SPMT 421 Exam 2

Due Process (pt 2: his notes)

--seriousness of the infraction: you have to match the crime with the punishment --Louisville: national championship was taken away since they provided the recruits with hookers, etc. --UNC: bogus program that is, not all athletes, all the work was done for them= ncaa did nothing since it was an academic issue -degree of sanction or penalty imposed: Louisville's punishment was too harsh, and UNC is not enough

Know your rights

-Airlines must ask for volunteers -They must spell out your rights -They must rebook you if bumped involuntarily - can get a max of $1,350 -They must cut you a check if you ask -Know the caveats -Know when you could be penalized -Know how to keep your seat

Arguments For Drug Testing

-Allows athletes to perform far beyond natural abilities & gives them an unfair advantage -Threatens health & well being -Morally wrong

Public Function Theory

-Can be state action in the activities of a private party if that party undertakes -functions or assumes powers that the govt ordinarily performs or exercises -Activities involve a function that is traditionally performed only by the govt or function substantially replaces govt traditional performance of function -more common with sports agencies -golf courts/tennis club -public land, you hire a private agency to run the gold course or tennis club -if the state mandates hours, hiring, it could fall under public function theory and could be called state action -Waco golf course hired the private agency, they got sued -non sport related ex: some govt that does not have the personnel

Defenses Based on Statutory Law Examples

-Colorado & New York - ski statues assumption of risk protecting them -Colorado skier, charge penalty; he skied into another skier and killed him

Transportation (Common Carrier vs Tariff)

-Common carrier One who takes on the responsibility to transport from place to place any person who chooses to employ it for hire Owes passenger the highest degree of care Vicariously liable for their employees' intentional and negligent torts even when they are committed outside the scope of their employment -common carrier: taxi cab drivers, uber drivers, they owe you the highest standard of care -Tariff: typically happen when you go overseas -Tariff Contract between airline and passengers Flight delays, bumped passengers

Forum Non Conveniens

-Court can divest itself of jurisdiction when convenience of the parties and justice better served in another jurisdiction -Factors -(1) does another forum exist; (2) consider costs to everyone; (3) court congestion, burden of the people of the community who have no relation to the litigation, and the appropriateness of trying a case in a forum familiar with the governing of the law

Tour Operators

-Distinguished from tour agents in that operators are typically in a position to actually provide a travel service. Often considered the primary provider of the service, whereas an agent is a representative of the service -Tour operators can be held liable for their negligent actions that result in injury. -When an agent becomes an operator, agent assumes the duties and responsibilities of the principal -Tour operators can gain some protection by using liability waivers and disclaimers -scuba diving & snorkeling -underwater cave and you can get stuck underneath them

Arguments Against Drug Testing

-Doesn't prevent drug use -Cannot detect all the substances -Legal issues and social considerations -Athletes are skeptical of policies and programs

Standards for Valid Conduct Rules (Constitutional)

-Due Process Clause -Equal Protection Clause -Freedom of Speech and Religion

Shared Responsibility and Statutory Assumption of Risk Statutes

-Duties of the recreation or sport provider -Duties of the participant -Provisions that preclude recovery -Some type of immunity Usually written to address a particular activity- equine, skating, skiing, etc.

Nexus or Entanglement Theory

-Examine whether the state's involvement or entanglement with a private actor's conduct is sufficient to transform the private conduct into state action. -Neither state funding or state regulation alone are enough to command state action determination -There must be significant joint participation between the state and the private party -insurance companies have different license for different states -EX: blue cross blue shield -why would it be difficult to prove that the NCAA would fall under this theory? -They are private but they control a lot of public agencies -one case states NCAA is not a state actor it is a private actor.

Overbooking

-General contract law applies -Breach of contract can apply -Why overbook? No show guests -Called an attrition rate -Creates problems when expected no show guests actually arrive -attrition rate: no show guests -always insist on talking to the manager

Preparing for an accident Story

-He had a recall on his ford edge, and took it in to the dealer, and ended up getting a brand new car (notice any unusual noises/check your equipment)

Protecting Guest Property (pt 2)

-Hotel may be entrusted to keep property that is covered under contract law other than the limited liability statute -Used for valet service, coat check, luggage storage, laundry services -Bailment - delivery of goods to another with the expectation it will be returned in the same condition. Personal property, delivery of possession, acceptance of possession, and a bailment agreement. -Bailor/Bailee - person who gives/accepts His story: -valet service in san Antonio, they ended up missing stuff out of the van -Bailment: coat check, bag check, etc. they are responsible for keeping up with all of the stuff,

Fundamental Concepts

-Hotels Guest Overbooking Protecting guest property Guest privacy Recreational facilities -Travel and Tourism Jurisdiction Transportation Agency law

Travel Agent

-Job is to provide customers travel information, organize travel packages, and sell travel services -Duties/responsibilities - (1) duty to customers to act with skill, care and diligence; (2) not insurers of customers' travel safety; (3) has a duty to provide accurate information about third-party suppliers.

Protecting Guest Property

-Liability based on rule of absolute liability holding innkeeper responsible for property within the inn. ---Exceptions -acts of God, loss of property by a public enemy, negligence of the guest -W/O evidence of compliance hotels liable for full amount. Can be held beyond limits when theft occurs from the safe -Common statutory provisions Hotel must provide a safe Hotel must post notices concerning safe availability Hotel must communicate limits to liability for lost or stolen property Hotel must communicate maximum recovery amount allowed

Recreational Facilities

-Most states, general rule is to exercise reasonable care preventing injury -Depends on the facts and circumstances of each case -Aquatic facilities represent a potential liability -Area must be within the hotel's sphere of control His Story: -no life guard on duty, get in on your own risk -florida: not obligated to put life guards on duty for the ocean, etc.

Internet Sales (Passive vs Interactive Websites)

-Passive website - insufficient basis for establishing jurisdiction. No way to make a reservation. -Passive: they just give you information -Interactive: travelocity where you an actually make a reservation -Interactive website - information, detailed descriptions of goods and services and online sales. Can be a basis for jurisdiction

Components of an Effective Drug Testing Program

-Presence of drugs in the immediate area -Failure of other preventative measures -Input from parents/law enforcement officials -Drug testing a targeted group -Advance notification by written policy -Substances to be tested for -him and a colleague published an article over this -drug sniffing dogs, etc -joe Pertono,

Categories of Drugs

-Psychomotor and central nervous system stimulants -Anabolic steroids -Substance banned by specific sports -Diuretics -Street Drugs -Peptide hormones and analogues

How does title IX works in athletics?

-Requires gender equity: allocationg resources fairly; does not require gender equality -equity=fairness

Sovereign or Governmental Immunity Examples

-State of texas and you're trying to sue a state actor (Texas A&M) goodluck!! -Leech, sued state of texas 4-5 yrs ago, -TX almost has state immunity -50 yrs ago; a police chase in dallas, chasing a criminal, drove on the other side of the road illegally, and killed an entire family, -PUFF: pays for transportation, roads, permanent university funds controlled by the boards of regions of TAMU

When title IX became law:

-academics -athletics -admissions -employment: anyone that works at tamu cannot be discriminated based on gender etc. -clubs -study abroad and off-campus -very broad, for fraternities and sororities In sports: -the single most successful civil rights law

Concealed Carry

-all 50 states allow you to concealed carry

ADD

-avoid, deny, and defend

Title IX (4 Questions)

-civil rights law -american disabilities act -passed and became a law in 1972 "No person in the United States shall, on the basis of sex, be excluded from participation in, denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."

Cleary Act

-cleary act: jenny cleary, raped and killed in her dorm room, parents steered her to go to a specific university

Examples of Transfer Rule

-court case involving a HS: -purpose athletic transfers= underinclusive -rule = all transfer sudents = overinclusive -rule= public school- underinclusive

Secondary Assumption of Risk Examples

-driving with some of your friends, and your friend might have been drinking, but you're still the passenger, but what if they wreck? -the Alamo dome, 3 years ago, mexico played USA, 66,000 fans and the field wasn't ready, and they played anyways; if you play on a field knowingly that it isn't safe or ready -professional tennis player, supposedly was told not to go into the training room without someone in there, she slipped and fell, but got 75% of what she was asking for

Exceeding authority Violating own rules Arbitrary and Capricious standard Federal and State constitutional violations

-exceeding authority: ncaa should not get involved in academics for college athletes; north Carolina got away with it because the large number of students were about half athletes and half non athletes -violating own rules: Louisville case, is NCAA violating own rules since they provided escort service for some of their recruits? Or Arizona paying one of their recruits 100k with the FBI getting involved? -arbitrary & capricious: this is north Carolina and it's one of the big institutions what about the money coming in? -hands off policy: march madness: north Carolina, duke, Kentucky, Louisville, etc. -federal and state constitutional violations: you take care of your own business

Examples of Intimate Association

-family reunions -coach could not watch son play football bc they did not want him to illegally recruit. -son signed with another school in LA

Open Carry

-federal and state marshalls can open carry on campus -mental health issues with people that have major gun violence

Preparing for an accident Story Part 2

-friend that lost both legs and his friend was killed, they did not pull off far enough off the road, and the 18 wheeler killed his friend and took both of his legs. -TX Dot is free, it's on the back of your license

Charitable Immunity Example

-goodwill and salvation army gives meals -PGA -low income individuals are suppose to be benefiting from it, but it was going into their pockets

Recreational Use Immunity Examples

-if you have land and people need to cross it to get somewhere -but you don't have to allow it -buying up access to some of the rivers, etc. supreme court case; billionaires bought land along the California beach,

Packing Heat in Texas

-killing in fort worth, a convict walked into a court room and killed a lawyer and a judge -go through the airport and sometimes forget that you have it on you Locations prohibited by signage 30.06 Concealed 30.07 Open 51 Bars

Due Process Interests Examples

-liberty: arizona state basketball coach, he swears that he did not take the 100k worth of money -life: somebody might have died, what you do when someobody is killed -OJ Simpson case, ended up in prison for stealing his own stuff -showcause provision: if a school is put on probation - dave bliss, coached basketball at baylor, covered up the murder of athletes, and continued to coach basketball. -NCAA prohibited from coaching in the NCAA for 10 years -fired at allan academy bc too much recruiting violation -property: what do you have a right to? -typically have an entitlement, have property interest, firing with cause: violates the rule & firing without cause: just want to get rid of you

Procedural Due Process Examples

-male grad astudent, was kicked out of school, bc a female acused him of sexual assault, and tamu never gave him a due process -walk into a hearing and the other side has the lawyer there, you reschedule and call your lawyer -try to negotiate a settlement: to keep it out of the public eye

Why are they doing this?

-mental illness, heat of the moment, publicity, religious, soft target (it's available, it's easy), hate crimes, retaliation, domestic violence (kids, child custody issues), violence in the work place (retaliation), students mad about their grades, workers mad about getting fired, dating violence (silent witness program),

Which drivers are the worst?

-millennial drivers are the worst (19-24)

One Nation Up in Arms story

-one community that requires one gun in every household -Alaska is worried about wild life that is why it is 62%-- moose is most dangerous there California - most restrictive gun laws; Arizona the weakest

Examples of Eligibility Issues

-parents got divorced: dad moved to cali, 6 mo in cali and 6 mo in texas; once back in texas he wanted to play football and the district ruled him inelligibile and he won the court case -ncaa use to have a rule dealing with longevity (smu, utep were recruiting people out of different countries that were Olympians in other countries)

Is the parking lot of a hotel hotel property?

-parking in a parking lot that is "hotel property" they are liable for what happens in that lot even if they say they don't

Procedural Noncompliance Examples

-people getting accused of stuff 30-40 yrs later, -little league sports, someone got injured, but then they ended up dying after they turned of age as a result of the injury -oppose witnesses, why do you let the other person know that you are suing them, -civil side and a criminal side -Larry Nassar case; the young girls did not understand what he did was wrong -infalation

Which is easiest/Hardest to win? -rational basis -intermediate -strict scrutiny

-rational basis (the toughest one to win as a defendant) -intermediate (you win some you lose some) -strict scrutiny (easiest one to win as a defendant)

Good Samaritan Statutes Examples

-render aid; lady flipped car around, bumper fell off, and then she drove off, but him and his wife got all the information and called the police -friend helped someone off the side of the road, and he got his legs chopped off -you don't know what's going on, the car is on fire, and you must pull them out -Alaska it is required to stop and render aid

Kristi Hosea: Active Shooter (4 Questions)

-someone that is actively trying to kill people, they don't always have to have a gun

Davis V. Monroe

-supreme court 1999 -Ms. Davis was in school and there was a little boy that kept on sexually harassing her; parents complained and the school did nothing, parents hired a lawyer and used title IX -Court said: sexual harassment, including sexual assault is a type of discrimination based on gender

Last Clear Chance Doctrine Examples

-swimming pools, lakes, pond: and someone walks away while someone's drowning instead of trying to help (i.e., trying to throw a rope) -Waco: Cameron park: big brick wall, sign that says do not go over this wall, he climbed over, and the other person tried to save this person and he ended up dying

Category Drugs: His story

-there is not one drug test that can test for all drugs Gil Roberts; took a masking agent; acts as a diuretics Diuretics: water is a good one, vinegar; Street drugs: marijuana, Peptide hormones: ground up testes of gorilla, killed him, since he ate it, baseball player

Beware of staged crashes Story

-they want to steal your vehicle, rape you, kill you, etc. -If you see a car crash, just call it in, do not get out of your car

Strict Scrutiny Classes

-toughest one for the defendant to win, but easiest for plaintiff to win -three suspect classes: -alienage -race -national origin -why aren't females under this category? -like the paternalistic standard, -Washington state hs, international, transfer from korea, Asian, been denied participation to play basketball = STRICT SCRUTINY

Rational Basis Test (Example)

-transfer rules: proposal generated by baylor students, presented to ncaa, if the coach leaves and the athlete is in good academic standing, should the athlete be allowed to go to that school with them and be able to play versus sitting out 1 year -limitation rules: 20 or 21 yr old still in hs wanting to play sports, usually it's just at 19 -semester limitation: exceptions- brigham young; requires to go to one year missionary gym or females get pregnant (can get a medical hardship) -grade rules: mandating minimum standards

Tort Claims Acts Examples

-very difficult to get a tort claims act in texas State court claims -east texas; elementary school has a ruptured gas line and killed most of the kids and everyone else -Houston when NOLA people were there, a blow up with one of the lines that had down there and kill some people Federal tort claims act: -they will pay or address it if the state court claims

Eleventh Amendment Immunity Examples

-where does the money come from tht goes into the state treasury? comes from the citizens; goes to schools, roads, -some exceptions, if you drive a government vehicle you can get sued -local governments

Factors to Consider in Equal Protection: His notes

-whether the sport involves physical contact: can a male transgender to female wrestle against girls in hs (in the state of texas the male transgender has won the UIL state wrestling championship), or can girls wrestle males in Utah -legal standing -"purposeful discrimination"

Odds of dying in an airline accident

1 in 8,000

Common carrier Example

18 Wheeler Very little control over the driver and vehicle

Why Drug Test?

198 World class athletes were asked the following question - If there was a magic drug that allowed you to win every competition for the next 5 years but it had one side effect - it would kill you 5 years after you took it, would you take it? 52% said yes. Evidence that Olympic athletes in the ancient Greek Olympics took hallucinogenic drugs

Survey of State Laws

29 states prohibit use of vans for transporting students to school or for school-related activities 12 - prohibit vans for transporting to school but ok for activity trips 9 - OK for all types of activities Source - nhtsa.gov

State Anti-Discrimination Statutes

A number of states have passed anti-discrimination laws that prohibit discrimination on a number of things. Women in particular have a better chance of succeeding on a state anti-discrimination lawsuit rather than bringing a federal civil right action

Trip documentation

A passenger checklist A key contact checklist provided to everyone involved in the travel decision Emergency procedures for breakdowns and accidents Accident report forms Emergency medical treatment authorization forms Pre and post vehicle inspection checklists -where are the nearest hospitals in the really really small towns -check list need to have medications you're on, allergies, in case of a wreck

Tort Law

A private or civil wrong or injury, other than a breach of contract, suffered by an individual as the result of another person's conduct. Three levels -Intentional -Reckless misconduct/willful and wanton. Also called aggravated negligence -Negligence - ordinary

Requirements for a Valid Waiver

A waiver is a legal contract and must adhere to the requirements of contract law. Public policy Consideration Parties to the contract

AED Statues/ CASA

AED statutes - parties protected may include: -Trained users -Any user in an emergency situation -The entity that acquires the device -The prescribing the physician -Parties who train others to use the device -Certified health care professionals Cardiac Arrest Survival Act - 42 USC 238 EX: -The lady in charge of the AED here in blocker, off the 3rd floor

Ultra Vires Acts

Acts that are beyond the scope of the responsibilities and authority of the employee and these acts relieve the corporate entity of liability via respondeat superior

Drug Testing and Constitutional Law

Administrative rules and regulations Collective bargaining agreement Internationally - WADA (World Anti-Doping Agency)

Driver Concerns

Age - AAA millennial drivers (19-24) are the worst Past driving record Current driver's license Alcohol/drug abuse Driver training Driver obligations

Forum selection clauses

Agreement between the agency and tourist citing any litigation must be brought forth in the court where the agency is headquartered Courts typically favor the defendants

Agreements to Participate

Agreement by which the signer is made aware and acknowledges the inherent risks and is informed of the rules and behavioral expectations and agrees to them Not considered a contract so can be used on minors Helps to establish assumption of risk

Defenses Against Negligence (4 questions)

All defenses come from three concepts: Common law -Case precedence Contract law -Contracts Statutory law -Legislative statutes -Satutory law: title ix, cleary act,

Waivers and Admiralty Law

Applies to an activity that occurs on any navigable waterway. Waivers will be upheld as long as they are not overreaching Cruise Line Exception - 46 U.S.C.30509. Prohibits any limitation of liability for any vessel transporting passengers between U.S. ports or to a foreign port.

Agency Law

Area of law governed by a combination of contract and tort law -Principal A party employing another to act on its behalf -Agent Becomes the party agreeing to act on another's behalf -where you book your flights, cruise -combination of contract & tort law -tort law: if you go on a safari and get attacked by a pack of hyenas

Parental Waivers

Arguments for parental waivers: -Allow organizations to provide recreational activities for a reasonable cost -Decisions regarding risks encountered by one's child involve the liberty interest of parents to made decisions regarding rearing of their children -Law presumes that fit parents act in the best interests of their child

second amendment Story

Aug 1 1956, texas towers shooting in Austin (12-13 people killed) on UT campus

Recent Bus/Van Issues

August 2015 - 2 people died and 16 injured when Spooner HS volleyball team bus collided with another vehicle in Wisconsin September 2015 - school bus crash in Houston kills 2 students and seriously injures 3 January 2016 - Duquesne men's basketball team stranded on PA turnpike for 26 hours July 2016 - car crash kills Nebraska and ex-Michigan State kickers on their way from a camp July 2016 - Cowboys tour bus involved in fatal crash in Arizona February 2017 - St. Louis University basketball team bus stolen by drunk driver

Jurisdiction

Authority of the court to decide a matter of controversy as well as maintain control over the subject matter and parties to the dispute -Must have direct, relevant contact with the state -Contacts must be purposeful rather than random -Service provider must seek some benefit or profit by availing itself to the jurisdiction -federal court versus a state court for a better outcome

Safest Place to Sit on a Plane

Back row

Administering the Waiver

Be straightforward in explaining the waiver Allow enough time to read it Group waiver - explain to the group Do not allow signers to cross out parts of the waiver Refund any fee if person refuses to sign and don't let them participate Store waivers on CDs and keep forever

Crimes and Punishments: Felonies

Capital:Death or life in prison w/o parole First degree: 5 to 99 years & up to $10,000 fine Second degree:2 to 20 years & up to $10,000 fine Third degree:2 to 10 years & up to $10,000 fine State Jail:6 months to 2 years & up to $10,000 fine

Legislation-based Immunity

Charitable immunity Federal/state tort claims acts Recreational user immunity Volunteer immunity AED statutes/Good Samaritan Shared responsibility & statutory assumption of risk

The Driver

Check potential drivers criminal history and driving records Ask to see driver's commercial license and make sure they have a "passenger endorsement". Make sure they have a valid medical certificate Ask to see driver logbook and check to see if they haven't been working too much On long trips, make sure the driver receives 8 hours of rest. Federal regulations prohibit driving more than 10 hours a day or working more than 15 hours a day Criminal history Driving records (tamu if you have more than 3 tickets you cant drive for them)

Volunteer drivers

Check to make sure volunteer drivers are covered by their insurance policies Make sure your organizations insurance covers volunteer drivers Risk management steps: Identify a driving program supervisor or coordinator Volunteer drivers should be screened Conduct guidelines should be created Volunteers should be required to sign a pledge form Volunteers should be trained in emergency procedures

Crimes and Punishments:Misdemeanor Offenses

Class A:Up to 1 year in jail & a $4,000 fine Class B:Up to 6 months in jail & a $2,000 fine Class C:Typically no jail & up to $500 fine Misdeameanor: you didn't intend to do it, you gun fell out of your purse, backpack etc. -class C you've done it multiple times

Assumption of Risk Agreement

Client is informed of the inherent risks and consents to them. Offers no protection for provider negligence KUA - knowledge, understanding, appreciation Participation is voluntary

Defenses Based on Statutory Law

Comparative fault - pure and modified Immunity - recreational, volunteer, Good Samaritan, tort claims, charitable Statutory assumption of risk - specific activity or hazardous recreational activity Procedural noncompliance - statute of limitations and notice of claim

Athletic Events

Conceal carry is allowed at the REC @ TAMU - not allowed at athletic events but can take a concealed weapon inside an athletic facility if no athletic event is going on unless precluded by appropriate signage. Also allowed at tailgates and inside campus rec facility. Open carry not allowed on campus except for certain uniformed officers.

Freedom of Religion

Conflict between the Establishment Clause and the Free Exercise Clause Establishment Clause - prohibits Congress or the states from making any law establishing or promoting a religion Free Exercise Clause - prohibits Congress or the states from making any law interfering with the free exercise of religion -breakaway -Mormons, jewish, etc -if the group is too large, and you can't accommodate, so you can't do it- so you can justify and exclude them

Miscellaneous: Consent Forms State Constitutions Due Process Labor Law WADA

Consent forms: 4th Amendment rights can be voluntarily waived State constitutions: Can afford more protection than U.S. Due process: No property interests Labor law - look to CBA WADA - international organizations

equal protection/immunity (4 questions)

Constitutional method of checking on the fairness of a rule. Requires that no person be singled out from similarly situated people to have different benefits bestowed or burdens imposed unless a constitutionally permissible reason exists for doing so.

Freedom of Speech

Contained in the Establishment Clause of the First Amendment Considered to be absolute - speak, remain silent, discuss with others, advocate ideas Does not protect the following categories of speech - defamation, obscenity, fighting words, and words that create a clear and present danger Protected speech - undergoes strict scrutiny. Example is political speech and speech critical of government policies. Less protected would be advertising which undergoes an intermediate level of scrutiny.

Contents of Agreements to Participate

Contents: -Nature of the activity -Possible consequences of injury -Behavioral expectations of the participant -Condition of the participant -Concluding statement -Optional sections - waiver, parental perm.

Governmental Interests Served by Urine Testing

Context of testing student-athletes, government must show a special need because the testing exceeds the normal need for law enforcement and occurs in the absence of a warrant or probable cause. Special needs exception exists - (1) providing fair and equitable competition ; (2) guarding the health and safety of student-athletes and (3) deterring drug use by testing

Waivers and Releases

Contract in which the participant or service user agrees to relinquish right to pursue legal action against service provider if injured due to their negligence Generally will not protect if actions of service provider are greater than negligence Providers generally not liable for injuries from inherent risks

Contract Law

Contract law: look at the rights and obligations that are in your contract -baylor &rice -Title IX, compliance officers, put them under one group/one staff to help with students and staff -faculty members get sexually harassed, etc goes to personnel

Appropriate Signage (Texas)

Contrasting Colors -Preferably red contrasting with black Block letters at least one inch in height

Due Process

Court must first find the defendant to be a state actor Plaintiff cannot be denied life, liberty, or property without due process How much process was due? Court will look at: -Seriousness of the infraction -Possible consequences to the parties in question -Degree of sanction or penalty imposed

Maritime laws

Cruise ships are subject to an array of local, state, federal and international laws in addition to maritime laws. Liability waivers are not enforceable lesion air disease, people falling off the side of the boat, in Australia a massive fight happened on the ship

Open/Concealed Carry on College and University Campuses

Currently no states allow open carry except by authorized federal ,state or local law enforcement officials Currently 10 states allow concealed firearms carry on campus: Arkansas, Colorado, Idaho, Kansas, Mississippi, Oregon, Tennessee, Texas, Utah and Wisconsin Currently approximately 18 states ban carrying a concealed weapon on campus In approximately 23 states, the decision is left to each college or university In some states students are not allowed to carry weapons - Arkansas and Tennessee, for example In Arkansas: they almost allowed open carry in game events, and SEC stepped in and said no 2011 allow conceal carry on campuses,

Damage/s

Damage - the 4th element of negligence. Injury or loss. Must be a compensable injury or damages Compensable injury - documented -Economic loss -Physical pain and suffering -Emotional distress -Physical impairment May also seek punitive damages but rarely awarded in negligence cases. Punish the wrongdoer and deter such acts in the future

Civil Rights Act of 1964 (Title VII)

Deals with discrimination in an employment setting for governmental agencies, labor unions and employers with 15 or more employees Makes an exception for bona fide private membership club Club in the ordinary sense of the word, private, and has meaningful conditions of limited membership

Defining and Banning Performance Enhancing Drugs

Difficult to define - aspirin to heroin, legal or illegal, harmless or dangerous, natural or synthetic, socially acceptable or unacceptable, commonly used or exotic Confusion about effects on performance Tough to convince some athletes they should be banned

Procedural Due Process

Dispute over the procedures Procedures should contain - written notice, time/date of hearing, representation possible, case heard by an impartial panel, negotiate settlement, written decision, record proceedings and make available to parties, go to court.

Negligent Hiring

Doctrine of Respondeat Superior Negligent hiring - places responsibility on ER when respondeat superior cannot apply Occurs when the employer knows or should have known of an applicant's dangerous or violent propensities, hire the individual, and give the employee the opportunity to repeat such violent behavior

Examples of Legal Obligations of a Safe Premise

Dodger's stadium - if they did their job, they wouldn't have had that sewage problem the other day (duty of inspection) Duty to remove or repair dangerous conditions: rebar at in hubbard at a football field; west, tx end of the basketball court was basically touching the stands Make it safe: LSU or TxTech Open and obvious dangers: if there is a cliff or if there is a hole in the field put a cone there

Texas Good Samaritan Laws

Doesn't require that you stop and help. Liable if actions greater than negligence Exemptions - someone in expectation of payment/seeking business; someone who regularly administers care (admitting/treating physician); person who caused accident EMT - not liable unless willful and wanton

Reasons you can be bumped

Don't have a confirmed seat Offensive odor Drunk Drugged Obnoxious behavior Carrying an illegal substance Carrying a gun Service animal

Four Elements of Negligence

Duty Breach of duty Proximate Cause Damage or harm All of the above must occur or be proven for a person to be held liable for negligence

Legal Obligations of a Safe Premise

Duty of Inspection -Actual v. Constructive notice Duty to Remove or Repair Dangerous Conditions Duty to Make the Facility Reasonably Safe -Control third Persons -Provide for Emergency Response Duty to Warn of Hidden Dangers -Open and Obvious Dangers - no duty to warn

Supervision

Duty to supervise - inherent in the situation, voluntary assumption, statutory duty General, specific & transitional supervision Appropriateness of supervision -Participant factors -Supervisor factors -Foreseeability and causation factors Example:One person watching all the kids on the playground; 3rd grade he was falsely accused of pulling a girls skirt up; a year later he beat up a kid on the playground (made them hug and kiss to make up in front of the class 10 yrs old)

Primary Duties of Supervision

Effective planning Proper planning Warning of risks Providing a safe environment Evaluating the physical and mental condition of the participants and spectators Providing emergency care -jv game 10th grade, guy that played center, he went off for the rebound and grabbed the guys shorts, a huge fight happened -UCLA a guy was crazy, kicked him out of student housing, allowed him to stay in school, and ended up stabbing someone

Common Law Defenses

Elements of ordinary negligence not proven Primary assumption of risk Implied primary assumption of risk/express assumption of risk Secondary assumption of risk Sovereign and governmental immunity Ultra vires act

Free Exercise Clause

Embraces two concepts - freedom to believe and freedom to act Freedom to believe is absolute Freedom to act is not absolute but must have appropriate definition to preserve the enforcement of that protection although the power to regulate must be so exercised as not unduly infringe the protected freedom of others -females can't wear short skirts, yoga pants, etc. -clothes with profanity

Elements of Emergency Care

Emergency Planning - develop an emergency plan Appropriate personnel/injury assessment - in-charge person, call person, control person Adequate equipment/certifications -AED, First Aid, CPR Implementation of emergency procedures - classes, written tests and practice Person in charge and have a number 2, people would black out their stuff in the army First aid, CPR, red cross (written tests)

Operation Information

Emergency Procedures -Lists of phone numbers, individual responsibilities, put in writing, practice Maintenance Records -How often, what, by whom, corrective action taken, put in writing

Who is Liable?

Employee or service personnel, volunteers, interns -Liable for their negligence Administrative or supervisory personnel -If no immunity, liable for their negligence but not for the negligence of subordinate personnel Corporate entity -Governed by the doctrine of respondeat superior (vicarious liability). Corporate entity can be liable if employee was acting within the scope of their responsibilities and committed simple negligence. -Board members not liable except in special situations.

Law Enforcement Officers Safety Act - 18 USC sec 926B and C

Enacted by US Congress in 2004 and allows two classes of persons - the qualified law enforcement officer and the qualified retired law enforcement officer - to carry a concealed firearm in any US jurisdiction regardless of any state or local law to the contrary with certain exceptions.

Recreational Use Immunity

Encourage landowners to open up land to general public for recreation for free Primarily for private landowners Largely undeveloped land Provide warning for any concealed dangers Cannot charge a fee or payment Protects both private landowners and in some states public agencies

first amendment (4 questions)

Establishes the freedom of speech, freedom of press, freedom of religion and freedom of association. One of the most litigated Amendments to the U.S. Constitution primarily due to the language protecting the above freedoms. Freedoms are not set in stone

Summer heat

Even if it is only in the 60s outside, the inside temp can reach 110 degrees. 95 degrees outside: 10 minutes-114 degrees 20 minutes-124 degrees 30 minutes -29 degrees 40 minutes -133 degrees 60 minutes- 138 degrees

Public Relations

Excellent PR program can be one of the best reduction techniques in risk control Take care of the little things -Trained and courteous personnel, in-service programs, posters, signs, brochures

Over/Underinclusiveness

Exists when a rule creates a class more extensive than necessary to effectuate the purpose of the rule or when a class does not contain all the members necessary to effectuate the rule's purpose Will be allowed if rule & purpose are rational Almost impossible to create perfect classifications

McDonald v. City of Chicago, 561 U.S. 742 (2010)

Extended that right to state and local gun control laws and not just federal laws.

Corporate Liability in Other Situations

Financial sponsorship - no liability if no control Program Sponsorship & Joint programming - may have liability Governing Organization sponsorship - no liability if no control Joint Ventures - no liability Apparent Authority - may have some liability

Force vs Deadly Force

Force Not known to cause death or serious bodily injury Deadly Force Intended or known to cause death or serious bodily injury

Express vs Implied Agreement

Formation of principal-agent relationship can be by: -Express agreement - oral or written contract -Implied agreement - inferred by the conduct of both parties

Secondary Assumption of Risk

Formerly called contributory negligence Voluntarily choose to encounter a known risk created by defendant/fail to follow rules -Defendant will act in a negligent manner -Defendant has already been negligent -Participant fails to follow rules or heed warnings

Releases

Frequently used synonymously with the term waivers. However, there are differences Releases typically signed after an accident and you release the other party of all claims Waivers are signed before participation and you do not release the service provider of all claims.

Title IX Requires Gender EQUITY

Gender Equity is the process of allocating resources, programs and opportunities fairly. It does not mean providing the exact same programs to both men and women. Some female activities may be the same as those offered to males, some may be altered, and some may be altogether different.

Duty to Provide Transportation (7 Questions)

General rule - no legal duty No legal duty for private schools and public schools Does the duty exist? -Look at agency rules and regulations -May be mandated by law -If so, duty usually starts and ends at original departure point

Obligation to house guests

Generally hotels have a duty to house guests but they can be refused for a variety of reasons -can't pay, disease, have illegal property, intoxicated, disorderly

Voluntary Sport/Rec Associations

Get their authority through a combination of federal, state, local legislation and court cases Courts generally reluctant to review decisions: -Exceeding authority -Violating own rules -Arbitrary and Capricious standard -Federal and State constitutional violations

Current Issues for Drugs

Girl from india, that had features from both male and females East german & Chinese: 10K Chinese athletes were being tested bc being doped up, distance runners an swimmers, athletes did better;

Substantive Due Process

Guarantees basic rights that cannot be denied by governmental action unless due process is given Concerned with the fairness or reasonableness of the rule Generally rules/by-laws will not be overturned unless the rule/by-law violates law or public policy -orgs. Have to do a few things: -if you do something wrong and you have to be put in front of the committee -after they give you due process, they can terminate you -is the rule fair/reasonable: does the crime fit the punishment

Premises Liability

Has legal responsibility to provide safe premises. Is in the best position to discover and control any risks or hazards Not limited to the premises owner - coaches, supervisors, employees.

Freedom of the Press

Has no significance independent of the speech clause Higher the value, the greater the protection Print medium has highest level of protection and broadcasting the least. Protected- your right to speak Unprotected- inflammatory, you will start a riot Commercial- sometime is is protected sometimes it is not -sports casters

Waivers on the back of Tickets

Have not been upheld except in a few instances involving ski lift tickets Warnings generally don't meet the requirements for effective waivers

Health and Accident Records

Health Information -Name, address, phone number, health history Emergency treatment authorization -Name, address and phone number of primary physician, signed by parent or guardian, -Authorizes treatment by another physician/hospital Accident records -Who, what, when, where, witnesses

Independent Contractor

Held to the highest standard of care Common carrier - in the business of transporting people or goods for hire Private carrier - only hires out to deliver people or goods in particular cases Legal Implications - transfer the risk Cost - high Safety - safest Control - very little/none Other - selecting the contractor

Application of State Action

High School Athletic Associations - yes College Conferences - maybe National Organizations Governing College Athletics - no Organizations created by governments - no Recreational clubs - maybe Professional Sport Leagues - no HS: UIL -slide rule: state tournament, went to the supreme court, National org...: NCAA, NCIA

Eligibility Issues

High School Privilege -Academic standards, transfer rules, redshirting, age limitation rules Intercollegiate Regulations -Academic regulations, transfer rules, longevity, challenges

Eleventh Amendment Immunity

If $$$ damages are sought and $$$ would come from the state treasury, public institution/organization will be immune from suit unless the state has expressly or implicitly consented to suit Local governments - school boards, cities, and counties - are not immune under the 11th Amendment

Duty of Care

If duty is owed, appropriate standard is reasonable and ordinary care under the circumstances. Factors that may be considered - age, knowledge, judgment, and experience of both the passengers and the driver Safe location - waiting area and discharge points

Sovereign or Governmental Immunity

Immunity is the state of being exempt from or protected against civil liability under certain circumstances Applies only to governmental entities and not the officers, agents or employees Public agencies can be sued only if they give their consent Designed to protect the public treasury and to permit unfettered decision making

Five row rule

In a fire passengers sitting more than 5 rows from an exit have a greater chance of dying than living

Freedom of Association

In most cases discrimination is legal with private clubs Citizens of the US have the freedom to associate with persons of their choice w/o government intervention or interference Freedom of association includes the right not to associate with certain people Not an enumerated right in the Constitution but a right recognized under the concept of liberty Protected under the 1st and 14th Amendments in two ways

Transportation Options

Independent Contractor Organization Owned Vehicles Employee Vehicles Non-employee Vehicles

Types of Risks: Inherent vs Enhanced Examples

Inherent risk: Football: concussion Volleyball: shoulder injuries, Tennis: intentionally aim the ball to get them off the net Basketball: getting hit with a basketball Enhanced: -baseball: netting extended going all the way down the foul pole lines; the mascots in California the mascot with the dinosaur tail, trying to move the mascot and got hit with the foul ball; shooting shirts or hotdogs in the

Types of Risks: Inherent vs Enhanced

Inherent risks: Generally no duty to protect from inherent risks Negligence standard is applied Enhanced risks: Not an inherent risk Risks that are created by provider behavior that is greater than negligence Provider probably will not be protected

Free Speech Cause of Action

Initial burden is on the plaintiff that his/her speech was constitutionally protected Plaintiff must demonstrate that speech was a substantial/motivating factor in the government's decision Burden shifts to the government to establish by a preponderance of the evidence that same decision would have been reached

Institutional obligations TAMU

Institutionaln obligations TAMU -STOP: -PREVENT: HAVEN training (title IX & cleary act), Green Dot: you should step in -REMEDY:

Reckless/Willful & Wanton Misconduct/Aggravated Negligence

Intent to commit the act:Intent to commit the act: someone is about to sit down, and you pull the chair out from under them; but they have a spinal injury, you had no intent to do that No intent for the consequences of the act Acted in reckless disregard for the outcome of your actions Most jurisdictions have adopted this standard. Participant is not liable unless he or she was reckless or intended to cause injury. Called the contact sports exception.

Warsaw Convention (WWII)

International treaty governing and limiting the liability of air carriers transporting passengers and cargo on an international flight. -about a week after coming back from munich, they were flying to London, a suicidal pilot got on there and crashed the plane and killed everyone

Duty to Visitors

Invitee -Duty of reasonable care Licensee -No duty to inspect or make licensee safe Trespasser -Duty not to wantonly inflict injury Recreational user -No duty to keep premises safe Change in status -Invitee status limited to area of invitation

Legal definitions of visitors (Invitee vs Licensee)

Invitee - someone who was invited onto the land. Two categories - public invitee, business visitor. Public invitee - invited onto the property for general use by the public. Business visitor would be a paid customer at a sporting event. Property owner received an economic benefit. Licensee - someone who enters the land with permission but does so for his or her own convenience, curiosity or entertainment.

There are 1000 athletes at a University, which includes 600 opportunities for males and 400 opportunities for females. Is this equitable?

It depends. Males and females should have equal opportunities to play sports. To be equitable, the percentage of male and female athletes should be about the same as the percentage of male and female students enrolled at the school. So the above situation is equitable only if the total enrollment at the school is around 60% Male and 40% Female.

WADA

January 1, 2018 - updated their list of prohibited drugs TUE - therapeutic use exemption. Any athlete with a medical condition that requires the use of a drug on the WADA's list may apply to that agency to use that drug. Passionate kissing defense - used 3 times most recently July 2017 by American Gil Roberts

Airlines Issues

January 15, 2009 - US Airways flight 1549 piloted by Sully Sullenberger successfully landed in the Hudson River. Disabled by striking a flock of Canada geese during its initial climb. April 2015 - all 7 people aboard a plane returning from NCAA tournament killed in crash. Aaron Leetch, a former student was killed. Athletic official at Illinois State. January 2016 - deliberate acts cause more deaths than crashes November 2016 - all 76 members of Brazilian soccer team killed in plane crash in Colombia 2017 - no deaths from commercial airline crashes in US

Tamu Athletes suspended for drugs

Johnny manziel, suspended for the first half of the game of the season Speedy noil, suspended for drug use

Travel and Tourism

Jurisdiction -Internet sales -Forum Non Conveniens -Forum selection clauses Transportation Agency Law -Travel agents -Tour operators

Limiting Corporate Liability by Contract (Lease Facilities, Independent Contractors, Indemnification agreement and waivers)

Lease facilities -Was injury facility related or activity related? Independent contractors -Liability generally shifted to the independent contractor Indemnification agreement -One party agrees to indemnify, reimburse or restore a loss of another upon the occurrence of an anticipated loss Waivers

Comparison of Options

Legal Implications -Best Option is Independent Contractor -Worst Option is Non-Employee Vehicles Co$t -Highest is Independent Contractor -Lowest is Non-Employee Vehicle

Factors to Consider

Legal Implications Cost Safety Control Other

Employee Vehicles

Legal Implications - varies for the organization. Employee driver personally responsible If part of employment relationship organization is vicariously liable Cost - none to low Safety - condition of driver/vehicle Control - medium to high Other -Employee driver personally responsible

ORGANIZATION-Owned Vehicles

Legal Implications- limited liability for governmental agencies. Not limited for nongovernmental agencies Cost - medium to high Safety - condition of vehicle/driver Control - high Other - comfort, accessibility, etc. Legal implications: good luck trying to sue tamu Control: have to list every town, place, roads, etc.

Non-Employee Vehicles

Legal Implications- vary for the organization. Driver personally responsible. If duty exists organization is still responsible Cost - usually none Safety - vehicle/driver Control - none Other

The Establishment Clause (3 tests)

Lemon Test: Secular, neither advances nor inhibits religion, no excessive government entanglement The Coercion Test: Govt directs a formal religious exercise to oblige the participation of objectors The Endorsement Test: Favored, preferred or promoted Lemon -hs not standing during the national anthem Endorsement -tough to negotiate

Program Documents

Lesson Plans -Objectives, activities to accomplish objectives, written notes Rules and Regulations -Put in writing -Discretionary - have a choice of action -Ministerial - have no choice

Auto Insurance Terms: Liability Comprehensive No-Fault Uninsured/Underinsured Motorist Collision

Liability - bodily injury to others and damage to others' property Comprehensive - Covers loss/damage to your vehicle other than a collision No-Fault - each insurance company pays Uninsured/Underinsured Motorist - don't have to pay a deductible as with collision. Collision - damage to your vehicle regardless who caused it. (hail damage, tree falls, etc.)

Liable Examples

Liable: Driving a bus, make sure it's in the liability The member of a board; he was protected since he was sued once, president of a home owner assoication

Due Process Interests

Liberty -Reputation is damaged. Cannot take advantage of other opportunities. Stigma-plus test Life Property -Rules, practices or policies create a claim of entitlement

Graduation Ceremonies v. Extracurricular Activities

Limited open forum theory Some governmental intent to open the event to the public. Govt cannot discriminate against speech even if religious Three classifications Traditional public Public created by governmental designation Nonpublic -people want to get up and say something religious with a guest speaker -traditional public-sidewalk -public created by governmental designation

Athens convention

Limits liability of cruise ships to passengers aboard cruises not touching a US port -Sometimes when you go out of the country, you will lose some of your rights that you have in the states

Private Agency

Look to the terms of your contract -Whether or not you have a property interest Look to the termination procedures contained in the employee handbook -Procedures should be clearly spelled out -Most will not differ significantly from constitutional protections

The Bus

Make sure driver has performed a pretrip inspection and inspects bus again before the return trip Have an employee with mechanical expertise check the bus Make sure bus has all the proper safety equipment and check to see that they work or are in good repair

State Codes

Many states have banned texting while driving Volunteers - typically not protected if using a vehicle -Texas No texting law while driving -Some states have implemented the No Texting while walking

Workers' Compensation

May be applicable if using a vehicle in the scope of your employment If you have to drive for work

Participant Agreement

Most comprehensive stand-alone document Contents: -Nature of the activity -Assumption of inherent risk -Waiver of liability for ordinary negligence -Indemnification agreement -Severability, mediation and arbitration, venue and jurisdiction, covenant not to sue, integration clause -Information on participant and rules -Release and assumption of risk

Authority to Regulate Conduct

Most states - state legislature State legislature - delegates to school boards Discretionary, decision making authority may not be redelegated Routine, ministerial functions may be redelegated -UIL part of state legislature -redelagation reason why: we know what the law is, routine things -disgression to do what you want (not to be redelgated)

Proximate Cause

Must be cause in fact. Probable consequences rule Does not have to be the sole cause, but may be a substantial factor. May be a intervening act/cause. Must be independent of the original act, capable in itself of creating the injury, and must not have been foreseeable by the party committing the first act.

The fourth amendment must be:

Must be reasonable Intrusion of the test on individual's privacy Fourth Amendment interests against legitimate government interests Must be probable cause. Special needs exception exists in the public school context Reasonable suspicion in the schools Three factors the court will consider

Current Issues fir Negligence

Nine high school football players died in 2014. 2015 - 11 high school football players died and one youth football player Number of boys playing high school football from 2008 to 2014 dropped by 55,000 21 college football players have died since 2000 in off-season workouts 2015 - about 50 high school athletes died

Negligent Referral

No comment or skeletal information regarding employment A tort recognizing a past employer's responsibility to warn a prospective employer of the abusive or violent behaviors of a past employee Called passing the trash

Establishment Clause v. Freedom of Speech

Nonsectarian and nonproselytizing student-initiated prayer is a safe haven Freedom of speech clause does not permit suppression of student-initiated prayer

Expressive Association

Not expressly stated in the Constitution but interpreted by the Supreme Court to allow this. Characterized by the size of the group, its purpose, its policies, its selectivity and congeniality. Receives the highest degree of protection Seldom relevant for private golf or country clubs

Beware of staged crashes

Observe normal post-collision procedures Get other drivers name, address, insurance info, license plate number Make a record of the event Take photos and get witness information Beware of tow trucks that appear out of nowhere Avoid strangers who approach you with advice When in doubt call the authorities Back of your Texas drivers license or National Insurance Crime Bureau 800-835-6422 If suspicious, stay in your car, move it to a safe distance if possible and call authorities

Religion v. Prayer

Offering a prayer when there is no reference to deity is not necessarily religious entanglement. One prayer, any prayer, does not necessarily endorse religion. Religion is not irrelevant to education. However, the teaching of religion by educators is forbidden under entanglement theory.

Drug Test Stories

Ohio teenager on probation knew he couldn't pass the drug test due to marijuana use Used a sample from cousin Tested positive for cocaine Egyptian bus driver tried to beat a mandatory drug test Used his wife's urine Failed the test Congratulations - you are pregnant

Federal/State Laws for Open and Concealed Carry

Open Carry 45 states constitutions allow open carry with few or no restrictions. US citizens, permanent resident aliens, and certain non-immigrant aliens are allowed to carry weapons subject to conditions imposed by the applicable state Open carry= state of texas allows it; some jurisdiction (bars) Concealed Carry All 50 states have passed laws allowing qualified individuals to carry certain concealed firearms in public either w/o a permit or after getting a permit from a designated government authority at the state and/or local level. In both categories, federal law trumps state law unless state laws are more restrictive

Open Carry vs Concealed

Open Carry Varies by state. Act of publicly carrying a firearm on one's person in plain sight. Plain sight is broadly defined as not being hidden from common observation. Concealed Carry In essence, concealed carry is the carrying of a firearm on one's person that is concealed either in a bag, purse or underneath one's clothing.

Implications for Security and Stadium Management

Open Carry - 61% would not allow it Concealed Carry - Half to over 80% depending on facility type do not allow Measures used to detect concealed weapons - metal wands/detectors, pat-downs, posted signs, venue searches, visual inspections Off-duty law enforcement personnel - Majority allow local personnel to carry weapons but not non-local personnel

Open vs closed carry examples

Open carry: allowed here in Texas since Jan 1 2016, you can carry weapons in bars, or walking down the street you can carry, with it being seen Concealed carry: it is allowed in all 50 states

Intimate Association

Originates from the right to privacy implied in the Due Process Clause of the 14th Amendment Characterized by its relative smallness, high degree of selectivity and seclusion of others. Been used to describe intimate family matters but also some relationships outside of the family

Americans with Disabilities Act

Owners and operators of places of public accommodation must make reasonable accommodations to individuals with disabilities to participate equally in the goods, services and accommodations provided by the establishment. There is an exemption for private clubs and religious organizations.

Concept of Comparative Fault 50/50 Approach

P's fault not greater than D's fault. P may receive appropriate amount of award. P's fault not as great/ less than D's fault. If P contributes more than 50%. No award. 50/50 approach: P contributes more than 50% they get no award; P's NOT GREATER THAN D's fault; P's fault NOT AS GREAT AS D's fault (In Texas) -baseball and sale with purchasing athletes;

Participation Forms (3 Questions) Categories

Participation Forms: -Waivers, releases, agreements to participate, etc. Health and Accident Records: -Health Information, emergency treatment authorization, accident records Operation Information" -Emergency procedures, maintenance records Program Documents -Lesson plans, rules and regulations

Parties to the Contract

Parties relinquishing rights -Signer and may be others designated Parties protected by the waiver -Should be clearly listed Parties who not have the capacity to contract -Minors, mental capacity, intoxicated

Public Law 109-59

Passed by the 109th Congress on August 10, 2005 (119 STAT. 1144) Defines a 15 passenger van -A vehicle that seats 10 to 14 passengers not including the driver (Transportation Equity Act, PL 109-59) Prohibits a school from purchasing or leasing a new 15-passenger van to be used for transporting students for school events unless the van complies with standards under this title

Vehicle Concerns

Periodic Inspections Preventive Maintenance Repair Maintenance Record of Purchase/Sale How the Vehicle is Used

Physical Injury or Loss examples

Physical injury or loss Economic loss: documented; Walmart or sam's and you have your receipt Physical pain and suffering: grabbing your back and neck as if you're in pain Emotional distress: an activity that you cannot do anymore or take you a long time to come back Punitive damages: the person who did it, send them a message, a manufacture Pain and suffering: an accident 2. years ago, a lady changed lane swithout looking, totltaling the car, the discharge came through and cut him on his mouth, his wife got glass in her eye, it took 6 months later to get everything situated, since he is the one got scarred he got less money (3k) if it would have been his wife they would have gotten more money.

Civil Rights Act of 1964 (Title II)

Place of public accommodation Athletic facilities are places of public accommodation Truly private - genuine selectivity , membership's control over the operations, , history, use of facilities by nonmembers, purpose, advertises, profit or nonprofit, formalities observed

Concept of Comparative Fault Pure Form

Plaintiff (P) receives whatever percentage the defendant (D) is at fault Pure Form: sate that does not adhere to absolute risk -defendant is 60% fault the plaintiff will only get 40% -plaintiff % exceeds the defendant they will still get some

Negligent Hiring Actions

Plaintiff must prove the four elements of negligence Look at hiring practices to see if employer had actual or constructive notice Can no longer rely solely on job applications and resumes

Last Clear Chance Doctrine

Plaintiff who was contributorily negligent may still recover if the defendant had the last opportunity to prevent the harm but failed to use reasonable care to do so. Allows the plaintiff to rebut the contributorily negligence defense.

False Positives/Negatives

Positives -Test positive and you are not -Drug residue in the vials -Drug residue on testers hands -Sample is switched Negatives -Tested negative and you are not -You inserted someone else's sample -They tested someone else's sample by mistake

Good Samaritan Statutes

Primary Purpose - encourage those who have no duty to the injured to stop and render aid. No immunity when in the line of duty. Aid must be rendered in good faith and free. Generally protected if actions are not greater than negligence. Location - aid rendered at the scene of emergency/accident.

Printing vs Brandishing

Printing Shape or outline of a firearm is visible through a garment while the gun is still fully covered and is generally not desired when carrying a concealed weapon Brandishing Can refer to different actions depending on the jurisdiction. May include printing, pulling back clothing to expose a gun or exhibiting a gun in your hand The intent to intimidate or threaten someone may or may not be legally required to be considered brandishing

Printing and Banding Example

Printing; if you're a XL person wearing a small shirt, and it shows through an outline Brandishing: if you drop the gun

Senate Bill 1907

Prohibits colleges or universities from barring handguns or ammo in vehicles on campus Exceptions: must be concealed, not engaged in criminal activity, not a gang member, not prohibited from possessing a firearm

Protected Speech

Protected speech hard for defendant to win -happened here 2-3 years ago, considered freedom of speech, female wore earrings with a confederate system, and she said to a random group about how do you feel about these, and told them to get out of here

Qualified Immunity

Protects government officials in the exercise of discretionary authority Objective reasonableness test - burdens of trial/personal liability not imposed on governmental official in exercising discretionary authority unless conduct violates statutory or constitutional rights that a reasonable person would have known. -texas almost has absolute immunity -texas tech former coach Leach; has been refiling his court case for years

Emergency Care

Provision to an injured person in an urgent, immediate, or unexpected circumstance Relationship Inherent in the Situation -Coach/player, arena manager/spectators Voluntary Assumption of the Duty -Good Samaritan Statutes Duty Mandated by Statute -Texas Education Code Example: Warned in advance when he went to Jamaica with some friends, not to take pictures since they believed that pictures would take their spirits away (religious beliefs)

Transfer Rule

Purpose - To prevent athletic transfers from one school to another. Rule - All transfer students from public schools shall not be eligible for interscholastic competition for one year from date of transfer.

Attributes of Proper Supervision

Qualifications of the supervisors -Make sure they have all the proper qualifications and training Number and location of supervisors -How many and where Following established standards of conduct -Usually negligence per se if you don't Example: cop in florida that stayed outside instead of going in during school shooting

Equal Protection Analysis: Rational Basis Intermediate Review Strict Scrutiny

Rational Basis -Classification rationally related to a legitimate governmental interest Intermediate Review -Classification is substantially related to an important government purpose Strict Scrutiny -Classification is necessary to a compelling government purpose

Standards for Valid Conduct Rules (Non-Constitutional)

Reasonably related. -Rule must govern conduct which directly affects the operation of the school -Rule must not be arbitrary or unreasonable -non constitutional: as long as it's peaceful; rights or free speech (does tamu have the right to deny him?)

-court case in ohio with two sorority girls, one has a service dog and the other one has an allergy, which one would you kick out?

Reasons to be bumped The service animal

Guest Privacy

Registered guest has a right to privacy and peaceful possession of his/her room without disruption from hotel personnel -Exceptions to this right: Enter for normal maintenance Warn of imminent danger(fire alarm) Nonpayment of the room Requested to enter by the guest Expiration of the rental period

Ministerial Function

Relating to an act that involves obedience to instructions or laws instead of discretion, judgment or skill Violation of a ministerial function is per se evidence of negligence

Charitable Immunity

Relieves or immunizes charitable organizations from liability for tort. Four premises -Benefit the public -Money donated for other purposes -Recipient accepts the risks of negligence -No respondeat superior Has been repealed in most states

Managing Accidents

Reporting Accidents Accident Investigation Record Keeping Disciplinary Procedures

Intermediate Test

Requires that rules classifying certain groups satisfy an important but not necessarily a compelling interest Generally applied with issues involving contact sports, scheduling athletic contests, workplace discrimination Two classifications Gender Illegitimacy

State Compulsion Test

Requires that the party seeking to establish state action prove that the state has so coerced or encouraged a private entity to act that the choice of that entity must be regarded as the choice of the state. -do business our way -very closely related to entanglement theory, not typically used in the sports business

Contents of Informed Consent

Research: Should be in writing, understandable, obtained in non-coercive circumstances, no language suggesting a relinquishment of rights Sport and Fitness: Writing, understandable, purpose of the program, general description of the program, any discomforts, risks, benefits, acknowledgement of voluntary participation, not signed under duress, opportunity to ask questions, read and understood the document

Duty

Responsibility toward others to protect from unreasonable risk of injury Three sources or origin of duty: -Inherent relationship - parent/child, coach/athlete, teacher/student -Voluntary assumption - an obligation to perform using appropriate standard of care -Statutes - specify duties of one party to another. Negligence per se.

District of Columbia v. Heller, 554 U.S. 570 (2008)

Right is not an unlimited right. We find that they guarantee the individual right to possess and carry weapons in case of confrontation. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. Justice Antonio Scalia

second amendment (4 questions)

Right to Bear arms

Balancing Freedom of Association with Anti-Discrimination

Right to associate for expressive purposes is not absolute Government may interfere if there is a compelling state interest State must balance a club member's fundamental rights of association with another person's fundamental right to be free from unlawful discrimination.

Texas Laws: No Duty to Retreat PC 9.31

Right to be present where force was used Did not provoke the person against whom force was used Not engaged in criminal activity at the time force was used

Funniest Waiver Ever

Risks: 1. If you miss a little to the left, you hit DILDO Rock and everybody in the boat gets scattered. 2. If you miss to the right, you go over an 8-foot vertical, the bottom of which is a keeper. A keeper hole is one that can hold you longer than you can hold your breath. 3. Even on a clean run, the impact of the drop sometimes scatters people. 4. The current feeds right into a big, flat undercut rock. That is bad enough if you hit it with your crew more or less together. But if you have a swimmer from 1, 2 or 3 above, and the boat is out of control and catches the swimmer between it and the undercut rock, it's curtains for the swimmer.

Rational Basis Test

Rule must have a rational relationship to a legitimate purpose Difficult for the plaintiff to win Most commonly applied constitutional standard Used for transfer rules, age limitation rules, semester limitation rules, grade rules, etc.

Strict Scrutiny

Rule will be invalidated unless the defendant can demonstrate that the rule is supported by a compelling state interest. Defendant has burden of proof. Is a classification properly drawn? Three suspect classes - alienage, race, national origin Fundamental interests - travel, vote, etc

Comparison of Options 2

Safety -Safest is Independent Contractor -Least safe is Non-Employee Vehicles Control -Greatest is Agency Owned Vehicles -Least is Non-Employee Vehicles Other - Depends

Duty owed to guests

Same as to an invitee - reasonably safe and clean accommodation

Transgender Rights

Schools "must not treat a transgender student differently from the way it treats other students of the same gender identity."

Institutional Obligations

Sexual harassment is a threat to students' ability to pursue opportunities in education School's duty to take prompt and effective action when notice of discrimination received—complete investigation in 60 days -60 days is an aggressive timeline Decide cases based on a Preponderance of the Evidence Appoint a Title IX Coordinator Provide Interim Measures

Informed Consent

Signer allows an action to occur when the decision is based on full disclosure of the risks involved, expected results, and the options available - medical/science Voluntary participant, have been informed, assume the inherent risks of the action Do not relinquish any other rights Formal contract and limited to adults Disclosure and consent

Format of the Waiver

Stand alone document - preferred Waiver within another document -Membership agreement, rental agreement Disclaimer -Usually on the back of tickets and generally not enforced Group waiver -Team roster, sign in sheet

Factors to Consider in Equal Protection

State action Whether the sport involves physical contact Whether both sexes have an equal opportunity to participate Standing Only protects against purposeful discrimination

State Action Analysis

State actor= public institution (tamu, north texas, UT, UH) -private agency is not a state actor

Volunteer Immunity Statutes

State volunteer immunity statutes Recreation and sport volunteer immunity statutes Volunteer Protection Act - PL105-19. Preempts state laws except those which offer greater protection. Are several conditions to it. Ex. Big event

Procedural Noncompliance

Statute of limitations - set maximum time periods during which certain actions can be brought or rights enforced. After the time period has run, no legal action can be brought regardless of whether any cause of action ever existed. Minors - statute of limitations doesn't start until the age of majority Lone exceptions - criminal cases. Usually preceded by a notice of claim. 90 days to 2 years.

Standard of Review

Students and teachers do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate Action must be something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint School may restrict speech at a school event *As long as protest is a peaceful protest, school cannot rstirct somethings - vietnam war

WADA stories

TUE: medical condition Passionate kissing defense: -French tennis player was the first one to do it -Roberts was from OU, meds that his girlfriend took, and he was passionately kissing his gf 2-3 hours before he got tested, and he got tested positive, and he won the case

Recent 2nd amendment stories

Texas A&M senior killed at her College Station apartment September 2016 Florida man sits on gun, shoots himself in penis July 2017 Handgun accidentally discharged in TAMU dorm room Sep 2017 Sutherland Springs, Texas church members killed Nov 2017 Los Angeles school shooting Nov 2017 January 2018 school shooting in Kentucky and Texas February 2018 school shooting in Florida

Which State has the Worst Drivers

Texas, Louisiana Road death every day for 17 years

Foreseeability

The ability to predict what will occur as a result of his or her action Established by showing that a person of ordinary intelligence and circumspection reasonably should have been able to predict the consequences of an action or a failure to act. Risk must be foreseeable Open and obvious environmental hazard is also an exception

Texas Laws: The Castle Doctrine PC 9.31 & 9.32

The actor believes that the force/deadly force was immediately necessary: (1) Knew or had reason to believe that the person against whom the force/deadly force was used unlawfully and with force was attempting to enter or remove from the actors occupied habitation, vehicle or place of employment (2) Did not provoke the person against whom the force/deadly force was committed and (3) Was not otherwise engaged in a criminal activity at the time the force/deadly force was used -home is your castle, your apartment is your castle -if someone breaks into your place, you can shoot them

NCAA Best Practice Recommendations:Facilities Access

The core principles in addressing facilities use are the privacy and safety of all students. Consult with transgender student-athletes about what accommodations they prefer and then provide that option. Make sure that there are provisions for privacy in every locker room for use by any student who needs it. It might be as simple as using a curtain to assure privacy in shower and locker rooms. Expectations for respectful student-athlete behavior in the locker room should always be made clear whether there is a transgender student on a team or not.

Fouth Amendment (4 questions)

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. If police want to search your home, they must get a warrant In your car, the must have probable cause

Hospitality and Tourism Law (4 Questions)

This area of law is very complex because you have to rely on many service providers . Jurisdiction issues, differences in how travel terms are perceived, identity of the service provider, weather, civil unrest, diseases- all create problems.

Discretionary Acts

Those which require personal deliberation, decision and judgment The public body and those with decision making authority are protected You have some leeway

Primary Assumption of Risk

Three elements: (1)Voluntary participation in an activity that involves (2) inherent and well-known risks, (3) Knowledge, understanding and appreciation of the risks Implied primary assumption -Evident by your conduct Express assumption -Evident by words (verbally or in writing The plaintiff cannot be covered - voluntary (texas does not do this)] -implied primary assumption -when you played sports did your coach sit down and tell you that you could possibly get injured -express assumption -it is in writing

Constitutional Law

To succeed on a federal constitutional claim, one must show the following: -State action exists -Claim is not frivolous -Right of sufficient importance to be litigated in federal court -typically federal court

Tort Claims Acts

Tort committed by the govt thru an employee, agent. May/not be actionable. Action against state is governed by state's tort claims act. Federal Tort Claims Act limits immunity and allows recovery in federal court only if the law in state where injury occurred would hold a private person liable for the injury

Legal definitions of visitors (Trespasser vs Recreational User)

Trespasser - someone who enters the land without permission. Exception is attractive nuisance. Trespasser - miss state 2 yrs ago, just got a new score board, and one of the students trespassed and climbed on it and fell off and died Recreational User - someone who enters the land for recreational purposes - hunting, fishing, swimming, etc.

Duty to Visitors Examples

Trespassers are being eliminated - state of texas it is not Change in status - guy walks in to a stadium, he had a ticket, then he had to go to the bathroom, he went into the ladies room, he got arrested since he isn't a woman Belton, a lady got ticked off, she really needed to go to the bathroom, and saw that there was no one at the mens restroom, and she went into that one and got arrested, she sued and got it overturned

Anti-Discrimination Legislation

Truly private organization will generally be exempt from most federal and state anti-discrimination laws. Civil Rights Act of 1964 - Titles II and VII Americans with Disabilities Act State Anti-Discrimination Statutes

Two classifications Gender Illegitimacy

Two classifications: -gender -illegitimacy: when he was in Arkansas, some athletes were born without birth certificates bc the hospitals there sucked at the time, they couldn't prove how old they were

Breach of Duty

Two types of risks - inherent risks and negligent behavior (ordinary and aggravated) Other factors - standard of care, nature of the activity, types of participants, and environmental conditions Standard of care: Waco: on the track the heat was over 120 degrees, they do not have to run Bad weather, the coaches wanted to kids to run, but the officials said otherwise

Private carrier Example

Uber, lyft Very little control over the driver and vehicle

negligence (4 questions)

Unintentional tort that causes injury to a person in the form of physical injury, property loss, or reputation. No intent to cause injury or harm Can be in the form of an act of omission (should have but didn't do) or commission (did but shouldn't have)

Three Most Commonly Used Procedures for Drug Testing

Urinalysis: Illegal drugs leave your system very fast - 24 to 48 hours Most intrusive if viewed in the act of urination Blood: Prohibited by some religions Hair: May have drug residue in your hair samples for 30 to 60 days Least intrusive of the methods

Guest

Visit must be primarily for which the hotel operates -rental of rooms for overnight stay

Privacy Interests of the Student Athlete

Visual or aural monitoring of urination implicates privacy interests Monitored urine collection is embarrassing and degrading Chemical testing violates medical confidentiality Urinalysis testing interferes with privacy rights associated with the right to control one's own medical treatment Urinalysis attempts to regulate off-the-field conduct

Defenses Based on Contract Law

Waivers Informed consent Agreement to Participate Facility lease agreements -Activity or premise related Equipment rental agreements Indemnification agreements Independent contract for services

Waivers and Minors

Waivers signed only by a minor are voidable and minor cannot be bound by a contract regardless of who signs it. What to do: -Parent or guardian to sign on behalf of the minor -Require indemnification -Require parent to sign an arbitration/mediation agreement

Factors Determining Protection

What category of speech is it - protected or non-protected Once category is determined, apply the standard of review Must balance the competing constitutional right of the individual and the state's interest Also consider the medium that was used. Newspapers generally afforded more protection than others.

Negligent Retention/Supervision

When an employer fails to discharge an employee when there are indicators of an employee being unfit as related to criminal or psychiatric attributes

Three Factors for the 4th amendment

Whether the individual has a legitimate privacy expectation upon which the search intrudes. High school athletes have a lower expectation due to custodial and tutelary responsibilities of the school. Character of the intrusion. How the drug test collects samples/type of information collected/ who receives results/how used Nature and immediacy of the governmental concern/efficacy of test. Is the state's interest in conducting the test important enough to justify individual's privacy expectation?

Search and Seizure/Right to Privacy

Word "privacy" is not found in the U.S. Constitution. Privacy interests are found in the penumbra of rights guaranteed throughout the Constitution - 1st, 4th, 5th and 14th Amendments. The 4th Amendment is the heart of privacy protection.

due process/state action (4 questions)

Yay

Top quality baseball uniforms (for males) cost $400 each. Top quality softball uniforms (for females) cost $500 apiece. If there are 30 players on each team, and the University buys 30 top quality uniforms for each team, is this equitable?

Yes, this is equitable because even though the University spent more on the female uniforms, both genders got top-of-the-line equipment

Ministerial Function examples

You work for a state actor (tamu); you have something to follow and if you violate it it is considered negligence -the out; if you can approve what you are doing is better than what you are suppose to be doing, then you can get out of it -the width of your seats at kyle field, about 18 in

Restricted premises

government buildings like post offices, designated restricted areas on educational institutions and sporting event venues Restricted premises: kyle field, reed, bluebell (during athletic events); if there is not an athletic event and there is no sign up then you can carry; in school you can conceal carry unless there is a hs event; tailgating you can conceal carry; in the bar "51 bar" rule you cannot conceal carry

Worst Place to Sit on a plane

middle over the wings and First Class

School Buses

most states require use of school buses to transport students to and from school events but some don't -fairly safe -Seat belts are not required for buses less than 26000, but does require them for large buses effective NOV 28 2016 -Pedestrians near the loading zone

No issue

one that does not allow a private citizen to carry a concealed handgun in public

Apparent Agent

one whom the principal allows others to believe is acting as its agent, regardless of whether or not the principal has actually conferred that authority. Apparent agent: former grad assistant at baylor, booking flights for baseball teams etc., with no authority.

Over/Underinclusiveness Examples

overinclusinve: take in more in than they are suppose to underinclusive: don't include everyone -easiest one for the defendant to

bridiging

people laying down foot to shoulder, to make sure the door can't open; same goes with tables

Unrestricted

permit not required constitutional carry right

Public Policy

principle of law under which freedom of contract or private dealings is restricted for the good of the community Waiver generally against public policy: -Pertains to important government service -Parties not of equal bargaining power -Agreement is unconscionable -Preclude liability for extreme forms of conduct General rule is that recreation/sport related waivers not against public policy

Shall Issue

requires a license to carry a concealed handgun upon meeting criteria laid out in the law state of texas is the major one

May Issue

requires a permit and the discretion to issue a permit is partially at the discretion of local authorities discretion of local authorities

Ultra vires acts

stopped at a not approved stop, the business office got mad since he stopped at a non approved stop for someone to use the restroom