Module 2 – Negligence and Tort Law

Definition of Legal Liability: A responsibility between two parties, which is recognized by the courts. Definition of Tort: A civil wrong; noncriminal. Three Functions of Tort Law

1. used to compensate a person who has sustained injuries or damages 2. places the responsibility for compensation on those who ought to bear it 3. acts as a deterrent – if people know they can be sued, they will pay more attention

to their actions Unintentional Tort An unintentional tort is very basically defined as a civil wrong that was unintentional. For example, if someone slips on a floor that is wet because of a roof leak, nobody intended for this to happen. Negligence is an unintentional tort and will be included in many of the discussions, notes, and cases used in this course. Definition of Negligence: Unintentional failure to perform one’s duty up to the standards expected of a prudent professional under similar circumstances. Four Elements of Negligence

1. duty – obligatory conduct owed 2. breach of duty – failure to provide a standard of care which a reasonable prudent

person would provide under similar circumstances 3. there was an injury (called damages) 4. causation – two parts:

a. proximate cause – did the breach cause the injury? b. cause in fact – would the injury have occurred anyway, regardless of the

defendant’s action? Foreseeability was defined earlier in this course. However, some law texts/law schools are beginning to teach foreseeability with proximate cause. In other words, was the cause of the act foreseeable? Could the organization have predicted that an accident might occur, given the circumstances? All four elements of negligence must exist, or there is no negligence. Source: Business Law (2004). An easy way to remember the four elements of negligence:

Was there an owed duty breached that caused the injury? Three Types of Breach

1. Act of commission – responding incorrectly; also called misfeasance: One way to remember these two terms is to think of the words mistake and commit. Mis occurs in both misfeasance and mistake. To commit a mistake is an act of commission.

2. Act of omission – failing to do something or to respond to a legal duty; also called nonfeasance: In order to remember this definition, think of not and omit. Not remembering to do something is omitting an act that should have been done.

3. Malfeasance doing something not allowed by law to be done. There is no easy way of remembering this!

Three Degrees of Negligence

1. Ordinary: Failure to exercise such care as the great majority would ordinarily exercise under the same or similar circumstance. Another name for this is simple negligence. An example of ordinary is the “failure to routinely inspect a swimming pool” (Clement, 2004, p. 20).

The lines between the three degrees can be gray and often the court determines this. Look at the next two levels to distinguish the differences among the three levels.

2. Gross: Very great negligence. Following the previous example, the failure to inspect the swimming pool when known unsafe conditions exist (Clement, 2004), could be an example of gross negligence.

3. Willful, wanton, or reckless: Conduct that might be criminal in nature or be deemed equivalent to an evil intent. The following example of willful or wanton negligence comes from an actual law case: A patron at a bar wanted to try riding a mechanical bull. The patron had never tried anything like this before and told the operator to put the settings on the very lowest level. Without telling the patron, the operator put the settings on the very highest level and the patron was injured. Source: Van Tuyn v. Zurich American Insurance Co., 447 So. 2d 318 (Fla. App. 4 Dist. 1984)

Three Standards of Care

1. Reasonable person – applies to society in general. An example would be someone certified in CPR who attempts to help a stranger in need.

2. Special relationships – applies to people and agencies (school and parents) that have a duty to render essential emergency medical assistance. This is a common responsibility in recreation or athletic programs and at a sport facility where spectators are present.

3. Professional standard – refers to those who have a duty to perform at the level expected of a person with the training, knowledge, and skill of a member of the profession. The best example of this would be an athletic trainer who is trained to treat medical emergencies. Sport managers generally fall under category 2 or 3.

Duty A duty is the responsibility to perform a task that is part of one’s professional position. For example, a facility manager generally has the responsibility (or duty) to provide a safe facility. Two Types of Duty

1. Ministerial – This is a duty that is clearly defined and the responsible individual has little room to interpret it. Basically, there is no judgment involved. Example: An individual is hired by a fitness center to check IDs; no one is allowed in without a valid ID. If the individual allows a friend in without a valid ID, they have gone beyond the scope of their ministerial duty. If the friend they allowed in causes a fight that results in someone being injured, the seemingly innocent act of allowing a friend into the fitness center can cause a legal problem.

2. Discretionary – In this type of duty, an individual must use judgment in the course of making a decision. The decision no longer is clearcut.

Origins of Duty

1. Voluntary assumption of interpersonal relationships: No duty is owed unless a relationship is created

Example: a relationship is created if someone trained in CPR decides to voluntarily assist a person in need of medical help

Good Samaritan laws exist in most states to legally protect these individuals if someone worsens a condition by attempting to help out, they can be held legally liable for their action.

2. Any form of written law, business invitation, or judicial decision:

Sometimes local ordinances for recreation departments create duties for recreational sport managers.

3. Inherent in the situation: A job description creates duties for an individual holding that position.

Satisfying a Duty

requires adherence to the applicable standard of care, based on the situation job descriptions are the best way to make sure people are acting within the

scope of assigned responsibilities Definition of ultra vires act: Acting beyond the scope of a duty. This can get one into trouble if injury results from one’s actions. Defenses for Negligence A defense for negligence is a legally recognized action that is applicable to the case, used by the defendant in a court case. The following are recognized defenses that are applicable to this course. These will be used in Module 8, in the case analysis assignment. 1. Primary assumption of risk – In sport, a participant usually assumes the risk of participation. In many cases, a court will determine the following:

Did the plaintiff have knowledge of the danger in the specific activity? Did the plaintiff understand the nature and extent of danger (paralysis or

death)? Did the plaintiff voluntarily participate in the activity? If an individual tries out for

a team or buys tickets to an event, the court generally indicates they voluntarily participated in the event.

If the answer is yes to all three questions, defendants will usually claim assumption of risk as a defense to clear themselves of any wrongdoing.

2. Secondary assumption of risk (also known as contributory negligence in some states)

The plaintiff did something to contribute to their injury. Example: A soccer athlete decides to continue play on a field, despite that fact that it has been raining for most of the game.

Note: Some states do not separate primary and secondary assumption of risk, and have one defense called simply assumption of risk.

Rule of Seven (Source: Peterson & Hronek, 2003) This is not a defense. It has been included here because it is another way of explaining assumption of risk or how much care a sport provider is required to exercise.

Under age 7 – Generally, assumes no risk for their actions. Therefore, programs that cater to this age group must take great care to protect the youngsters from injury.

Age 7-13 – Can assume some risk. The risk they assume will depend largely on the situation and the injured party’s level of understanding. There is a big difference between what a 7year old and a 13year old can understand, but a 7year old will be able to assume some risk.

Age 14-21 – These individuals can assume a lot of risk. Again, the risk they assume will depend on the event, the age of the participant, and the individual situation.

Adults – Assume most risk, except in situations where the risk is not understood.

Example: If an adult participates for the first time in an activity, such as an indoor simulation of parachuting, and all of the risks of participation are not explained before beginning.

3. Comparative negligence – may be better understood by thinking of it as levels of contributory negligence. The defendant is admitting some negligence. In some states, this is a separate defense.

Four classifications of comparative negligence: a. Pure comparative rule This is where the action by the defendant is compared to the action of the plaintiff. In a pure comparative state, a jury or judge can award damages based on a percentage of negligence. For example, if a jury awards $10,000 in a case and determines the defendant was 20% negligent and the actions of the plaintiff accounted for 80% of the injury, then the jury would award 20% of the $10,000, or $2,000, to the plaintiff. The defendant would only pay that amount.

b. 50% rule In states that have the 50% rule, a plaintiff that is equally or less negligent than the defendant can recover damages. For example, if a jury awards $10,000 and determines that the plaintiff and the defendant were each 50% at fault, the plaintiff would be awarded $5,000. If the jury determines the plaintiff was 51% at fault, no money would be received by the plaintiff.

c. 49% rule Under this rule, a plaintiff would not be able to collect any damages if the plaintiff were equally or more negligent than the defendant. In contrast to the 50% rule, the plaintiff will not collect any damages if a jury decides that the plaintiff and defendant were

equally negligent. In essence, the plaintiff will collect on awarded damages only if the plaintiff is less at fault than the defendant.

d. Slightgross rule This a very tough classification to define because the court must make a discretionary decision. According to Peterson and Hronek (2003, p. 18) no damages are awarded unless “the plaintiff’s negligence was slight and the defendant’s negligence was gross by comparison” (Source: Peterson & Hronek, 2003).

4. Act of God – This is a defense generally used when nature may have caused the injury. Example: If spectators at a stadium are struck by lightning and a lawsuit results, this defense may be used. 5. Respondeat superior (Latin) – This defense is used when an employee performed an act that caused an injury (commission), but was acting on behalf of the employer. The employer must accept the responsibility, and the defendant employee (if individually named in a lawsuit) would utilize this defense. 6. Waivers/releases – A waiver, release, or any signed form can be used as a defense. Waivers are often used to warn individuals of risks and to have them, by their signature, waive their rights to sue. These forms will be discussed at greater length in Module 7. 7. Sovereign immunity/other immunity statutes – Immunity statutes can be used by defendants, if applicable to their situations. For example, an athletic director working for a public university can use sovereign immunity, if an existing statute indicates they cannot be sued for performing actions within the scope of their duty. Generally, an immunity statute is only enforceable if the defendant was judged to be only ordinarily or simply negligent. If the defendant is judged to be grossly or willfully negligent, then often this defense cannot be used. (See previous notes.) 8. Recreational land use statutes – This might be considered another type of immunity statute, but it is a little different. Usually, these statutes are used by owners of private land who allow individuals or organizations to use their land at no charge. If a fee is charged, this defense is not usually available. 9. Failure of proof or no negligence – These defenses exist in some states and are used when the plaintiff cannot prove or has not shown that all elements of negligence exist. 10. Statute of limitations – We’ve already defined this in Module 2. It is used by the defendant if the statute of limitations for that state has expired and can bar an entire case from being filed or being allowed to proceed. This applies to a Notice of Claim, too. 11. Any contract or facility lease – The contents of any applicable contract can be used as a defense.

12. Equipment rental agreements – These might be in the form of a contract. Regardless of the form these agreements take, if applicable, they can be used as a defense. 13. Any applicable law (e.g., Volunteer Protection Act) – Any form of written law can be used as a defense.

Liability Issues Related To Facilities Classification of Users According to the law in many states, facility users can be classified under one of three or four categories: 1. Invitee An invitee is basically someone who has been invited onto the premises, either to conduct business or for a scheduled activity. There are generally two types of invitees.

a. Business invitee – This is one who comes upon the land of another by the other’s invitation and brings an economic benefit (e.g., spectator, fitness club member). If there is an exchange of money (e.g., the spectator buys a ticket), the individual will be classified as a business invitee.

b. Public invitee – An individual who is on land that is open to the public (park users, free concert attendees).

The highest standard of care is owed to invitees. The operator is not required to insure safety, but must:

o keep premises in safe repair o inspect for hazards o remove hazard; if removal is impossible, then there is a duty to warn o anticipate foreseeable uses and foreseeable dangers o provide proper supervision

(Peterson, J. A. & Hronek, B. B., [2003]. Risk Management: Park, Recreation, and Leisure Services. Champaign, IL: Sagamore Publishing)

For spectators, the operator must provide a safe facility and must take into account:

o the nature of the activity; is the facility appropriate for the scheduled activity? o the customary conduct of the spectators in relationship to the activity; are

spectators sometimes unruly at this type of event? (e.g., professional wrestling, professional soccer)

Note: When using a facility, the user never assumes the risk under these two conditions:

o inadequate control of crowds o participant conduct presents a dangerous situation (e.g., an athlete jumps into

the stands to fight with a spectator)

In general, a person or spectator assumes the risk when there is knowledge that injury is possible; e.g., a baseball may fly into the stands as a result of a foul ball or home run.

Assumption of risk when attending events: o What should the spectator have known? o What is common knowledge?

Can depend on:

o popularity of the sport – in ice hockey, it is common knowledge that a puck may fly into the stands

o geographic location of the event when professional ice hockey first moved to Florida, was the fact that a puck may fly into the stands common knowledge for a hockey fan in Florida?

2. Licensee An individual who has approval to use the facility, but is not enticed through a scheduled activity. There is no contractual relationship. Duties owed:

o the licensee must accept premises as they are. o the owner of the premises must warn of hidden dangers, but does not have to

warn of obvious dangers. Example: Overnight, the roof leaked during a rainstorm and there is water on the aisle stairs leading to spectator seating. Blocking off access to that aisle with ropes and a sign would be a method of warning of a hidden danger.

3. Trespasser A person who enters or stays on premises without actual or implied consent. Duties owed:

o no duty of care except to warn of harmful, hidden traps that have been installed for the purpose of injury to the trespasser. Example: If you have a guard dog on your business premises overnight, you would place signs warning of this danger.

Minors as trespassers Owners are liable for failure to construct, repair, or maintain premises in a safe condition. Remembering the details of Rule of Seven helps explain this liability. What dangers would an 8 year-old child recognize when entering an unlocked gymnastics room without permission?

Attractive nuisance doctrine The operator can be held liable for injuries to children if the following four conditions exist:

o facility is frequented by children as trespassers o condition is, or one has reason to believe that it is, considered a nuisance o children, due to age, will not recognize or realize the risk o burden placed on the operator to remove the risk is less than the risk of injury to

the child Examples of common attractive nuisances in sport/recreation include an unlocked/unsupervised swimming pool or trampoline, a fitness machine, or a gymnastics room.

Think of it in terms of the Burden < Probability Of Injury (Pl) Example: If a large piece of fitness equipment is broken, what is the burden for the facility owner to remove that piece of equipment vs. the probability of someone being hurt if it is not removed? The burden of moving a 6,000 pound fitness machine might be great. Is it possible to disassemble the machine or place a fixed sign on it, so that a person cannot possibly use the equipment? Playgrounds are never considered an attractive nuisance, because the user is not a trespasser.

Duty of Inspection

o actual notice has seen or is aware of the problem o constructive notice should have known of the problem

4. Visitor or recreational user Some textbooks classify this as a fourth type of user, as certain states might use this category. In this case, a recreational user may not be owed a duty as high as that of an invitee or licensee. However, this type of user could fall into either the category of invitee or licensee in some states, depending on the circumstances. Under all categories, in order to owe a duty one must control the premises. In other words, they must own the facility or have a proper control via a facility lease or some other permission. For example, when a stadium hosts an all-star game, who is liable in the event of an injury to a spectator if an athlete climbs into the stands and hits a fan? Is it Major League Baseball, the city that owns the facility, or the local team that leases the facility during the season? Premises Liability This is a term often found and used when discussing liability related to facilities. Premises liability is related to this topic and is defined as the “duty of care of the owners or persons in possession of land to individuals injured on their property” (Clement, A., [2004]. Law in Sport and Physical Activity. Dania, FL: Sports and Law Press, p. 17). Premises liability is an older law that has been abolished in those states that have adopted a reasonable person standard (Clement, 2004). Under the following circumstances, a physical injury does not take place. However, the mere existence of a facility may cause a civil law problem. Nuisance This usually refers the law when “persons can be held liable if they use their property in a way that unreasonably interferes with others’ rights to use or enjoy their own property” (Miller, R. L. & Jentz, G. A. [2004]. Business Law Today. Mason, Ohio: Thompson SouthWestern West, p 983). A nuisance often refers to dangerous, unsafe, or offensive conditions.

There are two types of nuisance: 1. A private nuisance interferes with the use or enjoyment of private property. An example of private nuisance would be someone playing their stereo at a very high decibel level on a reoccurring basis. That behavior would prevent others from enjoying or being able to do things on their own property.

2. A public nuisance is an unreasonable interference with the right common to the general public. The interference generally offends the public at large or a segment of the public, not just an individual. An example of this would be a sport facility that has bright lights or a loud public address system, which prevents members of a nearby neighborhood from getting to sleep at a reasonable hour. In order to rectify a nuisance, the courts would look at the gravity of harm vs. utility of conduct. Utility (suitability of activity or social value) is weighed against the harm or level of harm caused by the activity or practice. If the gravity of harm is greater than the social value, then nuisance may occur. Example: There is a neighborhood youth softball field where games are taking place as late as 11:00 PM on a school night. Obviously, the social value of youth playing sports would be recognized as very good. However, the gravity of harm to youth under the age of 12 who are out at 11:00 PM on a school night would be held in question. Thus, the courts might find that activities at the youth softball field should end no later than 9:30 PM.

Supervision Supervision is a duty. The sport manager must determine what type of supervision is needed, based upon: Physical layout of the facility

A layout might require additional supervisors, if there are blind spots that cannot be seen from a specific area(s) of a facility.

Facility condition (environment and floors)

Example: A Florida gymnasium is not air-conditioned, and the humidity creates wet/slick floor conditions when temperatures and humidity levels reach a certain point. The volleyball team uses this facility. An additional supervisor, in this case a facility manager, might need to be present to monitor floor conditions when the team practices/plays.

Client

The age and maturity level will dictate the number of supervisors. Younger individuals tend to need more supervision/expertise from a supervisor.

Physical condition. Example: A large university offers noontime aerobics, and anyone can drop in and participate. The gym holds 300 people. This situation could warrant more supervision from roaming aerobics instructors or individuals trained to spot individuals who might be having problems due to their fitness level.

Skill level. Some organizations tend to put the most qualified individuals with the elite athlete. However, participants’ skill levels might dictate the need for the more highly qualified individuals to teach beginners, as they may be better trained in the correct way to teach a given skill.

Differences in activity. Highly technical sport skills, such as gymnastics, may require better trained individuals to spot performers when they are trying new skills/practicing advance skills.

Two Types of Supervision Type 1: General General supervision implies a supervisor is available in the facility or close by, but is not directly involved in every activity that might be going on at the time. General supervision can be provided in several ways:

a. Adequate staffing – The type of activities taking place and the number of people involved will determine whether it is adequate to have only a building supervisor available. Perhaps teams are practicing and several coaches will be working with the teams.

b. Responding to emergencies – A building supervisor who is trained to respond to emergencies may need only to be available, but not directly watching a specific group. Example: A sport team is practicing and they have a qualified trainer at all practices. The level of supervision for the facility is considered general.

c. Checking a facility to maintain a safe environment – A supervisor’s responsibility may include hourly checks of each room to look for possible safety problems. It is a common responsibility of facility managers to check weight rooms to make sure weights are not left on the floor when patrons leave.

d. Warning patrons of hazards – Placing a sign to warn people of a slippery floor is a form of general supervision.

e. Controlling patron behavior – At large sporting events where alcohol is served, having an adequate number of ushers and police officers available is a form of general supervision.

Type 2: Specific Specific, or direct, contact is needed when:

a. Clients involved do not appreciate the risks of the activity – Example: Horseplay is a common activity at swimming pools. Direct supervision, in the form of lifeguards, is necessary to reduce/eliminate horseplay.

b. Clients cannot assess their own physical or skill level – The above definition of supervising clients’ physical condition in an aerobics class is an example of specific supervision.

c. Clients cannot understand and follow safety rules and procedures – The age of individuals, or perhaps a Special Olympics activity, may dictate that direct supervision is necessary.

Transitional supervision Some textbooks call this a third type of supervision. It simply means that an activity has changed or situations have changed and supervisory staff is transitioning from one type of supervision to another. Management may determine that direct supervision is now needed or that it is no longer needed, and supervisory staff will be adjusted accordingly. Appropriate Conduct of an Activity Taking into account the previous notes on supervision, the following points must be considered when selecting an activity. (Selection can preclude supervision, based on staff that will or will not be available.)

Must consider who is under supervision

Activity that is appropriate for your population Instruction and progression of skills:

a. Document how the skill is taught or the activity will be conducted. Many coaches or sport managers don’t do this, and it can be very time-consuming. If someone is injured however, this information can win a lawsuit.

b. Organization – Was the sport provider organized or did the participants get a sense that the activity might have been thrown together at the last minute?

c. Logical progression of presentation – For safety reasons, when certain skills are taught, there is a logical progression of how they are taught. For example, when teaching the spike in volleyball, you would lead up to it by starting with conditioning and teaching of simpler volleyball skills.

Require and enforce strict safety rules – this leads to a safer environment. Provide necessary protective equipment and user instructions:

a. ensure equipment is in good condition b. establish maintenance procedures and appropriate time plan for performing maintenance c. proper lighting can reduce the likelihood of someone being hit and can reduce reaction time in outdoor sports d. proper signage, such as “don’t run on pool deck” or “beware of driving range” can warn patrons that an event is taking place. Additional signage may be warranted for specific events.

Common Causes of Injuries Many situations in sport lead to an accident. The following is a list of the most common causes of injuries that result in lawsuits:

safety rules, failure to create or follow supervision inadequate or nonexistent equipment – nonexistent, doesn’t fit, or is

improperly maintained medical care not available or improperly administered unsafe or improper facilities – Module 6 will discuss this in more depth

Legal Duties of a Sport Provider Most of the points below have already been discussed in more depth in other modules. This list shows the connection between duty and sport, and relates to the previous notes in this module. A sport provider must:

1. Provide a safe environment

2. Properly plan all practices and meetings

3. Have athletes evaluated for injuries or capacity to play – Some athletes just want to play and some coaches just want to win. Honor the opinion of medical personnel.

4. Match athletes according to height, weight, and skill levels – Many youth league administrators violate this and group strictly according to age. In youth football and in some other sports, this may not be the safest grouping procedure.

5. Provide appropriate, safe, well-maintained, and proper-fitting equipment.

6. Inform athletes and parents of inherent risks – This will be discussed in the next module. Warning others of risks is a duty that cannot be ignored.

7. Provide proper supervision

8. Know how to act immediately and appropriately in emergency situations

9. Keep records

Transportation Liability Transportation can occur in four ways, listed below in their increasing order of potential liability to an organization:

1. The use of an independent contractor, such as a bus company – carries the least potential liability for an organization

2. The use of organization-owned vehicles – vehicles must be checked for proper maintenance and records must be kept

3. The use of employee vehicles – the organization should ensure each vehicle is properly maintained, properly insured, and the operator’s driving record is free of moving violations

4. The use of nonemployee vehicles – this carries the greatest potential liability for an organization. If this option must be used, the organization must check the vehicle’s maintenance, insurance, and driver’s record, as if it were an employee vehicle. Too many organizations don’t take the time to conduct proper risk management.

Guidelines for using an independent contractor Selection of an independent contractor is an important responsibility. An organization should:

make sure the contractor has sufficient liability insurance ask the contractor to show proof of insurance for each vehicle inquire about preventive maintenance records for the vehicle inquire about the age of equipment ask about the contractor’s safety record inquire about the age of the operator, if relevant to safe operation find out about each driver’s knowledge, years of experience, and qualifications

If an organization becomes aware of any unsafe vehicle operation, this should be reported to the independent contractor. There is an additional duty to provide a safe location for the pickup and discharge of riders. This is especially important when the rider is a minor, or in secluded locations. Some transportation companies have strict rules regarding pickup and discharge and these should be followed. Organizations who use their own transportation should also have strict pickup and discharge policies, and ensure that they are enforced.

Guidelines for organization owned vehicles

A vehicle should only be operated under safe operating conditions: properly inflated tires, well-maintained vehicle, safe weather conditions. The NCAA has even established policies for the number of hours a team can be on the road, to limit or eliminate the operation of vans by tired drivers. Many states have written laws limiting the liability of

drivers who volunteer to drive vans. Thus, many organizations and states have recognized the wide use of vans for transporting individuals for educational and nonprofit activities.

The driver must hold the proper qualifications and licenses to operate the vehicle. Emergency equipment must be available in the vehicle. This includes flares, markers,

first-aid kit, tire jack, approved traction devices, and snow tires/chains. The driver must know how to use the emergency equipment. It is also prudent that an individual in the vehicle be certified in first aid or CPR.

The driver should be well-trained and well-qualified. Younger drivers (students) may possess a driving license and a clean driving record, but do they have the experience to operate the vehicle in an emergency condition (tire blowout, ice, rainstorm)?

Require occupants of vans to wear seatbelts. Have an established policy that is written and enforced.

Note: If a driver commits an ultra vires act (see Module 3) (e.g., speeding, running a stop sign), the organization is not liable unless they knew in advance of the driving habits of the operator or did not check their driving record. Clement v Griffin (634 So. 2d. 412 1994) is an example of a law case where many errors happened. To summarize this case, a student driver was at the wheel. A tire that had a record of underinflation was 30 lbs underinflated at the time of the accident. The van had a blowout while carrying a baseball team. The court found there was negligence in maintaining the van and in selecting and training the driver. An award of $2 million was eventually granted in the case. It would have been much less expensive for the college if it had developed and enforced appropriate risk management procedures for the transportation of its athletes. Check out http://nhtsa.gov/cars/problems/studies/15PassVans and your textbook, which has additional information related to transportation liability.