Tort Law Chapter 1 PDF

Chapter 1 Tort Law  Learning Outcomes Upon completing this chapter, you will: understand the elements of negligence and be able to apply them to a real-life situation recognize the relationship between duty and foreseeability be able to articulate the defenses to negligenc...

Chapter 1 Tort Law  Learning Outcomes Upon completing this chapter, you will: understand the elements of negligence and be able to apply them to a real-life situation recognize the relationship between duty and foreseeability be able to articulate the defenses to negligence and give examples of each defense be confident in identifying and defining the particular kind of assumption of risk necessary in a range of situations know how to explain comparative negligence to a colleague recognize the types of premise liability and be able to locate local and state law in the area understand the various kinds of immunity ELEMENTS OF NEGLIGENCE The following five elements must exist for a court to find a person or agency negligent: Duty Breach of Duty Factual Cause Scope of liability including Foreseeability Damage All elements must be proven. Plaintiff has the burden to establish the required 5 elements. DUTY An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm. A relationship sufficient to create a legal duty may arise by statute, ordinance, administrative rule, contract, voluntary assumption, or judicial decision. – Think of or find an example of each in sport – For example, when you sign a membership contract with Planet Fitness, PF now owes you a duty of care to be protected from harm while using the fitness equipment (such as by properly maintaining it, and providing a routine inspection to make sure it is safe for use) Three different standards of care are reasonable person, special relationship, and professional standard. STANDARDS OF CARE A reasonable person duty is the standard applicable to society in general. Parent (and child) are among those with a special relationship duty of care. Coach-athlete, teacher-student, trainer-client, therapist-client, employer-employee, and principal-agent are relationships that establish a professional legal duty of care. In cases involving sport settings and situations, the standards of the profession or industry generally dictate the duty elements of negligence. – For example, the coaching profession, athletic training profession, and venue management profession each have different standards of care by which their professionals adhere to when performing their duties. BREACH OF DUTY Once the legal duty or standard of care is established, proof must be provided to the court by the plaintiff (injured person) that the duty was breached. Professional sport and physical activity specialists have specific duties. – Think about the duties of an athletic trainer working at a NCAA volleyball match for one of the team’s athletes. – What specific duties would the trainer have? – Next, how could some of these duties be breached or violated by the trainer? Some initial considerations: These legal duties are sometimes in writing for some professionals, which are also known as standards of care. For other sport industry professionals, they are unwritten standards commonly accepted by members of the profession. Among a number of sport professionals, one common legal duty is providing emergency care. – Although professionals do not have to provide emergency care personally, they must make provisions for such care. Failure to make provisions for emergency care is an example of a breach of legal duty. – When clients or students are injured as a result of being allowed to participate in risk activities far beyond their physical capacity, professionals breach of their duty of care. – If sport facilities are not maintained according to industry standards, professionals will also breach the duty of care. FACTUAL CAUSE When it has been determined that the defendant breached the duty of care, the court identifies the relationship between the breach and the injury. A breach can be an act or omission. Was the breach the cause of the injury? For liability to be found, the breach must be the cause of the injury. The plaintiff must show a direct relationship between the breach of the duty and the injury or damage. – For example, was the defendant’s negligent act the cause of the injury? – Would the same harm have resulted had the negligent act never occurred (i.e. the breach)? If it would have occurred anyways, then it is likely not the factual (or actual) cause of the injury. SCOPE OF LIABILITY, INCLUDING FORESEEABILITY After establishing factual cause, scope of liability is ascertained. – Was what happened within the scope of liability of what might possibly occur? This includes the related concept of foreseeability? Was the defendant’s (bad) act likely to result in harm to the plaintiff? Foreseeability is the capacity of the defendant to anticipate an accident or incident. Was the harm to the plaintiff a reasonable, foreseeable consequence of the defendant’s actions? Was the defendant responsible? At trial, the court will ask if the accident or incident in which the plaintiff sustained injuries was an event that could or should have been predicted as one that might cause injury. To what extent could it have been predicted that participation in the activity would result in injury? Was the occurrence of the injury foreseeable? The harm must have been foreseeable before the event; Decisions about foreseeability are not to be made after the injury has been sustained. Sufficient foresight must exist to enable professionals to prevent or alter actions in an effort to avoid injury. A remote possibility is not sufficient; substantial damage must be probable, not just possible. DAMAGE For the court to find negligence, substantial damage must exist. Cuts and bruises are not sufficient; the person must be seriously damaged physically or mentally. If the question exists as to whether the damages are substantial, the question of damages will go to the jury to determine an amount. STANDARDS OF CARE There are three standards of care: – reasonable person – special relationship – professional REASONABLE PERSON Reasonable person is a hypothetical scenario that asks what an average adult would have done in a similar situation? For example, the court will ask what care an ordinary person would have provided under the circumstances of the incident to avoid injuries to others. Did the defendant behave as a reasonable, prudent adult? Would a reasonable person have recognized the risk that caused the injury and taken steps to avoid it? “NO DUTY TO RESCUE” …unless a special relationship exists (such as parent/child) There is no duty to act affirmatively on behalf of all other people or “no duty to rescue.” – For example, a person walking past a playground and observing an injured child has no obligation or responsibility to provide immediate and temporary care for the injured child. Duty exists only when a special relationship has been formed. If the person walking past a playground decides to provide help to the child, the person is obligated to continue the help until professional emergency medical assistance is on the scene. SPECIAL RELATIONSHIP STANDARD Parents and schools are examples of people and agencies with special relationships that dictate a distinct standard of care. An exception to the “no duty to rescue” rule exists for parents. Parents do have an obligation to rescue their child when the child is in danger. Note: The special relationship that exists between spouses and between parents and children is a duty to rescue within the context of skill, knowledge, and ability. Therefore, a parent who does not know how to swim would not have a duty to jump into the water to rescue his/her drowning child but would have a duty to call for help. PROFESSIONAL STANDARD A professional standard is established when a body of professional knowledge exists and a recognized level of performance is adhered to by members of that profession. This is the level most relevant to sport and physical activity professionals. The level of duty owed is higher than the level expected of a reasonable person. A person is found negligent under a professional standard for failing to perform at the level expected of a person with the training, knowledge, and skill of a member of the profession. – For example, a lifeguard texting while on duty and then missing spotting a drowning child. The lifeguard profession dictates how to meet the professional standard while guarding the pool. DEFENSES TO NEGLIGENCE The defenses against claims of negligence are: – Contributory Negligence – Assumption of Risk – Comparative Fault or Comparative Negligence SPECIAL EMPHASIS ON THE DEFENSE OF ASSUMPTION OF RISK IN SPORT Assumption of risk occurs when the victim becomes responsible for some portion of the risk of an activity and, as a result of assuming the risk, assumes liability for that portion of damages. In complete assumption of risk, the victim has contracted away his/her right to a cause of action through a signed written agreement (such as a waiver and release), which is legally considered a contract. Note: Only adults, not minors, can create contracts. Therefore, minors cannot waive their right to sue. Also, in many states, a minor may sue over an injury sustained while a minor, after he/she becomes an adult. KNOWLEDGE AND APPRECIATION OF THE RISK Knowledge and Appreciation of the Risk: When a participant encounters a dangerous situation, the participant must have adequate knowledge to appreciate the danger. Knowledge and appreciation of danger is not based on a reasonable person standard but on a standard tailored for the individual involved. Once the person understands the danger, he/she is able to make informed decisions about taking the risk of participating in the activity (and therefore assumes the risk). – For example, the risks of skydiving. – There are two types of assumption of risk: primary and secondary assumption of risk. EXPRESS CONSENT Express consent is usually a signed agreement between the participant and the service provider that meets the standard of a contract and can relieve the provider of a lawsuit for negligence. The plaintiff expressly assumes the risk and agrees, prior to the time of the injury- causing event, to hold the defendant blameless. When a person who fully understands the risk of an activity voluntarily agrees to take part and to relieve the defendant of any duty, they are said to have given express consent. Under this agreement the plaintiff must: – know that the risk exists; – understand the nature of the risk; and – freely choose to incur the risk. IMPLIED CONSENT In sport and physical activity, persons who understand the risk of an activity can, as a result of participating in the activity, agree to the inherent risks without signing a contract. In implied consent, the defendant is not relieved of legal responsibility. Rather, implied consent becomes a part of the comparative fault percentage in apportioning some percentage of fault to the plaintiff’s own actions in causing their injury. PRIMARY ASSUMPTION OF RISK Primary assumption of risk occurs when a party or potential plaintiff voluntarily participates in a sporting event or activity involving inherent risk and the defendant is under no duty to protect the plaintiff from the inherent risks of the activity. It should be noted that the defendant is liable for injury when his/her behavior becomes reckless (so this reckless misconduct exceeds what the plaintiff assumed the risks of participation would be) To recover in court, an injured athlete plaintiff must show that the injuries sustained in sport and physical activity did not flow from the normal course of participation or competition. In other words, that the injuries were not normally expected or assumed by the participants in that particular sport. For example, in lacrosse, knee injuries are common, expected, and assumed by athletes as part of playing the sport. However, if a knee injury resulted from a defect in the field or playing surface, this would not be considered an assumed risk that the participant agreed to undertake while participating in the sport. Athletes should expect a playing surface free from defects where the practice or athletic competition will take place so this would exceed what the player assumed the potential risks of participating in lacrosse might be. SECONDARY ASSUMPTION OF RISK Secondary assumption of risk occurs when a party voluntarily participates in a risky activity and has not consented to relieve the defendant of his/her duty of care, and the defendant breaches a duty of care owed the plaintiff. Secondary assumption of risk is not a bar to recovery. It becomes part of the comparative fault formula for the judge or jury to determine. WAIVER OF LIABILITY A range of educational tools and agreements are used in sport and physical activity to educate and inform participants about risks. These risk and/or informed consent documents will be used by the court to demonstrate that the parties were informed of the risks, understood the risks, agreed to encounter the risks, and signed a statement acknowledging their understanding of the risks. Courts have found defendants not guilty of negligence when the plaintiff had signed a waiver of liability that fully conformed with the legal requirements of a contract. The release must be clear, unambiguous, explicit, and concise. OWNERS AND OCCUPIERS OF LAND Premise Liability Legal Concepts – Premises liability is a theory of property liability currently being incorporated into negligence in many states. – Premises liability defined the duty of care of the owner or person in possession of land to individuals injured on their property. – Persons entering the land are classified as one of three types of entrants on the land: invitees, licensees, and trespassers. INVITEES (including Business Invitees): Highest legal duty to be protected from harm LICENSEES (including social guests): Less protection owed; Only need to warn about risks the owner knows about. TRESPASSER (“zero duty”): No duty to protect these individuals, only limit is land owner cannot make the land more dangerous than it already is to keep out trespassers (For example, setting a trap) RECREATIONAL USE STATUTES Recreational use statutes and hazardous recreation sport statutes began to appear in the 1960s. Ski incidents may have prompted some of the early statutes; rights of skiers and rights of ski resort owners and operators are among the most detailed statutes. In most cases, the primary recreational activities of a state are reflected in its statutes. – Colorado, for example, defines recreational purpose as including, but “not limited to, any sport or recreational activity of whatever nature undertaken by a person while using the land, including ponds, lakes, reservoirs, streams, paths, and trails … and includes, but is not limited to, any hobby, diversion, or other sport or other recreational activity” (CRS 33-41-102, 2011). ADDITIONAL DEFENSES TO CONSIDER THAT MIGHT APPLY Immunity from lawsuits to include… – Governmental/Sovereign Immunity –covering acts by government officials taken in their official capacity. – Good Samaritan laws –performed in natural settings or public places –such as a nurse giving CPR to a complete stranger on an airplane – Volunteer immunity Does your state have a volunteer immunity statute? Go find out! REMEDIES: TYPICALLY COMPENSATORY, SOMETIMES PUNITIVE In tort, damages are compensatory, occasionally punitive, and seldom injunctive. Compensatory damages are those fees paid for medical expenses, property repair, lost wages, pain or emotional suffering, loss of property, loss of bodily function, and any bills directly related to the incident. – Compensatory damage is assessed to make the injured person whole or to pay for the damage done. Punitive damages, seldom found in negligent actions, occur in intentional torts and product liability claims. – They are assessed in an effort to punish a party for the damage done to society in general and to the plaintiff in particular. – The purpose of a punitive damage award is to deter the person from acting again in a similar manner. REMEDIES (CONTINUED): INJUNCTIVE RELIEF Injunctive relief is a request to the court to require the defendant to stop doing an offensive act. Typically used as a legal remedy in civil rights cases, such as in cases of employment discrimination based on race or gender. SUMMARY Negligence occurs when a person does not exercise reasonable care under all circumstances. It must be foreseeable that a person’s conduct will result in harm. The standards of care in sport and physical activity are reasonable person, special relationship, and professional. Defenses to negligence include contributory negligence, assumption of risk, and comparative negligence. Premises liability is classified by status of person on the land as either an invitee, licensee, or trespasser. – For business invitees, the owner of the land must keep the premises in a reasonably safe condition, inspect for problems, repair as needed, and warn only of dangers they know about. DISCUSSION QUESTIONS 1. Identify the elements of negligence and describe the elements in the context of a sport environment. 2. Explain Good Samaritan laws. Find an example of your state’s version of this type of law and identify when and why they are typically used. 3. What is contributory negligence and when does it occur? 4. How do recreational use statutes cover high school and collegiate athletics? ACTIVITIES 1. Read two assumption of risk cases in a sport in which you are familiar. Given your knowledge of rules and safety within the specific activity, including age-appropriate understandings, assess the court’s consideration of the inherent risks of that sport. 2, Read the dissent and the statements on the etiquette of golf in the Shin vs. Ahn case. Did the California court choose to overrule the laws and etiquette of golf in their decision? 3. Select any sport. Identify five foreseeable risks of harm in the sport. Outline an assumption of risk statement for the sport (such as would be included in a typical waiver of liability).