Basic Principles and concepts of Tort Liability

 Litigation in North America has been influenced by a set of factors that are mostly beyond the influence of the sport and physical activity profession. These factors are 1. Insurance shortfalls  When someone suffers an injury there are medical bills and insurance may not cover all the costs. The injured person then has two choices, absorb the financial burden, or seek redress through the courts 2. The right to sue  Under American Civil law any person can sue at time for practically any reason. 3. Doctrine of entitlement  This is the sense of the need for compensation. In other words someone gets hurt then it should be someone's responsibility to cover the charges for those injuries. It is the sense of entitlement 4. Settlements  This is when neither party agrees to be innocent or guilty and agrees upon a financial agreement  This occurs in most liability cases

 Because of the following reasons its easy to see why lawsuits happen so regularly  An injured person has some financial loss, realizes they have the right to sue and that they will more often than not get something out of the lawsuit.  There is another area that come into play when looking at liability 5. The myth of being risk free  It is impossible to conduct a program of physical activity and think that it is entirely safe  It is the very nature of physical activity to move and any time you add contact or more than one person it is inevitable that someone will get hurt

 We must do everything within reason to decrease injury, we must also realize that despite our best efforts injuries will occur  We must view each activity to see if the value of the activity significantly outweigh the risk that remains  When the answer is yes, the risks can be viewed as both reasonable and controlled, and the activity may be conducted.  Where the answer is no, however, the prudent teacher or coach will either make further modifications to the activity or eliminate entirely

 A tort is a civil wrong for which an individual may seek recompense though the courts  A negligent tort arises when a loss occurs as a result of another persons failure to meet a legal duty or obligation properly  There is no requirement to show conscious deliberation, the failure is almost always inadvertent  An intentional results from an act which the defendant consciously decided to do

 Negligence is essentially either failing to do something that a reasonable prudent and up to date person would have done under the same circumstances.  Can also occur from an act of omission and commission as well

 To meet the legal requirements for negligence the plaintiff must show the following elements 1. Duty.  Every civil action for personal injury must show that the defendant owed a duty of care to the plaintiff 2. Breach  This is whether or not the defendant failed to act reasonably under the particular circumstances involved  Also there must be proof that the defendant should have been able to predict the possibility of an injury under the circumstances in question  This is saying that a reasonable person should have been able to predict some type of injury.  This is know as forseability

3. Loss  The breach must have resulted in damages or losses to the plaintiffs person, property or things 4. Proximate cause  The plaintiff must prove that the particular injury for which compensation is sought was actually caused or aggravated by the defendants negligence  Note that nothing in these element is predicted upon the severity of the injury

 When a person with a legal duty of care fails to exercise even slight diligence in the fulfillment of a duty, the courts may sustain a claim for gross negligence  the only difference between gross and ordinary negligence is the degree, but there can be many more legal consequences for gross  Most immunity laws do not offer protection from gross negligence  Also the courts will disregard the protections of a waiver in the face of gross negligence

 Governmental Immunity  At present most jurisdictions have enacted legislation known as tort claims acts which allow injured persons to sue the government in more limited circumstances  You can sue for ministerial acts, but not for discretionary acts  Ministerial acts involve the day to day activities of the government  Discretionary acts are the judgmental decision making functions  Volunteer Immunity Status  There are federal and state laws that protect volunteers from law suits  There are differences state to state and some states can opt out under certain circumstances  All volunteer immunity statutes contain numerous exceptions, the most common of which is cases of gross negligence.  A person who intentionally, willfully, or recklessly cause an injury to another may not be immune under federal and or state laws

 Good Samaritan Laws  These are enacted to encourage individuals to assist others in need of help  The idea is that by removing the threat of negligence then people will be more willing to help  Good samaratin laws do not offer any protection fro person who have a duty of care for the individual in need

 Releases  In a release the participants or their parents absolve an individual from liability if an injury occurs as a result of the specified activity  Such documents are seldom considered legally valid for absolving a defendant or responsibility for school related programs or for minors for the following reasons 1. The courts are generally reluctant to grant individuals pre- event protection from the consequences of their own negligent actions 2. No person can legally waive the rights of another. Parents therefore cannot waive the rights of their children 3. It is extremely difficult to enforce contracts executed by minors because they can be voided at anytime by the minor, even after injury has occurred 4. The requirement that one execute a release to participate in a public program is commonly held to be a violation of public policy is therefore invalid

 A release can be a valuable legal document for programs involving adults especially those conducted within the private sector, because adults may waive their rights under certain circumstances. These reasons are the following 1. Reasonable options are present. In the private sector, adults can usually find a wide variety of program options. Also because private programs are not supported by tax dollars adults have the option not to be involved 2. The adults are aware or, understand, and appretiate their risks and responsibilities for the program or activity

 Primary assumption of risk  Is a legal theory that precludes the recovery of damages for an injury resulting from a risk that is inherent to the activity  Inherent risks are those those which cannot be eliminated without fundamentally altering the nature of the activity  There needs to be three conditiond present 1. Participation was undertaken voluntraily 2. The participant knew the nature of the activity, understood what was involved in participating, and appreciated the risk of injury 3. The injury resulted from an inherent risk rather than from provider negligence

 Secondary Assumption of Risk  Also known as contributory faults occurs when the injured person acts in a manner that falls below the standard reasonably expected or a participant in the same circumstances  In most states there are laws that judge the negligence by both parties  This is called comparative fault, a jury would be asked how much the defendant and plaintiff were involved in the negligence, and then the plintiff would be responsible for their percentage  Most states have a cut off at 50% if the defendant was more than 50 % responsible for the injury then the plaintiff would not be held to any responsibility

 Participation Agreement  This is another documenting that the participant 1. Understand and appreciate the risks involved in the activity 2. Know the safety rules and procedures, understand their importance, and agree to comply with them 3. Specifically request that the person be allowed to participate in the activity  A properly drafted agreement must do the following 1. Be clearly worded 2. Clearly explain the nature of the activity and the prerequisite skills needed 3. Identify the rules that must be followed 4. State in detail the possible dangers inherent in the activity, this should include specific injuries and possible death and paralysis if appropriate 5. Require the participant to have the requisite skills needed 6. Have a statement were the participant agrees to assume the risks inherent in the activity

 Open and Obvious  Risks of participating in an activity which are open and obvious are mostly the responsibility of the participant  Generally the more mature and the more knowledgeable the participant, the greater the responsibility for open and obvious conditions  Act of God  There are certain accidents that occur by nature without warning these are considered acts of god  These generally have little value as a legal defense