Tort Law/Risk Management

Negligence liability & how it applies to sport

- Negligence occurs when an injury takes place when there was no intention to cause injury, and came about as a result of a safety oversight or failure to correct a wrong.

- In a negligence case, the accuser bears the burden of proof.

- When a negligence case is brought, four key elements must be demonstrated: standard of care (when the defendant fails to do their duty and properly protect those around them), breach of duty (where the plaintiff proves that the defendant was responsible for ensuring the safety of others), causation (where the plaintiff proves that either the action or inaction of the defendant brought about the injury), and injury (that actual harm occurred).

- Negligence can be brought quite often in sport setting. Anyone from a professional athlete to the average person exercising can feel that they have been wronged, and will often in that case bring a tort case to court.

Protections against tort

- There exist many avenues one can use to counter an allegation of negligence and a tort suit.

- Assumption of risk: By engaging in dangerous activities, the plaintiff must acknowledge that there is some risk involved. This defense can be applied to athletes as well.

- Contributory negligence: An instance when harm is not solely the fault of the defendant, but also brought upon by the unwise and unnecessary actions of the plaintiff.

- Unforeseen consequences: When an injury is brought about by circumstances no one could have predicted.

- Waivers: A legally binding document that has anyone participating in dangerous activities acknowledge the risk beforehand.

Intentional tort

- As the name implies, an intentional tort is when injury is caused on purpose.

- This does not mean that an individual necessarily purposefully or even directly harmed an individual, but instead can mean that and individual knew that certain actions would likely have the result of causing injury.

- This can apply to sport in a number of ways, including: purposeful harm unto officials, purposeful harm unto spectators, abusive actions towards referees/coaches.

- Intentional tort does not need to be a physical action, but can instead be brought about by such actions as spreading false rumors or holding someone against their will.

Product Liability

- Product liability refers to the harm caused by a consumer product.

- Liability applies down the chain of manufacturing, meaning everyone from the seller to the manufacturer can be held responsible for any injury.

- There exist three main theories when suing a manufacturer under product liability: negligence (that the actions of the manufacturer caused the product to be knowingly faulty), strict liability (that the product was faulty when it was distributed by the manufacturer), and breach of warranty (when a product fails to live up to his warranty through no fault of the consumer. While the first two theories fall under tort law, the last falls under contract law.

- Many of these liability issues are brought about by product defects, which can take the the forms of manufacturing defects, design defects, and foreseeable misuses of the product.

Key Elements of Risk Management

- Designed to limit risk and prevent injury or damages that might result in a loss for the parent company.

- Broad categories or risk include: Personnel issues (sexual harrasment, discrimination), harm (injury to anyone involved), terrorism, weather events, health emergencies.

- Sport is inherently risky, it is impossible to avoid altogether.

- Risk has to be recognized before it can be dealt with - it is the job of the manager to find any issues that may arise withing their own work or the work of their staff.

- Once risk is found, a manager generally has four options: Retention (leave it how it is), Treatment (use available resources to fix the problem), Transfer (hire someone else to fix it), Avoidance (eliminate overarcing program or facility altogether

emergency action/crisis management plan

- Meant to respond to an injured athlete - improper care application can lead to further injury, an eventual lawsuit, or even death.

- Important parts of an Emergency Action Plan (EAP): Knowing the distance and location of the nearest EMS facility, knowing the location of emergency medical equipment, properly training staff in CPR and first aid, having devices on hand to call authorities.

- Rehearsing an EAP is crucial, as it reduces panic during an actual occurence and far reduces the chance of something going wrong.

- Crisis Emergency Plan (CEP). Similar to EAP, but encompases significantly more people.

- Designed to utilize the capabilities of an organization or facility to effectively mitage a crisis, preventing as much harm and damages as possible.

Lightining Safety Plan

- Meant to deal with the risk of that lightening poses, especially to outdoor sports.

- There exist organizations that have produced and adopted particular lightening contingency plans, from which teams are free to take. These organizations include the: National Athletic Trainer's Association (NATA) and National Collegiate Athletic Association (NCAA).

- Five essential components as laid out by NATA: 1. Promote lightening safety slogans. 2. Establish chain of command - ensure it is someone's job to remove people from the field. 3. Moniter local weather - use reliable sources. 4. Ensure there are places to safely shelter from lightening. 5. Establish particlar criteria for ending and resuming play.

Sports Facilities & Liablities

- Sports facilities must accomodate those with disabilities, as laid out in the Americans with Disabilities Act (ADA).

- Disabilities can include: Both mental and physical disorders that inhibit the usage of the body or mind in both a practical and cosmetic sense, and contagious or noncontagious disease that effects the body's proper function.

- As laid out in the ADA, throughout the process of construction, the builder and owner of any facility must ensure that people with disabilities are properly accomodated, and will not be barred from proper usage of the facility on a recreational basis as a result of their disability.