Immunity

1
Immunity

• A condition which protects against tort liability
  regardless of the circumstances
• 3 Types of immunity defense
• Sovereign immunity
• Charitable immunity
• Civil liability immunity legislation

2
Sovereign Immunity

• Most common type of immunity defense used
• Need to first consider if it is a governmental
  agency since the idea rests on the concept that
  the state must give its consent to be sued

3
Reasons for Sovereign Immunity

• Suing a public entity restricts the amount of
  funds that could be used for the public welfare
• The idea that the state can do no wrong
  (historical)
• The public cannot be held responsible for the
  torts of the governmental employees.
• The trend has been recently to repeal or limit
  the idea of sovereign immunity

4
Sovereign Immunity

• Using sovereign immunity a distinction must be
  made between what is governmental activity and
  proprietary activity
• Governmental activity
• Activity that can only be performed by the state
  and is commonly protected by sovereign immunity
• Proprietary activity
• Activity done by the state but could be
  undertaken by the private sector and therefore
  cannot be protected by sovereign immunity

5
Tort Case 1

• A 6 year old boy was playing with friends at a
  local swimming pool in Illinois. The boy dove
  off the 1 meter diving board and grazed his head
  on the board. The blow was sufficient enough to
  knock the boy unconscious. The boy sunk to the
  bottom of the 12 foot deep pool. His friends
  frantically alerted the lifeguard on duty at the
  diving well. The guard responded that the boy
  has faked an injury like that before and that
  he (lifeguard) was not going to fall for it
  again.

6
Tort Case 1

• The friends alerted a second lifeguard who
  responded apathetically and did nothing.
  Finally, one of the friends went to the head
  lifeguard/pool manager who was located in the
  pool office. He rushed to the scene, dove in the
  water in an attempt to save the boy. After
  repeated attempts to revive the boy, the boy
  died. The parents of the boy sued the city parks
  department for recovery due to willful
  negligence. How much did the court award and why?

7
Verdict

• The court rules in favor of the Parks and
  Recreation department for 2 reasons
• As a governmental agency the department was
  entitled to sovereign immunity
• The plaintiffs could not prove that the inaction
  of the lifeguard was willful in that they could
  not prove that the lifeguard wanted the boy to
  die.

8

• An 8th grade student broke his neck in physical
  education class after landing on his head in an
  attempt to do a headspring over a rolled mat.
  Quadraplegia resulted for the boy.
• The instructor was a first year teacher who
  introduced the activity without appropriate lead
  up activities. The principal at the school did
  not participate in the development of the
  curriculum and delegated those duties to the
  first-year teacher.

9
Verdict

• The court found for the plaintiff on the grounds
  that it was negligent for the teacher not to
  introduce lead-up activities to make certain that
  the student could safely to the action.
• The school system and the principal were found
  negligent through the theory of vicarious
  liability

10
Tort Case 3

• A middle school physical education teacher in
  Tucson, Arizona reprimanded a student who acting
  up in his class by punishing the student after
  school. The punishment was for the boy to walk
  on his hands for 100 yards. Though the student
  was able to do so with difficulty it was not the
  extreme. The place that the student had to walk
  on his hands was the school parking lot which was
  black topped. The punishment took place in
  August of 2000 at 300 pm while the temperature
  was about 100 degrees. The student developed
  second hand burns on both hands.

11
Verdict

• The case is still pending however, the teacher
  was dismissed and after due process fired from
  the position.

12
Governmental Activity

• In the case of a public school using its own
  facility, the courts have usually found that the
  holding of athletic contests are part of the
  educational function of the state and is
  therefore a governmental function protected by
  sovereign immunity

13
Proprietary Activity

• If the facility is leased for use by the public
  sector, the courts have generally found that the
  school is conducting a proprietary activity (by
  leasing) and will therefore be liable for
  injuries sustained as a result of negligent
  maintenance or construction of the facility

14
Charitable Immunity

• Justifications
• Donations to charitable organization constitute a
  trust fund which may not be used for an
  unintended purpose
• No profits have accumulated, so the doctrine of
  vicarious liability cannot be applied
• Charities perform public or governmental duties
  and are therefore immune
• The overall good of a charity is protected by not
  diverting its money to pay damage goods

15
Civil Liability Immunity

• Justification
• The increase of civil lawsuits threatens many
  individuals, especially volunteers, to
  participate.
• Youth sport organizations cannot carry out their
  roles without fear of being sued for damages

16
Common Law Defense

• Need to identify if the risk could be foreseen by
  a reasonable and prudent professional
• If the the answer is no, that is the defense
• If the answer is yes, the question relates to the
  standard of care given. Was it satisfactory or
  did it fall short?

17
Consent

• Based on the consent of the participant or
  injured party and is a bar to recovery
• To have this occur the following must happen
• Participation must be free and voluntary
• The individual consents only to the risks
  inherent in the activity
• The participants knowledge of the activity and
  understanding of their skill level
• The participants understanding of the potential
  injuries inherent in the activity

18
Types of Primary Assumption of Risk

• Implied
• Having knowledge of potential risks, the
  individual participates anyway
• Express
• A written or oral presentation in which the
  inherent risks are are categorically stated

19
Secondary Assumption of Risk

• Refers to the conduct of the participant in which
  the injury or damage is directly reflected from
  their failure to obey rules and warnings

20
Comparative Fault

• Basically a method of determining the damages
  award.
• 2 Ways to Determine Damage Awards
• Pure form
• 1 million dollar suit in which the defendant is
  found to be 80 at fault and the plaintiff 20 of
  the award received by the plaintiff would be
  800,000.
• 50/50
• If the plainitff contributed more than 50 of the
  fault to the damages or injuries, there is no
  award

21
Contributory Negligence

• If the plaintiffs negligent actions helped in
  any way to cause or aggravate an injury the
  plaintiff cannot win the lawsuit regardless of
  the negligence of the defendant

22
Warnings and Participation Forms

• Primary reasons for warnings are to communicate
• As to how a person should engage in the activity
• What is required to prevent unreasonable risk of
  injury
• The condition of the physical environment
• Modifications needed to prevent injury

23
Warnings and Participation Forms

• For warnings to be effective they should
• Be obvious and direct
• Specific to the risk
• Understandable
• Located at the point of the potential hazard

24
Participation Agreements

• Used to identify potential risks of the activity
  and to explain expectations for the participant.
• Gives documentary evidence that efforts were made
  to inform and educate the participant.
• Minors as well as parents should sign the
  participation form for the reasons given
  previously

25
Participation Agreements

• A document in which the participant or his/her
  parents sign which identifies
• An understanding of the risks
• An appreciation of the risks
• An understanding of the safety rules and
  procedures
• An agreement to comply with the safety and
  procedure rules
• Specifically request that the person be allowed
  to participate in the activity

26
Releases

• Releases
• A contract signed by the participants or their
  parents that absolve the institution, coach, or
  administration from liability if an injury is
  incurred

27
Releases

• Generally not considered valid by the courts
  because
• No one can legally waive the rights of another
• Children considered minors cannot legally enter
  into contracts that waive their rights
• Violates public policy and is therefore invalid
• Courts do no like to grant pre-event protection
  of the participants from the consequences of
  their own actions

28
Releases

• May be valuable for adults, in the private sector
  when the following are available
• Options are reasonable and present
• Adults better understand the risks and
  responsibilities

29
Privilege

• Allows a person to act in way that may usually be
  considered assault and battery
• 2 most common examples are
• Self-defense
• Acting in defense of a third party

30
Self-Defense

• Varies by state
• Need to question
• Did the person use reasonable force to get away
  from the situation?
• Did the person who was attacked retreat when the
  opportunity presented itself?

31
Third Party Defense

• Varies by state
• Usually refers to people who are defending
  another family member

32
Assault Defenses

• If the defendant can prove that any of the 3
  elements of assault is missing
• defendant intend to cause harm or apprehension
• plaintiff felt reasonable apprehension of
  imminent harm
• no consent on the part of the plaintiff,
• That is the primary defense.
• Examples?

33
Battery Defenses

• 2 primary defenses are
• Touching was not intentional
• Plaintiff consented to the touching
• What are some examples?

34
Battery Defenses

• 2 primary defenses are
• Touching was not intentional
• Plaintiff consented to the touching
• What are some examples?