Chapter 6 Defusing Negligence Liability Earlier in this book we discussed the concept of legal fault (blame) and legal obligation (liability). This chapter is devoted to the concept of managing the po- rential imposition of legal fault and/or unwanted legal obligation in the context of negligence claims. Risk management, a term found in many conversations these days, is more than the employment of available defenses. At its best, risk management in re- lation to negligence is an integrated strategy for both conducting safe programs and reducing the potential for loss arising from successful legal claims against the program, its individual employees, and administrators. Risk management strategy involves several steps, including identification of risks, evaluation of risks, and management of risks. Identification of Risks It is impossible to be proactive if risks are not known. A dangerous procedure cannot be altered, an increased supervision level will not be instituted, if no po- tential for danger is perceived. Therefore, potential risks must be identified before the risk becomes an incident or accident. A few places to begin looking for risks are: facilities and equipment, staffing, participant population, policies and proce- dures, and program offerings. Facilities and Equipment Homemade or out-of-date equipment, areas of deferred maintenance, struc tural designs of gymnasiums that don't match today's sports, security from unau- thorized entry, and security of equipment when not in use are all worthy of close and continuing review.82 Legal Concepts in Sport: A Primer However, indemnification agreements are useful tools for shifting liability when an outside group uses your facilities. Let's see how it works. You rent yoty Held to a summer camp group. You have the camp group sign an indemnification delete injured by a co. greement stating that if any of their participants (adults or minors) sues you for injuries arising in any way from the use of your facilities, the camp group will reimburse (indemnify) you for any lawyer fees, damages, and related ex (Hint: You might also want the camp group to add you ted expenses. to add your school as an extra named two were strolling in wondering the path, insured on their liability policy.) as bare enacted statute Immunity Pond At these are the excer The King can do no wrong." Sovereign immunity flows from the historic nate stand and po principle that the sovereign ruler was incapable of fault and therefore would be dbe under no incapable of accepting liability. tures all moral ramitica Sovereign immunity still exists to some degree in many areas of local, state, and federal government as well as among some charitable organizations within one legislature some jurisdictions. Our ability to sue a governmental entity exists only if that to here no daty to people to help right has been extended to us by specific statutory enactment that overturns the laws give im common law immunity enjoyed by governmental entities. The doctrine of sovereign immunity is being eroded but still exists in varying artin against one degrees in many jurisdictions. Thus you should check your own jurisdiction for mlaws are very in the degree of its application. While you're checking, be sure to note how immunity a own state's legislat applies in your state to the various roles and levels of policy-making decisions you with a layer of pro might be involved in. You might also want to determine if your actions are likely ano case do Good to be classified as ministerial or discretionary. at be protected b Some states have recently adopted legislation giving immunity to individuals who are carrying out specific sport-related functions. Although this type of im- peace within the do munity is unrelated to sovereign immunity, it is nonetheless important. A scarcity gaudet of the do of youth sport coaches is being experienced in some states. In order to entice, or and samaritan laws at least remove a barrier to, the participation of volunteer coaches of youth sports, at ateacher stroll state legislatures in well over a fourth of the states have enacted legislation that cal depending o ligence. protects the volunteer non-scholastic coach from claims based on ordinary neg- wecher happened These immunity statutes for non-scholastic coaches are similar to hold harm- less statutes for teachers in that they cover only ordinary negligence in the fur- therance of the coach's duties. The immunity statutes are dissimilar to the hold host jurisdicti harmless statutes in that they do not carry any provision for defending against the race case to claims, but rather only convey a total defense. Therefore, the youth sport coach t must show accused of ordinary negligence must still pay for the defensive application of the immunity statute. Immunity from ordinary negligence or even innocence is not boledge free in the context of immunity for youth sport coaches. be partici Not every non-scholastic coach within jurisdictions having the immunity laws is covered. Some jurisdictions require at least some low level of certificationsing Negligence Liability 83 liability nt your of competence by the coach in order to allow the coach to enjoy the benefits of fication immunity. Immunity laws sound good from the coach's standpoint. But from the you for standpoint of the athlete injured by a coach's negligence, they are very frustrating. up will it is truly a situation in which the state legislatures have had to balance the inter- penses. ests of society ciety in having accessible youth sports programs against the loss to a spe- named cific athlete injured by a coach's negligence. What do you think about the balance? Good Samaritan Laws If we were strolling in a park and noticed that someone was drowning in the lake bordering the path, we would generally have no legal duty to assist. (A few storic states have enacted statutes requiring a bystander to assist in certain circumstance ald be es, but these are the exception rather than the rule.) We could continue our stroll, we could stand and ponder how many times the victim would shout "Help!" but state, we would be under no legal obligation to assist or to even seek assistance. Certain- within ly, the moral ramifications of inaction are significant, but the legal ones are scant. If that State legislatures all across the country have tried to encourage individuals as the who have no duty to help, to help anyway. The term applied to statutes enacted to encourage people to help are referred to as Good Samaritan laws. Generally, Good rying Samaritan laws give immunity from claims of ordinary negligence made later by n for the victim against one who, without a duty to do so, helps. Some state's Good Sa- unity maritan laws are very inclusive, whereas others are very narrow. You should check s you your own state's legislation before you assume that Good Samaritan laws provide likely you with a layer of protection. In no case do Good Samaritan laws protect someone who has a duty. A doctor duals cannot be protected by the Good Samaritan laws when accused of ordinary neg- im- ligence within the doctor's office (a duty exists between doctor and patient within rcity the context of the doctor's office). Similarly, a teacher would not be covered by e, or Good Samaritan laws with respect to the teacher's students at school. On the other orts, hand, a teacher strolling by the lake on the way home after school might be pro- that tected (depending on the particular jurisdiction) if, while not in a teacher's role, the teacher happened to find a student from the class drowning in the park's lake. neg- Assumption of Risk rm- fur- Most jurisdictions (but not all, e.g., Pennsylvania) allow the defendant in a hold negligence case to use a defense called "assumption of risk" The elements the de- the fendant must show in order to successfully use the assumption of risk defense are ach . knowledge and understanding of the nature of the risks by the the participant; and not . voluntary consent, either expressed or implied by the participant. ity ionknow when d to inform tract. The a was the participant t s, if any. It sho extrigg the participant kno a to participate is used to ipant is expecte a It is not a contrac 84 Legal Concepts in Sport: A Primer 's informational anditioning levels, if a Assumption of risk, when used successfully, is a total bar to the plaintiff's participate has no claims of negligence, but it is a defense of some dispute, Some view it as sins rules a participa ply a precursor to comparative or contributory negligence. The notion behind nce case to show the reement is it such a view is that once we know and understand the inherent risks of pa Know and understand risk, we are obligated to ourselves to protect ourselves from the foreseeable risk of unreasonable harm. If we asseligence c e called "assumptio Voluntarily participate go ahead and participate, knowing the risks, we have met the inh assumed the risks (read "duty"), thus we relieve our teachers and coaches of their sel; and/or ly the defense ca the duty owed to self duties to protect us from foreseeable risks. If we fail to protect ourselves, we have breached the duty we owe ourselves and thus might be comparatively (or con- such a defense); resecable because the a tributorily) negligent. touched the Others view the defense of assumption of risk as a more independent concept ace providing support for the whereby once someone knows the risks and voluntarily consents to go ahead any- antributory negligence" in th way, any injury arising out of those known risks cannot be laid at the door of the teacher or coach by claiming negligence. Thus assumption of risk becomes a total whypal effect of risk statements bar to recovery for injuries resulting from the known and consented-to risks. Still others view it narrowly by defining the risk which is being assumed to be samuse the validity and interpre only those risks which are inherent in the activity rather than the risk of negli- finish varies widely from juris gence on the part of those people related to the activity. Consciousness does someon Whichever view your state adopts, helping students and athletes understand the risks is valuable from a pedagogical standpoint, even if not always from a legal coghamza, a plaintiff must subje waits This subjective standar risk defense. standpoint. The use of risk statements is one way of developing the assumption of a derequired element of know Beginning swimming students have the pedagogical right to know what risks al here to demonstrate that th are involved if they dive into the shallow end, run on the deck, or even do every- online the remainder of life as thing right. A broken neck from diving in the shallow end, injuries from slipping on the deck, and chlorine irritation of the eyes are all risks of swimming. Yes, large judgments against defe some of the risks only exist if safety rules are broken, but there are others, such as please has been unsuccessfully u the chlorine irritation, which are just part of the activity. From a pedagogical per- ized graphic explanation of spective, participants who know and understand the risks yet proceed anyway can guard the teacher or coach. S assist in protecting themselves against the known risks. From a legal perspective, arik statement needs to be participants who know and understand the risks yet voluntarily decide to partici- pate anyway are, in many jurisdictions, less likely to be able to put legal blame for ex your jurisdiction's concep incurring those risks on others. ta zing the objective test an The second element of the assumption of risk defense, voluntary consent, can The objective standard is m be lost if the teacher or coach forces participation, either overtly or covertly. There that the normal person of Li is broad jurisdictional variance in viewing the element of voluntary consent. In theother than what the sper some states, even the techniques of the manipulative encouragement employed by father informational a consent. some coaches and teachers might be sufficient to destroy the voluntary nature of cede power is a parental Risk statements, sometimes called agreements to participate, are documents Why wend to block claims which help inform a potential participant about the risks that might be incurred amational documents keeping in and what rithe plain ne view it as The notion be Defusing Negligence Liability 85 nd understand thus allowing the participant to make an informed decision whether to participate o protect ourtel and also letting the participant know where to take special care. A risk statement/ nable harm. if agreement to participate is used to inform a participant about the activity to be the risks, we ha participated in. It is not a contract. The agreement should describe prerequisite d coaches of the skills or conditioning levels, if any. It should also include a listing of the safety and behavior rules a participant is expected to follow and the risks inherent in the urselves, we hay activity. The agreement is informational in nature but not contractual. In fact, by ratively (or con itself, an agreement to participate has no legal significance. However, it is useful as evidence in a negligence case to show that the injured participant pendent concern assumed the inherent risks risks of participation (therefore providing support to go ahead an for the defense called "assumption of risk" in jurisdictions acknowledging such a defense); and/or t the door of the breached the duty owed to self to protect from foreseeable risks (risks be- becomes a tok came foreseeable because the agreement to participate listed them), there- ted-to risks. fore providing support for the defense of "comparative negligence" (or g assumed to be "contributory negligence" in the few states still adopting it). he risk of negly The legal effect of risk statements varies widely from jurisdiction to jurisdic etes understand tion because the validity and interpretation of the affirmative defense of assump- ays from a legal tion of risk varies widely from jurisdiction to jurisdiction. For instance, to what level of consciousness does someone need to know and understand the risks? In assumption of Pennsylvania, a plaintiff must subjectively know and understand the full impact of the risks. This subjective standard makes it difficult for a defendant to demon- now what risks strate the required element of knowing and understanding the risk. The defendant even do every. would have to demonstrate that the plaintiff truly understood what it would be s from slipping like to live the remainder of life as a quadriplegic or as someone without sight. wimming. Yes, Large judgments against defendants in cases in which the assumption of risk others, such as defense has been unsuccessfully used have encouraged some people to believe that dagogical per- a detailed, graphic explanation of all possible consequences is always required to safeguard the teacher or coach. Such is not the case. Before deciding how detailed ed anyway can your risk statement needs to be, first consider the pedagogical benefits. Then re- al perspective view your jurisdiction's concept of assumption of risk. Less detail is needed in ide to partici- states using the objective test and more in states using the subjective test. gal blame for The objective standard is much easier to meet because it calls for the showing of what the normal person of like age and experience would have known about the consent, can risks rather than what the specific plaintiff knew. overtly. There Another informational document, but with a very different level of liability consent, In transfer power is a parental permission slip. Parental permissions slips are not le- employed by gally useful to block claims of negligence when a minor is injured. Rather, they are informational documents by which a parent can learn what activities a child will ry nature of be engaging in and what risks are associated with that participation. The knowl- edge a parent might gain of the risks involved through parental permission slips documents be incurred86 Legal Concepts in Sport: A Primer wow of the distal MINT Ch the Case O box Lexufle than you son ofall witnesses. It is not useful in setting up an assumption of risk defense because such a defen relates to the child's assumption rather than the parent's. nice period, witnesses grad drental permission slips, however, do indicate that you have the permissing body testimony becomes cr of the child's parent to include the child as a participant. Such permission is gon THINT, Incident repo ucularly useful and may have legal significance for transportation, supervision and provision of necessary medical care should such become necessary. my is the injured party, Ang Indeed. See Chapter Comparative and Contributory Negligence amstations on record ret In A A Victim's self-directed negligence can be used defensively by a defendant in, negligence case. The defendant says, "Yes, I was negligent, but so was the partica rlayers of pant. The plaintiff should have to bear some responsibility for self-directed neph; gence." In those few states still following the pure doctrine of contributory neg!" Whatever lay bility is to provi gence, the plaintiff who has breached a duty to self is totally barred from recovery scipant in ma in the majority of states that follow the more modern approach of comparative negligence, self-directed negligence results in only a diminution of the amount e risks involved the participa to be recovered. For instance, if the jury decides that the plaintiff's self-di cussed above bec negligence was responsible for 30% of the injury, and the judgment for th Additional risk I. injury amounts to $100,000, the plaintiff will only receive $70,000. In comparative peace are found in negligence, there is an apportionment of the damages between the negligent de- fendant and the negligent plaintiff. Accident or incident reports, if well written and correctly used, can provide a useful vehicle for documenting self-directed negligence and thus assist in setting Memory Test up the after-the-fact defense of comparative or contributory negligence. For in- 1. Multiple be useful. stance, statements concerning safety rules violated by the injured student might But accident or incident reports can also be magnets for liability if the reports ask questions that should not be asked. It is the jury's job to determine if negli- gence exists; it is not the job of the person filling out the incident report. So, ques- tions such as "Cause of accident?" or "Nature of injury?" need to be approached with a great deal of forethought and perhaps don't belong on the incident report at all. For instance, if a student slipped and sprained an ankle and there was also a wet spot on the floor near the accident, the person filling out the incident report should not draw conclusions about the connection of the wet spot and the cause of 2, Multi the slip. That is for the jury to do. After all, it is possible that the student tripped on a shoelace rather than slipped on the wet spot. So, state the facts openly and honestly, but don't draw conclusions. Similarly, don't let your undergraduate first aid or athletic training knowledge lead you to becoming a diagnostician when filling out an incident report. If the student's elbow is bleeding and painful, state that the student's right/left elbow is bleeding and the student states it is painful. Restrain yourself from statements in response to the question "Nature of injury?" such as "a second-degree sublux-ch a defense Defusing Negligence Liability ation of the distal . . . You don't have X-ray vision, and your statements may be 87 permission sion is par- less accurate than your ego leads you to think they are. upervision, CHINT: In the case of serious or catastrophic injury, keep track of the current location of all witnesses. It often takes time period, witnesses graduate, move , n takes years for a lawsuit to get to court and in that their testimony becomes crucial at trial . ) move, and thus become difficult to find when (HINT: Incident report ent reports should be maintained for a very long time. If a mi- dant in a nor is the injured party, remember that the statute of limitations could be very e partici- g indeed. See Chapter 14 for a fuller discussion of the impact of the statute of ted nepli- limitations on record retention ) ory negli- In A Nutshell: Transferring Liability recovery nparative Whatever layers of protection are available, the first step to be taken in avoid- amount ing liability is to provide safe programs. The second step is to enlist the efforts of directed the participant in maintaining a safe situation by making the participant aware he entire of the risks involved in participation. Then risk management techniques such as parative discussed above become additional protections for an already safe program. Additional risk management techniques for causes of action other than negli- gent de- gence are found in Chapter 14. rovide a setting Memory Testers For in- 1. Multiple Choice Which of the following risk-shifting techniques would might theoretically be most economical for the defendant in a negligence case? reports a. professional liability insurance negli- b. hold harmless law ques- c. assumption of risk ached d. comparative negligence eport e. waiver s also port 2. Multiple Choice Who among the following would be most likely to use the Good Samaritan defense to a claim of negligence? se of a. a junior high school physical education teacher oped whose student is injured in class and b. an athletic trainer who incorrectly treats an inju- ry sustained by one of the school's athletes dge c. a volunteer coach for an after-school team whose the athlete is injured is d. a bystander who is watching a college softball in game and negligently helps someone who has LX- fallen in the parking lot after the game.Legal Concepts in Sport: A Primer Rutter, a 88 untarines Assumption of risk is a defense that would work bet. jungle b 3. True/False ter in a required physical education class than in an ment) w after-school athletic program. the jung 4. True/False Hold harmless laws protect all teachers . students and thus In order to use the defense of contributory or compar- to with 5. True/False ative negligence effectively, the plaintiff must also be termine volunta negligent. Memory Tester Discussion Hold h efits of 4. False 1 . B Hold harmless. All the other defenses listed involve some out- classes lay of money by the plaintiff even if innocent. For instance, professional liability insurance involves the payment of pre- ute. Th miums. Using assumption of risk, comparative negligence, or chial s waivers as defenses involves at-trial activities of an attorney, Contr Attorneys serving the defendant do not work on a on a contingen cy fee basis, unlike plaintiff attorneys, simply because when 5. True fect, victorious, the defendant does not win anything from which a contingency fee could be taken. So anytime you get to trial in your defense, someone must pay the attorney. Those who are Practice Scena fortunate to be covered by hold harmless laws will have the expenses of the attorney paid for them as well as any damages Many colle which might be called for if found guilty of ordinary negli- programs on c gence in the furtherance of the employer's interests. one of the coll 2. D Good Samaritan laws do not protect anyone who already owes the best possib a duty to the injured person. The bystander is the only person view and then transfer the ri laws. in this question who might be covered by the Good Samaritan 3. False The colle One of the two required elements for assumption of risk is the summer week voluntary consent to participate in a particular activity. The dents aged 1 nature of a required physical education class would probably ers are highly defeat the voluntary nature of the consent and thus also defeat camp. Becau the use of assumption of risk as a risk-shifting mechanism. The issue of voluntariness is even more fragile than the overtly panded by h mandatory nature of a required class. In many jurisdictions, ketball team for instance, if an athlete knows that participation in a specific gymnasia a activity is an unwritten, unspoken prerequisite for team mem- security or bership, assumption of risk would not be a useful defense for the coach because the student has only two choices: partici- pate or don't make the team. Brooten v. Chet sue of atter for a veryould work bel- Defusing Negligence Liability 89 lass than in an Rutter, a Pennsylvania case that illustrates the fragility of vol- untariness involved an athlete who was injured while playing jungle ball (full-contact football without protective equip- ment) while trying out for the football team. Participation in ry or compar- jungle ball game was an unwritten requirement for those students who wanted to be considered for team membership, must also be and thus the athlete had no real choice to avoid injury except to withdraw from consideration for the team. The court de- termined that the presence of that limited choice defeated any voluntariness of the athlete's decision to participate. some out- r instance, 4. False Hold harmless protections are created by statutes, so the ben- efits of hold harmless laws are extended only to those specific ent of pre- classes of employees enumerated in the language of the stat- ligence, or ute. The benefits are typically not extended to private or paro- attorney. chial school teachers. ontingen- use when 5 . True Contributory or comparative negligence defenses say, in ef- fect, "Yes, I was negligent, but so were you." m which a to trial in e who are have the Practice Scenario damages Many college athletics programs invite sport camps to conduct their ry negli- programs on campus. Indeed, many times the director of the camp is one of the college's coaches. Read the facts of the scenario and develop the best possible combination of methods, first from the camp's point of ady owes view and then from the college's point of view, to remove, reduce, and ly person transfer the risks. amaritan The college coaching staff is conducting an independent basketball summer weeklong day camp in basketball techniques for 100 local stu- isk is the dents aged 10 to 20. Some of the participants are beginners and oth- rity. The ers are highly skilled. Each participant must pay $XX as tuition for the probably camp. Because there will be so many campers, the coaching staff is ex- o defeat panded by hiring counselors from the college's men's and women's bas- hanism. ketball teams plus a few high school seniors. The campers will use four overtly gymnasia and two locker rooms. The college will not be providing extra security or any medical care or access to any training facilities or offices. ictions, specific How About Looking Up a Few Cases? 1 mem- nse for Brooten v. Chetek Fitness (WI App 71; 2013). This Wisconsin case includes the is- partici- sue of attempting to move beyond public policy while trying to escape liability for a very wide range of issues.washould be developed. The al 's means that the staff and admi when no policies are in place, there uberx When policies are in place, ( Legal Concepts in Sport: A Primer andwas to foresee risks. as an followed. When policies are in 74 Inspections of facilities and equipment should be con- wowed the potential for injury and ( Budget restraints ducted on a scheduled basis and the results documented dy i grest. So, make sure good pol are not an excuse. Any unsafe condition should be corrected swiftly, and if ies officially not immediately correctable, the facilities or equipment Did Make sure everyone knows should be removed from use until repaired or replaced. Budget constraints often result in administrators having to make difficult policies. Adhere to the polici choices between maintaining safety or continuing to run programs at all. Pragmat Added change the policies tism should not be allowed to cause an administrator to turn away from the realj- vities appropriate ties of legal duty. Coaches or teachers who are frustrated by having repair requests ignored by administrators should not turn away from their own legal duty to par- he timing and placeme ticipants. There is no way out of owing the duty of providing safe facilities and magram Offerings or decreasing risks. A equipment to students and athletes, regardless of the realities of budget cuts. paris and activitic inclement weather? Is t Staffing The use of uncertified teachers is not, all by itself, a breach of duty. Certifica or increasing or a field? Supervision assig tion is not a safeguard against claims of negligence. Instead, the presence of prop- miming requirements. Assig coma for inclen er certification simply makes it slightly easier for the supervisor who has been atball outfield masive to the programmatic re accused of hiring inept teachers or coaches to demonstrate that proper care had been taken in the hiring process. Certification brings with it an assumption (fully rebuttable, of course) that the teacher or coach had been suitably trained in pru- zalifications, Eval dent, nonnegligent techniques and progressions. The teacher's or coach's actions, if negligent, will always speak louder than the presence of a certificate. On the other hand, the absence of certification does not guarantee that a teacher or coach After potential risks have b will act in negligent ways. c. life threatening, which are Are coaches and teachers performing their duties up to standard? If observa- gjuries are questions for which tions are not periodically conducted, how can the administrator identify problems? Similarly, the administrator who refuses to investigate student or athlete com- Ifliability were to be incu plaints is omitting an important potential source of identification of risks. When " the financial risk or risk to teacher evaluations are unrealistically favorable, the staff member who needs to on decrease risks, and what is improve may not be aware of the need. sign? Without such knowle Participant Population managing risks. Risks differ depending on such things as class size, age and conditioning level of participants, and presence of prerequisite skills among the participants. Some participants within a group are difficult to control; others listen closely and behave After risks are identifi properly. These types of differences, as well as others, alter the level of risk. Coach- es, administrators, and teachers need to identify the risks as they might exist in a ement involves a decisi particular participant population. could be subjected to a wears to the questions Policies and Procedures filing Throb Policies and procedures-from how to cope with medical emergencies to the frequency of equipment inspections to how to cope with intruders intent on vio-Defusing Negligence Liability 75 lence-should be developed. The absence of appropriate policies and procedures usually means that the staff and administration have not been thorough in their efforts to foresee risks. When no policies are in place, there is no direction for the behavior of staff members. When policies are in place, the policies are valueless unless the pol- icies are followed. When policies are in place yet ignored, the potential for injury and thus legal li- ability is great. So, make sure good policies are in Unused policies are dangerous. place. Make sure everyone knows and understands the policies. Adhere to the policies. If the policies turn out to be bad or become outdated, change the policies officially. Program Offerings Sports and activities appropriate for some populations are not appropriate for others. The timing and placement of various activities also carry potential for increasing or decreasing risks. Are outdoor classes scheduled during seasons known for inclement weather? Is the track team's javelin landing zone also the softball outfield? Supervision assignments should take into account the specific programming requirements. Assignment of teachers and coaches should also be responsive to the programmatic requirements for expertise, experience, and relat- ed qualifications. Evaluation of Risks After potential risks have been identified, they need to be evaluated. Which are life threatening, which are remediable, and which are likely to bring about injuries are questions for which answers need to be provided. If liability were to be incurred for a particular risk, what would be the extent of the financial risk or risk to the reputation of the program? What options exist to decrease risks, and what is their cost in money, time, and administrative super- vision? Without such knowledge, it is very difficult to weigh different options for managing risks. Management of Risks After risks are identified and evaluated, they must be managed. Risk man- agement involves a decision-making process. Each identified and evaluated risk should be subjected to a series of questions. The an- swers to the questions will form the basis for deter- Identify, evaluate, and mining the management technique selected to deal manage risk with the risk. For example: . Is the particular risk acceptable? . Is the risk so great that it cannot be tolerated (either injury or cost)?Legal Concepts in Sport: A Primer 76 used to transfer the is there an appropriate and efficacious means of reducing or removing the e prudent, reaso us we'll review th risk? Can we budget for the cost of paying for losses associated with liability, Although duty thu red, liability fo If a risk cannot be removed totally, it must be (1) reduced as much as possible ferred to others t and then accepted, or (2) reduced as much as possible and the remaining potentis ods. No single m liability transferred. So, it is best to e gram of all appro Removing or Reducing Risks Among the n To use an obvious example, a tour of your facilities identifies that your swim Insuranc ming pool lacks a door and thus there is a substantial risk of unauthorized in. Profe dividuals using the pool. Your evaluation of the risk determines that the risk is Emp extremely serious since anyone could enter the pool, swim without supervision Hold Ha and potentially drown. You have the following options: Releases 1. Remove or reduce the risk by repairing or replacing the door, installing a substantial lock, set and follow policies concerning the possession and Waivers access to the key, post clear and obvious notices banning use of the pool Indemn without authorization and lifeguards. Also transfer as much as possible of Immun any remaining risk by obtaining insurance and the use of waivers, assump- Good tion of risk, etc., where appropriate for the specific population. Assum 2. Remove or reduce the risk by repairing or replacing the door, installing , Comp a substantial lock, set and follow policies concerning the possession and access to the key, post clear and obvious notices banning use of the pool Let's take without authorization and lifeguards, and accept the reduced risk of a lat- er, unauthorized entry in violation of your policies. Insuranc 3. Do nothing and transfer as much of the risk as possible (hoping that your is available fi inaction does not rise to the level of gross negligence, which would negate fields of athl any effort to transfer liability and leave you totally liable). would logic 4. Accept the risk and do nothing about the door. Your liability for the Profess drowning or other pool injury would be unabated. from expen lawsuit, wil A seen in this rather extreme example of a doorless swimming pool, the meth- limits. An od least likely to result in death or injury and most likely to avoid legal liability if insured. It an injury occurs is Option #1. On the other hand, Option #4 exposes you to great by other I liability and also exposes the public to great risk of injury or death. may not In reality, budgetary constraints sometimes cause decision-makers to follow plans other than the safest ones of removing or reducing risks but they do so at comforti an incremental risk to the welfare of the public and also increased potential for professi liability for the program, its employees and/or the institution. ings of b Transferring Liability Um insuran The techniques used to reduce the risks are the same techniques any profession- most al teacher, coach, or administrator would know and should use. The techniques readmoving the liability? used to transfer the risks might be less familiar to Defusing Negligence Liability 17 the prudent , reasonable, up-to-date professional , thus we'll review them here. Management of Risks as possible Although duty cannot be transferred, only Remove Reduce g potential shared, liability for y for breaches of duty can be trans- Transfer ferred to others through a wide variet de variety of meth- ods. No single method works for all circumstances or with all potential plaintiffs. So, it is best to evaluate the circumstance and then avail yourself and your pro- our swim- gram of all appropriate methods in a multilayered fashion. prized in- Among the most common methods are: the risk is Insurance Professional liability insurance pervision, Employer's/program's liability insurance Hold Harmless Laws installing Releases ssion and Waivers the pool Indemnification ossible of Immunity assump- Good Samaritan Laws Assumption of Risk/Agreements to Participate nstalling Comparative/Contributory Negligence sion and the pool Let's take a look at each of these common methods of transferring liability. of a lat- Insurance: Professional Liability Insurance. Professional liability insurance is available from a number of organizations in which professionals in the various hat your fields of athletics, health, physical education, fitness, sport, recreation, and dance d negate would logically be members. Professional liability insurance from any source generally protects the insured for the from expenses incurred in the defense of a lawsuit and, if the insured loses the lawsuit, will pay any judgments against the insured to the extent of the policy limits. Any judgment in excess of the policy limits would have to be paid by the e meth- insured. It is wise to have professional liability insurance even if you are protected bility if by other liability-shifting mechanisms such as hold harmless laws. The insurance to great may not cover anything additional, but when you are faced with a lawsuit, it is comforting to have as many people on your side as you can, and the low cost of follow professional liability insurance is an easy and inexpensive way to add to your feel- lo so at ings of being supported. tial for Umbrella policies that you might have in addition to either your car or home insurance are not the same as professional liability insurance policies. Indeed, most umbrella policies will not cover any of your professional activities at all. So read your umbrella policies ( if you have them) and think about obtaining profes- ession- sional liability insurance as well. niquesme pole we wouldmost likely en callon Never drive stu stand why. First, driving echances and increase the cha lihood that al students is Often an uon 78 Legal Concepts in Sport: A Primer a from you if an accident If you ever find y Professional liability insurance does not protect against intentional torts or gross negligence. Instead it protects only against a claim of ordinary negligence your personal car, n increases the likelike ulat occurs in the furtherance of your professional activities. This is important tent. Make your last to keep in mind because when you write a peer review repo w report, you won't be pro- practical advice Ify tected if the report is later found to be an act of defamation. Neither will you be stand that those ex protected against successful claims based on sexual harassment, discrimination, or carelessness that rises to the extent of being considered gross negligence. (Gross inthe student u drive students For e negligence does not refer to the grossness of the injury but rather to the degree of sanctioned activity am carelessness causing the injury.) Some insurance policies advertise in large print that you will be insured sanctioned you to use your may when you drive against claims of sexual harassment and discrimination. However, what is actually ns that would emanate from covered is the cost of defending such claims, paid only if you are found inno- cent. It is against public policy to allow liability transfer for intentional acts or for did harmless laws continue to gross negligence. If public policy did not intervene, people could buy insurance to get the supervisor to put th for discrimination or harassment and then feel free to be bad. Not a good idea. who have had verbal sanction Professional liability insurance' will only protect you from claims of ordinary the sanction never occurred, negligence occurring in the furtherance of your professional duties. If you orga- nize a Saturday car wash to raise money for your team and someone at the car wake from liability if you use th wash is hurt because of your negligence, it is possible that professional liability like instead of your own! Not a insurance would not defend you because organizing a car wash was not part of your duties. ate whether the specific use of th Activities outside your job duties are called ultra vires activities. We all get ourselves into ultra vires situations (such as the car wash above), but we need to onefurniture from your old apartme realize that we may also be putting ourselves in positions of great exposure to potential liability. pulbe dou vines and all liability Another example of an activity that might be ultra vires occurs when we trans- raz Employer's Liability Insura port students. When we transport students in our personal cars, we hope that our iations dubs, and leagues ofre personal auto insurance is not affected and in case of injury, we hope that pay- ment, at least to the policy limits is available. However, many personal insurance Crapbyee asits "Am I covered!" the policies exclude claims resulting from the use of your car for business purpos diunderstanding, The organization es. Read the fine print! in bed on your negligence." The But what makes everyone shudder even more when thinking about driving students in personal vehicles is that we will not enjoy the additional protection anated from chims against you fi of professional liability insurance, hold harmless laws, or even governmental im- theend is unlikely to be correct. munity (if otherwise available). These additional layers of protection are extreme- trpinations will not indemnify ( ly valuable. Assume you pack a team of eight student athletes into the back of your van for a trip to a school across town. You are momentarily distracted, and asurance because it single the crash that follows results in fatalities and severe injuries among the surviving alsession with your organic The American Alliance for Health, Physical Education, Recreation and Dance makes pro- serisyed read it so that you wo fessional liability insurance available to members. Contact AAHPERD, now known as SHAPE America, at 1900 Association Drive, Reston, VA 22091, (703) 476-3400. evermet or what you binDefusing Negligence Liability 79 S OF nce members of your team. The potential judgment against you for a moment of driv- ing negligence would most likely exceed your personal policy limits. cant The admonition, "Never Never drive students in your car," is a good one, but you Pro- be need to understand why. First, driving with a carload of students can create dis- ion, tracting circumstances and increase the chance of an accident. Second, driving with a carload of students is often an ultra vires activity that removes important TOSS layers of protection from you if an accident occurs. Transporting students in a e of personal car also increases the likelihood that claims of sexual harassment might arise. A bit of practical advice: If e: If you ever find yourself with absolutely no way out red of transporting students in your perso our personal car, make sure that you are never alone ally in the car with a single student. Make your last drop off a two-person drop off. no- It is important to understand that those extra layers of protection are not al- for ways lost to you when you drive students. For example, if you are driving students ace in your car to a school-sanctioned activity and the appropriate supervisor at your school has officially sanctioned you to use your car to transport the students to the ary event, the protections that would emanate from the school for non-ultra vires ac- ga- tivities such as hold harmless laws continue to apply. The prudent driver, however, car would be certain to get the supervisor to put the sanction in writing. The list is not lity short of people who have had verbal sanction from a supervisor only to find after of an accident that the sanction "never occurred." Are you safe from liability if you use the Good advice: Never drive school vehicle instead of your own? Not al- students in your personal car. get to ways. It depends whether the specific use of the to vehicle is a sanctioned use or an ultra vires use. For example, if you used the school van to move furniture from your old apartment to your new apartment, the use of the van would be ultra vires and all liability would be yours to bear. Insurance: Employer's Liability Insurance. Organizational employers such as sports federations, clubs, and leagues often carry liability insurance. When a coach or employee asks, "Am I covered?" the affirmative answer may be grounded in a fatal misunderstanding. The organization is saying, "Yes, we are protected from claims based on your negligence." The coach or employee is hearing, "Yes, you are protected from claims against you for your negligence." The first is often correct; the second is unlikely to be correct. Most organizations will not indemnify (protect) their employees or volunteers through liability insurance because it simply costs too much. All the organization will do is protect itself from the negligence of an employee or volunteer. So if you have such a conversation with your organization, ask for a copy of the pertinent part of the policy, and read it so that you will know if what the organization thinks what it's saying is correct or what you think you are Are you covered or is your employer covered? hearing is correct.ONN entional rants . for the adult's rai 80 Legal Concepts in Sport: A Primer Hold Harmless Laws Most public school and public college and university employees are protected by hold harmless laws. Although there are jurisdictional differences, hold harm meone will prepar less laws generally provide that the city or state will defend teachers (and often others such as coaches and administrators) in any lawsuit filed against them relat. -any kind of act or ing to ordinary negligence that arose out of the performance of their duties. Un- jurisdictions will like professional liability insurance, the benefit of hold harmless laws is that they don't cost you anything (no premiums and any damages against you or attorneys fees are covered too). Like professional liability insurance, hold harmless laws mauve the remaining won't protect you against charges of gross negligence or intentional acts such as wow out the entire wan defamation and discrimination. Hold harmless laws only protect you from claims icant layer of proves of ordinary negligence incurred in the furtherance of your employer's interests or performance of your duties. wrenching language Hold harmless laws will not apply to you if you work for a parochial school de courts will not end or youth sports program. They won't apply to y u if you work for a charitable organization such as Girls Inc. or the Boy Scouts. They won't apply to you if you gauge destroys the are an "independent contractor" rather than an employee (see Chapter 10). But hold harmless laws are an extremely important layer of protection for teachers in atend to ordinary Semaselves fr public educational institutions. Check your state's laws concerning its version of hold harmless laws and see if they apply to you. a sense of lice Releases see talked about The term release is often erroneously interchanged with waiver, agreement to participate, and parental permission. A release is an agreement made after an injury has occurred. A release relieves great be used to the potential defendant from potential liability due to the injury. A release is a contract. The consideration for the contract is usually a sum of money paid to the injured party who, in return, gives a promise to forgo any attempt to sue. Because a release is a contract, can a minor be bound by a release? No. A minor can always void a contract, including a contract in the form of a release. Nor can a minor be bound by a parent's signature on a release for an injury to the minor child. The right to sue. parent can sign away any parental right to sue, but not the minor's independent Waivers wes ure of t A waiver is an agreement made before any injury occurs. On the other hand, a release applies only after an injury occurs. Waivers are exculpatory contracts whereby a participant agrees to forgo suing you in the future if they are injured in your program. Because waivers are contractu- al in nature, they typically carry absolutely no Waivers are contracts. binding legal weight when signed by a minor Minors may void contracts.Defusing Negligence Liability except in a very few unique and narrow circumstances that are outside the scope e protected hold harm- "our discussion). Remember, a minor can void contractual obligations at any me including after being injured. Waivers are often quite useful when working (and often with adult populations. A waiver is enforceable if them relat- it is clearly written, and duties. Un- that they it waives the right to sue for nothing more than ordinary negligence (i.e., not gross negligence or intentional torts), and attorneys nless laws sue), and it is signed by an adult for the adult's right to sue ( not for a child's right to ts such as it is executed by parties having equitable bargaining rights. om claims terests or Every now and then, someone will prepare a waiver and include language that is intended to bar suit for any kind of act or omission, including gross negligence al school and intentional acts. Some jurisdictions will simply sift out the useless, overreach- haritable ing language and enforce the remaining portion of the waiver. However, some u if you jurisdictions will throw out the entire waiver leaving the defendant who used the 10). But waiver missing a significant layer of protection. Therefore, it seems both silly and chers in unwise to include overreaching language in a vain attempt to protect yourself from rsion of everything when the courts will not enforce it and when, in some jurisdictions, the overreaching language destroys the entire waiver. Waivers are limited to ordinary negligence as a matter of public policy. To allow people to exculpate themselves from liability for grossly negligent or inten- rent to tional acts would create a sense of license in society that would not be in the best interests of the careful, fair behavior needed for the smooth functioning of society. Because waivers are talked about a lot, here is a to-the-point summary state- lieves e is a ment: Waivers cannot be used to remove liability for intentional acts or gross o the negligence. cause Waivers are contracts. ways Minors can make contracts but can also void contracts at will or be Minors can void contracts, therefore minors can void waivers. The . Parents cannot waive the rights of a minor. lent Therefore, waivers are of no significant use as a risk-shifting device when used for minor participants. ad, Indemnification cts Indemnification means that one person promises to pay the bills for someone in else. An indemnification agreement, like a waiver, is a contract and thus not useful for minor participants. In any case, the parent/child outcome makes no practical sense; the parent pays the school for what the school pays the child