CASE 5.1 UCF ATH. ASS'N V. PLANCHER, 121 SO. 3D 1097, 2013 FLA. APP. LEXIS 12805, 38 FLA. L. WEEKLY D 1756 (FLA. DIST. CT. APP. 5TH DIST. 2013) Ereck Plancher, II, a University of Central Florida This case did not address fault but rather the (UCF) football player, collapsed and died during only issues were to resolve are whether the release football practice after participating in a series of found in the agreement to participate clause of the conditioning drills. After his death, Ereck's par Medical Examination and Authorization Waiver, ents (the Planchers) filed a negligence action which was signed by Ereck Plancher, absolved against UCF and UCF Athletics Association, UCFAA of any future negligence and, if not, Inc. (UCFAA), the statutorily authorized direct whether UCFAA was entitled to limited sovereign support organization responsible for adminis immunity tering UCF's athletics department. After a three Prior to being allowed to play football for UCE, week trial, the jury found UCFAA liable and UCFAA required its players to complete a num- awarded the Planchers damages in the amount of ber of forms, including an agreement entitled $10,000,000. UCFAA appeals the final judgment"UCFAA, INC. SPORTS MEDICINE DEPART- arguing, inter alia, that the trial court erred when MENT Medical Examination & Authorization it denied UCFAA's motion for summary judg- Waiver" (hereinafter the "Authorization") and a ment based on a release found in Paragraph M of scholarship agreement. The Authorization asked the signed Medical Examination and Authoriza- the players to acknowledge, affirm, and represent tion Waiver and, again, when it denied UCFAA's their present physical condition, future com- motion for partial summary judgment, and plaints, steroid and other drug use, and use of sup- entered summary judgment against UCFAA, on plements. The Authorization discussed UCFAA's the issue of limited sovereign immunity. policies on body piercings, medical treatment, drug testing and medical insurance. The release at issue is located on the last page of the Authoriza- tion, in Paragraph M, under the heading "Agree ment to Participate." It provides the following: I am aware that playing practicing, training, and/or other involvement in any sport can be a dangerous activity involving MANY RISKS OF INJURY, including, but not lim ited to the potential for catastrophic injury. I understand that the dangers and risks of playing, practicing, or training in any ath- letic activity include, but are not limited to, death, serious neck and spinal injuries which may result in complete or partial paralysis, serious injury to virtually all bones, joints, ligaments, muscles, tendons, and other aspects of the muscular-skeletal system, and serious injury or impairment to other aspects of my body, general health and well-being. Because of the aforemen- tioned dangers of participating in any ath- letic activity, I recognize the importance of following all instructions of the coaching staff, strength and conditioning staff, and/ or Sports Medicine Department. Further more, I understand that the possibility of athletics and to engage in all activities and travel related to my sport, I hereby voluntar- ily assume all risks associated with partici- pation and agree to exonerate, save harmless and release the University of Central Flor- ida Athletic Association, Inc., its agents, servants, trustees, and employees from any and all liability, any medical expenses not covered by the University of Central Flor- ida Athletic Association's athletics medical insurance coverage, and all claims, causes of action or demands of any kind and nature whatsoever which may arise by or in con- nection with my participation in any activi- ties related to intercollegiate athletics. The terms hereof shall serve as release and assumption of risk for my heirs, estate, exec- utor, administrator, assignees, and all mem- bers of my family. In January 2007 and, again, in April 2007, Ereck Plancher initialed each page of the Authorization and signed it with an attestation that he both read and understood it. Based on this fact, UCFAA pled the release as an affirmative defense and moved for summary judgment, arguing that because the T. WHICII may resum LUMPI UI partial paralysis, serious injury to virtually all bones, joints, ligaments, muscles, tendons, and other aspects of the muscular-skeletal system, and serious injury or impairment to other aspects of my body, general health and well-being. Because of the aforemen- tioned dangers of participating in any ath- letic activity, I recognize the importance of following all instructions of the coaching staff, strength and conditioning staff, and/ or Sports Medicine Department. Further- more, I understand that the possibility of injury, including catastrophic injury, does exist even though proper rules and tech niques are followed to the fullest. I also understand that there are risks involved with traveling in connection with intercol- legiate athletics In consideration of the University of Cen- tral Florida Athletic Association, Inc. per mitting me to participate in intercollegiate ties related to intercollegiate athletics. The terms hereof shall serve as release and assumption of risk for my heirs, estate, exec- utor, administrator, assignees, and all mem- bers of my family In January 2007 and, again, in April 2007, Ereck Plancher initialed each page of the Authorization and signed it with an attestation that he both read and understood it. Based on this fact, UCFAA pled the release as an affirmative defense and moved for summary judgment, arguing that because the document Ereck signed contained a clear and unambiguous exculpatory clause, he waived his right to file any claim whatsoever against UCFAA. The trial court denied UCFAAs motion finding that "there exists a legitimate disputed fact as to whether the Agreement constituted an unequiv- ocal and unambiguous release of liability." Later, the trial court precluded UCFAA from raising the issue at trial, finding that the exculpatory clause was unenforceable as a matter of law. Case 5.1 QUESTIONS 1. Explain the concept of risk present in athletic participation. How does the concept of risk appear in the Plancher case? 2. What is the probability of an athlete dying due to the presence of sickle cell in his or her body? Conduct research to contribute to this answer. 3. How would modern risk management processes be incorporated? 4. To effectively apply risk management as a preventative legal component, there needs to be a legal theory such as, but not limited to negligence, assault, battery, or defamation. Applying the legal issues in this case, how could risk management be employed to prevent future inci- dents to athletes? 5. Under what circumstances would the following risk management approaches be used to pre- vent a situation like this from occurring? Risk Avoidance b. Risk Retention Risk Transference d. Risk Reduction c. CASE ROSENBAUM V. BAYIS NE'EMON, INC. 32 A.D.3D 534 (N.Y.A.D. 2006) 5.2 In an action to recover damages for personal "Participants in sporting events may be held to injuries, etc., the defendant Bayis Ne' Emon, Inc., have consented to injury causing events which are d/b/a Camp Esther appeals from an order of the the known, apparent, or reasonably foreseeable Supreme Court, Kings County (Schneier, I.)dated risks of their participation."... However, the doc- June 17, 2005, which denied its motion for sum trine of assumption of risk will not serve as a bar mary judgment dismissing the complaint insofar to liability if the risk is "unassumed, concealed, or as asserted against it. unreasonably increased [.)" ORDERED that the order is affirmed, with Here, the appellant failed to make a prima facie costs. showing of entitlement to judgment as a matter of The plaintiff Moshe Rosenbaum (hereinafter law.... the plaintiff) was injured when his foot slipped The record indicates that at least a portion of into a hole while playing a game of badminton on the subject hole was concealed by an object which premises owned by the defendant Bayis Ne'Emon, has been described by witnesses as being either a Inc., d/b/a Camp Esther (hereinafter the appel cesspool cover or a manhole cover and, as such, I lant). The Supreme Court denied the appellant's was not readily observable. Accordingly, it cannot motion for summary judgment dismissing the be concluded as a matter of law that the plaintiff complaint insofar as asserted against it based on assumed the risk of the injury causing event.... the doctrine of assumption of risk, We affirm. Case 5.2 5 QUESTIONS 1. Define foreseeability as it applies to this case. 2. How would the Hand Formula apply in this case? 3. How would each of the four alternative risk management methods apply in this case? 4. Besides the implementation of a risk management plan, what other defenses could the defen- dants use in this case? What liability does a sport manager have for an incident such as described in this case? 5. CASE 5.1 UCF ATH. ASS'N V. PLANCHER, 121 SO. 3D 1097, 2013 FLA. APP. LEXIS 12805, 38 FLA. L. WEEKLY D 1756 (FLA. DIST. CT. APP. 5TH DIST. 2013) Ereck Plancher, II, a University of Central Florida This case did not address fault but rather the (UCF) football player, collapsed and died during only issues were to resolve are whether the release football practice after participating in a series of found in the agreement to participate clause of the conditioning drills. After his death, Ereck's par Medical Examination and Authorization Waiver, ents (the Planchers) filed a negligence action which was signed by Ereck Plancher, absolved against UCF and UCF Athletics Association, UCFAA of any future negligence and, if not, Inc. (UCFAA), the statutorily authorized direct whether UCFAA was entitled to limited sovereign support organization responsible for adminis immunity tering UCF's athletics department. After a three Prior to being allowed to play football for UCE, week trial, the jury found UCFAA liable and UCFAA required its players to complete a num- awarded the Planchers damages in the amount of ber of forms, including an agreement entitled $10,000,000. UCFAA appeals the final judgment"UCFAA, INC. SPORTS MEDICINE DEPART- arguing, inter alia, that the trial court erred when MENT Medical Examination & Authorization it denied UCFAA's motion for summary judg- Waiver" (hereinafter the "Authorization") and a ment based on a release found in Paragraph M of scholarship agreement. The Authorization asked the signed Medical Examination and Authoriza- the players to acknowledge, affirm, and represent tion Waiver and, again, when it denied UCFAA's their present physical condition, future com- motion for partial summary judgment, and plaints, steroid and other drug use, and use of sup- entered summary judgment against UCFAA, on plements. The Authorization discussed UCFAA's the issue of limited sovereign immunity. policies on body piercings, medical treatment, drug testing and medical insurance. The release at issue is located on the last page of the Authoriza- tion, in Paragraph M, under the heading "Agree ment to Participate." It provides the following: I am aware that playing practicing, training, and/or other involvement in any sport can be a dangerous activity involving MANY RISKS OF INJURY, including, but not lim ited to the potential for catastrophic injury. I understand that the dangers and risks of playing, practicing, or training in any ath- letic activity include, but are not limited to, death, serious neck and spinal injuries which may result in complete or partial paralysis, serious injury to virtually all bones, joints, ligaments, muscles, tendons, and other aspects of the muscular-skeletal system, and serious injury or impairment to other aspects of my body, general health and well-being. Because of the aforemen- tioned dangers of participating in any ath- letic activity, I recognize the importance of following all instructions of the coaching staff, strength and conditioning staff, and/ or Sports Medicine Department. Further more, I understand that the possibility of athletics and to engage in all activities and travel related to my sport, I hereby voluntar- ily assume all risks associated with partici- pation and agree to exonerate, save harmless and release the University of Central Flor- ida Athletic Association, Inc., its agents, servants, trustees, and employees from any and all liability, any medical expenses not covered by the University of Central Flor- ida Athletic Association's athletics medical insurance coverage, and all claims, causes of action or demands of any kind and nature whatsoever which may arise by or in con- nection with my participation in any activi- ties related to intercollegiate athletics. The terms hereof shall serve as release and assumption of risk for my heirs, estate, exec- utor, administrator, assignees, and all mem- bers of my family. In January 2007 and, again, in April 2007, Ereck Plancher initialed each page of the Authorization and signed it with an attestation that he both read and understood it. Based on this fact, UCFAA pled the release as an affirmative defense and moved for summary judgment, arguing that because the T. WHICII may resum LUMPI UI partial paralysis, serious injury to virtually all bones, joints, ligaments, muscles, tendons, and other aspects of the muscular-skeletal system, and serious injury or impairment to other aspects of my body, general health and well-being. Because of the aforemen- tioned dangers of participating in any ath- letic activity, I recognize the importance of following all instructions of the coaching staff, strength and conditioning staff, and/ or Sports Medicine Department. Further- more, I understand that the possibility of injury, including catastrophic injury, does exist even though proper rules and tech niques are followed to the fullest. I also understand that there are risks involved with traveling in connection with intercol- legiate athletics In consideration of the University of Cen- tral Florida Athletic Association, Inc. per mitting me to participate in intercollegiate ties related to intercollegiate athletics. The terms hereof shall serve as release and assumption of risk for my heirs, estate, exec- utor, administrator, assignees, and all mem- bers of my family In January 2007 and, again, in April 2007, Ereck Plancher initialed each page of the Authorization and signed it with an attestation that he both read and understood it. Based on this fact, UCFAA pled the release as an affirmative defense and moved for summary judgment, arguing that because the document Ereck signed contained a clear and unambiguous exculpatory clause, he waived his right to file any claim whatsoever against UCFAA. The trial court denied UCFAAs motion finding that "there exists a legitimate disputed fact as to whether the Agreement constituted an unequiv- ocal and unambiguous release of liability." Later, the trial court precluded UCFAA from raising the issue at trial, finding that the exculpatory clause was unenforceable as a matter of law. Case 5.1 QUESTIONS 1. Explain the concept of risk present in athletic participation. How does the concept of risk appear in the Plancher case? 2. What is the probability of an athlete dying due to the presence of sickle cell in his or her body? Conduct research to contribute to this answer. 3. How would modern risk management processes be incorporated? 4. To effectively apply risk management as a preventative legal component, there needs to be a legal theory such as, but not limited to negligence, assault, battery, or defamation. Applying the legal issues in this case, how could risk management be employed to prevent future inci- dents to athletes? 5. Under what circumstances would the following risk management approaches be used to pre- vent a situation like this from occurring? Risk Avoidance b. Risk Retention Risk Transference d. Risk Reduction c. CASE ROSENBAUM V. BAYIS NE'EMON, INC. 32 A.D.3D 534 (N.Y.A.D. 2006) 5.2 In an action to recover damages for personal "Participants in sporting events may be held to injuries, etc., the defendant Bayis Ne' Emon, Inc., have consented to injury causing events which are d/b/a Camp Esther appeals from an order of the the known, apparent, or reasonably foreseeable Supreme Court, Kings County (Schneier, I.)dated risks of their participation."... However, the doc- June 17, 2005, which denied its motion for sum trine of assumption of risk will not serve as a bar mary judgment dismissing the complaint insofar to liability if the risk is "unassumed, concealed, or as asserted against it. unreasonably increased [.)" ORDERED that the order is affirmed, with Here, the appellant failed to make a prima facie costs. showing of entitlement to judgment as a matter of The plaintiff Moshe Rosenbaum (hereinafter law.... the plaintiff) was injured when his foot slipped The record indicates that at least a portion of into a hole while playing a game of badminton on the subject hole was concealed by an object which premises owned by the defendant Bayis Ne'Emon, has been described by witnesses as being either a Inc., d/b/a Camp Esther (hereinafter the appel cesspool cover or a manhole cover and, as such, I lant). The Supreme Court denied the appellant's was not readily observable. Accordingly, it cannot motion for summary judgment dismissing the be concluded as a matter of law that the plaintiff complaint insofar as asserted against it based on assumed the risk of the injury causing event.... the doctrine of assumption of risk, We affirm. Case 5.2 5 QUESTIONS 1. Define foreseeability as it applies to this case. 2. How would the Hand Formula apply in this case? 3. How would each of the four alternative risk management methods apply in this case? 4. Besides the implementation of a risk management plan, what other defenses could the defen- dants use in this case? What liability does a sport manager have for an incident such as described in this case? 5