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ESPE 6113 Sport Law PPT 2.1-2.4

Terms in this set (59)

Premise Liability
The body of law which makes the person who is in possession of land or premises responsible for certain injuries suffered by persons who are present on the premises.
It is expected that the owner or operator of a sport or recreation business will provide a reasonably safe environment for all who enter the premises.
Duty of Care
A landowner owes a duty of responsible care to guard against any dangerous conditions on his/her property that the owner either knows about or should have discovered.
Invitee
A person who has an express or implied invitation to enter or use another's premise. Invitees are owed the greatest level of protection. (Business Invitees & Public Invitees)
Licensee
One who has permission to enter or use another's premises, but only for one's own purposes and not for the occupier's benefit
Trespasser
One who intentionally and without consent or privilege enters another's property (Willful and Wanton Misconduct & Attractive Nuisance)
Recreational User
Someone who enters upon land for the purpose of engaging in a recreational activity covered under their state's recreational user statue and is recreating on land suitable for the activity and covered under the statue.
Reasonable Care Standard
8 states abolished the distinctions between invitee, licensee, and trespasser and now state that a landowner owes a duty to act as a reasonable person in maintaining his property in a reasonable safe condition under the circumstances.
15 states abolished the distinction between invitee and licensee and have determined that owners and occupiers of land owe a duty to exercise reasonable care under the circumstances to any persons that is lawfully on his/her property
Issue of Foreseeability
Should we have known of the risk?
Actual
Situations when the premises owner becomes aware of a problem or defect on the land.
Constructive
In situations where the facility manager should have discovered the danger during the course of prudent facility management, including routine facility inspections. *Two alternative theories.
Recurring Incident Theory
A dangerous condition that frequently occurs may establish constructive notice because the recurrence of the condition provides opportunities to take measures and rectify or prevent the condition. Stadt v. United Center Joint Venture
"Open and Obvious" Dangers
A premises owner's duty to protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the land generally does not encompass a duty to protect and invitee from "open and obvious" dangers.
However, "special aspects" of a condition that make even an "open and obvious" danger "unreasonably dangerous", the landowner still is obligated to undertake reasonable precautions to protect invitees from the danger.
Distraction Exception
A person would be distracted from noticing the "open and obvious" danger and fail to take reasonable precautions to avoid the risk of danger. Menough v. Woodfield Gardens
Limited Duty Rule
An exception to general negligence principles that consists of 2 components (baseball stadiums & hockey arenas):

1.The operator must provide protected seating sufficient for those spectators who may be reasonably anticipated to desire protected seats on an ordinary occasion.

2.The operator must provide protection for spectators in the most dangerous section of the stands. (Ex: screened seats)
Legal Obligations of Sport and Recreation Facility Managers
Keep the premises in safe repair
Inspect the premises to discover obvious and hidden hazards
Remove the hazards or warn others of their presence
Anticipate foreseeable uses and take reasonable precautions to protect
Origins of Duty
Inherent Relationship, Voluntary Assumption, Statute, Premises Liability
Inherent Relationship
Occurs most frequently in the recreation and sport setting
Coaches and players
Directors and participants
Voluntary Assumption
Occurs when an individual chooses to become involved in an activity
Little League baseball volunteer coaches
Youth Soccer volunteer coaches
Can also occur when an individual voluntarily renders aid in an emergency
Such individuals may be covered by a Good Samaritan statute, if harm occurs
Statute
States throughout the U.S. have statutes that address the issue of providing emergency care
Require specific equipment, services and responsibilities
Many cities require that an ambulance be on site in case of emergencies on-and-off the field
Premises Liability
Premise owners and operators are also required to respond to medical emergencies promptly and in a competent manner
As a former owner of a Bowling Center, if a person were to injure themselves in one of the machines, we were to provide assistance until the proper medical personnel arrived
Elements of Emergency Care
There are four elements that must be considered in regards to emergency care:

Emergency Planning
Appropriate Personnel/Injury Assessment
Adequate Equipment/Certifications
Implementation of Emergency Procedures
1. Emergency Planning
Recreation and Sport Organizations develop an Emergency Response Plan (ERP) based on the specific needs of a particular emergency situation.
As a part of this plan, it is vital for Sport Organizations to be knowledgeable in current trends in regards to sport injuries
This allows the group to prepare for the most common situations and injuries
Organizations can then create additional and more specific plans along with improved training
Some states require such plans be in place as a result of "Lystedt" laws
Emergency Response Plans are also created to deal with other "non-medical" situations (i.e. fire, other disasters)
2. Appropriate Personnel/Injury Assessment
It is very important to ensure that all staff know and understand their roles in an ERP
Three roles during an emergency
Charge person assumes overall responsibility
Call person calls/meets summoned emergency personnel
Control person keeps people away from the scene
It is very important that staff members can quickly assess injuries to ensure administration of proper treatments
Typically, the staff member with the most training and knowledge of injury assessment is assigned the role of Charge person
3. Adequate Certifications/Equipment
Up-to-date certifications are a vital aspect of the ERP
Allows for staff to provide interim care until professional EMT's arrive
Typical certifications include: basic first aid, CPR, and AED
Adequate medical equipment often proves to be a critical tool in treating injured athletes
Examples include: properly stocked first aid kits and AED's
Currently no mandates to require AED's in facilities that offer recreation and/or sport services
Some states require or encourage the availability of an AED in schools
4. Implementation of Emergency Procedures
Simply having the staff and equipment is not enough in regards to emergency care
The staff must be able to execute the plan, which is accomplished through proper training and practice
Example: Carter v. City of Cleveland (1998)
Sport Participation
School-based sport
Schools of any level are responsible for ensuring that student-athletes receive prompt/competent emergency care when necessary
There are several cases that support this aspect of emergency care
Although some cases state that a duty to provide emergency care is not required in every situation
This also applies to post-injury situations to prevent aggravating previous injuries
Sport Participation Youth
Youth Programs-these programs are difficult to address because of the volunteer aspect of these programs
In creating and ERP, these organizations may struggle in finding properly trained/certified staff (i.e. CPR and basic first aid)
They often struggle in regards to having access to adequate equipment
Some venues are not required to have certain equipment (AED's) on site
Recreation/Fitness Participants
Campus Recreation Centers-offer a variety of activities to students
With each activity offered, an ERP should be created
Aquatics-must follow state regulatory codes in regards to personnel, equipment, etc.
The biggest aspect of cases involving aquatic facilities deal with issues of supervision
Health Clubs & Spas- Not all of states require these centers to have emergency equipment on site or the proper training
In most cases, customers/members are required to sign a waiver
Other Participant Activities
Other participant activities include: skating rinks, road races/fitness challenges, adult recreation/sport activities, golf, and professional sports teams
These activities all experience issues in regards to emergency care and their requirements in providing such care
Automated external defibrillators
Portable electronic devices that can be used by non-medical personnel to treat a person in cardiac arrest
Arkansas: Anthony Hobbs III Act
As of May 31, 2011, all schools must have AEDs at each athletic event with adequate training
A statute requiring AEDs in all health and fitness facilities also came from the Anthony Hobbs III Act
Immunity for AED use
All states and the federal government have enacted legislation to provide some form of immunity for AED usage
Most provide protection when non-medical professionals use an AED in case of an emergency
Without immunity, sports and recreation managers might hesitate in getting AEDs and using them in ERPs
Managers should consult state laws to comply with necessary training, maintenance, and supervision
Operating outside of the law may disqualify one's immunity
Lystedt v. Tahoma School District (2009)
In Washington, Zackery Lystedt was playing junior high football when he sustained a concussion. He returned to the game twice and suffered a brain injury
Lystedt was in a coma for 9 months. He's regained sight and speech but remains disabled
Settlement: $14.6 million
State legislature passed Lystedt laws prescribing head injury protocols and when players can return
Led to NCAA and NFL involvement
Supervision in Sports
Most lawsuits against recreation and sport organization are for inadequate supervision
80% of negligence cases claim lack of supervision or improper supervision
Supervision is defined as denoting responsibility for an area and for the activates that take place in that area
This includes coordinating, directing, overseeing, implementing, managing, superintending, and regulating
Fundamental Concepts
Duty to Supervise
Foreseeability and Causation Factors
Duty to Supervise
1,A duty inherent in the situation
2.A voluntary assumption of a duty
3.A duty mandated by law

"The basis of the duty is whether or not there is a special relationship between plaintiff and defendant which requires that the defendant take affirmative action to provide a reasonably safe environment"
Some instances require special relationships

Some immunity in some recreational user statutes
Owners of properties must voluntarily assume a duty to supervise
Unless supervision is provided
Example case: Fleuhr v City of Cap May, 1999
Statutory Duties are imposed by state legislators
Example Case: St. Margaret Mercy Healthcare Centers, Inc v Poland, 2005
Foreseeability and Causation Factors
Plaintiff must establish there was reasonable foreseeability
Proximate cause of the injury was defendant's negligent behavior
No liability exists if the injury would have occurred with supervision
Improper supervision
Injury must be reasonably foreseeable under the circumstances
Defendants negligence was proximate cause of injury
Plaintiff must prove supervisors presence would have prevented injury
Rollins v. Concordia Parish School Board (1985)
Young students on marry-go-round
Teacher and school liable
Types of Supervision
General Supervision
Supervision of a big facility that doesn't require every participant be under constant watch
Ex: Swimming pools and Playgrounds
Specific Supervision
Constant supervision of a small groups or individuals getting instructions
Most of these actions have high risk for serious injuries
Transitional
Actives that don't have a specific nature
Can switch from general or specific depending on certain factors
Attributes of Proper Supervision
Appropriate qualifications
Certified
Experience
Necessary Training
Number of Supervisors
Depends on the active that is being performed
Be familiar with any standards that are set
Qualifications of supervisors
Competence in properly supervising participants, activities, facility
Regular staff development
Qualifications and certifications (First Aid, CPR, AED)
Primary Duties of Supervision
Effective planning (most important element)
Planning, development, implementation, evaluation, revising
Proper instructions
Clear, age appropriate, logical sequence, repeated as necessary, time for feedback
Toller v. Plainfield School District 202 (1991)
Teacher used reasonable care
Teaching rules of wrestling
Demonstrating wrestling maneuvers
Matched students by height, weight, size
Closely supervised them
Warning of risk
Inherent and elevated
Providing safe environment
Facility, equipment
David v. County of Suffolk (2003), emphasized observation of participants use of equipment
Evaluating physical and mental conditions of participants
Youth, adults, novices, disabled, dangerous activities, mismatching
Provide emergency care
Effective Planning
Must important element of proper supervision
Supervision plans need to be developed, implemented, and evaluated
When making a plan, manager should ask these questions
Who, what, when , where, how, and why
"What is the worst thing that could happen here, and how do we avoid it?"
Everyone involved should be a part of making this plan
Plans should be specific and evaluated regularly to stay effective
Proper Instruction
Teacher or instructors methods don't cause unreasonable risk of injury to the students
All participants should be shown how to safely use equipment and facilities
Instruction should be age appropriate
Repeat activity enough so that the participants understand the activity
Warnings of Risks
Duty to Warn
Supervisors must warn all inherent risks associated with the activity
Inherent risks are those that are foreseeable risks
When there is elevated risk of injury, supervisors must warn the participants
Various immunity statutes require that there be written warnings
Providing a Safe Environment
Supervisors must provide safe facilities for participants
They also must properly maintaining equipment, buildings, playgrounds, and other facilities
Proper use of equipment is another aspect of a safe environment
Evaluating the Physical and Mental Condition of Participants
Supervisors must spilt participants up depending on
Age
Experience
Mental condition
Nature of the Activity
Young Children must have heightened duty of care
Youth must also have supervision but not like young children
Adults don't require less supervision but still require some

Novices need close supervision since they lack experience and have a higher risk of injury
Disabled Participants have a greater cause for supervision due to their condition
Dangerous activities mandate a high degree of supervision since the risk of injury is increased
Mismatching is pitting a less experienced, smaller player against more skillful, older, and larger players
Providing Emergency Care
In the event of a participant getting injured during an activity, the supervisor has a duty to get adequate care to treat their injury
Number of Supervisors
Dependent on participants and nature of activity
Rather the number of supervisors courts generally consider supervisors age, maturity, and experience of participants and circumstances that existed at time of the accident
Glankler v. Rapides Parish School Board (1993), "in considering a defendant's duty to a particular person, consideration should be given to the person's age, maturity, experience, familiarity with the premises and its dangers, and other factors which might increase or decrease the risk of harm to that person."
Possible Immunity
No duty to supervise
Recreational user statues
Individual state statues (public park trails, schools after hours)
Voluntarily assume (lifeguard supervise a beach at unimproved city beach)
Must be non-negligent
Duty to Provide Transportation
Organizations are under no legal duty to provide transportation to and from events or activities.
If an organization provides travel, then it must be provided in a safe manner
Liability exists regardless
The organization must also establish a policy governing the conditions under which a participant may leave an event by transportation than that provided by the organization
Duty of Care
When an organization provides transportation, it owes a duty of care with respect to the transportation.
A standard of care is required for drivers of school buses
Jurisdictions differ as to the duty required concerning supervision
Factors of standard of care:
Age
Knowledge
Judgment
Experience (both drivers and passengers)
Transportation Options
The transportation of participants to and from recreation or sport events and activities can be accomplished in one of three ways:
1) Through an independent contractor
2) Using an organization-owned vehicle (bus, van, etc.)
3) Privately owned vehicles (either owned by employee or non-employee third person/parent)
Potential for liability varies from situation to situation
Risk of liability is not high when an organization uses an independent contractor because the bulk of the risk is transferred over to the independent contractor
Risk of liability is greatest when using non-employee vehicles
Keys to determining liablity:
Ownership of the vehicle
Relationship of the driver to the entity responsible for the participants
Independent Contractor
common or private carrier

This is an area that can have particular dangerous circumstances, so consultation with an attorney before hiring an independent contractor is essential.

An organization may not be able to avoid liability if the organization is negligent in its selection of an independent contractor
A study revealed that 85 Division I schools used charter buses that had one or more deficiencies
The two separate OSU tragedies involving planes
Certificate of insurance:
Verifies that the company has sufficient liability insurance for the company and each vehicle
Needs to be secured by the company
Common
one that is in the business of transporting goods or persons for hire.
Private
only hires out to deliver goods or persons in particular cases.
Organization-Owned Vehicles
Most common means of transporting participants
Provide the best transportation option
4 parts: Driver, Vehicle, Policies, School
1) Driver- organizations should make sure that drivers meet specific requirements. Organization can be held liable except in ultra vires act.
Ultra vires act is an act outside of the course and scope of employment.
2) Vehicle- organizations are responsible for maintenance on any vehicle owned (can be held liable for improper maintenance). Need to be inspected before every trip.
3) Polices- Prior to trip, an administrator and another official need to be informed of travel plans. Have trip request forms
4) Schools- State laws control the right to use a vehicle owned by the school to transport students to activities other than classes. Some states have no restrictions, others restricts use depending upon the sources of operating funds
Sovereign Immunity
the legal theory that a person cannot sue a governmental body without its permission

Torts claims act:
Waive soverign immunity and create liability for governmental entities
Only under certain circumstances
Other Transportation Issues
State codes- state legislatures enact laws that are related to transportation
Most states and Congress have passed volunteer protection statutes providing immunity or limited liability for volunteers under certain circumstances, virtually all of those statutes contain exemptions for operation of motor vehicles.
Knowledge of codes can be a valuable tool in the policy making process and can serve to minimize litigation.
Workers Compensation- if an individual is injured in an automobile accident while within his/her scope of employment and the business required the employee to be at the place of the accident, workers compensation can be applied.
Vans
Van accidents - between 97 and 2006, 1,374 15 passenger vans had accidents, 1,090 were fatal. 83% were not wearing seatbelt in 2008. Risk of rollover is carrying 10+ kids because of gravity.
Team travel by van is creating problems and there is no easy solution due to budgets, and squad sizes.
Van v. Bus. Most states require busses to transport kids to extra-curricular events. Know your state's laws.
If schools use 15-pass vans, they should follow the 12 policy recommendations (LaVetter, 2005).
Policy Recommendations
Eliminate 15-passenger vans if possible, travel more by bus.
Eliminate coaches dirving any vehicles and enforce stricter driver qualifications.
Limit the number of passengers in vans to fewer than 10. Remove rear seats and place passengers and equipment forward of the van's rear axle.
Limit to 300 miles or 5 hours drive time by each driver per day, and avoid travel between 12:00 AM-6:00 AM.
Check the van's tire pressure frequently.
Confer with your organization's insurance company.
Schedule competition to permit travel by different teams sharing the same bus.
Set age limits fro the driver, hire competent outside drivers, and require extensive driver training.
Require seat belts to be worn at all times.
Stress importance of adhering to speed limits and to adjust speed due to weather conditions.
Monitor weather conditions and establish policies that permit the travel person in charge to decide when to spend the night in a hotel.
Review vehicle maintenance policies.
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