Wk3 1 operation4

CLASS OVERVIEWCLASS OVERVIEW

I.I. REVIEWREVIEW

II.II. OPERATION IVOPERATION IV SPECTATOR INJURIES (MORE)SPECTATOR INJURIES (MORE) WAIVERS & AGREEMENTS TO WAIVERS & AGREEMENTS TO

PARTICIPATEPARTICIPATE

III.III. WRAP-UPWRAP-UP

REVIEWREVIEW

SPECTATOR INJURYSPECTATOR INJURY

Spectator: People coming to sport venues who have Spectator: People coming to sport venues who have paid for the eventpaid for the event

Governing law: Negligence (= participant)Governing law: Negligence (= participant)

Primary defense: Assumption of risk (limits, though)Primary defense: Assumption of risk (limits, though)

SPECTATOR INJURIESSPECTATOR INJURIES

DUTY OWED TO SPECTATORS: IN GENERALDUTY OWED TO SPECTATORS: IN GENERAL

Invitee: Sport organization owes a duty of a Invitee: Sport organization owes a duty of a reasonable inspection & precautionreasonable inspection & precaution

All known danger & All known danger & The source of risk that would have been discovered by The source of risk that would have been discovered by

reasonable inspection reasonable inspection


ASSUMPTION OF RISK & SPECTATORSASSUMPTION OF RISK & SPECTATORS

The most popular affirmative defense The most popular affirmative defense

Sutton v. ENYYA Sutton v. ENYYA Fact: A player’s dad injured when hit by soccer ball Fact: A player’s dad injured when hit by soccer ball

behind the goal line behind the goal line Rule: Assumption of risk applies not only to Rule: Assumption of risk applies not only to

participants but also to spectatorsparticipants but also to spectators


PROJECTILES (FOUL BALLS)PROJECTILES (FOUL BALLS)

General rule: “Limited duty rule”General rule: “Limited duty rule”

Benejam v. Detroit Tigers, Inc.Benejam v. Detroit Tigers, Inc. Fact: A plaintiff injured from a broken bat that curved around Fact: A plaintiff injured from a broken bat that curved around

the safety netthe safety net Rule: Ball club is not liable if some safety measure was thereRule: Ball club is not liable if some safety measure was there

– Same policy ground as assumption of risk doctrineSame policy ground as assumption of risk doctrine

– Imposes a limited duty upon facility ownersImposes a limited duty upon facility owners


PROTECTION FROM 3PROTECTION FROM 3RDRD PARTY: PRIOR PARTY: PRIOR SIMILAR INCIDENTS RULESIMILAR INCIDENTS RULE

Prior incidents have been so similar (jury decides)Prior incidents have been so similar (jury decides)

Talasazan v. NASL: The history of violence in the Talasazan v. NASL: The history of violence in the past after soccer games (3/5) past after soccer games (3/5) facility owner should facility owner should have provided securities have provided securities


PROTECTION FROM 3PROTECTION FROM 3RDRD PARTY TORT PARTY TORT

Bearman v. Notre Dame Bearman v. Notre Dame Fact: P injured at a parking lot from a drunk patron (3Fact: P injured at a parking lot from a drunk patron (3rdrd party) party) Rule: Sport venue must protect a spectator from not only Rule: Sport venue must protect a spectator from not only

known but also foreseeable dangerknown but also foreseeable danger

– Responsible for actual + constructive knowledgeResponsible for actual + constructive knowledge

– ““You should have known” (constructive knowledge) You should have known” (constructive knowledge) D D had to exercise reasonable precautionshad to exercise reasonable precautions

– Here school knew about the tailgating (drunk spectators)Here school knew about the tailgating (drunk spectators)


DRAM SHOP STATUTE: A COMMERCIAL DRAM SHOP STATUTE: A COMMERCIAL ENTITY SERVING ALCOHOL IS LIABLE IF ENTITY SERVING ALCOHOL IS LIABLE IF

Serving alcohol to a minorServing alcohol to a minor

Serving to a visibly intoxicated person + injury to 3rdServing to a visibly intoxicated person + injury to 3rd

The law can be justified in terms of causation The law can be justified in terms of causation ““But for” drinks, no accidentBut for” drinks, no accident Proximate cause: Foreseeable riskProximate cause: Foreseeable risk

WAIVERS & WAIVERS & EXCULPATORY CLAUSESEXCULPATORY CLAUSES

WHAT IS EXCULPATORY CLAUSE?WHAT IS EXCULPATORY CLAUSE? Definition:Definition:

““A contractual provision relieving a party from A contractual provision relieving a party from liability” (very serious in this legal system)liability” (very serious in this legal system)

Also known as: a release; waiverAlso known as: a release; waiver

If it is legally effective (= court upheld the waiver) If it is legally effective (= court upheld the waiver) The injured party’s claim against the sport The injured party’s claim against the sport

organization is dismissed organization is dismissed ““You promised not to sue when you signed itYou promised not to sue when you signed it””


CAN PARENT WAIVE KID’S RIGHT TO SUE?CAN PARENT WAIVE KID’S RIGHT TO SUE?

Cooper v. Aspen Skiing Company Cooper v. Aspen Skiing Company Fact: Minor seriously injured after mom signed release Fact: Minor seriously injured after mom signed release Rule: A parent cannot waive children’s right to sue Rule: A parent cannot waive children’s right to sue Rationale:Rationale:

- Public policy protects minorPublic policy protects minor

- Parental rights do not extend to this crucial oneParental rights do not extend to this crucial one

Colorado legislature later overruled the court decisionColorado legislature later overruled the court decision


CAN PARENT WAIVE KID’S RIGHT TO SUE?CAN PARENT WAIVE KID’S RIGHT TO SUE?

Sharon v. City of Newton Sharon v. City of Newton Fact: Minor injured (cheerleading) after dad signed releaseFact: Minor injured (cheerleading) after dad signed release Rule: A parent can waive his kid’s right to sue Rule: A parent can waive his kid’s right to sue Rationale: Rationale:

- Making decisions for kid is a fundamental right for parents- Making decisions for kid is a fundamental right for parents

- Court worried about deterrence effect on extracurricular - Court worried about deterrence effect on extracurricular programs programs


PUBLIC POLICY DISFAVORS WAIVERPUBLIC POLICY DISFAVORS WAIVER

Freedom of contract v. public interests Freedom of contract v. public interests If service is essential If service is essential generally not effective generally not effective Unfair dominance Unfair dominance generally not effective generally not effective

No release: VA, MT, LA, & federal landNo release: VA, MT, LA, & federal land

All state courts are against use of waiverAll state courts are against use of waiver


LANGUAGE MUST BE CONSPICUOUSLANGUAGE MUST BE CONSPICUOUS

Larger typeface Larger typeface

Bold lettersBold letters

Location of easy attentionLocation of easy attention

AGREEMENTS TO AGREEMENTS TO PARTICIPATEPARTICIPATE

CHARACTERISTICSCHARACTERISTICS Signed before activitiesSigned before activities

Legal devise different from waiver (only explains risk)Legal devise different from waiver (only explains risk)

Language must clearly explains Language must clearly explains The nature of activityThe nature of activity

What you expect from participants (e.g., skill level, What you expect from participants (e.g., skill level, physical condition, must instruction, etc.)physical condition, must instruction, etc.)

Example: Sample_Waiver_1Example: Sample_Waiver_1

AGREEMENTS TO AGREEMENTS TO PARTICIPATEPARTICIPATE

USE OF AGREEMENTS TO PARTICIPATEUSE OF AGREEMENTS TO PARTICIPATE Preempts action for failure to warnPreempts action for failure to warn

Strengthen your defenses Strengthen your defenses Assumption of risk (“You knew it was dangerous”)Assumption of risk (“You knew it was dangerous”) Contributory or comparative negligence Contributory or comparative negligence

Used in conjunction with exculpatory clausesUsed in conjunction with exculpatory clauses

WRAP-UPWRAP-UP


DefensesDefenses Assumption of riskAssumption of risk Limited duty ruleLimited duty rule Previous events were different from the present case (If Previous events were different from the present case (If

injury from 3injury from 3rdrd party) party)

WRAP-UPWRAP-UP

EXCULPATORY CLAUSES EXCULPATORY CLAUSES A.K.A., waiver, releaseA.K.A., waiver, release

Policy issues (few bright-line rules)Policy issues (few bright-line rules) Protection of CsProtection of Cs Essential services to public Essential services to public Unfair dominanceUnfair dominance No more than negligenceNo more than negligence Cannot override statutory standard of careCannot override statutory standard of care

Language of release must be explicit & conspicuousLanguage of release must be explicit & conspicuous

WRAP-UPWRAP-UP

AGREEMENTS TO PARTICIPATEAGREEMENTS TO PARTICIPATE

Different legal ground to avoid liability Different legal ground to avoid liability

Clearly explains risk involvedClearly explains risk involved

Waiver v. agreements to participateWaiver v. agreements to participate Waiver: If effective, injured party cannot bring an actionWaiver: If effective, injured party cannot bring an action Agreements to participate: Injured party still can bring an Agreements to participate: Injured party still can bring an

action but your organization has enhanced defense because action but your organization has enhanced defense because it explained everything (e.g., assumption of risk) it explained everything (e.g., assumption of risk)

Wk3 1 operation4

Education

Transcript of Wk3 1 operation4