Liability in Athletics

“Deep Pockets” The plaintiff’s lawyer will name everybody—the coach, the athletic trainer, the physician, the school or other facility, the ambulance company, the emergency room, the equipment manufacturer, the grounds keeper, the administration, AND your uncle!

Failure to Warn Assumption of Risk

The “Forseeability” of Harm When danger is apparent, or should be apparent.

Release/Waiver Forms It is often stated that these are not worth the paper on which they are written. It is often stated that these are not worth the paper on which they are written. However, if you do not have written consent or waiver forms, (signed and dated by the athlete) you have failed to warn. However, if you do not have written consent or waiver forms, (signed and dated by the athlete) you have failed to warn.

Negligence Failure to Provide Reasonable Care or to take Reasonable Precautions. Malfeasance-An Individual performs a task not hers to perform. Malfeasance-An Individual performs a task not hers to perform. Misfeasance-An Individual commits an act that is his responsibility to perform, but uses the wrong procedure, or performs the right procedure in an improper way. Misfeasance-An Individual commits an act that is his responsibility to perform, but uses the wrong procedure, or performs the right procedure in an improper way.

Negligence Nonfeasance-Occurs when an individual fails to perform her legal duty of care. Nonfeasance-Occurs when an individual fails to perform her legal duty of care. Malpractice-Occurs when an individual commits a negligent act while providing care. Malpractice-Occurs when an individual commits a negligent act while providing care. Gross Negligence-Occurs when an individual has total disregard for the safety of others. Gross Negligence-Occurs when an individual has total disregard for the safety of others.

The Doctrine of the “Reasonable Person” All factors being equal, would a person of your experience, training, and social maturity, act in approximately the same manner as you did, given similar circumstances?

If the Courts Determine that the Answer to the Question in THIS CASE is “Yes,” then your liability should be significantly reduced.

Avoiding Harassment Charges Keep hands to yourself. Keep hands to yourself. Think before you speak. Think before you speak. One person’s joke might be another’s insult. Avoid sexual or ethnic references. One person’s joke might be another’s insult. Avoid sexual or ethnic references. Demand professional behavior of your subordinates. Demand professional behavior of your subordinates. Whenever possible, keep doors open. Whenever possible, keep doors open. Apply common sense. Apply common sense.

Precedent is usually the determining factor as to how your case will be judged, but NOT NECESSARILY!

Liability Insurance The liability insurance carried by many schools may or may not be adequate to cover you, though the school will tell you that it is sufficient. The liability insurance carried by many schools may or may not be adequate to cover you, though the school will tell you that it is sufficient. If you are a professional health care provider, you need to purchase your own malpractice insurance. If you are a professional health care provider, you need to purchase your own malpractice insurance.

Liability Insurance If you work with patients (athletes) outside your normal workplace, make sure that your insurance covers those situations. It may not! If you work with patients (athletes) outside your normal workplace, make sure that your insurance covers those situations. It may not! Be careful about state practice laws. Be careful about state practice laws. Does your insurance cover volunteer work? Does your insurance cover volunteer work?

Emerging Liability Issues A. Claim Results increasing frequency B. Litigation Target Shift no longer mining concerns no longer manufacturers now contractors/installers now architects/design engineers now construction managers now building owners/managers

Foreseeability Foreseeability may be regarded as the most significant consideration in determining the extent to which a person is owed a duty of reasonable care (Rodriguez v. Sabatino, 1997). Foreseeability may be regarded as the most significant consideration in determining the extent to which a person is owed a duty of reasonable care (Rodriguez v. Sabatino, 1997).

Foreseeability Foreseeability is considered to be the degree to which the university knew, or should have known, that an invitee may be exposed to the probability of injury. Foreseeability is considered to be the degree to which the university knew, or should have known, that an invitee may be exposed to the probability of injury. Foreseeable danger, “… lies at the foundation of the duty to use care that is the risk of injury to another person, reasonably within the range of apprehension that is taken into account in determining the existence of the duty to exercise care” (American Jurisprudence, 2004, p. 39). Foreseeable danger, “… lies at the foundation of the duty to use care that is the risk of injury to another person, reasonably within the range of apprehension that is taken into account in determining the existence of the duty to exercise care” (American Jurisprudence, 2004, p. 39).

Licensee/Invitee Generally 2 types of individuals which a facility owner may have a duty to: Generally 2 types of individuals which a facility owner may have a duty to: Licensee – a person who enters the property, with the owner’s consent, for the licensee’s own purpose Licensee – a person who enters the property, with the owner’s consent, for the licensee’s own purpose Owner only owes a duty of ordinary care Owner only owes a duty of ordinary care No obligation to inspect the area for unknown dangers or to warn against conditions that are open and obvious No obligation to inspect the area for unknown dangers or to warn against conditions that are open and obvious Owner only owes a duty to warn when a risk is known or should be known under the reasonable care standard, which the licensee is unaware Owner only owes a duty to warn when a risk is known or should be known under the reasonable care standard, which the licensee is unaware

Business Invitee Since fans who go onto property owned by a university/college and pay to watch a football game or any other athletic event are business invitees, a land owner has a greater level of duty to protect patrons attending sport events from negligent behavior (Mallen, 2001). Since fans who go onto property owned by a university/college and pay to watch a football game or any other athletic event are business invitees, a land owner has a greater level of duty to protect patrons attending sport events from negligent behavior (Mallen, 2001). A business invitee who enters the land for business purposes establishes a duty of ordinary care against known harms (Restatement (Second) of Torts 344 (1979). A business invitee who enters the land for business purposes establishes a duty of ordinary care against known harms (Restatement (Second) of Torts 344 (1979).

Duty to Protect The "special relationship" or duty to protect patrons at sporting event is required if a criminal attack was reasonably foreseeable The "special relationship" or duty to protect patrons at sporting event is required if a criminal attack was reasonably foreseeable Recently, the courts have realized that extending liability could have a significant effect on sports organizations, towns, sport sponsors, and private individuals who own the premises where the sporting events take place (Docheff & Conn, 2004). Recently, the courts have realized that extending liability could have a significant effect on sports organizations, towns, sport sponsors, and private individuals who own the premises where the sporting events take place (Docheff & Conn, 2004).

Duty to Protect The Restatement (Second) of Torts (The American Law Institute, 1965, §342) recognized the general duty owed by landowners to their business invitees to provide reasonable protection from foreseeable criminal assaults. The Restatement (Second) of Torts (The American Law Institute, 1965, §342) recognized the general duty owed by landowners to their business invitees to provide reasonable protection from foreseeable criminal assaults.

Duty to Protect The courts have recognized that a business invitee is owed the duty to The courts have recognized that a business invitee is owed the duty to use reasonable care in keeping up the property in a reasonably safe condition as use reasonable care in keeping up the property in a reasonably safe condition as duty to warn of dangers of which the owner has or should have known, duty to warn of dangers of which the owner has or should have known, dangers which are not known to the invitee as well as dangers of which the invitee would be able to ascertain from reasonable care dangers which are not known to the invitee as well as dangers of which the invitee would be able to ascertain from reasonable care

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