Negligence, Liability, and Risk Management in Sports and Recreation
Classified in Law & Jurisprudence
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Chapter 15: Negligence
1. Negligence
Negligence is conduct that falls below the standard established by law for the protection of others against unreasonable risk of harm. It is an unintentional tort where the defendant acted unreasonably but did not intend to commit the act or cause harm.
Note: No punitive damages may be awarded in cases of negligence.
1. Elements of Negligence:
- Duty
- Breach of Duty
- Causation
- Damages
2. Defenses Against Negligence:
- Statute of Limitations
- Act of God
- Contributory or Comparative Negligence on the Part of the Plaintiff
- Assumption of Risk by the Plaintiff
- Immunity
5 Liability Issues:
- Lack of Supervision
- Improper Instruction or Training
- Unsafe Use of Equipment
- Improper Medical Care
- Negligence in Transportation
***Note: Nothing on product liability.
Chapter 16: Status of the User and Duties Owed
Duties Owed to Each Status:
- Duty to Design the Facility Safely
- Duty to Warn of Hidden Dangers
- Duty to Inspect
- Duty to Repair Damages
- Duty to Provide Emergency Medical Assistance
Duty to Inspect:
- Develop an inspection protocol; use checklists.
- Ensure inspectors are properly trained.
- Schedule inspections as needed based on the type and use of the facility.
Duty to Repair Damages:
- Develop a system for reporting dangerous conditions promptly.
- Make sure warning signs are in plain view and legible.
Duty to Provide Medical Assistance:
- Know AED requirements in your state.
2. Duties Owed (Continued)
Chapter 17: Importance of Communication and Waivers
Importance of Communication:
- Conveys and reinforces concern for participants' welfare.
- Makes participation experiences better and safer.
- Can help avoid liability.
Brochures and Promotional Material:
- Involve an attorney as well as marketing/advertising employees.
- Consider the legal impact of words.
- Consider the effect language choice has on setting the standard of care.
- Avoid any absolute assertions.
1. Waivers and Exculpatory Agreements
a. Content vs. Context
b. Public Policy Concerns
Agreement to Participate: Exculpatory Agreements
Definition: A contract in which a person or entity that is legally at fault tries to excuse itself from fault.
Exculpatory Clause:
- Relieves a party from liability resulting from a negligent or wrongful act.
- Is often in the form of a waiver or pre-injury release.
Waivers:
- A type of contract in which one party gives up the right to sue another party.
- A court that upholds a waiver is giving precedence to contract law over tort law.
- Upheld when two criteria are met: Context and Content.
Context of Waivers:
Is the person giving up the right to sue a minor?
- The law considers minors to be under a legal disability.
- Contracts entered into by minors are voidable.
- Parents cannot give up their children's rights to sue.