Legal Dimensions in Recreation, Leisure Activities, and Sports Negligence Concepts

Transcription

1 Legal Dimensions in Recreation, Leisure Activities, and Sports Negligence Concepts I. INTRODUCTION The administration of recreational sports and leisure service, including activities and intramural sports, like other professions, has experienced increased litigation in recent years. Supervisors and administrators at all levels are confronted with the sometimes daunting task of maximizing the enjoyment of recreational and intramural programs, within fiscal constraints, while simultaneously manag-ing risks to avoid monetary liability. The purpose of this handout is to provide an overview of the general legal concept of negligence applicable to the area of recreational activities. II. LIABILITY IN GENERAL As we have previously discussed, our judicial system is divided into two categories: criminal and civil. An individual may be monetarily compensated (be awarded damages) when he or she is the victim of a legal wrong that is not necessarily criminal in nature. In order to be compensated for an injury, an individual must file a lawsuit against the person, corporation or entity allegedly responsible for causing the injury or otherwise seek to hold the party responsible. Most often, an individual will seek to be compensated by filing a lawsuit and alleging that the offending party's conduct was negligent or intentional or that the activity or business in which offending party engaged is so dangerous that he or she should be held strictly liable. Recreational and leisure activities professionals are more likely to face lawsuits alleging negligence than those alleging intentional misconduct or strict liability. An intentional tort is a civil wrong, other than a breach of contract, for which the court will provide a remedy in the form of an action for damages. An individual or entity is strictly liable when he/she/it engages in an inherently dangerous activity that a reasonable person knows can result in injury and an injury occurs. An individual is negligence if he/she fails, either through act or omission, to perform a legal duty and such failure is the proximate cause of an injury or damage. Recreational activities and intramural sports professionals are more likely to face lawsuits alleging negligence than those alleging intentional misconduct or strict liability. III. NEGLIGENCE As a general proposition, a person may act in any way he or she wishes so long as the action does not infringe on the interests of another. However, when an individual owes a legal duty to another person and his or her acts or omissions infringe on the interest of the person to whom the duty is owed, he or she may be found negligent and liable for the resulting injury or harm.

2 Even if a legal duty is owed to another individual the individual who owes the duty is not required to protect against all risk. Only conduct that falls below the standard of care established by law for the protection of others against unreasonable risk may result in a finding of negligence. The fact that an individual did not intend for his or her conduct to cause injury or harm is not relevant. Intentional torts look at the state of mind of the individual accused of causing harm. Negligence looks at the conduct that creates unreasonable risk. Generally the traditional tort principle is that when an innocent person is injured by a wrongdoer, the wrongdoer should pay. The principle also includes the concept of risk distribution and cost allocation. A person is not a guarantor of safety against all harm. Safety seeks to eliminate risk, injury and damage. The principles of negligence seek to protect against unreasonable risk. Before a person can be found negligent and therefore liable for injury or harm, the person seeking to recover damages must prove: the existence of a legal duty between he/she and the person allegedly responsible for the injury or harm; a failure to perform the duty (breach); a reasonable connection between the breach and the injury or harm (proximate cause or causation); and injury or harm. A. Legal Duty or "It is my day to keep her/him" Sometimes it is difficult to determine when one individual owes a legal duty to another. It is not uncommon to confuse legal duty with a moral belief, ethical obligation or humanitarian gesture. However, only the breach of a legal duty will result in a finding of negligence. For instance, a trained firefighter who sees a raging house fire while on vacation in another country may be the best person to enter the house and save its occupants, however, the law does not impose that duty upon her. Or, a world class swimmer who sees his roommate drowning in a swimming pool, may be the eminently qualified to save him, but, the law does not require him to do so. It is often said that "where danger invites rescue, the law does not impose it." In order to encourage individuals to undertake rescue responsibilities, most jurisdictions have enacted Good Samaritan laws that protect individuals who make rescue efforts from liability for negligence. Good Samaritan statutes generally protects from liability persons who (1) in good faith; (2) administer care at the scene of an emergency; (3) provided the person s negligent act or omission did not create the emergency and the emergency care is not performed in a willfully or wantonly negligent manner. Therefore, even a Good Samaritan has a legal duty to undertake the rescue effort in a reasonably prudent fashion.

3 Only when the law recognizes a legal duty does it demand an individual take action to protect or refrain from action that exposes an individual from unreasonable risk. A legal duty may be created by statute, city ordinance, business invitation, contract, voluntary assump-tion or judicial decision. For example a legal duty often exists between a parent and a child; a doctor and a patient; a lifeguard and a swimmer; a facility owner and a sports participant. In the profession of recreational and leisure activities, program directors, facility supervisors, personnel supervisors and volunteers may have a legal duty to protect participants from unreasonable harm. With this duty comes potential liability. B. Failure to Perform (Breach) or "Oops" When a duty exists, the person owing the duty has a responsibility to act as a reasonable person would act under the same or similar circumstances. Consequently, a duty may be breached by an individual's actions or inactions. The person owing the duty is not expected or legally required to guarantee that no injury or harm will occur, but he or she is legally required to protect against that harm which is unreasonable or take action to decrease the possibility of unreasonable harm. If a legal duty exists and an individual violates a law, and the violation results in an injury, the person may be found negligent per se (or as a matter of law). For example, if a city ordinance requires commercial swimming pool operators to have a lifeguard dedicated to the kiddie pool and no lifeguard is present at the time of a drowning, the pool owner is negligent as a matter of law. However, In most instance, whether a person is negligent depends on his/her adherence to a standard of care. Within each profession, one can expect a standard of care applicable in certain circumstances. The conduct of the person allegedly responsible for the harm will be compared to the standard a hypothetical ordinary, reasonable or prudent person acting under the same or similar circumstances. This composite "ordinary, reasonable or prudent person" is given the (1) physical characteristics of the individual accused of the negligent conduct or omission; (2) the mental capacity of the average person in the community or class (e.g. child care owner, aquatics instructor, aerobics teacher, personal trainer); and (3) the skill and knowledge of the average prudent person in the community. Whether a person s conduct falls below the acceptable standard of care is determined by comparing his/her action or inaction to a hypothetical ordinary, reasonable or prudent person Generally, liability will not attach unless the individual's care falls below that which is expected. The case of Lowe v. Texas Tech University, 540 S.W.2d 297 (1976), provides a good example of legal duty and breach of that duty. In Lowe, a student-athlete alleged that he injured his knee while playing football for the

4 university. The injury allegedly occurred when an assistant coach ordered him to remove his knee brace in order to improve his mobility and return to the game. Lowe wore the knee brace because of a previous injury. The assistant owed a duty to train, coach and handle the student-athlete safely. He breached that duty by instructing him to act in a fashion that resulted in an injury. A prudent coach would not instruct a player to remove a knee brace worn for protection. The court concluded that in this instance, the knee brace "was as integral a part of Lowe s uniform as his helmet or shoulder pad." C. Proximate Cause, Causation or "Upon Further Review" The fact that a duty was breached does not necessarily mean that an individual will be found liable if an injury occurred. One person who owes another a duty may be found liable for breaching that duty only when there is a reasonable connection between the breach and the injury. In other words, the breach must proximately cause the injury. The concept of proximate cause is comprised of two elements; cause in fact and foreseeability. One determines whether the negligent act or omission was a cause in fact by inquiring whether the conduct was (1) a substantial factor in bringing about the injury; and (2) one without which the harm would not have occurred. Barker v. Big Billy Barrett, Inc. (See website). This is often called the "but for" test the injury would not have occurred "but for" the individuals conduct. For example, at a grand opening a business has a fireworks display and a stray bottle rocket ignites dry brush near an apartment complex which results in a fire that damages the complex. The damage would not have occurred "but for" the fire that was caused by the bottle rocket set off at the grand opening. However, it is not simply enough for the negligence to set in motion the action that caused the harm. Even if the injury would not have occurred "but for" the conduct, there is no proximate cause if the connection between the conduct and the injury is too attenuated or remote. Foreseeability requires a person of ordinary intelligence to have anticipated the danger created by the negligent act or omission. Donnell v. Spring Sports, Inc., 920 S.W. 2d 378 (Tex. App. Houston 1996). D. Injury or "You Break it you Buy it" or "No Harm, No Foul" or Injury An injury or harm must occur before liability can attach. Therefore, no harm equals no liability. IV. DEFENSES There are several defenses available to claims of negligence. The defenses that may be asserted depend upon the law of the state in which the lawsuit is filed. Some of the more often raised defenses are: Contributory Negligence Comparative Negligence

5 Assumption of Risk Immunity Statute of Limitations Notice of Claim; and Waiver or Release The defense or defenses asserted in a particular case are dictated by the facts of the case and by the law of the state in which the injury occurred. The attorney representing the individual or entity will know the proper defense(s) to assert based upon the facts of the case. However, the recreational and leisure activity and professional should at a minimum be familiar with the defenses of immunity and notice of claim; assumption of risk; comparative and contributory negligence; immunity and waiver or release. A. Assumption of Risk The doctrine or defense of assumption of risk provides that a participant who knowingly and voluntarily undertakes an activity or sports assumes a risk of harm arising from the conduct of another and cannot recover if injured. A participant in a recreational or intramural program may expressly assume a risk by signing a waiver or may implicitly assume a risk by his or her conduct. In order to establish an implied assumption of risk defense, a defendant must prove: the participant consented to the risk; voluntary acceptance of the risk; and full knowledge and appreciation of the risk and danger. Liability & Law in Recreation, Parks & Sports. Kaiser (1986). 1. Implicit Consent - Participation Participants in recreational and intra-mural programs implicitly consent to the known and inherent risks of the activity or sport in which they participate. Nevertheless, the professional owes a duty to ensure reasonable controls are in place to protect the participant. Dotzler v. Tuttle, 449 N.W.2d 774 (1990) (participant in basketball game implicitly consents to battery, but reasonable controls must be in place to protect against harmful reckless or intentional conduct). Translated, this means the recreation and leisure activity professional should implement policies, procedures and training programs to minimize the risk of harm to participants by reckless and intentional conduct. For example, professionals should train supervisors on crowd control procedures and

6 sports officials on game management. Werthlecin v. U.S. Tennis Association, 540 N.Y.2d 443 (1989) (By participating in event, plaintiff consented that duty owed by defendant was no greater than to avoid reckless or intentionally harmful conduct); Nganga v. College of Wooster, 557 N.E. 2d 152 (1989) (Court will not second guess game officials where plaintiff had option of not participating). In Kansas, officials have immunity for ordinary negligence occurring in the course of officiating a game. KSA Implicit Consent - Facilities The professional also owes participants a duty to ensure the facility in or on which the activity or sport is played is reasonably safe. The user of a facility has a duty to look out for his or her own safety. However, liability may attach when a user is injured as a result of a latent or hidden risk that he or she could not have reasonably discovered using his or her senses. With respect to a facility, a profes-sional has a duty to inspect the premises and repair or remove the hazard within a reasonable time. Henig v. Hofstra University, 553 N.Y.S2d 479, (1990) (No liability where injury sustained as consequence of risk normally associated with the activity); Adams v. Hartsford Accident, 525 So.2d 1211 (La. App. 1988) (Owner of softball field liable for injury resulting from barbs on outfield fence). B. Waivers and Releases The defense of waiver or release is an expressed assumption of risk. It provides that, in very limited circumstances, a waiver or release signed prior to participation in an activity will absolve a defendant of liability for negligent conduct. Courts however are reluctant to enforce waivers or releases where: the defendant is a public entity providing a necessary service; the defendant has greater bargaining power; the waiver is too broad or ambiguous; or the waiver is signed by a minor or by the parent on behalf of a minor. Wagonblast v. Odessa School District, 758 P.2d 968 (1988) (Waiver unenforceable against participants injured in interscholastic activ-ities). Courts will never enforce a waiver in which a participant foregoes future claims for injury or harm due to willful or wanton misconduct. Courts are also not inclined to enforce waivers required by public entities. However, in the case of extremely risky events involving nonessential service, the courts may enforce a waiver. Bankfield v. Louis, 589 So.2d 441 (1991) (Waiver enforced where plaintiff injured during bicycle road race sponsored partly by city). C. Immunity and Notice of Claim and Tort Claims Acts The defense of immunity is available to public employees only. The defense protects government officials from personal liability in performing: discretionary duties taken in good faith within the scope of his or her authority

7 Most states in the region have enacted legislation codifying this common law defense: Iowa - Iowa Tort Claims Act, Iowa General Assembly, Ch Kansas - Kansas Tort Claims Act, Kansas Statutes Annotated, Ch Louisiana -Louisiana Revised Statutes, Title 13, Ch and 2 N.Mexico-New Mexico Tort Claims Act, N.M. Statutes Annotated, Ch 41. Oklahoma Oklahoma Tort Claims Act, Oklahoma Statutes, Texas - Texas Civil Practices & Remedies Code, Chapter 103 D. Contributory Negligence E. Comparative Negligence F. Joint Venture Able v. Texas Dept. of Transportation HOME