Participant Liability Issues Chapter 15

Management Contexts, Relevant Laws, and Cases

Negligence: Negligence is conduct that “falls below the standard established by law for the protection of others against unreasonable risk of harm” –Restatement (Second) of Torts, §282 Unintentional tort: Defendant acted unreasonably but did not intend to commit act or cause harm. No punitive damages may be awarded.

Elements of Negligence Duty- the defendant by law has the responsibility to protect the plaintiff from unreasonable risk. Davidson v. University of North Carolina p. 418 Breach of duty- the defendant has failed to meet the standard of care required. Causation- the consequences of an act or non-action that results in an injury or incident. Bellinger v. Ballston Spa Central School Districts P. 421. Damages- there are actual loss or damages has been sustained as a result.

Defenses Against Negligence Statute of limitations- a defense that a cause of action has not been filed in a timely fashion. Act of God- a person has no liability if an unforeseeable natural disaster results in injury. (p. 423) & 459) Contributory or comparative negligence on part of plaintiff Assumption of risk by plaintiff Immunity- the ability to escape legal responsibilities, precludes a suit from being brought against a party. Good Samaritan statutes – Under common law, if a person assumes the duty of aiding another and is reasonable in such care, are protected by this statutes. Defenses Against Negligence

Negligence in Transportation Select competent drivers Select a safe mode of travel Properly maintain vehicles Properly train drivers Clement v. Griffin p. 448

Supervision Quality: Quantity: Is the supervisor competent to identify dangerous behavior? Quantity: Is the ratio of supervisors to participants reasonable given specific circumstances?

Issues of Instruction or Training Selection and supervision of properly qualified instructors Suitable and adequate instruction for the intended audience Proper progression of skills Dissemination of safety rules and warnings Mismatch of opponents Unsafe use of equipment

Competitive Advantage Strategies Equipment Use Provide equipment that is in good condition. Maintain equipment properly. Teach supervisors and participants how to check for equipment problems prior to use. Ensure all equipment meets specifications. Give proper instruction on proper use of all equipment.

Negligence Claims Negligent design Negligent failure to wear

Medical Care Issues for Athletes and Participants Preventive health concerns Emergency medical care Medical malpractice Fraudulent concealment

Emergency Medical Care Make sure qualified personnel are available to render emergency medical care. Have a clear protocol to make sure outside medical personnel can get to a site as quickly as possible. Take precautions when practicing in the heat.

Competitive Advantage Strategies Medical Care Make sure that one or more persons with first aid or CPR training are readily available. Develop an emergency action protocol, and train employees to implement it. Give the team physician final authority to authorize an athlete to play. Provide full disclosure to athletes regarding their injuries.

Competitive Advantage Strategies Transportation Appoint a transportation coordinator. Ensure that all drivers are properly credentialed. Have drivers obtain certification from an Emergency Vehicle Operator’s course in the vehicle they will operate. Use a qualified, paid driver when traveling further than 350 miles one way or late at night/overnight. Under-load vans (e.g., 8 passengers and equipment in 12-person van).

LIABILITY A liability can mean something that is a hindrance or puts an individual or group at a disadvantage, or something someone is responsible for, or something that increases the chance of something occurring (i.e., it is a cause). Liability may also refer in specific fields to: Legal liability, the legal bound obligation to pay debts Public liability, part of the law of tort which focuses on civil wrongs

Liability Issues Regarding Participants Lack of supervision Improper instruction or training Unsafe use of equipment Improper medical care Negligence in transportation

Products Liability Two types of products defects: Design defect Injuries caused by malfunctioning/defective equipment without any negligence on part of instructor or participant. Two types of products defects: Design defect Manufacturing defect

Potential Causes of Action Under Products Liability Law Three potential causes of action: Negligence claims – a manufacturer, seller, or supplier may be sued for negligence in design, manufacturing, or distribution of a defective product, or failure to warn. Strict liability- an injury is caused by a defective product. Breach of warranty- failure of warranty ( promise made) Two or three of these claims may be joined in one lawsuit.

Strict Liability Applicable even if a manufacturer was reasonably careful in designing and manufacturing a product. Based on a public policy rationale that a manufacturer is in the best position to foresee risks. Plaintiff must establish that the product was defective and unreasonably dangerous to consumers. Courts use risk-utility balancing test. Defenses available to strict liability claims.

Breach of Warranty Claims Warranty: Assertion of fact or promise made by manufacturer or seller. Sports equipment may involve several warranties. Privity of contract (direct contractual relationship between user and provider) may be required in some states. Types of warranties: Express, implied Defenses available to warranty claims

Competitive Advantage Strategies Products Liability Think twice about using reconditioned sports equipment. Use waiver that protects dual roles of sponsors that are also equipment manufacturers. Avoid language in advertising and packaging such as “safe” or “foolproof.” Make sure your employees are not buying equipment they know, or should know, is defective.

TORT LAWS FACT SHEETS

QUIZ: ____1. Negligence is conduct that “falls below the standard established by law. ____2. There are three elements of negligence. ____3. Breach of duty means an individual has failed to meet the standard of care required. ____4. Act of God means a person has no liability if an unforeseeable natural disaster results in injury. ____5. Immunity means the consequences of an act or non-action that results in an injury or incident. ____6. Causation means the defendant by law has the responsibility to protect the plaintiff from unreasonable risk. ____7. Unintentional tort means defendant acted unreasonably but did not intend to commit act or cause harm. ____8. The Good Samaritan Act means a defense that a cause of action has not been filed in a timely fashion. For the following select one if the following for each statement: A. Negligence in Transportation B. Negligence in Instruction/Training C. Negligence in Medical Care ______9. Properly train all drivers. ______10. Make sure that one or more persons with first aid or CPR training are readily available. ______11. Lack of supervision is a problem. ______12. Give the team physician final authority to authorize an athlete to play. ______13. Take precautions when practicing in the heat. ______14. Ensure that all drivers are properly credentialed. ______15. Proper progression of skills for athletes are important.

ANSWERS: 1. T 14. A 2. F 15. B 3. T 4. T 5. F 6. F 7. T 8. F 9. A 10. C 11. B 12. C 13. C

OTHER ELEMENTS TO STUDY ARE: Several types of liabilities Strict Liability Private liability Legal liability Breach of warranty Warranty