Tort Law

sources or origins of duty as an element of negligence.

(1) from a relationship inherent in the situation, (2) from the voluntary assumption of a duty, and (3) from duties mandated by statutes.

Types of risks

(1) inherent risks, (2) ordinary negli- gence, and (3) aggravated negligence (extreme behavior that goes beyond ordinary negligence [e.g., gross neg- ligence, reckless misconduct, and willful and wanton misconduct]).

Elements of Negligence

1. Duty. 2. Breach of Duty. 3. Damage or Injury. 4. Proximate Cause.

4 elements of recreational user statute

: (1) private landowners; (2) no fee charged; (3) unimproved, undeveloped land for recreational use; and (4) owner fulfilled his or her obligation to provide a warning for any known, concealed danger that would not be apparent to the recreational user.

Physical Pain and Suffering

Determined by the credibility of witnesses, whether the plaintiff 's actions are consistent with one in pain, pre-existing injuries, whether the plaintiff can do what he or she could do in everyday life, the plaintiff 's pain tolerance, the plaintiff 's occupation, whether the plaintiff makes a sympathetic witness, and the skill of the attorney

two things regarding assumption of risk agreements.

First, the assumption of risk agreement applies to assumption of the inherent risks and offers no protection against liability for provider negligence. Second, assumption of risk agreements should include a representative (but not comprehensive) list of the inherent risks.

The first court to adopt reckless misconduct

Illinois Court of Appeals Nabozny v. Barnhill, 31 Ill.App. 3d 212, 334 N.E.2d 258 (Ill App. Ct 1975).

Nature of the Activity

It is important that the activity be described in some detail.

Legal Obligations of Sport and Recreation Facility Managers

Keep the Premises in Safe Repair Inspect the Premises to Discover Obvious and Hidden Hazards Remove the Hazards or Warn Others of Their Presence Anticipate Foreseeable Uses and Take Reasonable Precautions to Protect Conduct Operations on the Premises with Reasonable Care for the Safety of All

open and obvious dangers

No duty to warn since the danger was obvious

University Athletes.

The Townsend court concluded that whether on scholarship or not, the athlete is not an employee and the university is not vicariously liable for the athlete's negligent acts

Actual notice

The actual knowledge that a person has about the existence of a particular fact.

Proximate cause

The breach of duty must have been the proximate cause (reason) the injury occurred.

General rule of a Premise Liability

The general rule is that an owner or occupier of land has a duty to use reasonable care to keep the premises under his control in a safe condition and to use reasonable care to protect an invitee from reasonably foreseeable injuries

Three components of breach of duty

What are the types of risk? What is reasonable care? Was the risk foreseeable?

Nabozny v. Barnhill

Worried that applying the negligence standard of care to sports participants could chill vigorous and competitive participation, courts are reluctant to allow a cause of action for injuries received during the course of play. However, because, "some of the restraints of civilization must accompany every athlete onto the playing field," a participant in a competitive contact sport may recover damages from another participant only if that other participant intentionally or recklessly injures the first in a way not contemplated by the sport.

Charitable immunity

a doctrine that relieves or immu- nizes charitable organizations from liability for tort. The doctrine is based upon four premises: (1) public policy encourages charitable organizations since they benefit the public; (2) money possessed by such organizations was donated for other purposes and is held in trust; (3) since the recipient of the charity receives benefits, he or she, in turn, accepts the risks of negligence; and (4) there is no respondeat superior since the charity does not benefit from the actions of employees.

Attractive nuisance

a hazardous condition that can attract and injure children may also apply to adults if the injury or death was the result of an attempt to res- cue the child from danger on the land.

indemnification agreement

agreement by which one party agrees to indemnify, reimburse, or restore a loss of another upon the occurrence of an anticipated loss. can be very effective when one business indemnifies another business against loss;

Modified Comparative Fault - 50% Bar

allows proportional recovery if the fault of the plaintiff is between 0% and 49%. So plaintiff is barred from recovery if plaintiff and defendant fault are equal.

Modified Comparative Fault - 51% Bar

allows proportional recovery if the fault of the plaintiff is between 0% and 50%.

Negligence

an unintentional tort that causes injury to a person in the form of physical injury, property loss, or reputation.

Ultra Vires Acts.

beyond the scope of responsibility and authority of the employee are considered ultra vires acts and, generally, such an act relieves the corporate entity of liability via respondeat superior.

Reasonable Care

determined by the reasonable and prudent person concept

three categories of parties that may be liable in any given situation.

employee or service personnel administrative or supervisory personnel the corporate entity

Punitive or exemplary damages

entail an award beyond the compensatory damages, generally where the action involves violence, oppression, malice, fraud, or wanton conduct by the defendant. This award is intended (1) to punish the wrongdoer for outrageous conduct and (2) to deter such acts in the future.

Financial Sponsorship

exists when the sponsoring organization provides financial support, but exercises no control over the activity : (1) was the person in charge an agent of the organization?; (2) did the organization have control over the activity?; and (3) was a duty owed to the participant?

Reckless Misconduct

falls somewhere in between negligence and an intentional tort. occurs when an actor has intentionally performed an act in total disregard of the known risk, when the risk is so great as to make the harm highly probable. (Wong, 1994)

Admiralty law (also called maritime law)

federal law that applies to activities on any navigable waterway (e.g., lakes, rivers, canals, seashores, bays, and oceans).

corporate entity

includes the governing body of the organization.

recreational user statute

is a law designed to provide protection for the private property-owner against lawsuits by parties injured while on the landowner's property for recreational purposes. (1) are intended to encourage landown- ers to make their property available to the public for recreational use; (2) stipulate that no fee is charged for the use of the land; (3) declare that the owner owes no duty of care to keep the land safe for use for recreational purpose nor to warn of a dangerous condition; (4) state that the landowner extends no assurance that the land is safe for any purpose and does not confer on the user the legal status of invitee or licensee; and (5) say that the landowner does not assume responsibility for or incur liability for any injury, death, or loss to any person or property caused by an act or omission of the landowner.

What is forseeable?

is established by showing that a person of ordinary intelligence and circum-spection reasonably should have been able to predict the consequences of an action or a failure to act.

Emotional Distress

not always compensable in negligence cases. In states that allow awards for emotional distress, the distress generally is in the form of fright, anxiety, humiliation, and loss of being able to enjoy a normal life.

Modified comparative fault

on the theory that the plaintiff is not entitled to recovery if the plaintiff is substantially at fault.

joint and several liability doctrine

one defendant can be held liable for the total damages even though other defendants were also at fault . If more than one party is found liable, the court does not limit the injured party's recov- ery against each to a proportionate share of fault.

act of omission

something one should have done, but did not do

act of commission

something that one did, but should not have done

Limited Duty Rule

states which adhere to the legal principle that as long as the owner or operator of a stadium provides enough protected screening for reasonably expected demand by spectators then there is no liability for injury due to flying objects emanating from the field of play

common law

that body of principles and rules of action that derive their authority solely from the prior judgments and decrees of the courts.

Program sponsorship

when an organization or entity organizes an event or maintains control over an event.

Licensee

"one who has permission to enter or use another's premises, but only for one's own purposes and not for the occupier's benefit" to be warned or protected only from harms of which the possessor of the land is aware; there is no duty to inspect the land for hidden dangers.

Trespasser

"one who intentionally and without consent or privilege enters another's property" owed the least amount of protection, sometimes referred to as "zero duty." the landowner is only required to avoid willful and wanton mis- conduct (see Chapter 2.11 Negligence) and to refrain from making the premises more dangerous than the trespasser would ordinarily expect.

Sovereign immunity

"the immunity of the state and its agencies, departments, boards, institutions, et al."

Human resources law

(1) The employment process (including recruitment, selection, hiring, and firing of employees); (2) The workplace environment (including hostile work environment, sexual harassment, and employee protection laws; and (3) Employee behaviors (addressing employment process negligence, negligent supervision, negligent hire, and negligent retention)

Acts that are not encompassed by the statute, volunteer protection act

(1) crimes of violence or terrorism, (2) hate crimes, (3) sexual offense convictions, (4) violation of federal or state civil rights law, and (5) those committed while under the influence of drugs or alcohol.

inform participants of the risks

(1) oral instructions; (2) detailed risk information in documents such as applications, assump- tion of risk agreements, or liability waivers; and (3) detailed printed risk information in brochures, handouts, and signs.

three elements for a successful primary assumption of risk defense

(1) the risk must be inherent to the sport or activity; (2) the participant must voluntarily consent to be exposed to the risk; and (3) the participant must know, understand, and appreciate the inherent risks of the activity.

Good Samaritan statutes.

1) The most common designation is any person who comes to the aid of another in an emergency situation. 2)that the parties must act in good faith and without expectation of remuneration. 3) almost all of the statutes specify that the action must occur in an emergency situation away from a medical facility. 4) the statutes almost always stipulate that the care must be done at the scene of the accident. 5)virtually all of the statutes specify a standard of care required. that any person who, in good faith, gratuitously renders emergency care at the scene of an accident cannot be held liable for injury resulting from acts and omissions unless the conduct constitutes gross negligence or willful/wanton conduct.

Administrative duties

1. Employ competent personnel and discharge those unfit; 2. Provide proper supervision and to have a supervisory plan; 3. Direct the services or program in a proper manner; 4. Establish safety rules and regulations and to comply with policy and statutory requirements; 5. Remedy dangerous conditions and defective equipment or to warn users of dangers involved

Inherent Relationship

A duty arises when one has an inherent relationship with another party. Examples of such a relationship include that of a parent and child, coach and athlete, health club and patrons, school and students, scoutmaster and scouts, bus driver and passengers, and service provider and users of the service.

Duty of Care

A landowner "owes a duty of reasonable care to guard against any dangerous conditions on his or her property that the owner either knows about or should have discovered"

Possible Consequences of Injury

First, the participant should be made aware of the types of accidents that may occur in the specific sport involved. include some of the injuries that can occur in the sport.

Risks Arising from Ordinary Negligence.

Negligent acts fall below the required standard of care and con- stitute a breach of the duty to protect others from unreasonable risk of injury. "[A]lthough defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inher- ent in the sport itself, it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport"

Federal Tort Claims Act

The statute removed the power of the federal government to claim immunity from a lawsuit for damages due to negligent or intentional injury by a federal employee in the scope of his/her work for the government. it provides immunity for federal officials performing discretionary acts within the scope of their responsibilities.

Voluntary Assumption

There are occasions when one has no duty, but voluntarily assumes such a duty. When one voluntarily assumes a duty, a special relationship is established, bestowing an obligation to perform the act with the appropriate standard of care.

business invitees

Those people, such as customers or clients, who are invited onto business premises by the owner of those premises for business purposes.

Constructive Notice

arises in situations where the facility manager should have discovered the danger during the course of prudent facility management, including routine facility inspections. can be established under two alternative theories: (1) the dangerous condition existed for a sufficient amount of time so that it would have been discovered by the exercise of ordinary care, or (2) the dangerous condition was part of a pat- tern of conduct or a recurring incident"

informed consent agreement

formal contract used to protect the provider from liability for the informed treatment risks of a treatment or program to which the signer is subjected. (1) a person's inherent right to control what happens to his or her body and (2) the physician's fiduciary duty to the patient—to warn the patient of risks and make certain the patient knows enough to make an informed decision regarding his or her care.

Foreseeability

involves one's ability to predict what will occur as a result of his or her action (commission) or inaction (omission). Since no conduct can be considered to be unreasonable when there is no foreseeable risk, the scope of liability is governed by whether the risk of injury is foreseeable.

Secondary Assumption of Risk

involves the voluntary choice or conduct of the participant to encounter a known or obvious risk created by the negligent conduct of the service provider, or to fail to follow rules or heed warnings set down by the provider

Primary assumption of risk

legal theory by which a plaintiff may not recover for an injury received when the plaintiff voluntarily exposes himself or herself to a known and appreciated danger.

Respondeat Superior in Human Resources Law.

liable for the intentional torts and criminal acts of its employees. include workplace torts (i.e., the wrongdoing of those in positions of authority), sexual assaults, sexual harassment, and abuse by a party in a position of authority over children

Economic Loss

may include medical expenses, lost wages, rehabilitation expenses, custodial care, and much more. The court determines the economic loss based upon actual expenses and projected expenses by expert witnesses.

Waivers

may protect itself and its employees from liability by use of waivers of liability in which the participant or service user contractually releases the business from liability for negligence by the corporate entity or its employees

Ministerial acts

more likely to involve operational acts, obedience of orders, performance of a duty, implementation of decisions or policies, and lower echelon employees such as assistant coaches and instructors.

The reasonable and prudent person concept

one is required to act as a reasonable and prudent person would act under the circumstances). One should note, however, that when an individual is a professional in a field (e.g., sport management, coaching, recreation, athletic training), it is not enough to act as the imaginary reasonable and prudent "person;" but as a reasonable and prudent "professional" would act under the given circumstance

the assumption of risk agreement

pact by which the participant or client may be informed of the inherent risks of the activity and attests that participant or client assumes the inherent risks of the activity. The participant or client further confirms that he or she (1) has been informed of the nature of the activity and its inherent risks, (2) understands the activity in terms of its demands on the participant's own physical condition and skill level, and (3) appreciates the type of injuries that may occur and the consequences of such injuries. Finally, the participant or client should verify that his or her participation is voluntary and that he or she assumes the inherent risks of the activity.

Notice of claim

provide that the plaintiff must provide the defendant public entity with a notice of intent to file suit. This notice must be filed within a period of time (rang- ing from 90 days to 2 years, depending on the state) following the accident or the right to sue is lost.

indemnification

security against legal liability for one's actions.

Contract Law

that body of law that governs the rules regarding binding agreements between parties.

Statutory Law

that body of law that is created by acts of a legislative body.

Proximate Cause

the injured party must show that the breach of duty was the cause-in- fact of the injury When a negligent act is followed by a second unforeseeable and independent negligent act by another party, the second negligent act can be deemed the proximate cause

Damage

"injury, loss, or deterioration caused by the negligence, design, or accident of one person to another in respect to the latter's person or property" (Black, 1996, p. 389). Although the damage that is compensable varies from state to state, it commonly includes (1) economic losses, (2) physical pain and suf- fering, (3) emotional distress, and (4) physical impairment

Invitee

"is a person who has an express or implied invitation to enter or use another's premise," such as a customer to a store (Black's Law Dictionary, 2014, p. 955). Invitees are owed the greatest level of protection. The landowner is required to maintain his or her premises in a reasonably safe condition under the circumstances. The duty owed to an invitee also extends to warning about known dangers, inspecting the land for hidden dangers, and not exposing the invitee to an unreasonable risk.

Governmental immunity,

"is the protection afforded local governing entities, such as municipalities (cities, towns, villages) and schools." There are two major limitations to sovereign/governmental immunity. First, it applies only to governmental entities and second, it does not extend to the officers, agents, or employees of the governing entity (except when the statute specifically provides for it). This doctrine of sovereign/governmental immunity was the command- ing approach to immunity until the 1950s. However, during the last half of the twentieth century most states abolished or significantly weakened and restricted this immunity so that it no longer has the dominant impact that it once did.

Skating Statutes

(1) duties of the operator—usually including posting of notices regarding duties of skaters and inherent risks of skating; (2) duties of the skater—usually including skating within the range of one's ability, maintaining control of the skater's speed and course at all times, and heeding safety warnings; (3) some of the inherent dangers of skating; and (4) a declaration that the skater assumes the inherent risks and a statement that a skater or operator who violates duties set forth is liable to an injured person in a civil action.

statutory assumption of risk statutes

(1) equine liability statutes; (2) ski- ing statutes; (3) skating statutes [i.e., roller skating, ice skating, skateboarding, in-line skating, skate parks]; (4) statutes pertaining to other activities; (5) general recreation and sport statutes; and (6) hazardous recre- ational activity statutes.

Waivers are often considered to be against public policy and unenforceable:

(1) when an activity involves an essential service or public interest; (2) when the waiver conflicts with a statutory duty; (3) when the waiver is ambiguous and not understood by the signer; (4) when the contract is between parties with unequal bar- gaining power (e.g., employer/employee); and (5) when the waiver is too broad in scope (e.g., includes gross negligence, reckless conduct).

Intentional Torts or Willful Acts by an Employee.

(1) within the scope of employment (required by or was incidental to employment) or (2) reasonably foreseeable by the employer. If either prong of the test is met, the employer can be held liable even if the employee's act was willful or malicious

Board Members.

. Board members are not individually liable for the actions of the board or for the negligence of employees of the organization. Board members are, however, individually liable for (1) collective acts of the board or individual acts that are outside the scope of authority; (2) breaches of statutory duty or violation of participant/employee Constitutional rights; and (3) intentional torts (e.g., assault and battery, slander, libel)

Volunteers, Trainees, and Interns.

. If they were under the control of the corporate entity and were acting within the scope of "employment," authority, and responsibility, the corporate entity is liable under the doctrine of respondeat superior. if they qualify under the federal Volunteer Protection Act of 1997 or a state volun- teer immunity statute (see Chapter 2.21 Defenses against Negligence and Chapter 2.22 Immunity). In those instances, the corporate entity is usually still liable for the negligence of the volunteer Held to same standard as a professional

Importance of Distinguishing among the Degrees of Negligence.

1) the immunity provided by legislation 2) while liability waivers protect providers from liability for ordinary negligence in most states, they protect against liability resulting from gross negligence or reckless misconduct in only four and two states, respectively. 3) although the law regarding exemplary or punitive damages varies by state, generally such damages are not awarded for injury unless gross negligence, reckless conduct, or willful and wanton actions are involved. 4) the general rule in most jurisdictions is that a participant is not liable for injuries to a co-participant that result from ordinary negligence. 5) the degree of negligence can affect the liability of the service provider for the actions of its employees.

Recreation and Sport Volunteer Immunity Statutes

1. The volunteer must be unpaid. Some statutes specify that officials (e.g., referees, umpires) may receive a small stipend and retain their immunity. 2. The volunteer must act in good faith. 3. The volunteer must act within the scope of his or her duties. 4. Protected parties are usually specified and may include any or all of athletic coach, assistant coach, manager, assistant manager, instructor, official, referee, umpire, leader, league official, athletic trainer, and physician or other healthcare provider. The law in Arkansas, Kansas, and Mississippi restricts eligi- bility for immunity to sports officials who officiate at any level of competition. 5. Additionally, most statutes define the type organization (e.g., nonprofit, charitable, educational) whose volunteers qualify. 6. Some states stipulate that protected parties must undergo an approved training program, usually relat- ing to safety or first aid. 7. Some states specify that immunity does not protect when activities are unsupervised. 8. Most, but not all, exclude public and private school coaches from immunity. 9. It is the nature of the act that is protected. Most include immunity for ordinary negligence, but several include gross negligence, excluding only wanton and willful acts or intentional acts. Pennsylvania and New Mexico statutes specify immunity unless the conduct is substantially below the generally accepted level. 10. Almost all exclude negligence in the operation of a motor vehicle from immunity.

public invitee

A person invited to enter onto premises as a member of the general public for a purpose for which the land is open to the public. owed the same legal obligations by the premise owner as a business invitee

Recreational User

An (injured) individual who is on the property of another specifically for recreational purposes. The user must not have paid or been charged a fee for entering the property, and must be directly involved in a recreational activity at the time of the injury. Generally, the property owner must refrain from any intentional conduct that would injure a user.

the content of the informed consent for the recreation, sport, and fitness setting

Be in writing on a preprinted form; • Be written in plain, understandable language; • State the purpose of the exercise program, test, or prescribed action; • Include a general description of the exercise program, test, or prescribed action; • List any likely discomforts that might be associated with the program, test, or activity; • List the potential risks and potential benefits of the exercise program, test, or activity; • Be worded to allow all staff members to have physical contact or interact with the participant; • Have participant acknowledge voluntary participation; • Have participant acknowledge that consent was not signed under duress; • Have participant acknowledge an opportunity to ask questions and have them answered to his or her satisfaction; • Have participant acknowledge that the participant read and understood the informed consent document. • The consent form should be signed by the participant and professional, and dated. • A copy of the consent should be provided to the participant. • The signed and dated consent should be placed in the participant's file. If the participant is a minor: • It is imperative that one or both parents sign the agreement; • The provider should use an informed consent form written specifically for parents of minors; • The consent should contain language directed to the parent by which the parent gives permission for the activity, acknowledges an understanding of the risks, and signs the agreement.

Shared Responsibility and Statutory Assumption of Risk Statutes

Legislation has been enacted in most states to help protect selected recreation and sport providers from liability for injuries resulting from the inherent risks of particular activities, or in many cases, from certain types of ordinary negligence by the provider.

parental waiver

Since waivers signed solely by the minor are ineffective, providers have relied heavily upon the strategy of requiring that the parent or legal guardian sign the waiver on behalf of the minor client (thereby releasing the provider of liability for negligence).

Statutes

Statutes or laws often specify duties of one party to another. If the state legislature passes a stat- ute requiring that an ambulance and a physician are present at every high school football game, an athletic director failing to provide both might be found to have breached his statutory duty.

Independent Contractors

The general rule is that if an injury results from the negligence of the independent contractor, the liability for negligence is shifted from the corporate entity to the independent contractor corporate entity is still responsible (1) for using reasonable care in selecting a competent independent contractor and for inspection after completion; (2) for keeping the premises reasonably safe for invitees and employees; and (3) for "inherently dangerous activities" one who is generally engaged for a specific project, usually for a set sum, often paid at the end of the project, may do the job in one's own way, often furnishes one's own equipment, is subject to minimal restrictions, and is responsible only for the satisfactory completion of the job

intervening act

The intervening act must be independent of the original act, must be capable in itself of creating the injury, and must not have been foreseeable by the party committing the first act

Behavioral Expectations of the Participant

The major purpose of this section is to transfer some of the responsibility for the participant's safety from the recreation or sport business to the participant.

Damage or injury

The participant must suffer physical damage to person or property, or emotional damage.

Breech of Duty

The service provider must breach its duty to protect the participant from unreasonable risk of harm.

Duty

The service provider must owe a duty (created by a special relationship between the service provider and the participant) to protect the participant from unreasonable risk of harm.

administrative or supervisory personnel

These are generally individuals who have some sort of administrative or supervisory authority over the service personnel When there is no immunity, the general rule is that administrative/supervisory personnel are individually liable for their own negligent conduct, but are not liable for the negligence of subordinates. The administrator/supervisor is liable, however, if the administrator owes a duty and acts (or omissions) of the administrator enhanced the likelihood of injury can be liable for human resources law violations

employee or service personnel

This is usually the person who committed the negligent act. This category includes persons who generally have actual contact with the participants If the employee has a duty, breaches that duty by failing to meet the required standard of care, and that breach is the proximate cause of injury to the plaintiff, the employee is negligent and may be legally liable.

effectiveness of a waiver

Thus, in at least 47 of the 54 jurisdictions (the 50 states, admiralty law, Puerto Rico, the Virgin Islands, and Wash- ington D.C.) a well-written, properly administered waiver, voluntarily signed by an adult, has a reasonable chance of protecting the recreation or sport business from liability for ordinary negligence by the business or its employees

Model State Act

called for immunity from civil liability for any act or omission of the volunteer that resulted in danger or injury if the volunteer was acting in good faith and within the scope of duty for a nonprofit organization or governmental entity—so long as the injury was not caused by wanton and willful misconduct and did not involve the operation of a motor vehicle.

Physical Impairments

constitute dam- age and may be considered in lieu of emotional distress. The award may be given for temporary and permanent impairments as well as for partial or total impairments

Compensatory damages

denote a monetary award intended to compensate the injured party for injury or loss caused by the wrong. The award is intended to restore the injured party to his or her position prior to the injury.

Comparative Fault

method for apportioning damages awarded based on the fault or blame or the relative degree of responsibility for the injury.

Volunteer Protection Act

preempts state laws The volunteer was acting within the scope of the volunteer's responsibilities in the nonprofit organization or governmental entity at the time of the act or omission; • If appropriate or required, the volunteer was properly licensed, certified or authorized by the appropriate authorities for the activities or practice in the state; • The harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the volunteer; • The harm was not caused by the volunteer operating a motor vehicle . . . for which the State requires . . . an operator's license; or . . . insurance.

Risks Arising from Aggravated Negligence.

that the standard of care required for reasonable conduct must vary with the apparent risk faced in the activity—accordingly, as the danger increases, the caution or care required of the provider increases commensurately. these departures are most commonly identified as ordinary negligence, gross negligence, reckless misconduct, and willful and wanton misconduct. In fact, there appears to be an unofficial hierarchy from gross negligence to reckless misconduct to willful and wanton misconduct.

Pure comparative fault

the award to the plaintiff is reduced by the percentage of fault assigned to the plaintiff. For example, suppose the award is $100,000 and the fault is apportioned 75 percent to the plaintiff and 25 percent to the defendant. Since the plaintiff is 75 percent to blame, the plaintiff 's award would be reduced by 75 percent and the plaintiff would receive $25,000.

Damages

the monetary compensation sought or awarded as a remedy for a tortious act.

Doctrine of Respondeat Superior or vicarious liability

the negligence of an employee is imputed to the corporate entity if the employee was acting within the scope of the employee's responsibility and authority and if the act was not grossly negligent, willful/wanton, and did not involve malfeasance (van der Smissen, 1990). So, according to this doctrine, if an employee commits ordinary negligence while engaged in the furtherance of the employer's enterprise, the employer as well as the employee can be liable.

Contributory fault law

the participant may not recover for damages suffered if there is any contributing fault by the participant — regardless of the extent of fault or negligence attributable to the provider.

three types of situations of secondary assumption of risk

the participant voluntarily participates when there is a substantial risk that the defendant will act in a negligent manner the second is when the service provider has already been negligent and the participant takes part anyway the third is when the participant fails to follow rules or heed warnings

to prove negligence

the plaintiff must show that all four of the elements are present.

Immunity

the state of being exempt from or protected against civil liability under certain circumstances.

Facility Leases

the university would not be liable for activity-related injuries, but might be liable if the injury resulted from an unsafe facility.

Inherent risks

those risks that are integral to the activity; risks that if removed would essentially alter the nature of the sport or activity

Discretionary acts

those that involve deliberation, planning, decision making, policy making, and most often involve managerial level personnel such as the athletic director or head of the recreation department.

What the State Tort Law Acts did

what these acts did was (1) to rescind sovereign/governmental immunity at the state level in those states and (2) to enumerate those areas or acts for which immunity was retained.

employment process negligence

when the employer in the employment process negligently allows the assignment of an unfit employee or fails to use reasonable care to discover the unfitness of an employee

Distraction exception

where the person would be distracted from noticing the "open and obvious" danger and, because of the distraction, fail to take reasonable precautions to avoid the risk of danger.

Discretionary/Ministerial Function

which grants immunity for discretionary acts, but, for the most part, not for ministerial acts.

Restatement (2nd) of Torts

§ 500 - The actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize not only that the conduct creates an unreasonable risk of physical harm to another, but also such risk is greater than that which is necessary to make his conduct negligent.