Play Ball!!! --- Risks, Liability and Preventative Measures for Successful Sports Programs

CAJPA Fall Conference 2012

Kimberly Smith

Cynthia Smith

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California Government Claim Requirements

Assumption of the Risk DoctrineLiability Due to Human FactorsLiability Due to Physical FactorsMinimizing Risk

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California Government Claim Requirements

There is no liability by a public agency for personal injuries unless specifically provided by statute.

Cal.Govt.Code § 815(a).

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California Government Claim Requirements

Government Code § 815.2(a)

A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.

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California Government Claim Requirements

Government Code § 815.2(a) Respondeat Superior Negligence

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California Government Claim Requirements

Very strict claim presentation

requirements

6 months + 6 months 6 months & 2 years

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Assumption of the Risk Doctrine

What is “assumption of the risk?”A defense that negates a defendant’s duty of

care to the plaintiff.Involves the plaintiff’s known

incurring of an inherent peril

(consent).Bars plaintiff’s claim.

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Assumption of the Risk Doctrine

FIRST, though…what is negligence? OR…one whole semester of a law school

course condensed to 2 minutes or less…Where does Assumption of the Risk fit in?

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Assumption of the Risk Doctrine

Does the Assumption of the Risk Doctrine exist in California?Comparative fault is the law

in California.So what remains of the

Assumption of the Risk

Doctrine?

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Assumption of the Risk Doctrine

Before the adoption of comparative fault in California:Express Assumption of the Risk

Release/ConsentRequires specific knowledge

Reasonable Implied Assumption of the RiskUnreasonable Implied Assumption of the Risk

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Assumption of the Risk Doctrine

The CA Supreme Court found the reasonable/unreasonable implied assumption of the risk terminology to be misleading and adopted a division between “primary assumption of the risk” and “secondary assumption of the risk”.

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Assumption of the Risk DoctrinePrimary Assumption of the Risk

Defendant has no duty of care to plaintiff, and plaintiff voluntarily participates in an activity involving certain inherent risks and encounters one of the inherent risks

Complete barTypes of activities are many, including participating

in team sports, practicing for sporting activities, cheerleading, and “attending an old-fashioned cattle roundup”.

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Assumption of the Risk Doctrine

Secondary Assumption of the RiskDefendant owes a duty of care to plaintiff, and

plaintiff encounters

one of the inherent

risksComparative fault –

diminution in value

in plaintiff’s recovery

of damages.

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Assumption of the Risk Doctrine

What does this mean for our cases, clients and insureds?Case Law Review

Supervision IssuesFacilities IssuesEquipment Issues

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Negligence – Human Factors

Negligence of supervisors/teachers:Failure to properly instructNegligent supervisionFailure to alert to foreseeable dangersFailure to place adequate limits on the activity

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Negligence – Human Factors

What does this mean for our cases, clients and insureds?Case Law Review

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Negligence – Physical Factors

Playing Surfaces

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Negligence – Physical Factors

Equipment

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Negligence – Physical Factors

Protective Gear

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Minimizing Risks via Contract

Waivers and ReleasesInsuranceIndemnification

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Minimizing Risks via Contract

Waivers and Releases Enforceability Negligence v. Gross Negligence Using the Correct Language

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Minimizing Risks via Contract

Insurance and Indemnification Liability Limits Coverage of Other Entities Evidence of Coverage vs. an Actual Policy Strong Indemnification Language

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