Play Ball!!! --- Risks, Liability and Preventative Measures for Successful Sports Programs CAJPA Fall Conference 2012 Kimberly Smith Cynthia Smith

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3 California Government Claim Requirements Assumption of the Risk Doctrine Liability Due to Human Factors Liability Due to Physical Factors Minimizing Risk

4 California Government Claim Requirements There is no liability by a public agency for personal injuries unless specifically provided by statute. Cal.Govt.Code § 815(a).

5 California Government Claim Requirements Government Code § 815.2(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.

6 California Government Claim Requirements Government Code § 815.2(a)  Respondeat Superior  Negligence

7 California Government Claim Requirements Very strict claim presentation requirements  6 months + 6 months  6 months & 2 years

8 Assumption of the Risk Doctrine What is “assumption of the risk?”  A defense that negates a defendant’s duty of care to the plaintiff.  Involves the plaintiff’s known incurring of an inherent peril (consent).  Bars plaintiff’s claim.

9 Assumption of the Risk Doctrine FIRST, though…what is negligence?  OR…one whole semester of a law school course condensed to 2 minutes or less…  Where does Assumption of the Risk fit in?

10 Assumption of the Risk Doctrine Does the Assumption of the Risk Doctrine exist in California?  Comparative fault is the law in California.  So what remains of the Assumption of the Risk Doctrine?

11 Assumption of the Risk Doctrine Before the adoption of comparative fault in California:  Express Assumption of the Risk Release/Consent Requires specific knowledge  Reasonable Implied Assumption of the Risk  Unreasonable Implied Assumption of the Risk

12 Assumption of the Risk Doctrine The CA Supreme Court found the reasonable/unreasonable implied assumption of the risk terminology to be misleading and adopted a division between “primary assumption of the risk” and “secondary assumption of the risk”.

13 Assumption of the Risk Doctrine Primary Assumption of the Risk  Defendant has no duty of care to plaintiff, and plaintiff voluntarily participates in an activity involving certain inherent risks and encounters one of the inherent risks  Complete bar  Types of activities are many, including participating in team sports, practicing for sporting activities, cheerleading, and “attending an old-fashioned cattle roundup”.

14 Assumption of the Risk Doctrine Secondary Assumption of the Risk  Defendant owes a duty of care to plaintiff, and plaintiff encounters one of the inherent risks  Comparative fault – diminution in value in plaintiff’s recovery of damages.

15 Assumption of the Risk Doctrine What does this mean for our cases, clients and insureds?  Case Law Review Supervision Issues Facilities Issues Equipment Issues

16 Negligence – Human Factors Negligence of supervisors/teachers:  Failure to properly instruct  Negligent supervision  Failure to alert to foreseeable dangers  Failure to place adequate limits on the activity

17 Negligence – Human Factors What does this mean for our cases, clients and insureds?  Case Law Review

18 Negligence – Physical Factors Playing Surfaces

19 Negligence – Physical Factors Equipment

20 Negligence – Physical Factors Protective Gear

21 Minimizing Risks via Contract Waivers and Releases Insurance Indemnification

22 Minimizing Risks via Contract Waivers and Releases  Enforceability  Negligence v. Gross Negligence  Using the Correct Language

23 Minimizing Risks via Contract Insurance and Indemnification  Liability Limits  Coverage of Other Entities  Evidence of Coverage vs. an Actual Policy  Strong Indemnification Language

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