Final Exam: Liability in Sport & Recreation

What are the four major types of law?

Common Law, Statutory Law, Constitutional Law, and Administrative Law

Common Law

law established by court decisions

Statutory Law

Laws developed and passed by legislative bodies

Constitutional Law

Law established in state constitutions of the United States Constitution

Administrative Law

Regulations established by an administrative agency of the government powers

Tort

A civil wrong that causes an injury to another's person, property, or reputation in violation of a duty imposed by law

Negligence

Conduct that falls below the legal standard for protecting others against unreasonable risk of harm

What are the four elements of negligence?

Duty (The defendant must have an obligation to protect the plaintiff from unreasonable risk)
Breach of Duty (The legal duty must be breached)
Injury or Damages (There must be injuries or damages)
Proximity Cause (The breach of duty must be the reason for

Inherent Relationship

The duty arises out of the relationship between parties

Voluntary Assumption

Person does not owe a legal duty to another but voluntarily assumes one

Statutory Duty

A statute specifies the duty

Ordinary Negligence

Unintentional breach of a legal duty by the defendant that exposes the plaintiff to an unreasonable risk of injury

What is the progression of negligent acts?

Ordinary negligence, gross negligence, recklessness, willful and wanton misconduct

Recklessness

Conduct by a person who does not intend to harm the plaintiff but who INTENTIONALLY performs an act so unreasonable and dangerous or fails to perform an act that he knows or should know it is highly probable that injury will result

What are the three categories of parties that may be liable in a negligence lawsuit?

Involved employee or service personnel
Administrative or supervisory personnel
Corporate entity, employer, or governing body

What does Respondeat Superior stand for?

Let the supervisor respond"
Vicarious Liability

T/F Interns, Volunteers, and Trainees are treated similar to employees who are individually liable for their own negligence.

True.

Independent Contractors

Negligence by an independent contractor usually clears the corporation/owner from liability

Statute of Limitations

A defendant can avoid liability for negligence if the plaintiff fails to file a negligence lawsuit within the time permitted under state law

What are the three required elements for a successful defense using the primary assumption of risk agreement?

The plaintiff...
-only assumes risks that are inherent to the sport or activity
-must voluntarily consent to exposure to the risk
-must know, understand, and appreciate the inherent risks of the activity

As rec and sport professional, what precautionary steps might you take to help ensure that a primary assumption of risk argument is available if sued?

Have participants sign an appropriate agreement to document their knowledge, understanding, and appreciation of risk
Require preliminary education/training for participants to further establish their knowledge...

Comparative Fault

when both plaintiff and defendant were negligent, court determines how much of the injury was caused by the plaintiff and reduces the defendant's liability by plaintiff's level of fault

How can an indemnification agreement be used in a facility lease agreement to protect the facility owner?

The party leasing the facility agrees to indemnify (compensate) the property owner if named in a lawsuit

What could possible be argued for a government official claiming sovereign/governmental immunity?

Public policy behind sovereign immunity is protection of public money and allowing public officials to make decisions in carrying out their public duties that are not burdened by constant threat of lawsuit against the state

What must the waiver identify?

The parties giving up their rights
The parties protected by the agreement

Which parties usually do not have the legal capacity to form a contract?

Minors
Somebody under the influence
Somebody lacking mental capacity

What are the four formats of waivers?

Stand-alone document
Within another document
Group waiver
Disclaimer

What should a participant agreement include?

The nature of the activity and its inherent risks
Assumption of risk clause
Waiver of liability for acts of ordinary negligence
Indemnification agreement

Informed Consent Agreements

Protect providers from liability for the risks associated with a program and from liability for battery
Participant signs consenting to something provider will do to them
Often used when provider must make physical contact with the participant
Requires di

A landowner's duty must protect for these three statuses of persons entering their land

Invitee
Licensee
Trespasser

Invitee

Person who has an express or implied invitation
Owed the highest level of protection
Landowner must warn about known dangers, duty to inspect hidden dangers

Licensee

Person who has permission to enter or use another's premise, but only for the licensee's own purpose and not for the benefit of the landowner
Landowner owes same duty of care EXCEPT must only warn or protect the licensee from harms the landowner is aware

Trespasser

Intentionally enters another's property without consent
A duty to avoid willful and wanton misconduct only

Attractive nuisance

landowners may not allow a dangerous condition to exist on their property that can reasonably be expected to attract children to the land

Actual Notice vs. constructive notice

A.N.- Landowner actually becomes aware of the issue
C.N.- Landowner SHOULD have been aware of the issue

In emergency care, there is a duty to provide care based on...

Inherent relationship
Voluntary assumption of a duty where none exists
Statutory duty
Duty that owner/operator of premises owes to invitees

Appropriate personnel for Emergency Response Plan

Charge person- overall responsibility
Call person- calls and meets emergency personnel
Control person- controls the scene

Types of Supervision

General Supervision
Specific Supervision
Transitional Supervision

General Supervision

Overseeing individuals or groups involved in an activity that does not require constant scrutiny of each individual or the facility

Specific supervision

Kind that would be expect for individuals or small groups receiving instruction, in a high risk activity or using areas that have potential for serious injury (also applies for those unable to perform task adequately)

Transitional supervision

Shifting between general and specific depending on need for instruction, abilities, use of equipment

Transportation can be accomplished by...

Independent contractors
Organization owned vehicles
Privately owned vehicles (employee/nonemployee vehicles)

Common carrier v. private carrier in independent contractors

C.C.- In business of transportation for other reasons and held to a higher standard of care for driver qualifications and vehicle condition
P.C.- Company that only transports its own goods and people but may do so for others in certain cases

Organization owned vehicles

Drivers and the organization could be liable for driver negligence
Organizations will not usually be liable for the employee acting outside the scope of the job

Privately owned vehicles

Organization faces same sort of vicarious liability but at a greater risk
Organization needs to implement policies and checks of vehicles prior to use

When using company vehicles, organization should...

Establish driver qualifications
Authorize travel plans
Establish policies
Establish a vehicle maintenance schedule

What are methods of use for transferring liability?

Purchasing insurance coverage
Retention/self-insurance
Transfer by contract (waiver, indemnification agreement, use of independent contractors0

What are the common types of insurance coverage in rec and sport

Property Insurance
General Liability Insurance
Employment Practice Liability
Umbrella Liability Insurance

Intentional tort

the person committing it intends to do something the law declared to be wrong

What are the elements of assault?

Intentional act by the defendant
Cause reasonable apprehension on the part of the plaintiff
Imminent harmful or offensive contact

Elements of Battery

Intentional conduct by the defendant
Causes harmful or offensive contact to the plaintiff
Without consent

T/F The degree of force in battery cases plays a significant role in the case.

False.
There is no degree of force evaluated

T/F Employers are often found vicariously liable for the actions of their employees in battery cases.

False.
It is rare but possible that employers are liable

Schools and coaches are potentially liable for hazing when...

There is an inherent relationship between victims and defendant
Constitutional rights are infringed upon
Deliberate indifference by school and coaches

Which four amendments pertain to civil rights?

First Amendment
Fourth Amendment
Fifth Amendment
Fourteenth Amendment

State Action

Private citizen seeks relief in the form of damages or redress based on an improper intrusion by the government on his/her life

When will the courts review the actions of a private athletics association?

When the rule or regulation...
-Exceeds the scope of the organization's authority
-Violates an individual's constitutional rights
-Violates an existing law
-Applied in an arbitrary and/or capricious manner
-Violates public policy because it is considered

A plaintiff has standing to raise a legal case when...

Plaintiff has a personal stake in a decision by the court
Economic damages can help, but not necessary
Court has authority to grant a remedy

What are the three forms of injunctive relief?

Temporary restraining order
Preliminary injunction
Permanent injunction

Temporary restraining order

Temporarily restrain defendant from taking whatever actions are in question
Provides emergency relief to plaintiff when irreparable harm would otherwise occur (not able to satisfied by monetary damage award)
Granted for a brief time

Preliminary injunction

Plaintiff must face substantial threat of irreparable harm without the injunction
Balance of hardships favor plaintiff
Plaintiff has likelihood of success
Granting injunction would serve the public interest

Permanent injunction

Issued as a review of the preliminary case
If the party that received the preliminary injunction succeeds in trial, generally becomes permanent

Why does "state action" matter in legal cases involving an alleged violation of Constitutional Rights?

Constitution's protections of civil rights apply to the conduct of state/government actors

Public function theory

Courts evaluate whether the private entity in a case is performing functions that are traditionally performed by the government
Must typically be a function performed exclusively by the state

Entanglement test

Private conduct qualifies as state action if the government is heavily involved in it, commands it or benefits from it
Must be significant joint participation

What are the steps in the analysis if a plaintiff sues for violation of their Constitutional right to due process?

Was the alleged violation a state action?
If there is state action, was the plaintiff deprived of a life, liberty, or property interest?
If there was a life, liberty, or property interest in involved, were the plaintiff's due process rights violated?

What sort of things might constitute due process?

Notice of a hearing to decide an issue involving you
A fair opportunity to present one's own case
An opportunity to hear and respond to the opposing side's evidence

Substantive due process

Gives a court the right to evaluate the content (substance) of the rule that allegedly deprives a life, liberty, or property interest, regardless of the procedures used to deprive

Procedural due process

court looks at what procedures were used by the defendant when a decision was made about whether a regulation or rule was violated and the sanction to impose

Fourteenth Amendment

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor deprive any person of life, liberty, or property, without due process of law; nor deny any person equal protection jurisdiction

What are the different standards of review?

Rational basis, intermediate scrutiny, strict scrutiny

Rational basis

easiest standard of review, state actor must prove that the action is rationally related to a LEGITIMATE governmental objective
i.e. residency classifications, classifications of athletes as groups (drug testing), eligibility rules

Intermediate scrutiny

Quasi-suspect classifications (gender is considered)
State actor must prove that the actions is SUBSTANTIALLY related to an important government objective

Equal protection challenges...

Gender classifications in contact sports
" in scheduling
" in the sports workplace

Strict scrutiny

Highest standard of review
Deprivation of a fundamental right (freedom of speech, right to vote, etc.)
Suspect classification (race, religion, national origin)
State actor must prove that the action is necessary to achieve a COMPELLING governmental intere

Fourth Amendment

Right for the people to be secure against unreasonable search and seizures

Seizure and right to privacy determined through the following questions

Was there state action and does the plaintiff have standing?
Was the conduct by the state a "search"?
Was the search reasonable?

T/F Participation in sports is considered a fundamental right, like education.

False.
Participation in sports is considered a privilege, not a right.

Rehabilitation Act

Eliminates discrimination at places receiving federal financial assistance (public)

ADA

Extends protections of rehabilitation act to places of "public accommodation" (private)

A plaintiff suing on grounds of the Rehabilitation Act must prove four elements...

The plaintiff has a disability
The plaintiff is otherwise qualified for the athletic activity
The plaintiff is being excluded from participation in the activity solely because of their disability
The defendant, school, or other entity, receives federal fi

A plaintiff suing on grounds of the ADA Act must show...

They are a qualified individual with a disability
They were excluded from participating in or denied benefits of a private entity's services, programs, or activities, or was otherwise discriminated against by the private entity
Exclusion, denial of benefi

Individuals with Disabilities Education Act (IDEA)

Provides free public education that emphasizes special education and related services to meet their unique needs

First Amendment

Freedom of speech, press, peaceful assembly, and petition

What tests are used in The Lemon Test?

A government practice is unconstitutional if...
-It lacks a secular, or nonreligious, purpose
-Its primary effect either advance or inhibits religion
-It excessively entangles government with religion

Coercion Test

A government practice is unconstitutional if it coerces anyone to support or participate in religion or its exercise OR otherwise act in a way which establishes a religion or religious faith or tends to do so

Endorsement Test

Actions taken by government make it appear that the government is endorsing or sponsoring religion

What are the three tests in defense of the First Amendment?

Lemon Test, Coercion Test, Endorsement Test

T/F Courts may be more flexible with allowing prayer at the college level.

True.
Older students have a greater level of independence and ability to choose not to participate

Civil Rights Act of 1964

Prohibited discrimination based on race, color, religion, sex, or national origin in the workplace and in places of public accommodation

Title II of the Civil Rights Act

Prohibits discrimination in places of public accommodation that affect interstate commerce

Fourteenth Amendment

Equal protection clause applies to the federal government and the states
Government actions based on quasi-suspect classifications are subject to intermediate scrutiny

Title IX

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any education program or activity receiving federal assistance

T/F Every program must have a Title IX officer who handles complaints of discrimination internally

True.
This is typically the first step before going to the Office of Civil Rights or court

What are the three tests schools must satisfy to be in compliance with Title IX as it relates to opportunities

-Provide participation opportunities for male and female students in numbers substantially proportionate to their respective enrollments
-Show a history and continuing practice of program expansion that is demonstrably responsive to the developing interes

Equal Pay Act of 1963

Prohibits employers from paying higher wages to employees based on their sex for equal work on jobs that require equal skills, effort, responsibility, and are performed under the same conditions

Employer can defend against lawsuit under EPA by showing the pay differential is due to...

A seniority system
A merit system
A system which measures earnings by quantity or quality of production
A differential based in any other factor other than sex

Defendants can be found liable for Title VII discrimination violations under following theories...

Disparate treatment
Disparate impact
Retaliation

Employer defense against Title VII

Bona Fide Occupational Qualification
Business Necessity

How does the EEOC define sexual harassment for the purposes of Title VII?

Unwelcome sexual advances
Requests for sexual favors
Other verbal or physical conduct of a sexual nature

What is quid pro quo, this for that, harassment?

When the employer/supervisor conditions a job-related benefit, such as a promotion or pay raise, on the employee submitting to the sexual conduct (sexual bribery)

An employer (vicarious liability) may avoid liability in a sexual harassment case if...

The employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior
The plaintiff failed to take advantage of any preventative or corrective opportunities provided by the employer or otherwise avoid harm