HPR 4453 Legal Issues in Sport

1
HPR 4453Legal Issues in Sport

• TORTS
• Negligence Theory

2
Definition of Negligence

• Negligence
• An unintentional tort which injuries a person
• It may be an act of omission or commission
• Omission leaving something out
• Commission adding something in

3
The Four Elements of Negligence

• Duty
• A special relationship that exists between the
  service provider (defendant) and the injured
  person (plaintiff), which gives rise to an
  obligation to protecting the individual from
  unreasonable risk of harm.
• Duty is societal based, that is it is the courts
  and legislatures which determine who in society
  owes a duty to another.
• As society changes, so may duty.

4
Elements of Negligence

• Duty cont'
• Origins of duty
• From relationships inherent in the situation
• The responsibilities of your job is an example.
• From a voluntary assumption of duty
• As a certified first aid provider you stop to
  help an injured victim.
• From a duty mandated by statute
• You are employed at a high school as a classroom
  teacher and a student in your class is injured.

5
DUTY

• Types of Relationships
• Invitee
• An individual who has paid for the use of the
  premises, or who has been solicited or invited
  as a member of the public to use the premises.
• The obligation requires the operator to protect
  patrons from unreasonable risk, and to avoid acts
  that can create risk.

6
DUTY

• Licensee
• A person who uses the premises with the bare
  consent of the operator.
• Bare consent permission is given to the person
  to use the premises but the operator has no real
  expected benefit for the licensees use.
• A licensee enters the premises upon his own
  purpose. The only obligation the operator has to
  the licensee is to warn of hazards of dangers,
  which the licensee may not be able to discover.
  No warning need be given to the licensee for
  conditions which are obvious.

7
DUTY

• Trespasser
• A person who enters the premises without the
  permission on the operator.
• Generally, since no consent has been given to use
  the premises the only obligation owed by the
  operator is to refrain from any intentional
  conduct, which would cause injury to the
  trespasser.

8
DUTY

• Recreational User
• This relationship is only in use when the
  individual in on the land which is specifically
  for recreational purposes.
• Must have NOT paid a fee for the recreational use
  of the land, and must be directly involved in the
  activity.
• The duty owed to the recreational user is
  comparable to that owed to the trespasser.
• The premises operator owes no duty to keep the
  premises safe for recreational use or give
  warning of dangerous conditions.

9
DUTY

• Recreational User cont
• Furthermore, no invitee or licensee status is
  conferred even if the premises operator directly
  or indirectly invited the visitor to the premises
  (Van der Smissen, 1990).

10
The Act

• If the duty is to protect against an unreasonable
  risk or harm, what is the risk to be protected
  against and what is unreasonable?
• Types of risk
• Inherent risk one which, if removed from the
  game or activity would essentially alter the
  sport or activity and thereby the activity or
  sport would lose its integrity.
• There is no liability for injury which occurs due
  to inherent risks.

11
The Act

• Types of risks
• Negligent behavior conduct that which is not in
  accordance with the standard of care a prudent
  professional should give and hence, the
  participant is subject to unreasonable riskof
  injury.
• Behaviors of conduct may be ordinary negligence
  or gross negligence.
• Gross negligence done with utter concern for
  the safety of others, or done with such reckless
  disregard for the rights of others that a
  conscious indifference to consequences in implied
  in law.

12
The Act

• Standard of care
• The standard of care in that which a prudent
  professional would carry out.
• The professional standard of care is situational
  and is determined by
• Nature of activity
• What are the requirements of the activity?
• What is your working knowledge of the activity?
• Is the activity easy or difficult?

13
The Act

• Standard of care cont
• The professional standard of care is situational
  and is determined by
• Types of participant
• The provider must be aware of the character of
  the participant to be novice, highly skilled,
  motor challenged, intellectually gifted, or
  mentally retarded.

14
Proximate Cause

• The act which did not meet the standard of a
  professional must be the cause-in-fact of the
  injury.
• The act does NOT have to be the sole cause, but
  may be a substantial factor.
• Or there may be a superseding cause of the
  injury.

15
Damage

• There must be compensable bodily injury or
  emotional harm NO DAMAGE, NO LIABILITY
• Damages are divided into two classifications
• Compensable damages (repayment)
• Punitive damages (penalizing)

16
Damages

• Generally compendable damages fall into four
  categories
• Economic loss
• Physical pain and suffering
• Emotional distress
• Physical impairment

17
Who is Liable?

• There are generally three categories of parties
  that may be liable in any given situation.
• Service personnel the actual person who
  committed the negligent act within an
  organization.
• This category includes persons who generally have
  direct contact with the participant.
• Also included in this category are the
  maintenance personnel or custodian who are often
  in direct contact with the participant.

18
Who is Liable?

• Administrative or supervisory personnel
  individuals who have some sort of administrative
  or supervisory authority over service personnel.
• Corporate entity this group includes the
  governing body of the organization.
• Examples County school board, recreation board,
  university board of regents.

19

• Corporate entity cont
• Doctrine of respondeat superior the negligence
  of an employee is imputed to the corporate entity
  if the employee was acting within the scope of
  the employees responsibility and authority and
  the act was not grossly negligent, will/wonton,
  and did not involve malfeasance (evil doing).
• This doctrine is also referred to as vicarious
  liability.
• In some occupations the corporate entity can even
  be liable for the willful torts committed by the
  employee.

20
Who is Liable?

• Individuals outside normal employment situations.
• Volunteers, trainees and interns
• The liability of the corporate entity depends on
  whether the organization exerts any control over
  (or has the right to control) the activities of
  the above parties and whether the party is acting
  within the scope of employment authority or
  responsibility.
• Volunteers, trainees and interns are held to the
  same standard of care as that of an
  experienced/competent professional.
• University student/athlete
• Is the university liable under the respondeat
  superior doctrine for the acts of the
  student/athlete?
• Townsend v The State of California (1987).
• The court held that whether on a scholarship or
  not the student/athlete is not an employee of the
  university.