tort liability and negligence

1. Tort Liability and Negligence

2. Tort Law Tort � a private or civil wrong against a person, an injury to a person including property and reputation.

3. 2 Categories of Tort Law Intentional Tort Shows that there is an intent to injure. Includes assault and battery, defamation, hazing, and invasion of privacy. Unintentional Tort (Negligence) There is no intent to injure but an injury does occur. Both require that the act done was the proximate cause of the injury and that actual damage occurred.

4. Unintentional Torts Disturbance of intangible interests Includes invasion of privacy, defamation, libel or slander. To be considered the disturbance must be characterized as being extreme and beyond the bounds of social decency Truth is the best defense

5. Negligence Is an unintentional breach of duty. It can be an act of omission or commission in which a person may be exposed, to an unreasonable risk of injury resulting in damage, by a person with which they have a special relationship.

6. Elements of Negligence Duty Breach of Duty Cause Damage All four elements must be present for negligence to exist.

7. Duty A special relationship that exist between individuals such as player/coach or student/teacher in which there is a duty owed that does not expose a person to unnecessary dangers.

8. Existence of Special Relationship Duty has three primary origins. 1) from a relationship inherent in the situation; 2) from a voluntary assumption of the duty; and 3) from a duty mandated by statute.

9. Relationship Inherent When a program or service is provided, usually there also is an expected obligation not to expose the participant/user to unreasonable risk of harm

10. Breach of Duty (Act) Is the act to protect in accordance with the standard of care the professional must provide?

11. Breach of Duty (Act ) Inherent Risks Inherent risks are those integral to the activity. An inherent risk is one that, if removed from the game, would essentially alter the sport and thereby the sport would lose its integrity. There is no liability for injury that occurs due to inherent risks.

12. Negligent Behavior Nature of the Activity The provider must be aware of the skill and abilities that a participant needs in order to successfully and safely participate in the activity. The activity leader has a duty to identify the inherent risks of the activity and warn the participant of these risks.

13. Negligent Behavior Nature of the Activity If the leader is not knowledgeable in a familiar with the activity he cannot identify the risks nor warn the participant. However, he/she still has a duty in preventing harm and conducting the activity to a reasonable standard of care

14. Type of Participants The service provider must be Aware of the character of the participants, Understand how to work with them in the specific activity, and Know which risks a participant may be able to assume and thus better protect them from risks.

15. Breach of Duty In order to establish that a breach of duty has occurred, one of the following must be established: 1. Direct evidence of negligence 2. Violation of a statute 3. Res ipsa loquitur

16. Direct Evidence Many times established by testimony from others actually witnessing the event.

17. Violation of a Statute Violation of a statute, or negligence per se, exists when a law has been broken which leads to an act of negligence.

18. Res Ipsa Loquitur Res ipsa loquitur is an operational term, which allows suit based on what "most likely" occurred when direct evidence is unavailable (Wong, 1994).

19. Cause The failure to act reasonably in providing the appropriate standard of care.

20. Standard of Care Reasonable and prudent professional The participant is owed a duty to be protected from unreasonable risk of harm regardless of who is in charge. When a person accepts a responsibility they are expected to perform up to the level of the profession.

21. Damage The extent to which the actual damage exists

22. Standard of Care Foreseeability The ability to identify a situation or area, expected of a reasonable and prudent professional, that could expose the participant to unnecessary harm

23. Foreseeability of Unreasonable Harm It should be made clear that one can have a special relationship and owe a duty to protect, but because there is no foreseeable unreasonable risk, there does not have to be any proactive action.

24. Foreseeability There is another aspect of foreseeability. When an environmental hazard is open and obvious, it is not foreseeable that an individual would place oneself in a dangerous position of which they were aware. While there may be a special relationship, there is no duty to be proactive to protect.

25. Types of Negligence Gross Negligence An act in which there is considerable lack of reasonable care as a result of total indifference toward and disregard to the duty owed but falls short of willful conduct to injure. Ordinary Negligence An act in which there is a mere failure to exercise reasonable care that results in an injury or damage.

26. Types of Negligence Contributory Negligence Occurs when the party to which the duty is owed contributes to the injury or damage that is incurred.

27. Potential Liabilities of Coaches and Teachers Traditionally, the institution has been named in litigation due to the coach/teacher negligent behavior but not the coach/teacher. Recently, since the basis of litigation is the negligence of the teacher/coach, the teacher/coach is being sued individually.

28. Potential Liabilities of Administrators & Coaches Supervisor is not an insurer of everyone�s safety The supervisor needs only to exercise reasonable care Unless other evidence is presented the supervisor is legally entitled to assume that all under his/her supervision will also be exercising reasonable care

29. New Trend Recently cases have appeared in which the student/athlete has sued the teacher/coach on the claim of assault and battery? This addresses some questions: Can force be used to bring about compliance to commands? Can punishments be used for prohibited conduct? Can force be used when the player or student does not perform adequately?

30. Potential Liabilities of Coaches Failure to provide adequate supervision Includes failure to provide adequate equipment failure to provide a safe area failure to provide supervision between events Duty entails using reasonable care in either rectifying dangerous situations or warning others who may encounter hazards.

31. Potential Liabilities of Coaches A supervisor is generally not liable for any intentional the actions of the employee unless it can be proved that he/she was negligent in choosing or supervising the employee(s) involved.

32. Potential Liabilities of Coaches Failure to provide proper instruction and training Includes The instructor must be qualified to teach the subject Coach must teach the proper techniques, safety rules and method of playing Both coaches and teachers should keep detailed records of their training or teaching sessions. Risk of injury is greater for those involved in activities for the first time, those involving children, or in perceived dangerous activities.

33. Potential Liabilities of Coaches There have been a number of cases in football in which the player alleged that the coach did not provide adequate instruction and training concerning tackling. This includes proper preseason conditioning programs.

34. Potential Liabilities of Coaches Failure to provide prompt and capable medical assistance The teacher or coach has a duty to refrain from actions that might aggravate or re-aggravate an injury Teacher/coach are held to a reasonable standard of care when giving medical assistance The institution may be the responsible party if medical personnel have not been provided

35. 2 Primary Medical Duties of a Coach The coach/teacher may have to render aid before medical assistance arrives. The coach/teacher is responsible for sending an injured athlete/student for medical treatment immediately.

36. Potential Liabilities of Coaches A coach who orders a player to fight or attempt to injure an opposing player may be held liable under vicarious liability theory in injuries occur

37. Potential Liabilities of Coaches Failure to provide appropriate matches The coach/teacher is responsible for making certain that player/students are similar in size and skill when going head-to-head, especially in a contact sport in a practice/class situation. Age, maturity, and fatigue are also factors when matching participants in a practice or class situation

38. Potential Liabilities of Coaches Teacher/coach may meet the standard of care by: Player�s experience Ability Skill level

39. Liability of Athletic Administrators An administrator, school or university may also be sued under the theory of vicarious liability for the alleged negligence of an employee. An administrator may be sued in his/her role as the supervisor of a coach or teacher.

40. Doctrine of Respondeat Superior Also referred to as �vicarious liability� Identifies that the organization is liable for the negligent behavior of its employees as long as the employee or volunteer is acting within the scope of their responsibility.

41. Doctrine of Respondeat Superior Thus, if an employee is negligent in his/her duty the superior(s) is also held liable for the employees action(s).

42. Failure to Provide Supervision of Athletic Activities In dealing with personnel, athletic administrators may be held liable if they have not exercised reasonable care in hiring coaches and/or teachers with proper skills and an qualifications and insuring that properly qualified personnel are supervising How does an AD know who to hire?

43. Foreseeable Conditions An administrator is required to exercises reasonable care to prevent foreseeable risks and to make safe foreseeably dangerous conditions by repair or warning

44. Failure to Provide Medical Assistance The administrator may be liable if he/she was negligent in providing medical personnel at a game or practice.

45. Failure to Provide Safe Equipment The failure to provide equipment or failure to provide satisfactory equipment has been the basis for a number of lawsuits.

46. 4 Equipment Considerations for the Athletic Administrator The first consideration is the purchase of appropriate equipment for the athletic activities offered. Provision of equipment for the athletic activities in which equipment is needed. Provision for properly fitting equipment Periodic inspection of equipment and reconditioning when needed.

47. Administrator Duty to Spectator A spectator injured by another spectator cannot enforce a claim against the school unless there had been previous knowledge of a potentially dangerous setting and did not alert the spectator. Where might this occur in a intercollegiate/pro sport setting? Bearman v. Notre Dame