Learn: Liability in sport and Rec uiowa midterm Daniel M

How is law created

1. constitution (federal and states)

2. Statues (federal and states)

3. court decisions (common law)

4. Administrative Agencies

Constitutional Law

Limitation on government authority that protect certain rights of citizens

first amendment

protects freedom

Fourth Amendment

protect the right of citizens to be free from unreasonable search and seizure

Administrative Law

Agencies created to manage and enforce federal laws in specific areas. Agency regulations have force of law

National Labor Relations Board (NLRB)

federal agency with the authority to protect employee's rights to form unions and prevent/ correct unfair labor practices committed by private sector employers and unions

Common Law

law established by court decisions

binding precedent

all courts in the same system at or below the court that issues a decision are bound by the decision

case of first impression

if a court in a different system does not have its own precedent to follow

Persuasive precedent

A decision of another court which is influential but not binding.

typical state court system

1. state supreme court

2. state court appeals

3. special courts. Family and Traffic. District Courts. City courts criminal and civil

Federal Court System

1. U.S supreme court

2. court of appeals

3. administrative agencies

jurisdiction

the authority of a court to hear and decide a case

jurisdiction depends on

1. parties involved

2. issue involved

3. dollar amount involved

4. where events took place

Statutory Law

laws developed and passed by legislative bodies. Only valid in the area governed by legislative body. when there is disagreement over the interpretation of a statutory law, the courts may be asked to resolve the dispute- which creates common law precedent

Plaintiff

One who begins a lawsuit

Defendant

an individual or group being sued or charged with a crime

class action

a procedure by which similarly situated litigants may be heard in a single lawsuit

Statute of Limitations

A federal or state statute setting the maximum time period during which a certain action can be brought or certain rights enforced.

when are motions requested

by a plaintiff or defendant for the court to take an action in the case

motion for summary judgment

facts in the case are undisputed. judge can decided the case with conducting a trial to determine which party's version the of facts is more credible

court decisions

affirmed, reversed or remamded

four sections of a case brief?

facts of the case, issues of the case, the holding and the reasoning

tort

a civil wrong (as opposed to criminal) for which the courts will provide a remedy in the form of damages

intentional torts

assault and battery, defamation are examples

unintentional torts

include negligence

negligence

conduct that falls below the legal standard for protecting others against unreasonable risk of harm. Acts of commission. Acts of omission

what are the four elements necessary to prove negligence?

1. there is a duty

2. breach of duty

3. there are injury or damages

4. proximate cuase/causation

duty

the defendant must have a legal obligation to protect the plaintiff from unreasonable risk of harm

breach of duty

the defendant fails to meet the legal standard of care

injury or damages

there must be injuries or damages

proximate cuase/ causation

the breach of duty must be the reason for the plaintiff's injuries or damages

inherent/special relationship

the duty arises out of the relationship between the parties (coach and high school athlete, health club and patrons, stadium operator and spectators, etc

voluntary assumption

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

when a person assumes a duty, he now has the obligation to act with an appropriate standard of care

statutory duty

a statute specifies the duty.

legislative body identifies the legal duty owed between parties

ordinary negligence

unintentional breach of a legal duty by the defendant that exposes the plaintiff to an unreasonable risk of injury, which results in damages

ordinary negligence is caused by

1. inadvertent behavior

2. inattention

3. thoughtlessness

4. incompetence

aggravated negligence is

unreasonable conduct that the defendant knew or should have known would create an unreasonable risk of physical harm.

liable

legally responsible

three categories of parties that may be liable in a negligence lawsuit

1. involved employee or service personnel

2. administrative or supervisory personnel

3. corporate entity/employer or governing body

involved employee or service personnel

usually the person who commits the negligent act through direct contact with the plaintiff

administrative or supervisory personnel

usually the person who supervises the negligent employee

administrative or supervisory personnel are usually not liable unless they fail to perform their administrative/supervisory obligations which may include things such as

employ competent staff and release those who aren't

employees and supervisory/ administrative personnel are individual liable for their own negligent conduct, such as

negligent instruction

negligent hiring

negligent supervision

corporate entity/employer or governing body may be liable under the doctrine of respondeat superior for injury resulting from

the ordinary negligence of an employee. If the employee was acting within the scope of her authority

respondeat superior

let the superior respond. also know as vicarious liablity

independent contractors

negligence by an independent contractor usually does not lead to vicorious liablity for the corporation/owner

Indepedent Contractor

usually paid agreed sum, freedom to work his way

employee contractor

hired, paid set wage, ongoing schedule

Defenses against negligence

elements of negligence

primary assumption of risk

comparative negligence

ultra vires act

statue of limitation

primary assumption of risk

defendant is not liable if plaintiff injures himself while voluntarily exposing himself to a activity with a know and appreciated danger

three required elements for successful defense using the primary assumption of risk

1. the plaintiff was injured by a risk inherent to the sport or activity

2. the plaintiff voluntairily consented to exposure to the risk

3. the plaintiff knew, understood and appreciated the inherent risks of the activity

Assumption of Risk

A defense against negligence that can be used when the plaintiff was aware of a danger and voluntarily assumed the risk of injury from that danger.

Ultra Vires Act

by showing that the employee acted outside the scope of her authority in committing the negligent acts that cuased damages

statue of limitations

if the plaintiff fails to file the lawsuit within the time permitted under state law

comparative fault

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

immunity

broad category of defense against tort liability for certain classes of people or entities

Doctrine of sovereign/ governmental immunity

defense for governmental units (federal, state, local)

discretionary acts

acts involving deliberation, planning, decision making, policy setting

Ministerial Acts

acts that do not require independent decision making, such as carrying out order, performing a specific duty, following a schedule to perform operational acts

what could be possible public policy arguments in favor of immunity for government officals?

protection of public (taxpayer) money from paying out damages in lawsuits.

Allowing public officials to make decisions in carrying out their public duties without being burdened by the constant threat of lawsuit against the state

governmental function

where sovereign immunity exists, it usually applies when a state entity is carrying out its governmental duties for the benefit of the general public

proprietary function

where sovereign immunity exists, it may not provide protection if the state entity performs for-profit activities that a private entity could do

volunteer immunity statutes

state laws to protect those who volunteer for non profit or government organizations from negligence lawsuits, if the negligence occurred while preforming duties for the organization

shared responsibility and statutory assumption of risk statutues

state laws offering immunity to providers of certain rec and sport activities if injuries result from inherent risks in the activities and, in some cases, from liability for damages caused by ordinary negligence by the provider

NJ Baseball spectator safety act was an example of?

immunity statutue

recreational user statutes

immunity provided by statute to certain private landowners. These statutes require that the landowner doesn't charge users a feel and the landowner must warn of hazardous situations

recreational user statues, most of the the statues require

the landowner must not charge users a fee.

some statutes require the landowner to warn of ultra-hazardous situations or hidden risks of which the landowner is aware, but many statues require no warning

key categories of documentation

waivers

informed consent agreements

agreements to participate

assumption of risk agreements

waiver

contract, participant gives up right to sue provider if the provider injures the participant through ordinary negligence

the waiver must identify 2 things

1. the parties giving up their rights

2. the parties protected by the agreement

agreements are used to protect defendants form what?

against liability for injuries arising from the inherent risks of an activity

informed consent agreements

protects providers from liability for the risk associated with a program and from liability for battery

agreements to participate

document to make participants aware of risks and acknowledge them. not a contract so minors may sign them

assumption of risk agreements

document to make participants aware of an activity inherent risks and acknowledge the risks. understands the activity and the risk

premises liability key concepts

duty owed to invitee/ licensee/ tresspasser

factors affecting liablity

strategies for protecting an organization from liability for damages occurring on the premises

Premises Liability

the owner or operator of a sport or recreation business owes a duty to keep the premises safe for those who enter

if some is a invitee

owed highest level of protection

are owed the same duty by the landowner

if someone is an licensee

landowner must only warn or protect the licensee from harms the landowner is aware of

trespasser

duty to avoid willful and wanton misconduct and refrain from making the premises more dangerous than the trespasser would ordinarily expect

Attractive Nuisance

landowners may not allow a dangerous condition to exist on the property that can resonably attract children onto the land

foreseeability of the danger

duty is to protect against FORESEEABLE dangers

actual notice and constructive notice

landowner must have actual or constructive notice of the danger in order to be liable for damages suffered by an invitee

Constructive Notice

the landowner should have been aware of the issue

actual notice

landowner actually becomes aware of the issue

constructive notice can be established because either

the dangerous condition existed for a sufficient time that it would have been discovered if the facility operator was paying reasonable attention or

the dangerous condition was part of a pattern of conduct or a recurring incident

open and obvious dangers

land owner is usually not under a duty to protect invitees from open and obvious dangers

keep premises in safe repair

routine maintenance of facility wear and tear and any conditions that could develop into dangers

to satisfy its duty of care we must

keep premises in safe repair

inspect premises to discover both obvious and hidden dangers

remove hazards or wanr them of their presence

anticipate foreseeable issues and take reasonable precautions to protect invitiees

emergency care

medical assistance to an injured person

if emergency care exists the provider must consider the following

emergency planning

staffing

equipment resources

implementation of emergency procedures

charge person

overall responsibility and has specific training for the emergency

call person

calls and meets emergency personnel

Control Person

controlling the scene, keeping those who are not authorized aware

Kleinknecht v. Gettysburg College

several breakdowns in planning for and responding to the duty to provide emergency care

negligent supervision

common charge by plaintiffs in lawsuits against rec and sport providers

general supervision

overseeing individuals/groups involved in activity; no constant scrutiny, but watchfulness

Specific Supervision

constant, continuous supervision, the kind that would be expected for individuals or small groups receiving instruction, in a high-risk activity or using areas that have potential for serious injury (example: new health club member using climbing wall for first time)

transitional supervision

shifting between general and specific supervision depending on the need for instruction, abilities, use of equipment, use of the facility, involvement with others (example: strength coach monitoring all weight room activities then transitioning to specific supervision activities)

supervisor duties

effective planning

proper instruction

warn of risks

provide a safe environment

evaluate physical and mental condition of participants

providing emergency