time. Making sure the information on how to use a product and any warnings on how not to use the product are critical. At the same time, it is difficult for manufacture to envision how their product could be used and all the risks from those different uses.

As an example, when I’m design manuals and warnings, I want the product. After I have examined it thoroughly and tried every possible way to use it improperly, I ask someone who has no understanding of the product to use it. A sixteen-year-old kid can do amazing things that no one ever envisioned with some products.

Many times, a product liability lawsuit will include a negligence claim. Here the court compared the issues of proving a product negligence claim and a product liability claim.

Plaintiffs also bring a claim for negligence. To sustain this claim, plaintiffs must prove (1) the existence of a duty of care on the part of the defendant, (2) a breach of that duty of care, (3) a causal connection between the defendant’s breach of the duty of care and the plaintiff’s injury, and (4) actual loss or damage resulting from the injury. In Wisconsin, a manufacturer’s duty of care includes the duty to safely design the product so it is fit for its intended purpose, and the duty to conduct adequate inspections and tests to determine the extent of defects.

The bold issue is another point you rarely know about. Your duty to design is just step one. Step two is you must test your product to make sure that it meets the intended purpose and the limits of your design. You design a product to do something. Once manufactured you must test the product initially and sometimes ongoing to make sure it still does what you say it will within the parameters you say it will operate.

This duty to test is increased if the duty arises from labeling or marketing. If you say the product contains X ounces of Sample or only breaks under loads greater than XX pounds you have to make sure each of your products meets that test.

The issue in ski helmets is not what the manufacturer says it can or cannot do. The issue is what the consumer believes the product will do. The consumer/plaintiff believes the ski helmet is designed to protect against a concussion, where, in reality; the design is just to slightly minimize the injury potential.

In this case, the plaintiff was claiming the helmet was defective. The plaintiff had to prove:

…a product is defective in design if the “foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the manufacturer, and the omission of the alternative design renders the product not reasonably safe.”

The helmet manufacturer, K2 brought up the fact that the helmet met the ASTM standards for ski helmets. That standard required the helmet to “keep the user’s head from accelerating more than 300 g, meaning that the force of impact on the skull is equivalent to 300 times the force of gravity or less.” If you look at that standard, it is minimal.

However, the ASTM helmet is not a 100% defense to a claim. It only shifts the burden to the plaintiff to prove the helmet was defective, more so since all helmet standards are voluntary.

The ASTM standards may be relevant, but they are not dispositive. If the ASTM standards were adopted by federal or state law, then K2 would be entitled to a rebuttable presumption that the helmet was not defective. Wis. Stat. § 895.047(3)(c). But the ASTM standards are only voluntary. Compliance with voluntary standards at the time of manufacturing may be evidence that K2 behaved reasonably, in defense of plaintiffs’ negligence claim.

Voluntary standards, which most standards are identified as, are really only a sword and not a shield. If you don’t meet a standard, then it is proof you don’t care, and you had a cheap product. Failing to meet a standard is better in the plaintiff’s hands to proof you were bad, rather than in the defendant’s hands as a shield.

Under Wisconsin law, the court set forth the issues needed to prove a defect based on inadequate warnings on the product or provided to the consumer.

Under Wisconsin’s product liability statute, a product is defective because of inadequate instructions or warnings if “foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the manufacturer and the omission of the instructions or warnings renders the product not reasonably safe.” Wis. Stat. § 895.047(1)(a). Plaintiffs do not need to show that Scott actually read the instructions to prove causation. When a product is missing an adequate warning, the missing warning is a substantial factor in causing injury if a reasonable person would have heeded the warning and as a result avoided injury. There is a presumption that any missing instructions would have been read, and therefore a presumption of causation.

Here again, warnings are another weak shield for the defendant and a better sword for the plaintiff in litigation. Warnings show you tried to inform the consumer, or you told the consumer not to do something and they consumer did it anyway. The lack of a warning is a major sword to the plaintiff who can show the jury the lack of care and concern on the part of the manufacturer that should have and could have warned the consumer of the risk.

You can see the difference in the value of some arguments between the plaintiff and the defendant. If the defendant had the warning, it really does not matter except to hope you can argue it was written in a way that the consumer had to have seen it. If the manufacturer fails to have a warning, then the presumption is the consumer would have read the warning and not been hurt. But for the failure to have a warning, there would be no injury. If you are a manufacturer believing that since you have met the standards you are safe, you are soon to be renamed “Defendant.”

Even the voluntary part of the term “voluntary standard” can come back to haunt a manufacturer. If the manufacturer decides not to meet the standard, it is easy for the plaintiff’s attorney to argue the manufacturer did not meet the standard to save money, or because they did not care about their customers. Consequently, once a standard is created, voluntary or not, every manufacturer must meet the standard.

Worse, any standard then restricts research and development because of the fear of not meeting the standard and looking bad in court.

The motion did not look at the issues, we would like some clarification or the facts. What happened to cause the head injury that turned the plaintiff into a vegetable and more importantly, what did the plaintiff believe when they purchased the helmet.

So Now What?

The decision had a few interesting points. However, the greatest issue is the floodgates are now probably open for head injuries that occur to skiers and other recreationists while wearing a helmet. It will be interesting to see how this decision progresses through the courts and whether the issues of the amount of protections afforded versus the expectations of the consumer becomes an issue.

As the decision states. Ski helmets have limited ability to protect. The ASTM standard quoted in the decision requires the helmet to meet a simple test.

Under the ASTM standards, a helmet must keep the user’s head from accelerating more than 300 g, meaning that the force of impact on the skull is equivalent to 300 times the force of gravity or less.

Human-powered recreation helmets, ski, bike, rollerblading, scooters, etc., only protect against minor scalp injuries, nothing more. If the NFL cannot protect football players with helmets costing thousands of dollars why to you think the piece of plastic you paid $100 is going to protect you from a concussion.

More articles about helmets

A helmet manufacture understands the issues (Uvex, Mouthguards)

A new idea that makes sense in helmets: the Bern Hard Hat

Are we using safety as an excuse not to spend time with people? Is here, “wear your helmet” taking the place of let me show you how to ride a bike?

Do you really want to sell helmets this way? Does this article promote the industry?

Does being safe make us stupid? Studies say yes.

Great article on why helmet laws are stupid

Great editorial questioning why we need laws to “protect” us from ourselves.

Helmets do not increase risk of a neck injury when skiing

Helmets: why cycling, skiing, skateboarding helmets don’t work

Law requires helmets, injuries down fatalities up?

Mixed emotions, but a lot of I told you so.

More information over the debate about ski helmets: Ski Helmets ineffective crashes were the wear is going faster than 12 miles per hour

The helmet issue is so contentious people will say the stupidest things

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

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Head USA Recalls Ski and Snowboard Helmets Due to Head Injury Hazard

Name of Product: Head Ski and snowboard helmets

Consumers should stop using this product unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product.

Recall Summary

Hazard: The helmets do not comply with the impact requirements of safety standards for helmets, posing a risk of head injury.

Remedy: Replacement – Consumers should immediately stop using the recalled helmets and contact Head USA to receive a free replacement helmet.

Consumer Contact: Head USA at 800-874-3235 from 9 a.m. to 7 p.m. ET Monday through Friday or online at then click on Customer Service and then on 2015 Helmet Recall for more information.

Recall Details

Units: About 260 in the United States (in addition, 180 were sold in Canada).

Description: This recall involves six models of HEAD ski and snowboard helmets:  Agent, Alia, Andor, Arise, Arosa and Avril. They were sold in sizes M/L and XL/XXL in black, blue, green white and yellow, with straps in a variety of colors. HEAD, the model name, size and “Production Code: Dec. 2014” are printed on stickers that can be found by lifting the lining above the right earpiece. 

Incidents/Injuries: None reported

Sold at: Specialty ski and snowboard shops and online from January 2015 through December 2015 for between $80 and $120.

Importer/Distributor: Head USA, of Boulder, Colo.

Manufactured in: Taiwan

Retailers: If you are a retailer of a recalled product you have a duty to notify your customers of a recall. If you can, email your clients or include the recall information in your next marketing communication to your clients. Post any Recall Poster at your stores and contact the manufacturer to determine how you will handle any recalls.

For more information on this see:

For Retailers

Recalls Call for Retailer Action

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

Product Liability takes a different turn. You must pay attention, just not rely on the CPSC.

Retailer has no duty to fit or instruct on fitting bicycle helmet

Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.

For Manufacturers

The legal relationship created between manufactures and US consumers

A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

clip_image002What do you think? Leave a comment.

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FIS establishes new regulations for ski racing helmets. Standards filter down to other ski races and eventually maybe the public.

Basis of the new test for ski helmets is the helmet must survive a drop test that is approximately three feet higher and at a speed approximately three mph faster.

The FIS, (International Ski Federation) has established new regulations for helmets that will be worn in FIS competitions. Those are the world cup level ski races held around the world.

After FIS adopted these new standards, the USSA (US Ski Association) adopted the same standards for many of their races this year and more the following years.

I’m not going to try to interpret the regulations here you are better off trying to figure it out on your won. Seriously, the regulations are the most convoluted work I’ve read and were made to make it impossible to understand. On top of that they make it impossible to copy the information from their website, even off PDF’s. (Why don’t they want this information to be known?)

1)   To show the new helmets meet the new standards they are going to have the CE Mark and conform to one of the following regulations.

a)   DIN EN 1077

b)   ASTM F2040

c)   SNELL S98 or RS 98

2)   If the helmet is designed for GS (Giant Slalom), SG (Super G) or DH (Downhill) racing it must have a conformity label affixed in a non-removable way, at the back of the helmet, in a position not be covered by the goggle strap. The conformity label must contain the text “Racing helmet to conform to FIS specifications 2013.”


If you want a better ski helmet look for one that meets the new requirements. It can take a bigger impact.

It is going to be a simple helmet, hard ear covers, no spoilers, etc. These helmets are going to be pretty dull, little venting and nothing except the stickers you put on them. However, if you want to protect your head….

What do you think? Leave a comment.

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