Liability in AthleticsLiability in Athletics

““Deep Pockets”Deep Pockets”The plaintiff’s lawyer will name The plaintiff’s lawyer will name

everybody—the coach, the everybody—the coach, the athletic trainer, the physician, athletic trainer, the physician, the school or other facility, the the school or other facility, the

ambulance company, the ambulance company, the emergency room, the emergency room, the

equipment manufacturer, the equipment manufacturer, the grounds keeper, the grounds keeper, the

administration, AND your administration, AND your uncle!uncle!

Failure to WarnFailure to Warn

Assumption of RiskAssumption of Risk

The “Forseeability” of The “Forseeability” of HarmHarm

When danger is apparent, orWhen danger is apparent, or

should be apparent.should be apparent.

Release/Waiver FormsRelease/Waiver Forms

It is often stated that these are It is often stated that these are not worth the paper on which not worth the paper on which they are written.they are written.

However, if you do not have However, if you do not have written consent or waiver forms, written consent or waiver forms, (signed and dated by the (signed and dated by the athlete) you have failed to warn.athlete) you have failed to warn.

NegligenceNegligenceFailure to Provide Reasonable Failure to Provide Reasonable

Care or to take Reasonable Care or to take Reasonable Precautions.Precautions.

Malfeasance-An Individual performs a Malfeasance-An Individual performs a task not hers to perform.task not hers to perform.

Misfeasance-An Individual commits an act Misfeasance-An Individual commits an act that is his responsibility to perform, but that is his responsibility to perform, but uses the wrong procedure, or performs uses the wrong procedure, or performs the right procedure in an improper way.the right procedure in an improper way.

NegligenceNegligence

Nonfeasance-Occurs when an Nonfeasance-Occurs when an individual fails to perform her legal individual fails to perform her legal duty of care.duty of care.

Malpractice-Occurs when an Malpractice-Occurs when an individual commits a negligent act individual commits a negligent act while providing care.while providing care.

Gross Negligence-Occurs when an Gross Negligence-Occurs when an individual has total disregard for the individual has total disregard for the safety of others.safety of others.

The Doctrine of theThe Doctrine of the “Reasonable Person” “Reasonable Person”

All factors being equal, would All factors being equal, would a person of your experience, a person of your experience, training, and social maturity, training, and social maturity, act in approximately the same act in approximately the same manner as you did, given manner as you did, given similar circumstances?similar circumstances?

If the Courts Determine If the Courts Determine that the Answer to the that the Answer to the

Question in THIS CASE is Question in THIS CASE is “Yes,” then your liability “Yes,” then your liability should be significantly should be significantly

reduced.reduced.

Avoiding Harassment Avoiding Harassment ChargesCharges

Keep hands to yourself.Keep hands to yourself. Think before you speak.Think before you speak. One person’s joke might be another’s One person’s joke might be another’s

insult. Avoid sexual or ethnic insult. Avoid sexual or ethnic references.references.

Demand professional behavior of your Demand professional behavior of your subordinates.subordinates.

Whenever possible, keep doors open.Whenever possible, keep doors open. Apply common sense.Apply common sense.

PrecedentPrecedent is usually the is usually the determining factor as to determining factor as to

how your case will be how your case will be judged, but NOT judged, but NOT NECESSARILY!NECESSARILY!

Liability InsuranceLiability Insurance

The liability insurance carried by The liability insurance carried by many schools may or may not be many schools may or may not be adequate to cover you, though the adequate to cover you, though the school will tell you that it is sufficient.school will tell you that it is sufficient.

If you are a professional health care If you are a professional health care provider, you need to purchase your provider, you need to purchase your own malpractice insurance.own malpractice insurance.

Liability InsuranceLiability Insurance

If you work with patients (athletes) If you work with patients (athletes) outside your normal workplace, outside your normal workplace, make sure that your insurance make sure that your insurance covers those situations. It may not!covers those situations. It may not!

Be careful about state practice Be careful about state practice laws.laws.

Does your insurance cover Does your insurance cover volunteer work? volunteer work?

Emerging Liability Emerging Liability IssuesIssues

A. Claim Results

• increasing frequency

B. Litigation Target Shift

• no longer mining concerns

• no longer manufacturers

• now contractors/installers

• now architects/design engineers

• now construction managers

• now building owners/managers

ForeseeabilityForeseeability

Foreseeability may be regarded as Foreseeability may be regarded as the most significant consideration in the most significant consideration in determining the extent to which a determining the extent to which a person is owed a duty of reasonable person is owed a duty of reasonable care (care (Rodriguez v. SabatinoRodriguez v. Sabatino, 1997). , 1997).

ForeseeabilityForeseeability Foreseeability is considered to be the Foreseeability is considered to be the

degree to which the university knew, or degree to which the university knew, or should have known, that an invitee may be should have known, that an invitee may be exposed to the probability of injury. exposed to the probability of injury.

Foreseeable danger, “… lies at the Foreseeable danger, “… lies at the foundation of the duty to use care that is foundation of the duty to use care that is the risk of injury to another person, the risk of injury to another person, reasonably within the range of reasonably within the range of apprehension that is taken into account in apprehension that is taken into account in determining the existence of the duty to determining the existence of the duty to exercise care” (American Jurisprudence, exercise care” (American Jurisprudence, 2004, p. 39).2004, p. 39).

Licensee/InviteeLicensee/Invitee Generally 2 types of individuals which a Generally 2 types of individuals which a

facility owner may have a duty to:facility owner may have a duty to: Licensee – a person who enters the Licensee – a person who enters the

property, with the owner’s consent, for the property, with the owner’s consent, for the licensee’s own purposelicensee’s own purpose Owner only owes a duty of ordinary careOwner only owes a duty of ordinary care No obligation to inspect the area for unknown No obligation to inspect the area for unknown

dangers or to warn against conditions that are dangers or to warn against conditions that are open and obviousopen and obvious

Owner only owes a duty to warn when a risk is Owner only owes a duty to warn when a risk is known or should be known under the reasonable known or should be known under the reasonable care standard, which the licensee is unawarecare standard, which the licensee is unaware

Business InviteeBusiness Invitee Since fans who go onto property owned by Since fans who go onto property owned by

a university/college and pay to watch a a university/college and pay to watch a football game or any other athletic event football game or any other athletic event are business invitees, a land owner has a are business invitees, a land owner has a greater level of duty to protect patrons greater level of duty to protect patrons attending sport events from negligent attending sport events from negligent behavior (Mallen, 2001). behavior (Mallen, 2001).

A business invitee who enters the land for A business invitee who enters the land for business purposes establishes a duty of business purposes establishes a duty of ordinary care against known harms ordinary care against known harms (Restatement (Second) of Torts 344 (1979). (Restatement (Second) of Torts 344 (1979).

Duty to ProtectDuty to Protect The "special relationship" or duty to The "special relationship" or duty to

protect patrons at sporting event is protect patrons at sporting event is required if a criminal attack was required if a criminal attack was reasonably foreseeablereasonably foreseeable

Recently, the courts have realized that Recently, the courts have realized that extending liability could have a significant extending liability could have a significant effect on sports organizations, towns, effect on sports organizations, towns, sport sponsors, and private individuals sport sponsors, and private individuals who own the premises where the sporting who own the premises where the sporting events take place (Docheff & Conn, 2004). events take place (Docheff & Conn, 2004).

Duty to ProtectDuty to Protect

The Restatement (Second) of Torts The Restatement (Second) of Torts (The American Law Institute, 1965, (The American Law Institute, 1965, §342) recognized the general duty §342) recognized the general duty owed by landowners to their owed by landowners to their business invitees to provide business invitees to provide reasonable protection from reasonable protection from foreseeable criminal assaults. foreseeable criminal assaults.

Duty to ProtectDuty to Protect

The courts have recognized that a The courts have recognized that a business invitee is owed the duty to business invitee is owed the duty to use reasonable care in keeping up the use reasonable care in keeping up the

property in a reasonably safe condition property in a reasonably safe condition asas

duty to warn of dangers of which the duty to warn of dangers of which the owner has or should have known, owner has or should have known,

dangers which are not known to the dangers which are not known to the invitee as well as dangers of which the invitee as well as dangers of which the invitee would be able to ascertain from invitee would be able to ascertain from reasonable carereasonable care

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