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NEGLIGENCEPHED 300 Sport Law & Risk ManagementDr. Charles Davis.
Degree of Negligence • Slight • Ordinary • Gross • Willful and Wanton
Slight Negligence Failure to exercise minimum care…
Ordinary Negligence Failure to meet the “standard” of care… Based on situation and circumstances such as general recreation period or high skill activity such as gymnastics.
Gross Negligence Intentional failure to perform. Reckless disregard for safety, others property. Example: You know facility hazards and you still allow use.
Willful and Wanton Negligence Intentional and unreasonable disregard of a known risk Muellman v. Chicago Park District. Dina Muellman was walking through Brant Park with her sister and two friends on her way to a Blues Festival. Unknown to Dina, there was an open drain pipe on the path ahead of her. She stepped into the open pipe, fracturing her ankle. Dina sued the city park department. She won. The court held that the park department’s conduct was willful and wanton. This conclusion was reached when the evidence revealed the the pipe that Dina stepped into had its lid missing for at least a month. The park department knew the pipe lids wee often stolen and know that the pipes were dangerous. The park department had even painted some of the pipes to warn the equipment operators not to run into them. None in the park were painted to warn visitors of their presence. The city also lost its immunity provided in the state recreation land use statutes.
Negligence Three levels of accountability: Principle-Agent Respondant Superior Joint and Severable liable
Principle Agent Coach-Athlete. “In a game situation the coach tells his athlete to take a player out of the game by any means may be placing themselves in the position of principal authority giver.” If the athlete acts as the coaches agent and does harm to the opponent intentionally, the coach accepts responsibility, morally and legally for battery.
Respondent Superior The supervisors or superiors are responsible for knowing what their employees work related actions are. When an employee acts in place of the employer. The injured party can sue both the employer and employee.
Joint & Severable Liable When fault is assigned to more than one defendant …A coach withholds water during an athletic practice and the supervisor knew or should have known. Our professions knowledge of heat stress has increased, and such behavior is unprofessional today… …A teacher knowingly uses dangerous facilities for a class. The supervisor knew or should have known about the dangerous facilities, but did nothing about them. In this case the groupwill be found liable because the administration should have known what the employee was doing.
Are you liable for the words you say? “A school says that a security guard is always on duty at the entrance to the parking in the evenings…but one evening the guard is not present. A new teacher, in reliance on the the expected presence of the guard, enters the parking lot alone is attacked.” Even though the school originally did not have the duty to provide a guard, its words stating a guard would be present made the new teacher more vulnerable to injury. Thus, the school assumed a duty by its words.
Degree of Personal Involvement Contributory: if actions of the plaintiff in any way helped cause or aggravate an injury. Comparative: Measures the degree of responsibility of both the defendant and plaintiff and assigns a percentage of guilt. _____% needed to prove person is compartively negligent?
Duty Owed • Protection from foreseeable risks and unreasonable harm • Teacher-coach-administrator relationship created by case or statutory law: Case law: previous court decisions Statutes: written local, state, federal obligations • Paid v. Volunteer - No difference in degree of duty owed. Both are based on professional standards. • Changes from activity to activity. • Omission or Commission.
What Determines Duty Owed? Definition - Minimal: Determined in court: • Statute- States by contract what a teacher, coach, or administrator does. • Professional testimony based on individual case
Definitions • Ordinary Negligence Unintentional…You didn’t mean to do it. Must Prove 4 elements: Duty Breach of Duty Cause Harm (Physical or Psychological damage)
Standard of Care Used “What a prudent, reasonable, up-to-date professional would do” • Used in place of no national, state or local standard • Often determined in court by statute or case law • Adjustments can be made to standard- Exclude student form participation Find alternate activities Provide transportation to remote locations to allow access to medical care • Minimal obligations varies: age, maturity, skill, health status, class size, complexity of activity, environment, etc.
Proper Supervision Handout • “Legal aspects of supervision” • “Must provide reasonably safe environment to practice and play.” • Field conditions • Buffer zones • Return to participation • Participants cannot assume risk if they are unaware. • Warn of risks & teach methods to reduce or eliminate them. • General Supervision • Close Supervision • Emergency plan
Intentional Negligence • Intend to do harm • Assault • Battery • Defamation • False imprisonment • Trespass
Assault • Threatening Act of violence Elements: • Apprehension of or immediate battery • Person has the ability to commit act • Damages • Hurt
Battery Unpermitted Contact Elements: • Unprivileged act • Intent to do actual harm • Act causes touching • Damages Legal Liability allowed: Football, Rugby, Hockey, Soccer, Tag, Hide and Seek.
Defamation Types: Untrue… • Slander- verbal • Libel- written Trash talk: Protected by 1st Amendment Fighting Words: No protection “Fire” Elements: • False • Stated to a 3rd party • Derogatory (hold a person up to public ridicule) • Injury (financial damages result) Defenses: • Truth No No’s: -Loathsome disease -Unchastity -Professional misdeeds -Crime or moral turpitude
Defamation con’t If Plaintiff is a Public Person: Harder for them to sue. Must prove one more element… “Disregard for the truth.” Golden Rule: If is not true don’t say it. If you think it is true, but it is negative, don’t say it unless you must. Qualified Privilege: Coach/Teacher/Administrator If you have no reason to believe it is false. State to a person with a justifiable reason to know. Statute of limitations is one year. Defendant pays for own defense.
False Imprisonment Deny a person the right to go where they want to go. Elements: • Confine • Cause limited movement • Damages Guidelinesfor implementation: Reasonable suspicion Detain for a reasonable amount of time Use reasonable force (Do not lock in closet, hold or tie up). Retrieve from a reasonable distance
Trespass Elements: • Must be intentional • Must actually enter • Cause damages • Invitee - Pays. A standard of care is owed. • Special Privilege- Children <12 Considered an attractive nuisance (pool,closed facility, golf course, unlocked building, etc.) Owner must have prior knowledge of condition or property Nuisance must be manmade not natural • Trespass to Chattel:Intentional interference from the use of your property. Elements: Intent to interfere Actually interferes
Trespass con’t • Conversion: A very serious trespass to Chattel Elements: • Intentional • Exert absolute control of property • Results in control • Damages
Definitions, continued • Strict Liability • Products… Two types of product defects: • Design • Manufacturing Suit can be brought for negligent design, manufacturing, distribution,failure to warn about a risk presented by the product, or warranty (express or implied). Dudley Sport Co. Sharp 501
Schools and Universities • New dimensions of Trespass • How do schools deals with today’s “challenges”?
Your legal Obligations and Relationships • You must first have a relationship before any legal obligation is owed. • The type of relationship is created by parties involved or by the action of law. • Case law • Statutory law • “Failure to meet professional standards creates a presumption of failure to meet required “standard of care.”
Defenses to Negligence • Proper Supervision (General v. Specific) • Training of participants/teacher/coach • Mistake • Self-Defense • Defense of 3rd party • Defense of property • Necessity • Maintain discipline “in loco parentis” • Insurance Policies, etc.
Defenses to Negligence, con’t • Teach skills • Use reasonable progression in skill development. • Emergency plan • Participant assumed the risk joined voluntarily • Accident was not foreseeable • Maintain group homogeneity • Warn participant • To allow informed consent • Verbally, in writing, include parents