Who's responsible for collapse of Cowboys' indoor practice facility?

So far, public reaction to the tragic collapse of the Dallas Cowboys' indoor practice facility has understandably reflected sadness, shock and genuine empathy for the 12 injured persons, particularly scout Rich Behm, who was left permanently paralyzed from the waist down.

Soon, however, people will be asking the hard questions, including why the collapse happened and who or what should be held responsible.

There are two primary sources of law that may have been violated by the collapse.

The first is administrative law, and namely the rules and regulations promulgated by the Occupational Safety and Health Administration ("OSHA"), a federal agency entrusted with preventing work-related injuries, illnesses and death. The agency enforces myriad regulations that are designed to ensure workplace safety and it can fine employers up to $70,000 for each violation. OSHA is now on-site investigating the collapse. Any fines levied by OSHA upon the Cowboys would be paid to the U.S. government and not the collapse's victims.

The second and more worrisome area for the Cowboys is tort law and specifically Texas law on negligence. Negligence refers to unreasonable behavior, be it the form of carelessness or inattentiveness.

Whether the Cowboys behaved negligently could be examined from multiple perspectives. Here are a few:

• Did the Cowboys construct an adequately safe facility for the typical weather conditions found in Irving, Texas, this time of the year?

• How typical or atypical were the specific weather conditions experienced by the facility when it collapsed? If the stadium was designed and constructed to withstand winds in excess of 100 miles per hour, does its failure to do so suggest substandard maintenance on the part of the facility's operators, the Cowboys?

• How much warning did the Cowboys have about the inclement weather May 2, and would a reasonable employer in that situation have cancelled practice?

• Did any Cowboys' personnel have knowledge or insight that the five-year-old facility could have been at risk of collapsing during stiff winds. If so, did the team do anything with this information?

• Did the injured persons have notice about the structure's apparent shortcomings -- could the injured persons have been comparatively negligent for their own injuries? (Texas, like most other states, uses a system of comparative negligence, meaning if a plaintiff is partly responsible for his/her own injury, he or she cannot recover for the percent of damages attributable to the his or her own negligence).

These are the sorts of questions that would be examined in a torts trial, such as one featuring one or more of the injured persons as plaintiffs. Expert testimony would prove crucial, as would comparisons between the Cowboys' facility and the practice facilities of other NFL teams and other facilities located nearby in Irving.

Some have opined that the stiff winds were simply an "Act of God" and thus no party should be held responsible. The flaw in that logic is that stiff winds are usually predictable with modern meteorological instruments. Plus, the winds, while reportedly 64 miles per hour and which may have morphed into a "micro-burst" (a sudden increase in jet stream with higher wind speed), were below those comprising a weak tornado, whereas an Act of God (i.e., a "superseding cause" in tort law) normally requires an extraordinarily unforeseeable condition. Just as important, the Irving Police Department finds that no other building in the city was reported to have suffered structural damage from the storm, a point which further suggests that the facility's problems rested more with the facility itself than any external weather conditions, though micro-busts can cause isolated damage.

If a tort lawsuit occurred and if the Cowboys were found liable, they could be required to pay millions in both compensatory damages and punitive damages. Any such lawsuit would likely occur within the next two years, as Texas features a two-year statute of limitations period for negligence claims. It is more likely, however, that such a lawsuit would be settled long before it goes to trial, with the Cowboys' insurance companies paying some of the settlement.

It is worth nothing that a negligence lawsuit as described above may be barred by Texas' workers compensation law. Workers compensation provides a state-regulated insurance program that pays employees' medical expenses and lost wages if hurt on the job. Employers pay for workers compensation insurance and, in return, are protected from tort lawsuits filed by injured employees -- meaning employers with workers comp insurance are normally immune from injured employees' claims. Interestingly, Texas is the only state that does not require employers to carry workers' comp insurance, and it is unclear if the Cowboys did so for the particular employees injured by the collapse.

****

The injured persons also could choose to sue the practice facility's manufacturers: Summit Structures and Cover-All Building Systems, both of which have built other sports practice facilities, including the one used by the New England Patriots in Foxboro, Mass. In tort law, there is a very old doctrine known as res ipsa loquitur, which is Latin for "the thing that speaks for itself." It is used in negligence cases to show that an event could not have occurred without a party being negligent. Here, one might say that a building doesn't collapse during non-catastrophic weather conditions unless a party, in this case the building company, is negligent.

The makers of the facility are a plausible party for a negligence lawsuit. The quality and choice of materials used to construct the steel-framed, fabric-covered facility would be examined in a trial, as would the quality of construction. If the stadium was designed to withstand winds in excess of 100 miles per hour, then its failure to do so suggests either faulty construction or faulty maintenance by the facility's operators, or both.

In addition, meteorological experts might dispute the strength and tornado-like characteristics of the wind that befell the facility. The plaintiffs could also attempt to introduce into evidence previous civil judgments against the manufactures for facility-related problems, though a trial judge would have to weigh the prejudicial effects of such evidence before admitting it. Like with any lawsuit filed against the Cowboys, there is a good chance a claim against the manufactures would be settled before it goes to trial.

The Cowboys may also have legal remedy against the manufactures for breach of contract. As the team investigates the collapse, it may discover construction defects that trigger a breach in the contract between the Cowboys and the manufacturers.

****

There are two other parties of interest: the National Football League and the NFL Players' Association.

Should litigation emerge, a court may inquire as to the relationship between the league and individual teams' practice facilities. If, for example, the league imposes requirements for those facilities, a court would expect the league adequately enforces those requirements and, more generally, conducts oversight of the facilities. A court would be particularly interested in any league-imposed safety expectations of practice facilities.

The NFLPA likewise has a stake in this matter. Though no Cowboys' players were reportedly injured by the collapse, a number were there when it happened. Ensuring the safety and welfare of NFL players is a core duty of the NFLPA and it is likely the NFLPA will want to review the safety of other teams' facilities. This matter could also be raised when the NFL and NFLPA attempt to negotiate a new collective bargaining agreement in the coming months.