KIN 3800: Midterm Exam

morals

subjective ideas of right and wrong from ideas of right and wrong that we are able to share with each other

• not written/codified

• not enforceable by authority

• from Latin - mores (usage in a community)

• left up to the individual

ethics

shared by a group on basis of mutual/reciprocal recognition (being used by a community and manifests from within community)

• two party transaction

• historically sequential

• outward communication rather than internal communication

• some norms are mutually intelligible across whole human communities

• conveyed by action or narrative rather than precept or formality

law

socialized ethics, standard of right and wrong is decided by the social institution (Thomas Jefferson)

• norms formally proclaimed by a political authority that are enforceable through a legal process based on adjudication

• codified (statute, common law)

• 3 party transaction (victim = person whose interest is protected by codified norm, perpetrator = person whose conduct is in question under the norm)

What do laws do?

• create relationships

• create obligations

• prohibits “bad” behavior

• describes “reasonable” behavior

• guarantee and limit freedoms

Why do laws exist?

• they help determine good/bad, fair/unfair, consistent behavior, enforce options, determining who owns something, determining whose financially liable

• Constitution, Congress, President

property law

real property (physical), intellectual property (IP)

Constitution

how the power given to the government by its people, will be used in order that the people may benefit from an ordered system of liberty.

* establishes Congress (Article 1), Presidency (Article 2), Supreme Court (Article 3)

Jurisdiction

• key to understanding our legal system

• refers to both geographic areas and topics within the law

• two classifications: federal jurisdiction, state jurisdiction (sport lawsuits)

original jurisdiction

cases automatically go to federal court

subject matter jurisdiction

* federal topics (the “federal question”), Article 3, broad interpretation by SCOTUS; 28 U.S.C 1331, narrow interpretation by SCOTUS

Title IX

prohibits sex based discrimination

Title VII of Civil Rights Act of 1965

prohibits employee discrimination

Equal Pay Act of 1963

prohibits gender-related discrimination

Federal Judicial Courts

• 13 federal judicial geographic areas (districts)

• D.C. Circuit (12th)

• decisions made within districts serve as precedent only within that district

• plaintiff or defendant who believes error made can appeal to next higher court

state jurisdiction

different states have different court system names

• NY - lower is “Supreme Court”, highest is “Court of Appeals”

• LA - lower os general, special, or limited jurisdiction, highest is “Supreme Court”

• cases can’t be appealed out of state into federal court unless it meets federal jurisdiction requirements

precedent

• previous case decisions might be important for case

• past judicial decisions make up “case law”

precedent value

• court decision applies only within geographic jurisdiction

• can be used to apple rules to similar facts

• can distinguish uniqueness of a particular case

• courts can change their mind over time

required elements of a lawsuit:

• minimum points for which evidence must be offered by plaintiff

• each crime or civil wrong must be proven w/ evidence for each element

• defendant cant be guilty if no evidence is given for required element

burden of proof

Civil case = plaintiff; criminal case = prosecution

4 elements of negligence

• duty

• breach

• cause

• harm

Standard of Certainty

preponderance of evidence (civil case) → clear and convincing (appeals; 80%+) → beyond a reasonable doubt (criminal cases)

legal reporters/citations

printed volumes of court decisions

negligence (tort)

unintentional wrongdoing that results in injury to a person, property, or reputation

• only unintentional tort

• area of law where sports industry sees most of it’s lawsuits

errors of commission

poorly thought out actions

errors of omission

refraining from action when action should be taken

Negligence must be proven in order to…

make a claim and receive restitution

duty

recognized social norm regarding how you should conduct yourself and others

• defined by either the parties, law, or both

• relationships are viewed as inherent to the situation

• specific duties owed will be different based on role/situation

legal standard

duty to protect from foreseeable risks of unreasonable harm

• what was noticed before the accident/injury occurred

• “hindsight is 20/20” does not apply to duty

• decided by trier of law (judge)

How duty is measured varies by…?

situation

What populations are owed a special duty?

• children

• physically disabled

• novices

• intellectually disabled

What high-risk activities have an increased duty owed?

• gymnastics

• swimming

• diving, etc.

How can we meet our duty?

• appropriate supervision

• proper instruction/training

• access to medical help

• safe facilities/equipment

• install appropriate safety procedures

Can duty be transferred to someone else?

It may be shared between parties, but will always belong to you

reasonable person standard

reasonable, prudent, up to date actor of the skill and intelligence in same or similar circumstances

• objective standard

• not an “average” or “typical” person

reasonableness

standard of care

• minimum level of which legal obligation may be met

• decided by trier of fact (jury)

breach

failure to meet the standard of care established by the duty owed

legal fiction

serves as the basis of comparison between how the defendant acted and how they should’ve acted in a given circumstance

Does jury membership require a special skill or knowledge?

No

negligence per se

• sometimes witness or practices are not needed

• breach of statutory requirement is evidence enough that a breach of duty occurred

cause

what action or inaction rises to the level sufficient to claim negligence (not an easy determination

• common sense answer

• decided by the jury

causation in fact (actual clause)

act or failure to act directly produces an event, and the event wouldn’t have occured otherwise

proximate cause (legal cause)

depends on whether a particular outcome would’ve taken place even the breach of duty hadn’t occurred (“but for”)

proximate cause vs. policy

courts must also decide whether the defendant should be legally responsible for the injury, even if there was a cause

• forseeability

• question of law

absence of harm equals…

absence of negligence

Harm typically requires…

some sort of physical injury

* jury will decide if injury is sufficient for negligence claim

\

Is emotional/psychological harm is recoverable in some jurisdictions?

Yes, injuries must result in financial loss

Is a threat of future harm not sufficient?

No

gross negligence

• reckless disregard for the safety of others

• shocking behavior outside the norm

• lose some legal protections

Liability for indirect involvement in negligence:

* you can be liable even if not the actor/non-actor in negligence claim

agency

liability for the acts of an agent in the service of the principal is attribute to the principle

respondeat superior

(latin) employer is responsible for the negligence of employees

* does not retrieve employee

reliance

words or actions can create a duty owed

• must be foreseeable that hearer would rely on speaker’s words/actions, reasonable to expect speaker to know information desirable by hearer; reliance caused by injury

• acts of third parties

• misrepresentation

premises liability

the legal responsibility or duty owed to those who use our lands and our facilities

• based on principles of negligence

• difference is the standard of care determined by the legal status of the person injured

status of person on permises

duty owed based on status of person on premises

• invitees (permission)

• licensees (permission)

• trepasser (no permission)

invitee

person on property w/ permission/consent of landowner

* cases typically aren’t based on injury but status of person injured

business invitee

brings economic benefit

public invitee

legally on public land for a purpose which the land is available to the public

reasonable care (invitees)

• duty to protect from foreseeable risks of unreasonable harm

• ordinary duty role

duty to design safe facility:

• design facility safely for intended use'

• cutting corners = future liability issues

• ensure safety standards are met

duty to warn about hidden dangers:

• dangers aren’t obvious to average user

• user cannot discover w/ casual inspection

duty to inspect:

• how often depends on frequency and type of usage area

• frequently used area may be inspected more than infrequently used

actual notice

landowner responsible for correcting defects for which they are aware

constructive notice:

* landowners responsible for correcting defects, which a reasonably prudent landowner, should’ve been aware if regular inspections had taken place

duty to repair

landowner must repair/remedy danger within a reasonable amount of time

duty to provide medical assistance

"give first aid to invitees after the landowner knows or has reason to know that they’re ill/injured and to care for them until they can be cared for by others” (Restatement of Torts)

licensee

person on premises w/ permission but doesn’t provide economic benefit

• duty owed is less than invitee b/c of public policy; no duty to inspect

• only liable for a danger that we know about that licensee doesn’t

• duty to refrain from willfully causing injury

trespasser

• duty owed to trespassers is very limited

• duty to refrain from inflicting injury upon trespasser

• child trespasses are owed a duty of ordinary clause

attractive nuisance

man made or artificial feature that may be attractive to children but could pose serious danger

liabilities for spectator injury:

• spectators are usually invitees

• owners owe duty of reasonable care to spectators

• areas of concern: crowd control, alcohol consumption, projectiles

crowd control

duty of exercise reasonable care to protect the public from physical harm caused by the accidental, negligent, or intentional harmful acts of a third person

owners are responsible for various dangers:

• dangers they have actual knowledge of

• dangers on the basis of constructive knowledge

• dangers that could be foreseen

injuries due to alcohol consumption:

• significant revenue source

• some misbehavior is foreseeable and raises level of duty

drum shop acts

liability against commercial establishments that serve alcohol to minors or those who are visibly intoxicated

injury caused by projectiles from play area:

increased chances of injury from flying projectile

baseball rule:

• assumption of the risk (old argument)

• limited duty rule (favored argument)

facility owners can limit duty owed if:

• provide safety screening

• sufficient number of protected seats provided

tort

a civil wrong

intent

confusion over single legal definition

• a voluntary act (or inaction)

• reasonable expectation of harm as consequence of action

• the resulting outcome of the Act

intentional torts

• assault

• battery

• reckless misconduct

• defamation

• false imprisonment

• tortious interference (contracts)

assault

intentional creation of a reasonable apprehension of an imminent and offense contact w/o the person’s consent

• 3 critical elements: intent to cause immediate harm, menacing, or threatening behavior; reasonable apprehension of harm by plaintiff; lack of consent

• mention of contact = reasonable apprehension

• no contact is involved w/ tort of assault

intent to cause immediate harm:

• cannot rely on subjective intent, motivation is difficult to prove

• law provides it’s own definition of intent

apprehension by the plaintiff

• plaintiff must be aware of the threatening behavior or menacing

• gauged through eyes of plaintiff

• must be immediate threat

lack of consent

• critical issue w/ all sports cases

• the willingness that an act of invasion of an interest shall take place

• doesn’t have to be communicated overtly, can be customarily understood

What constitutes acceptable behavior?

rules and culture of the sport

Courts defer to who for disciplinary action?

Leagues and organizations

battery

the intentional, unpermitted, unpriveleged, and offensive touching of the person of one individual by another

three critical elements of battery

• intent to cause harm or offensive touching

• actual harmful or offensive touching

• lack of consent

battery in special circumstances

• mistaken target - not a defense to battery

• by agency - battery claims can be brought against someone who didn’t do the contacting

defenses for battery

• privilege

• self defense

• corporal punishment

civil battery

• intent to cause harmful or offensive touching

• actual harmful or offensive touching

• lack of consent

criminal battery

• intent to hurt

• contact

defamation

• a false statement published to a third party involving some degree of fault or negligence on part of publisher causing actual damage (financial loss)

• media access is key reason

slander

spoken false statements

libel

written false statements

public figure

one who either has gained notoriety from achievements or seeks public attention through vigor success

defamation defenses

• truth

• privilege

• absolute privilege

• qualified privilege

false imprisonment

Intentionally, denying, w/o privilege nor permission, another’s right to go where they wanna go

* threat of force not required

shopkeeper’s privilege

• have reasonable suspicion

• detain for only a reasonable amount of time

• use only reasonable force

• retrieve from only a reasonable distance

reckless misconduct

a person who acts w/ recklessness in engaging in conduct if:

a) they know of the risks of harm created by the conduct or knows facts that make that risk obvious to anyone in the person’s situation

b) the precaution would eliminate/reduce the risk involves burdens that are so slight relative to the magnitude of the risk as to render the person’s failure to adopt the precaution a demonstration of the person’s failure to adopt the precaution a demonstration of the person’s indifference to the risk

* synonymous w/ willful and wanton misconduct

staffing

hiring practices can help mitigate negligence liabilities

• certifications

• due diligence