PE 254

NegligenceThe legal claim that a person failed to act as a reasonable and prudent person should, thereby resulting in injury to another person.

4Required Elements

Negligence

DutyBreachCauseHarm

NegligenceFour factors must exist for negligence to be

proven: Presence of a duty (such as providing

supervision of a class) A breach of the legal duty of care (failure to

act as a reasonable and prudent person would under similar circumstances)

Proximate cause of the injury (the action or failure to act caused the subsequent injury)

Substantial nature of the injuries (the extent of the injuries)

Negligence DUTYExamples of Duties:• Proper Instruction• Access to Medical Care• Proper Progressions• Safe Facilities• Appropriate Supervision• Teach safety procedures

Negligence DUTY

? Example: The facilities are dangerous. As the teacher, you owe a duty to provide safe facilities. If you teach in dangerous facilitiesand someone is hurt, therebyyou may be liable for negligence.

Negligence DUTY

? Your supervisor may also owe aduty to provide safe facilities. So if you teach in dangerous facilitiesand someone is hurt thereby,you may be liable for negligence butyour supervisor may also be liable.You may BOTH be liable.

Negligence

Breach =

Failure to meet the standard of Care

BREACH

Negligence

BREACH

How is the standard of care determined?

How good do I have to be?

Negligence BREACH

The standard changes based On things such as:

• Participant’s age, preparation• Dangerousness of activity, etc.

How good do I have to be?

Negligence BREACHHow is the standard determined?

•Expert testimony•Professional standards

(AAHPERD, NATA, Red Cross, etc.)

•Reasonable, prudent, up-to-date _________.

Negligence BREACH

How is the standard determined?What would the prudent, reasonable,up-to-date teacher, coach, administrator, etc. have done?

Negligence BREACH

Prudent, reasonable,Up-to-date _ _ _ _ _

The standard is set by the role played, not whether volunteer or paid.

Teacher, coach, administrator

Negligence BREACH

If I follow professional guidelines,am I safe from negligence claims?

?

Negligence BREACHNot necessarily.I must still act as would a reasonable, prudent, up-to-date_ _ _ _ _ _ _ would.

If the guidelines are bad,following them may be bad.

?Teacher, coach, adm.

Negligence CauseThe breach must be the cause of the harm. Not all breaches cause harm.

Negligence CauseI don’t have a lesson plan.

A student is hurt becauseof dangerous equipment.

Am I negligent because ofthe lack of a lesson plan?

?

Negligence CauseNo. The lack of the lesson plan was NOT the CAUSE.

If I am negligent, the cause would be the unsafe equipment.

?

Negligence HarmIn most jurisdictions, the harm must be physical.

Solely psychological oremotional harm is generally not sufficient for a claim of negligence.

Negligence HarmI breached a duty but the student was only scared, not injured.

Can I be found negligent because the student was scared?

?

Negligence HarmNo.

Physical harm must existIn order to find negligence.

No Harm, No Foul

?

NegligenceLiability fornegligence may existeven if you are not actively involved.

Negligence

• Agent/principal

• Respondent Superior

Negligence

• Agent/principalExamples:

Coach - athleteteacher - student teacher

Negligence

• Respondent SuperiorExample:

Boss - Employee

Negligence• Respondent Superior

Risk management techniques:•Pre employment screening•Pre service training•Supervision•Good curriculum•In-service training•Workshops, conventions•Open minded evaluations of

adverse incidents

Negligence

• Liability from 3rd party violence.Example:

Your athlete has history ofviolence or uncontrolled anger.The game is intense and the playeris getting angry. Should you take the player out of the game?

Negligence Liability from

3rd party violence.If you leave the player in the gameand the player’s anger causesinjury to someone else, youcould be liable.

You may have breached your duty toprotect from the foreseeable riskof unreasonable harm.

NegligenceLegal defenses against negligence:

Assumption of risk: Knowing, understanding, and appreciating the risk associated with a chosen activity.

Contributory negligence: Behavior by the plaintiff that contributed to the injury.

Comparative negligence: Apportions (divides) damages between a negligent plaintiff and a negligent defendant who each played a part in the injury.

NegligenceAvoiding negligence:

General supervision: action required whenever activity is occurring by those for whom the person is responsible.

Specific supervision: mandated action required whenever a higher level of risk is associated with the activity of the persons for whom the adult is responsible.

Actual notice: refers to the removal of known hazards by a responsible person

Constructive notice: Refers to hazards that a responsible person should have noticed and eliminated.

NegligenceSeveral other steps to avoiding negligence:

Provide proper and clear instructions.Ensure each participant’s fitness, conditioning, and

ability levels are appropriate to the expectations.Enforce safety rules and regulations.When injuries occur, the supervisor must respond

appropriately.Do not use inadequate, ill-fitting, or defective

equipment.Only qualified individuals should supervise physical

activity.

NegligenceTo understand the extent of your obligations to

clients served, consider these example questions:

What are your obligations to a person who will be participating in a cardiovascular fitness test that involves a submaximal treadmill run?

As a personal trainer, what are your legal responsibilities for the welfare of your client who is participating in a strength training program?

Agreement to Participate

A signed acknowledgement of a participant’s knowing, understanding, and appreciating the risks associated with an activity. Note: This is not a waiver form.

Tort LawTort: a French word for wrong; a private or

civil wrong or injury, other than breach of contract, suffered due to another person's conduct.

Tort law: a part of the civil law that provides remedies for acts that cause harm; therefore, injured parties may file civil lawsuits in an attempt to seek compensation for their injuries.

Tort LawTort damagesTort damages are monetary damages that are sought from the offending party.

They are intended to compensate the injured party for the injury suffered.

Tort law imposes a duty on persons and business agents not to intentionally or negligently injure others in society.

ns and business agents not to intentionally or negligently injure others in society.

Intentional Torts

Strict Liability Torts

Unintentional Torts (Negligence)

Types of TortsIntentional torts: injuries caused by

intentional acts.

Negligence: harm caused by careless acts or failure to perform a legal duty.

Strict liability: requires the person causing the harm to compensate the injured party without regard to fault.

Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29

Facts: Ms. Cole attended a champagne breakfast at the South

Tweed Heads Rugby League Football Club.

She spent the day drinking at the Club.

The Club stopped serving Ms Cole after 12:30 pm, but her

friends provided her with drinks for the rest of the afternoon.

At 5:30 pm the Club’s manager asked Ms. Cole to leave the

premises after she was seen behaving indecently with 2

men.

Cole v South Tweed Heads Rugby League Football Club Ltd

The manager offered Ms. Cole a taxi home, but Ms. Cole

rejected the offer in blunt and abusive terms.

She then left the Club with the 2 men, who assured the

manager that they would take care of her.

At 6:20 pm Ms. Cole was struck by a car near the Club

and was seriously injured.

She was found to have a blood alcohol concentration of

0.238%.

 Who was responsible for Ms. Cole’s injuries? Why?

Who was responsible for Ms. Cole’s injuries?

Issues before the court:

Did the Club owe a duty to take reasonable care:

to monitor and moderate the amount of alcohol served to

Ms. Cole?

that Ms. Cole travelled safely away from the Club’s

premises?

Does a general duty of care exist to protect persons from harm

caused by intoxication following a deliberate and voluntary

decision on their part to drink to excess?

Did the car driver owe Ms. Cole a duty of care?

Did Ms. Cole in any way contribute to her own injuries?

Additional Sourcehttp://www.authorstream.com/Presentation/

smcdill-69298-Tort-Law-Define-Explain-Intentional-Negligent-Strict-Liability-Describe-Conditions-Education-ppt-powerpoint/