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Wk2 1 operation2

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I. REVIEW II.OPERATION OF ORGANIZATION II: PARTICIPANT LIABILITY DEFENSES TO PARTICIPANT LIABILITY CLAIM III.WRAP-UP
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Page 1: Wk2 1 operation2

I. REVIEW

II. OPERATION OF ORGANIZATION II: PARTICIPANT LIABILITY DEFENSES TO PARTICIPANT LIABILITY

CLAIM

III. WRAP-UP

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OPERATION OF ORGANIZATION I

FINANCING STADIUM Use of public funds must be justified by public

benefits Political > legal issue now

FORMATION OF CONTRACT Offer Acceptance Consideration No defense to contractual obligation

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TORT LAW CONTINUUM (DEGREE OF FAULT)

No fault: No legal action possible Negligence: Plain stupidity Reckless: Extreme stupidity Intentional torts: Defendant did it on

purpose Criminal acts: Under criminal law

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PARTICIPANTS

People coming into your premise to actively engage in the program or service you provide

Example: Patrons of fitness club, adult students in community art class

Negligence case: Injured participant may argue that your organization is responsible for her injury

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NEGLIGENCE: 4 ELEMENTS

A plaintiff bringing an action for negligence must initially prove 4 elements

4 elements Duty Breach of duty Causation Damage

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DUTY: WHETHER D MUST HAVE PROTECTED P

From relationship If no relationship, no duty can be imposed Example: Varsity swimmers just passed a kid

in a pond crying for help no relationship, no duty

Question of law Matter of policy judgment Imposing duty achieve stricter safety

standard

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DUTY: STATUS OF PLAINTIFF

Trespasser: A person on the premise without permission

What is the duty owed to a trespasser? Undiscovered trespasser: No duty Discovered trespasser: Only for “man-made

death trap”

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DUTY: STATUS OF PLAINTIFF

Licensee: A person on the premise with consent but brings no economic benefit to the owner (e.g., party guests)

What is the duty owed to a licensee? All known dangers in the premise Inspection not required (i.e., only “known”)

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DUTY: STATUS OF PLAINTIFF

Invitee: A person on the premise with invitation who brings $$$ for the owner

Duty of care owed to invitee (most demanding)

All known danger; & Danger that might have been discovered by

reasonable inspection

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DUTY OWED TO PARTICIPANT (= INVITEE)

Types of duty owed to participant

Duty of reasonable inspection Duty of safe facility design Duty to warn about hidden danger Duty to repair within a reasonable time Duty to emergency medical service (e.g.,

paramedics)

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DUTY FROM SPECIAL RELATIONSHIP

General rule 1: K-12 teachers and coaches have duty of care for their young students

In loco parantis: “Standing in the place of a parent”

Policy: Protection of young children But Cs may not sue for “negligence” Many jurisdictions have abolished the

doctrine

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DUTY FROM SPECIAL RELATIONSHIP

General rule 2: Colleges & universities do not have duty of care for students engaged in sport events

Kleinknecht v. Gettysburg College (p. 466): Exception

An intercollegiate athlete died from a heart attack during a regular practice session

Special relationship imposes duty of care on the college because victim was a member of intercollegiate sport team (victim did it more than self interest)

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BREACH OF DUTY: WHETHER D FAILED TO MEET REASONABLE PERSON STANDARD

Question of fact: Decided by a jury Standard of care: Reasonable Prudent

Person Q Would a Reasonable Prudent Person in

Defendant’s shoe act in the same way? A jury compare D & imaginary person (= RPP)

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BREACH OF DUTY

Negligence per se

If D violates a law directly dealing with the issue (e.g., Defendant’s DUI “it was negligent by itself!”)

No need to prove breach of duty go to next question (“causation”)

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CAUSATION: 2 TYPES

Causation in fact (“but for” causation): if Defendant was not that stupid, Plaintiff may not got injured

Proximate cause (foreseeability): Plaintiff’s injury is a type of injury that was foreseeable when Defendant committed the negligent act

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DAMAGE

Damage must be realized & compensable

Estimation of damage Compensatory damage: Back to normal

condition Punitive damage: Giving a hard lesson to an

egregious defendant (very reprehensible fault)

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DEFENSES: STATUTE OF LIMITATIONS

“Too bad, but you’re late”

A tort claim must be brought into court within a statute of limitation (ex. 3 years from injury)

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DEFENSES: ACT OF GOD

“It was not me…” Must be a truly uncontrollable event Must have been unforeseeable

Baseball practice right before imminent thunderstorm

No defense available if it was foreseeable danger!

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DEFENSES: CONTRIBUTORY NEGLIGENCE

“You have a dirty hand too” If the Plaintiff did not act reasonably to

protect herself, no recovery at all (e.g., jaywalk)

Even small fault negates complete recovery (harsh)

Abrogated in most states

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DEFENSES: COMPARATIVE NEGLIGENCE

“You can only get what you are deserved”

Pure comparative negligence P’s damage is reduced in proportion to the P’s fault Example: 70% (P) & 30% (D) P may recover 30% of

damage

Modified comparative negligence No recovery at all if P’s fault exceeds a statutory limit

(ex. 50% of fault) Example: 51% (P) & 49% (D) No recovery

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DEFENSES: ASSUMPTION OF RISK

“You came this town while you knew it was dangerous”

If it is an “open & obvious risk”

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DEFENSES: LIMITS ON ASSUMPTION OF RISK

Limits of the defense

Not cover entire premise but only immediate area around the playing field + bleachers

Not for injury arising in the parking lot

Distraction doctrine: If risk is not inherently involved with the event no assumption of risk defense (see Lowe case in Module 4, p. 514)

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DEFENSES: IMMUNITY

Governmental immunity

“The King doesn’t do anything stupid” From sovereign immunity (England) Federal Tort Claims Act: Allows tort action

except “discretionary functions” of its officers

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DEFENSES: IMMUNITY

Charitable immunity Common law: charitable entities are immune from

tort liability Most states have repudiated the doctrine

Roberts v. TBBAA Fact: P injured at a soccer game while going to a

concession Rule:

- A charitable entity is immune from tort liability if injury arises from “an event integral to” the charitable event

- Concessions are integral to the event- Remanded: Lower court must decide whether P was

contributor (no defense) or beneficiary (defense accepted)

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PARTICIPANT LIABILITY

Duty: Different status Breach of duty: Proving negligence Causation Damage

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DEFENSES TO NEGLIGENCE CLAIM

Statute of limitations Act of God Contributory & comparative negligence Assumption of risk Immunity


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