Safe participation:Reducing the risks

Chapter objectives: that students will be able

• 1.To define various legal terms.• 2.To know how to maintain a safe facility.• 3.To describe the key criteria for making

good waiver forms.• 4.To reduce injuries by having policies on

alcohol, violence, safe attire, lightning, administration, injuries and blood.

• 5.To understand potential legal consequences of perceived negligence.

Defining Terms

• Negligence--The doing of something which a reasonably prudent person would not do or the failure to do something which a reasonably prudent person would do, under circumstances similar to those shown by the evidence. It is the failure to use ordinary or reasonable care. This is the most common violation brought against intramural professionals.

• Age of negligence--incapable of negligence between the ages of birth to seven years of age, unlikely contributors to negligent acts for the ages seven to fourteen, capable of negligent acts for the ages of fourteen and older.

• Liability–the state of being bound or obliged in law or justice to do, pay or make something good.

• Tort liability--A "tort" is an injury to another person or to property, which is compensable under the law. Categories of torts include negligence, gross negligence, and intentional wrongdoing. To give rise to a legal claim in tort, an act (or inaction) must satisfy four elements: – 1.There must be a legal duty of care to another person; – 2.There must be a breach of that duty; – 3.The claimant must have suffered damages, and – 4.The damages must have been proximately caused by the

breach of duty.

• Supervision–"involves at least some keeping of order, some stopping of fights, some general protection of the children against dangers that are known or that are to be apprehended." Carriere et al. V. Board of Gravelbourg School District No. 2244 (1977) 79 D.L.R. (3d) 668 (Saskatchewan, Canada).

• Standard of care--The standard that a reasonably prudent individual would be expected to follow under the same or similar circumstances.

• Risk management–limiting exposure to danger, harm or hazards.

• Assumption of risk–the participant voluntarily assumes responsibility for any risks involved in the activity. This is often used to defend an intramural staff person.

• Consent forms--A consent slip is an authorization, usually signed by a parent or guardian, permitting a child to take part in some activity.

• Waiver--An agreement whereby one party waives a particular right.

• Plaintiff–One who was injured, files a claim in court, alleging that someone has violated a specific right.

• Professionals–held to a standard of care that is determined by the profession itself or other professionals in similar circumstances.

• Defendant–One who is being sued and must defend against the plaintiff's claims.

• Appellant–One who loses in court proceedings and appeals the court's decision to a higher court.

• Appellee–One who wins in court proceedings and against whom the appellant appeals..

• Summary judgement–a case in which there is no dispute about the facts of the case but the case can be determined by a judge applying the law.

• Settlement–when parties reach an agreement before going to trial.

• Damages:– Actual damages–cost directly related to the injury (medical, lost

wages . . . .).– Speculative damages–cost of potential income (wages. . . .).– Punitive damages–cost to punish a defendant into decreasing

the likelihood that this type of violation will not be repeated.

• Defamation–spoken words (slander) or written words (libel) that are false and hold the subject of the statement up to public ridicule.

Providing a Safe Facility

• Protruding objects.

• Safety checklist--maintenance schedule.

• How about your facility?

• What physical precautions have been made to make the facility a safe one?

• What aspects of the building are potentially dangerous?

Waivers

• Title:– Use a descriptive title such as "Waiver and Release of Liability."– Make it conspicuous (larger type, bold, upper case, color,

underline....)

• Refer to waiver adjacent to each signature blank.• Legality–important phrases:

– In consideration of my participation, I agree to release....– Duration of waiver–"now and forever" or "throughout the

season."– I hereby release... from any and all present and future claims

resulting from ordinary negligence on the part of...

• Writing must be clear and understandable.• Be certain to specify which parties are

relinquishing rights and which parties are protected by the waiver.

• Notify the signer of inherent risks.• Have the signer acknowledge the fact that the

signer knows of, understands and appreciates the risks that are inherent to the activity.

• Clearly describe the nature of the activity and clearly inform the signer of the inherent risks involved in the activity.

• Have the signer affirm voluntary participation and the assumption of the inherent risks of the activity. www.urmia.org/cotten2.htm

• Additional points:• Parent signed waivers do not relieve anyone of

legal liability.• Parents may limit or disallow participation.• Attorney examine waiver form.• Samples:

– http://www.ferris.edu/htmls/studentlife/u- rec/imteamrost.htm

– campusrec.arizona.edu/programs/intramurals/handbook.html#assumption

Other ways or reducing injuries

• Alcohol

• Violence

• Safe attire

• Lightning

• Properly administered competition:

• Balanced teams.

• Avoid body checking.

• Medical clearance.• Emergency procedures and drill:

– Preparations:• CPR and first aid trained staff• Communication from the emergency site• Accessibility of emergency equipment• Posted and accessible evacuation plan

– When it happens:• Who takes control• Who calls for help

– After an accident• Reports• Who reports to whom• Future

Blood Policy• 1. All wounds must be covered.• 2. Necessary equipment and/or supplies important for compliance with

universal precautions should be available to caregivers.• 3. An athlete who is bleeding must have the bleeding stopped and covered

(see basketball rule below).• 4. All involved in the contest have a responsibility to report bleeding

(officials, captains, players, spectators).• 5. Personnel handling acute blood exposure must take universal

precautions such as wearing latex gloves.• 6. Any surface area with blood needs to be thoroughly cleaned with an

appropriate decontaminate.• 7. Sharp instruments such as scalpels need to be properly disposed of.• 8. Any clothing that has blood on it needs to be handled and laundered to

avoid secondary contamination.• 9. All intramural personal should be trained in basic first aid and infection

control. (NCAA 2000a)

• Harassment-- consists of one or a series of bothersome comments or conduct related to one or more of the prohibited grounds that is known or might reasonably be known to be unwelcome/unwanted, offensive, intimidating, hostile or inappropriate.

• Prohibited grounds as stated in the Ontario Human Rights Code: race, ancestry, place of origin, color, ethnic origin (including language, dialect or accent), citizenship, creed, sex, sexual orientation, disability, age (18-65), marital status, family status, the receipt of public assistance, record of provincial offenses or pardoned federal offenses.

• Examples of harassment include but are not limited to:– Gestures– Remarks– Jokes– Taunting/teasing– Innuendo– Display of offensive materials/pornography– Offensive graffiti– Threats– Verbal or physical assault– Unfair imposition of academic penalties– Stalking– Shunning or exclusion– Unwelcome/unwarranted attention or comments

• Protection– Policy promoted

• Employees sign agreement to policy• Complaint procedure• Discuss with harassment advisor• With witness go to respondent• Intervention• Request mediation• Make a formal complaint• Seek legal counsel

Going To Court

• What was the nature of the litigation?

• What was the outcome?

• What were the grounds for the litigation?

• What general lessons can be learned from this court case.

• Williams v. Eady–1893. Precedent setting case defining the teacher's responsibility to act as a prudent parent.

• Butterworth et al. V. The Collegiate institute Board of Ottawa, 1940. Involves a gymnastic injury.

• LaMarch et al. V. Board of Trustees... L'Original–1956. Involves an injury due to an unsafe swing.

• McKay et al. V. Board of Govan School Unit–1968. Involves a gymnastic injury.

• Moddejonge et al. V. Huron County Board of Education–1972. Involves a drowning on a trip to a lake.

• Thornton et al. V. Board of School Trustees of School District No. 57–1975

• Pizel v. Board of Education for Etobicoke–1977. An injury due to inadequate wrestling mats.

• Myers et al. V. Peel County Board–1981. An injury resulting from falling from a gym balcony while retrieving a ball.

What Would You do as a Parent

• Example one: A grade nine student was killed when a heavy wooden-framed handball net tipped and struck him on the head. These particular nets required four to six people to carry them. They had fallen before and the gym teachers warned students not to play around them because they will fall. This particular student had reportedly been swinging on the net's crossbar.

• Example two: A van carrying six high school students was being driven by a high school teacher on their way to a tournament at a neighbouring town. While travelling down a two lane highway, the van crossed the centre line and smashed head first into a transport truck. All the people travelling in the van were killed instantly.

• Example three: A van carrying a kindergarten class to an outing at a local park lost control. All seat belts were used but there were more children than seat belts and the law permitted extra people not to wear seat belts. As the van rolled, all those not wearing seat belts were killed.

• Example four: An intramural college soccer game was scheduled. A student official surveys the field and spots a few pot holes in the playing area. Before the game begins the official informs the players of the potential danger when playing in that part of the field. The game begins and as two players rush for a ball in the "dangerous zone," one of them steps into a pot hole and breaks a leg. If the injured athlete sued for damages, who might they sue? Would they win?

• Example five: A high school hosts an intramural track and field meet using traditional events. One of the events is the javelin throw. A clearly marked area in the infield is identified as the target zone. Just to the side of this zone is a long jump event. A student, whose turn it is to throw the javelin, is given the okay by a supervising teacher to throw. The student throws the javelin but it rolls of his hand and is headed out-of- bounds. It strikes one of the long-jump observers (volunteer helping with the long-jump measurements) in the back of the leg (fortunately it was not in the back, abdomen, or head). The student is taken to an emergency clinic to receive stitches to help the wound heal. The student experiences a lot of pain for the next several weeks and cannot do their part-time job until ten days after the injury.

The Challenge

• The fear of being sued can paralyze creative intramural programming. It need not. The reality is that millions of people participate safely in educational institutions around the world. The challenge for intramural directors is to continue to provide fresh and interesting programs that are as safe as possible for the participants. Minimizing the risks makes intramurals a more comfortable and inviting place to be.

Further Reading

• For further discussion on waivers see: Doyice Cotton & Mary B. Cotton. 1997. Legal Aspects of Waivers in Sports, Recreation & Fitness Activities. PRC Publishing, Inc., 4418 Belden Village St., NW, Canton, OH 44718-2516. 1996. Waivers & Releases for the Health & Fitness Club Industry Sports Risk Consulting. 403 Branner Drive, Statesboro, GA 30458.

• For risk management read W. Cooper. 1997. Will the defendant please rise: How effective is your risk management plan? NIRSA Journal. Winter: 34-41.

• For current cases involving sport subscribe to "From the Gym to the Jury." The Center for Sports Law & Risk Management, Inc. 6917 Wilglen Drive, Dallas, Texas 75230. (214) 987-1766.

• A helpful organization is the Society for the Study of Legal Aspects of Sport and Physical Activity (SSLASPA). Most helpful is their periodical, the Journal of Legal Aspects of Sport (JLAS) is a peer-reviewed and copyrighted professional journal intended to meet the needs of sport law educators and to serve as a forum for legal issues related to clubs, fitness, health & wellness, physical activity, recreation, and sport. SSLASPA also produces a quarterly newsletter, provides a resource list, and hosts an annual conference. Membership information is available by writing to:

– Thomas H. Sawyer,– Executive Director SSLASPA– 5840 South Ernest Dr. – Terre Haute, IN 47802 – Phone: 812-237-2186 – Fax: 812-237-4338 – pmsawyr@scifac.indstate.edu

• To find additional court cases surf the links located at:– www.ithaca.edu/sslaspa/links.htm

• 8.Develop policies for safety: – Include such areas as:

• Attire• Mixed competitive levels• Injury procedures (see figure 5.1)• Lightning policy• Blood policy• Fair Play• Inclusion (see figure 7.4)• Violence• Suspensions (form)• Alcohol• Facility vandalism• Facility audits

– Develop waiver forms and describe how/when they will be used in your program (see figures 7.1, 7.2, 7.3)