Tort Liability and Tort Liability and NegligenceNegligence

Tort LawTort Law

Tort – a private or civil wrong against Tort – a private or civil wrong against a person, an injury to a person a person, an injury to a person including property and reputation.including property and reputation.

2 Categories of Tort Law2 Categories of Tort Law

Intentional TortIntentional Tort

Shows that there is an intent toShows that there is an intent to

injure. Includes assault and battery, injure. Includes assault and battery, defamation, hazing, and invasion of privacy.defamation, hazing, and invasion of privacy.

Unintentional Tort (Negligence)Unintentional Tort (Negligence)

There is no intent to injure but an injury does There is no intent to injure but an injury does occur.occur.

Both require that the act done was the Both require that the act done was the proximate causeproximate cause of the injury and that actual of the injury and that actual damage occurred.damage occurred.

Unintentional TortsUnintentional Torts

Disturbance of intangible interestsDisturbance of intangible interests– Includes invasion of privacy, Includes invasion of privacy,

defamation, libel or slander.defamation, libel or slander.– To be considered the disturbance must To be considered the disturbance must

be characterized as being extreme and be characterized as being extreme and beyond the bounds of social decencybeyond the bounds of social decency

– Truth is the best defenseTruth is the best defense

NegligenceNegligence

Is an unintentional breach of duty.Is an unintentional breach of duty.

It can be an act of omission or It can be an act of omission or commission in which a person may commission in which a person may be exposed, to an unreasonable risk be exposed, to an unreasonable risk of injury resulting in damage, by a of injury resulting in damage, by a person with which they have a person with which they have a special relationship.special relationship.

Elements of NegligenceElements of Negligence

DutyDuty Breach of DutyBreach of Duty Cause Cause DamageDamage

– All four elements must be present for All four elements must be present for negligence to exist.negligence to exist.

DutyDuty

A special relationship that exist A special relationship that exist between individuals such as between individuals such as player/coach or student/teacher in player/coach or student/teacher in which there is a duty owed that does which there is a duty owed that does not expose a person to unnecessary not expose a person to unnecessary dangers.dangers.

Existence of Special Existence of Special RelationshipRelationship

Duty has three primary origins. Duty has three primary origins. – 1) from a relationship inherent in the 1) from a relationship inherent in the

situation;situation;– 2) from a voluntary assumption of the 2) from a voluntary assumption of the

duty; andduty; and– 3) from a duty mandated by statute.3) from a duty mandated by statute.

Relationship InherentRelationship Inherent

When a program or service is When a program or service is provided, usually there also is an provided, usually there also is an expected obligation not to expose expected obligation not to expose the participant/user to unreasonable the participant/user to unreasonable risk of harmrisk of harm

Breach of Duty (Act)Breach of Duty (Act)

Is the act to protect in accordance Is the act to protect in accordance with the standard of care the with the standard of care the professional must provide?professional must provide?

Breach of Duty (ActBreach of Duty (Act ) )

Inherent RisksInherent Risks– Inherent risks are those integral to the Inherent risks are those integral to the

activity.activity.– An inherent risk is one that, if removed An inherent risk is one that, if removed

from the game, would essentially alter from the game, would essentially alter the sport and thereby the sport would the sport and thereby the sport would lose its integrity. lose its integrity.

– There is no liability for injury that occurs There is no liability for injury that occurs due to inherent risks.due to inherent risks.

Negligent BehaviorNegligent Behavior

Nature of the ActivityNature of the Activity– The provider must be aware of the skill The provider must be aware of the skill

and abilities that a participant needs in and abilities that a participant needs in order to successfully and safely order to successfully and safely participate in the activity.participate in the activity.

– The activity leader has a duty to identify The activity leader has a duty to identify the inherent risks of the activity and the inherent risks of the activity and warn the participant of these risks. warn the participant of these risks.

Negligent BehaviorNegligent Behavior

Nature of the ActivityNature of the Activity– If the leader is not knowledgeable in a If the leader is not knowledgeable in a

familiar with the activity he cannot familiar with the activity he cannot identify the risks nor warn the identify the risks nor warn the participant.participant.

– However, he/she still has a duty in However, he/she still has a duty in preventing harm and conducting the preventing harm and conducting the activity to a reasonable standard of careactivity to a reasonable standard of care

Type of ParticipantsType of Participants

The service provider must be The service provider must be – Aware of the character of the Aware of the character of the

participants,participants,– Understand how to work with them in Understand how to work with them in

the specific activity, and the specific activity, and – Know which risks a participant may be Know which risks a participant may be

able to assume and thus better protect able to assume and thus better protect them from risks.them from risks.

Breach of DutyBreach of Duty

In order to establish that a breach of In order to establish that a breach of duty has occurred, one of the duty has occurred, one of the following must be established:following must be established:

1.1. Direct evidence of negligenceDirect evidence of negligence 2.2. Violation of a statuteViolation of a statute 3.3. Res ipsa loquiturRes ipsa loquitur

Direct EvidenceDirect Evidence

Many times established by testimony Many times established by testimony from others actually witnessing the from others actually witnessing the event.event.

Violation of a StatuteViolation of a Statute

Violation of a statute, or negligence Violation of a statute, or negligence per se, exists when a law has been per se, exists when a law has been broken which leads to an act of broken which leads to an act of negligence. negligence.

Res Ipsa LoquiturRes Ipsa Loquitur

Res ipsa loquitur is an operational Res ipsa loquitur is an operational term, which allows suit based on term, which allows suit based on what "most likely" occurred when what "most likely" occurred when direct evidence is unavailable (Wong, direct evidence is unavailable (Wong, 1994).1994).

CauseCause

The failure to act reasonably in The failure to act reasonably in providing the appropriate standard of providing the appropriate standard of care.care.

Standard of CareStandard of Care

Reasonable and prudent professionalReasonable and prudent professional– The participant is owed a duty to be The participant is owed a duty to be

protected from unreasonable risk of protected from unreasonable risk of harm regardless of who is in charge.harm regardless of who is in charge.

– When a person accepts a responsibility When a person accepts a responsibility they are expected to perform up to the they are expected to perform up to the level of the profession.level of the profession.

DamageDamage

– The extent to which the actual The extent to which the actual damage existsdamage exists

Standard of CareStandard of Care

ForeseeabilityForeseeability– The ability to identify a situation or area, The ability to identify a situation or area,

expected of a reasonable and prudent expected of a reasonable and prudent professional, that could expose the professional, that could expose the participant to unnecessary harm participant to unnecessary harm

Foreseeability of Foreseeability of Unreasonable HarmUnreasonable Harm

It should be made clear that one can It should be made clear that one can have a special relationship and owe a have a special relationship and owe a duty to protect, but because there is duty to protect, but because there is no foreseeable unreasonable risk, no foreseeable unreasonable risk, there does not have to be any there does not have to be any proactive action. proactive action.

ForeseeabilityForeseeability

There is another aspect of There is another aspect of foreseeability. When an environmental foreseeability. When an environmental hazard is open and obvious, it is hazard is open and obvious, it is notnot foreseeable that an individual would foreseeable that an individual would place oneself in a dangerous position place oneself in a dangerous position of which they were aware. of which they were aware.

While there may be a special While there may be a special relationship, there is no duty to be relationship, there is no duty to be proactive to protect.proactive to protect.

Types of NegligenceTypes of Negligence

Gross NegligenceGross Negligence– An act in which there is considerable lack of An act in which there is considerable lack of

reasonable care as a result of total indifference reasonable care as a result of total indifference toward and disregard to the duty owed but falls toward and disregard to the duty owed but falls short of willful conduct to injure.short of willful conduct to injure.

Ordinary NegligenceOrdinary Negligence– An act in which there is a mere failure to An act in which there is a mere failure to

exercise reasonable care that results in an exercise reasonable care that results in an injury or damage.injury or damage.

Types of NegligenceTypes of Negligence

Contributory NegligenceContributory Negligence– Occurs when the party to which the duty Occurs when the party to which the duty

is owed contributes to the injury or is owed contributes to the injury or damage that is incurred.damage that is incurred.

Potential Liabilities of Coaches Potential Liabilities of Coaches and Teachersand Teachers

Traditionally, the institution has been Traditionally, the institution has been named in litigation due to the named in litigation due to the coach/teacher negligent behavior but coach/teacher negligent behavior but not the coach/teacher.not the coach/teacher.

Recently, since the basis of litigation Recently, since the basis of litigation is the negligence of the is the negligence of the teacher/coach, the teacher/coach is teacher/coach, the teacher/coach is being sued individually.being sued individually.

Potential Liabilities of Potential Liabilities of Administrators & CoachesAdministrators & Coaches

• Supervisor is not an insurer of Supervisor is not an insurer of everyone’s safetyeveryone’s safety

• The supervisor needs only to exercise The supervisor needs only to exercise reasonable carereasonable care

• Unless other evidence is presented the Unless other evidence is presented the supervisor is legally entitled to assume supervisor is legally entitled to assume that all under his/her supervision will that all under his/her supervision will also be exercising reasonable carealso be exercising reasonable care

New TrendNew Trend

Recently cases have appeared in which the Recently cases have appeared in which the student/athlete has sued the teacher/coach student/athlete has sued the teacher/coach on the claim of assault and battery?on the claim of assault and battery?

This addresses some questions:This addresses some questions:– Can force be used to bring about compliance to Can force be used to bring about compliance to

commands?commands?– Can punishments be used for prohibited Can punishments be used for prohibited

conduct?conduct?– Can force be used when the player or student Can force be used when the player or student

does not perform adequately?does not perform adequately?

Potential Liabilities of Coaches Potential Liabilities of Coaches

• Failure to provide adequate supervisionFailure to provide adequate supervision– Includes Includes

• failure to provide adequate equipment failure to provide adequate equipment • failure to provide a safe areafailure to provide a safe area• failure to provide supervision between eventsfailure to provide supervision between events

• Duty entails using reasonable care in either Duty entails using reasonable care in either rectifying dangerous situations or warning rectifying dangerous situations or warning others who may encounter hazards.others who may encounter hazards.

Potential Liabilities of Coaches Potential Liabilities of Coaches

A supervisor is generally not liable A supervisor is generally not liable for any intentional the actions of the for any intentional the actions of the employee unless it can be proved employee unless it can be proved that he/she was negligent in that he/she was negligent in choosing or supervising the choosing or supervising the employee(s) involved.employee(s) involved.

Potential Liabilities of CoachesPotential Liabilities of Coaches

• Failure to provide proper instruction and Failure to provide proper instruction and trainingtraining– IncludesIncludes

• The instructor must be qualified to teach the The instructor must be qualified to teach the subjectsubject

• Coach must teach the proper techniques, safety Coach must teach the proper techniques, safety rules and method of playingrules and method of playing

• Both coaches and teachers should keep detailed Both coaches and teachers should keep detailed records of their training or teaching sessions.records of their training or teaching sessions.

• Risk of injury is greater for those involved in Risk of injury is greater for those involved in activities for the first time, those involving activities for the first time, those involving children, or in perceived dangerous activities.children, or in perceived dangerous activities.

Potential Liabilities of Coaches Potential Liabilities of Coaches

There have been a number of cases There have been a number of cases in football in which the player alleged in football in which the player alleged that the coach did not provide that the coach did not provide adequate instruction and training adequate instruction and training concerning tackling.concerning tackling.

This includes proper preseason This includes proper preseason conditioning programs.conditioning programs.

Potential Liabilities of Coaches Potential Liabilities of Coaches

• Failure to provide prompt and capable Failure to provide prompt and capable medical assistancemedical assistance– The teacher or coach has a duty to refrain The teacher or coach has a duty to refrain

from actions that might aggravate or re-from actions that might aggravate or re-aggravate an injuryaggravate an injury

– Teacher/coach are held to a reasonable Teacher/coach are held to a reasonable standard of care when giving medical standard of care when giving medical assistanceassistance

– The institution may be the responsible party The institution may be the responsible party if medical personnel have not been providedif medical personnel have not been provided

2 Primary Medical Duties of a 2 Primary Medical Duties of a CoachCoach

The coach/teacher may have to The coach/teacher may have to render aid before medical assistance render aid before medical assistance arrives.arrives.

The coach/teacher is responsible for The coach/teacher is responsible for sending an injured athlete/student sending an injured athlete/student for medical treatment immediately.for medical treatment immediately.

Potential Liabilities of Coaches Potential Liabilities of Coaches

• A coach who orders a player to fight or A coach who orders a player to fight or attempt to injure an opposing player attempt to injure an opposing player may be held liable under vicarious may be held liable under vicarious liability theory in injuries occurliability theory in injuries occur

Potential Liabilities of Coaches Potential Liabilities of Coaches

Failure to provide appropriate matchesFailure to provide appropriate matches– The coach/teacher is responsible for The coach/teacher is responsible for

making certain that player/students are making certain that player/students are similar in size and skill when going head-similar in size and skill when going head-to-head, especially in a contact sport in a to-head, especially in a contact sport in a practice/class situation.practice/class situation.

– Age, maturity, and fatigue are also factors Age, maturity, and fatigue are also factors when matching participants in a practice when matching participants in a practice or class situationor class situation

Potential Liabilities of Coaches Potential Liabilities of Coaches

Teacher/coach may meet the Teacher/coach may meet the standard of care by:standard of care by:– Player’s experiencePlayer’s experience– AbilityAbility– Skill levelSkill level

Liability of Athletic Liability of Athletic AdministratorsAdministrators

• An administrator, school or university An administrator, school or university may also be sued under the theory of may also be sued under the theory of vicarious liability for the alleged vicarious liability for the alleged negligence of an employee.negligence of an employee.

• An administrator may be sued in his/her An administrator may be sued in his/her role as the supervisor of a coach or role as the supervisor of a coach or teacher.teacher.

Doctrine of Respondeat Doctrine of Respondeat Superior Superior

Also referred to as “vicarious Also referred to as “vicarious liability”liability”

Identifies that the organization is Identifies that the organization is liable for the negligent behavior of its liable for the negligent behavior of its employees as long as the employee employees as long as the employee or volunteer is acting within the or volunteer is acting within the scope of their responsibility.scope of their responsibility.

Doctrine of Respondeat Doctrine of Respondeat SuperiorSuperior

Thus, if an employee is negligent in Thus, if an employee is negligent in his/her duty the superior(s) is also his/her duty the superior(s) is also held liable for the employees held liable for the employees action(s).action(s).

Failure to Provide Supervision Failure to Provide Supervision of Athletic Activities of Athletic Activities

In dealing with personnel, athletic In dealing with personnel, athletic administrators may be held liable if administrators may be held liable if they have not exercised reasonable they have not exercised reasonable care in hiring coaches and/or care in hiring coaches and/or teachers with proper skills and an teachers with proper skills and an qualifications and insuring that qualifications and insuring that properly qualified personnel are properly qualified personnel are supervisingsupervising

How does an AD know who to hire?How does an AD know who to hire?

Foreseeable ConditionsForeseeable Conditions

An administrator is required to An administrator is required to exercises reasonable care to prevent exercises reasonable care to prevent foreseeable risks and to make safe foreseeable risks and to make safe foreseeably dangerous conditions by foreseeably dangerous conditions by repair or warningrepair or warning

Failure to Provide Medical Failure to Provide Medical AssistanceAssistance

The administrator may be liable if The administrator may be liable if he/she was negligent in providing he/she was negligent in providing medical personnel at a game or medical personnel at a game or practice.practice.

Failure to Provide Safe Failure to Provide Safe EquipmentEquipment

The failure to provide equipment or The failure to provide equipment or failure to provide satisfactory failure to provide satisfactory equipment has been the basis for a equipment has been the basis for a number of lawsuits.number of lawsuits.

4 Equipment Considerations for 4 Equipment Considerations for the Athletic Administratorthe Athletic Administrator

The first consideration is the purchase The first consideration is the purchase of appropriate equipment for the of appropriate equipment for the athletic activities offered.athletic activities offered.

Provision of equipment for the athletic Provision of equipment for the athletic activities in which equipment is activities in which equipment is needed.needed.

Provision for properly fitting Provision for properly fitting equipmentequipment

Periodic inspection of equipment and Periodic inspection of equipment and reconditioning when needed.reconditioning when needed.

Administrator Duty to SpectatorAdministrator Duty to Spectator

A spectator injured by another A spectator injured by another spectator cannot enforce a claim spectator cannot enforce a claim against the school unless there had against the school unless there had been previous knowledge of a been previous knowledge of a potentially dangerous setting and did potentially dangerous setting and did not alert the spectator.not alert the spectator.

Where might this occur in a Where might this occur in a intercollegiate/pro sport setting?intercollegiate/pro sport setting?– Bearman v. Notre DameBearman v. Notre Dame