1. Chapter 3 Defenses Against Negligence

2. Overview Legal doctrines that limit liability
Methods of transferring liability

3. 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

4. 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.

5. 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

6. 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.

7. 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.

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

9. 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.

10. 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

11. 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

12. 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

13. 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).

14. 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

15. 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

16. 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

17. 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.

18. 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

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