Class Five

1
Class Five

• Immunity

2
Governmental Immunity

• Can public school officials be sued over their
  application of eligibility rules?
• Wis. Stat. 893.80(4) (2004)
• The statute provides political subdivisions and
  public officials with immunity for acts done in
  the exercise of legislative, quasi-legislative,
  judicial, or quasi-judicial functions and for
  their intentional acts

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Academic Counseling

• Scott v. Savers Property and Casualty Insurance
  Company
• Issue focuses on whether actions of government
  agent (here academic counselor) are immune under
  the statute
• If imposed by law discretionary usually immune
• If negligent in performance of job then immune
• Also, duty imposed by statute cannot lead to
  immunity

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Recreational Immunity

• Began in the 1960s to encourage private property
  owners to open their land to others for
  recreational purposes
• Only duty is to warn of ultrahazardous situations
  and known hidden hazards
• No liability except
• For willful or malicious acts
• Ultrahazardous situations
• Immunity applies to all activity risks and open
  and obvious risks associated with the property

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Recreational Immunity

• All states have a statute
• Basically provide immunity to a landowner from
  liability for personal injuries or property
  damage suffered by land users pursuing
  recreational activities on the owners land
• Common factors
• (1) intent to encourage landowners to make their
  property available to the public for recreational
  use
• (2) stipulate that no fee is charged for use of
  the land
• (3) declare owner owes no duty of care to keep
  land safe for use for recreational purposes nor
  to warn of a dangerous condition
• (4) state landowner extends no assurance that the
  land is safe and does not confer on the user the
  status of invitee or licensee
• (5) say the landowner does not assume
  responsibility for or incur liability for any
  injury, death, or loss to any person or property
  caused by an act or omission of that person

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Wisconsin Statute

• 895.52
• Definitions (1)
• Owner
• Recreational Activity
• 3 parts definition / examples / catch all
• Exceptions
• Sponsorship
• Organized team sport activity

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Wisconsin Statute

• Immunity (2)
• (a) no duty to
• Keep property safe for rec activities (1)
• Inspect property (2)
• Warn of unsafe condition, use or activity (3)
• (b) immunity from liability
• Exception (6)
• Liability does attach if owner receives payment
• Malicious failure to warn of unsafe condition
• Social guest exception
• Employee harmed

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Meyer v.School District of Colby (Kristi)

• Facts
• Issue
• Circuit Appellate Court
• Supreme Court
• Why have organized team sport exception?
• Result

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Auman v. School District of Stanley-Boyd (Dan P.)

• Facts
• Issue
• Circuit Court
• Supreme Court
• Why court suggest that legislature should review
  the statute?

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Miller v. Wausau Underwriters Insurance Company
(C.J.)

• Facts
• Circuit Court
• Court of Appeals
• Issue
• What is the sponsorship exception?
• Why useful?

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Recreational Immunity

• Parts
• Is it a recreational activity (3 parts)
• What is the nature of the property (3 parts)
• What is the nature of the owner?
• Exceptions
• Sponsorship
• Organized team sport

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Participants in recreational activities

• Nationwide recovery may be allowed issue is
  standard of care
• Issue is whether proof that ordinary negligence
  caused the injury is sufficient, or whether some
  degree of intentional or reckless conduct should
  be necessary

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Participants in recreational activities

• WI Lestina case 1993
• Participant in recreational adult soccer game
  injured another player by slide tacking
• Court used factor intensive analysis
• To determine whether a player's conduct
  constitutes actionable negligence (or
  contributory negligence), the fact finder should
  consider such material factors as
• (1) the sport involved
• (2) the rules and regulations governing the
  sport
• (3) the generally accepted customs and practices
  of the sport (including the types of contact and
  the level of violence generally accepted)
• (4) the risks inherent in the game and those that
  are outside the realm of anticipation
• (5) the presence of protective equipment or
  uniforms and
• (6) the facts and circumstances of the particular
  case including the ages and physical attributes
  of the participants, the participants' respective
  skills at the game, and the participants'
  knowledge of the rules and customs
• Held that negligence standard allows for vigorous
  competition and recovery for participants

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Participants in recreational activities

• Participation in Recreational Activities
  (895.525)
• Established reckless or intentional standard of
  care for participant liability
• Recreational activity (2)
• same as recreational immunity statute
• Assumption of risk (3)
• becomes contributory negligence
• Responsibilities of participants (4)
• Liability of contact sport participants (4m)
• Must be recreational activity that includes
  physical contact between persons
• sport involving amateur teams
• May be liable if act recklessly or with intent to
  cause injury

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Participant Liability?

• Wisconsin
• If physical contact and sport involving amateur
  teams recklessness or intent standard
• Other activities seems negligence standard
  still applies from Lestina

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Volunteer Immunity

• States have
• General volunteer liability statutes designed to
  protect volunteers
• Statute intended to protect certain volunteers in
  recreation and sport activities(coaches,
  referees)
• Both types of statutes

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Volunteer Immunity

• Federal Volunteer Protection Act
• 14501 purpose
• 14502
• Preempts state law except where state law
  provides more volunteer protection
• 14503 limitation on liability
• No liability to individual volunteer (b)
• Acting within the scope of volunteers
  responsibilities
• Properly licensed, certified or authorized for
  the activity
• Harm not caused by willful or criminal
  misconduct, gross negligence, reckless conduct,
  conscious or flagrant indifference
• Harm not caused by volunteer operating vehicle
  without a license or insurance
• Does not affect organizations liability (c)

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Volunteer Immunity

• 14503 limitation on liability
• Exceptions (f) immunity does not apply if
• Conduct is crime of violence or terrorism
• Hate crime
• Sexual offense
• Civil rights violation
• Under the influence

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Gaudet v. Braca (Dan R.)

• Facts
• Issue
• Application of VPA
• Result?

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Liability of Sports Officials

• Potential areas
• Some states hold officials criminally liable if
  solicit or accept any benefit from another with
  the intent to perform their duties improperly
• Liability for intentional conduct based in tort
  based deliberate conduct that resulted in harm
• Liability based on breach of contractual duty to
  officiate competently

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Liability of Sports Officials

• Potential areas
• Liability based on breach of other duties to
  participants due to negligent conduct
• Duty to exercise reasonable care in reviewing
  facility and determining if conditions endanger
  participants
• Duty to inspect equipment to make sure it is safe
  and that it is worn properly
• Duty to enforce rules of sport during the game
• Duty to control conduct of participants during
  the game

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Legislation

• Illinois statute -- 745 ILCS 80/1
• Negligence Standard
• Official, without compensation and as a volunteer
  
• is immune from liability for damages
• resulting from acts or omissions in rendering
  such services
• unless the officials conduct falls
  substantially below the standards generally
  practiced and accepted in like circumstances and
• officials conduct does not breach a duty to
  another
• with knowledge that this breach creates a
  substantial risk of harm to another
• Applies to official and not association
• No good cases to explain this

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Next Class

• Economics Reform in College Athletics
• Change in Syllabus
• College speaker moved to March 31