Chapter 2 Unintentional Torts

Nominal Damages

Very small & are awarded when the law recognizes a technical invasion of the plaintiff's rights, but no economic harm has been done to the plaintiff.

Kleinknecht v. Gettysburg College 1993

1. According to the court in Kleinknecht the college owed a duty to the student-athlete to provide sufficiently proactive emergency medical measures. 2. The court in Kleinknecht stressed that the plaintiff student-athlete was different from the normal student population. 3. A distinction between a student injured while participating as an intercollegiate athlete in a sport for which he was recruited & a student injured at a college while pursuing his private interests. 4. The court found that the defendant college breached its duty of care by failing to have any medical personnel at a school-sponsored practice & competition.

Negligence

1. An unintentional tort in which the alleged wrongdoer does not intend the consequences of his or her actions to another a person, property, or reputation. 2. Considers whether there were acts of omission or commission that resulted in the harm of another person.

Proximate Cause

1. Assumes the existence of actual causation & inquires into whether the relationship between the wrong & harm was sufficiently close-whether the causal link was proximate rather than remote. 2. Occurs when the breach by the defendant actually & proximately cause the plaintiff's injury. 3. If an injury would not have occurred without the defendant's conduct, then the causation in fact requirement is met. Causation in fact is also referred to as the "but for" test.

Types of Negligence

1. Gross Negligence 2. Comparative Negligence 3. Contributory Negligence 4. Mixed Contributory & Comparative Negligence

Intentional & Unintentional Tort

1. If the tort is intentional, it means that the individual intended to act or not act in preventing harm to another person. 2. If the tort is deemed to be unintentional, the person did not intend to cause harm. 3. Unintentional tort is often referred to as negligence.

Legal Physician Duties

1. Properly assess the athlete's condition 2. Provide or obtain proper medical treatment 3. Inform the athlete of the risks of athletic participation given the particular medical condition 4. Provide clearance to participate

Tort Law

1. Provides for remedies to plaintiffs who are injured & seeking redress. 2. Under tort law, an injured party can bring a civil lawsuit to seek compensation for a wrong done to the party or the party's property. 3. A tort can be either intentional or unintentional in nature & may be defined as " conduct that amounts to a legal wrong & causes harm for which courts will impose civil liability" (Dobbs 2001)

Liabilities of Coaches

1. Sports provide situations where athletes may get injured. 2. If a student-athlete perceives that they have been wronged the must prove that the school or coach committed an act of negligence in order to recover for their injuries. 3. Although coaches do not owe a duty to their athletes to totally eliminate risks that arise from a sport, they do owe a duty of care not to increase risks that are inherent in a sport.

Pressure to Return to Play

1. Team doctors can be pressured by many sources, including owners, coaches, or even players themselves. 2. Courts have tended to adhere to a consistent standard of care, particularly when medical treatment is required. 3. If a medical provider such as a doctor, hospital, or nurse fails to render proper care or treatment, the plaintiff may have a medical malpractice claim. 4. Medical malpractice is conduct that deviates from a reasonable standard of care.

Plaintiff Must Prove Under Respondeat Superior

1. The injury occurred while the defendant was actually working for the employer 2. The injury was caused by something the defendant would ordinarily do while working for the employer 3. The employer benefited in some way from whatever the defendant was doing that caused the injury, even if the benefit was very small or indirect.

Liabilities of Team Physicians

1. The team has an interest in ensuring that a player can perform at a top level to fulfill his or her contractual obligations to the team. 2. In the course of that duty, the physician will typically provide both medical advice & treatment. 3. The creates a patient/physician relationship between the team physician & the player.

Pinson v. Tennessee 1995

1. The university's athletic trainer did not notify the hospital doctors of the observed neurological conditions of the student-athlete. 2. The trainer never informed the team physician of the student's frequent headaches prior to the second episode. 3. The injuries incurred by the student-athlete resulted in significant & permanent neurological damage.

Elements of Negligence

A plaintiff will not have a cause of action based on negligence arising from an accident unless the plaintiff can establish & prove the following four elements: 1. Duty of care owed to the plaintiff. 2. The defendant breached that duty. 3. The breach of the duty was a proximate cause or legal cause of the plaintiff's injuries. 4. The plaintiff suffered damages. If the plaintiff fails to prove all four elements, then the negligence case fails.

Knight v. Jewett 1992

A sports instructor may be found to have breached a duty of care to a student or athlete only if the instructor intentionally injuries the student or engages in conduct that is reckless in the sense that it is "totally outside the range of the ordinary activity" involved in teaching or coaching the sport.

Physician Duty

A team physician has a duty to athletes to determine when they can return to play after an injury. If the physician believes that an athlete may be exposed to greater harm by returning to play, the physician has the duty to deny the athlete that opportunity.

Introduction

As society has grown to be more litigious. Centner (2006) stated "American sports participants experiencing a mishap are more likely to blame the sport provider for not implementing greater safety precautions"

Liabilities of Athletic Administrators

Athletic administrators have a duty to use a reasonable standard of care which does not increase the risks to a participants. If a coach is negligent, the university that employs and the supervisor the coach may be held liable under the doctrine of respondeat superior.

Compensatory Damages

Available to make the plaintiff "whole". The plaintiff can seek damages for wage loss, pain & suffering, disfigurement, & medical expenses.

Young Athletes Need to be Monitored

Because of their lack knowledge of the symptoms, young athletes need to be monitored. "due to the nature of their jobs, sports coaches bear the special heightened duty of minimizing the risk of injury to all participants, especially those under their control"

Respondeat Superior Doctrine

Literally means "let the master answer", holds a principal (master) liable for the acts of an agent (servant) provided that the agent was acting negligently & at the time was also acting within the scope of his employment. If an employer knew or should have known that the employee or volunteer was "unstable" or had a history of behaving inappropriately the organization may be held liable if it failed to take action that would have prevented the behavior.

Breach of Duty

Occurs when it is determined that a reasonable person in the position of the defendant acted negligently. The question is not necessarily how a particular person would act but rather how society would judge that an ordinarily prudent person (reasonable person) would act under the same or similar circumstances.

Liabilities of Participants

Participants are those who are either directly or indirectly involved in the sports activity. The primary participants in most sports are the athletes. Athletes have responsibilities to prevent unnecessary exposure of harm to each other. 1. Nabozny v. Barnhill (1975) 2. Tomjanovich v. California Sports Inc (1979) 3. Todd Bertuzzi & Steve Moore

Punitive Damages

Significant enough to punish the wrongdoer & to prevent the wrongdoer & others from engaging in similar conduct in the future.

Duty of Care

Special relationship between two or more parties that may be created by statute, contract, or common law. Under negligence law, if an individual is found to owe a duty of care to others, then that individual must conduct himself or herself in a manner so as to avoid additional injury.

Pinson v. Tennessee 1995 Special Relationship

The court found that a "special relationship" existed between the athlete & the university. 1. Created the duty of the university to offer prompt medical care 2. The university owed a duty to make certain that proper medical treatment was available in case athletes were injured in regularly scheduled practices & contests

Liabilities of Coaches & Athletic Administrators

The one area that both should be concerned regards the safety of the athletes under their care. Items of concern for both: 1. Transportation 2. Supervision 3. Emergency Care

Damages

The plaintiff must still have suffered an injury to have a viable negligence claim.

Conclusion

The possibility of a participant suffering an injury exists in all sports. It is relatively startling how often participants in sports & recreational activities choose to sue participants, coaches, spectators, officials, volunteers or the organization that conducts the activity. A negligence case arising from a sports injury can be based on failing to employ a competent coach, failing to provide adequete training or supervision, failing to provide safe equipment or facilities, requiring individuals to play, or even allowing mismatched players to compete against one another. (Doleschal 2007)

Liabilities of Sport Officials & Referees

There has been a longstanding reluctance to hold sports officials negligent. Sports officials & referees have been sued for: 1. Failure to inspect playing fields 2. Failure to cancel an athletic contest because of bad weather 3. Failure to control use of equipment 4. Failure to enforce rules 5. Failure to control the conduct of players 6. Failure to render first aid