Chapter 3 Defenses Against Negligence

Overview Legal doctrines that limit liability Methods of transferring liability

Governmental Immunity A tax-supported entity cannot be sued for negligence (state specific). Typical exceptions Insurance: May be sued up to the amount of insurance Gross or willful and wanton negligence Transportation With permission of the legislature

Recreational Land Use Statutes Landowners who open their land to the public for recreational purposes without charging a fee cannot be sued for ordinary negligence.

Hazardous Recreation Statutes State statutes passed to encourage local governments to provide recreational activities that are considered dangerous without the threat of lawsuits. Skateboard and BMX parks Often have requirements Special signage Waivers or parental permission

Statute of Limitation The injured party must file the lawsuit within a certain period of time after they realize they are hurt. A minor’s statute of limitation starts when they reach the age of majority.

Comparative Negligence The defendant’s contribution to the injury is compared with the plaintiff’s contribution. In general, the defendant pays only the percentage of his contribution to the injury. If the injured party is more than 50% at fault, they cannot collect anything in most states. Contribution to the injury is decided by the jury.

Transfer Strategies Passing the liability on to another party Assumption of risk Waivers Insurance Contracting

Assumption of Risk Participant assumes the risk that is inherent or part of the activity. Participant must understand what the risks are. Participant must appreciate how significant the injury might be. Participant must participate voluntarily. Participant signs a warning or assumption of risk form.

Waiver A contract between the provider of an activity and the participant in which the participant, in order to participate in the activity, relinquishes the right to sue the provider for negligence that may result in injury

Elements of a Waiver Title that clearly states that participant is giving up rights “Relinquishing the right to sue for negligence” in bold print Warning of the dangers of the activity and the precautions the participant should take A signature that indicates the participant’s agreement to not sue

Other Elements of a Waiver Indemnity and hold harmless: Participant responsible for all costs incurred by the injury Who cannot sue: Includes heirs Who is protected: All related parties, including sponsors, volunteers, and employees

Other Waiver Issues Minors cannot sign contracts. Parents cannot sign away the rights of minors (still recommend that parents are included). Participants must realize what they are signing. Conditions must be appropriate (e.g., light, time to read, easy to read).

Ancillary Clauses Extra issues for which a provider may want to contract should have separate signatures Right to use photo Right to give medical care Jurisdictions in which cases may be brought

Insurance Different types of insurance protect against different types of loss in exchange for a premium. Liability insurance: Loss from a lawsuit Fire insurance: Loss from fire Flood insurance: Loss from flood Bond: Loss from employee theft

Settle Out of Court 98% of cases settle out of court Agreement between plaintiff and defendant about how much is paid Saves time and court costs Usually settles at a lower amount than going to court Saves public relations

Contracting Services to a Third Party Services are provided by a third party. Third party takes on all liability and cost of the service. Third party has equipment and expertise to offer the service at a lower cost.

Procurement Process Identifying what is to be contracted Notification and prequalification; request for proposal (RFP) Tendering or submitting RFP Evaluating the bids Awarding the bids

Summary Governmental immunity State statutes: recreational land use and hazardous recreation Transfer strategies: assumption of risk and waivers, insurance, and contracting