Tort Liability and
Negligence
Tort Law
 Tort
– a private or civil wrong against
a person, an injury to a person
including property and reputation.
2 Categories of Tort Law
Intentional Tort
Shows that there is an intent to
injure. Includes assault and battery,
defamation, hazing, and invasion of privacy.
Unintentional Tort (Negligence)
There is no intent to injure but an injury does
occur.
Both require that the act done was the
proximate cause of the injury and that actual
damage occurred.
Unintentional Torts
 Disturbance
of intangible interests
– Includes invasion of privacy,
defamation, libel or slander.
– To be considered the disturbance must
be characterized as being extreme and
beyond the bounds of social decency
– Truth is the best defense
Negligence
 Is
 It
an unintentional breach of duty.
can be an act of omission or
commission in which a person may
be exposed, to an unreasonable risk
of injury resulting in damage, by a
person with which they have a
special relationship.
Elements of Negligence
 Duty
 Breach
of Duty
 Cause
 Damage
– All four elements must be present for
negligence to exist.
Duty
A
special relationship that exist
between individuals such as
player/coach or student/teacher in
which there is a duty owed that does
not expose a person to unnecessary
dangers.
Existence of Special
Relationship
 Duty
has three primary origins.
– 1) from a relationship inherent in the
situation;
– 2) from a voluntary assumption of the
duty; and
– 3) from a duty mandated by statute.
Relationship Inherent
 When
a program or service is
provided, usually there also is an
expected obligation not to expose
the participant/user to unreasonable
risk of harm
Breach of Duty (Act)
Is the act to protect in accordance
with the standard of care the
professional must provide?
Breach of Duty (Act )
 Inherent
Risks
– Inherent risks are those integral to the
activity.
– An inherent risk is one that, if removed
from the game, would essentially alter
the sport and thereby the sport would
lose its integrity.
– There is no liability for injury that occurs
due to inherent risks.
Negligent Behavior
 Nature
of the Activity
– The provider must be aware of the skill
and abilities that a participant needs in
order to successfully and safely
participate in the activity.
– The activity leader has a duty to identify
the inherent risks of the activity and
warn the participant of these risks.
Negligent Behavior
 Nature
of the Activity
– If the leader is not knowledgeable in a
familiar with the activity he cannot
identify the risks nor warn the
participant.
– However, he/she still has a duty in
preventing harm and conducting the
activity to a reasonable standard of care
Type of Participants
 The
service provider must be
– Aware of the character of the
participants,
– Understand how to work with them in
the specific activity, and
– Know which risks a participant may be
able to assume and thus better protect
them from risks.
Breach of Duty
 In
order to establish that a breach of duty
has occurred, one of the following must be
established:
 1. Direct evidence of negligence
 2. Violation of a statute
 3. Res ipsa loquitur
Direct Evidence
 Many
times established by testimony from
others actually witnessing the event.
Violation of a Statute
 Violation
of a statute, or negligence per se,
exists when a law has been broken which
leads to an act of negligence.
Res Ipsa Loquitur
 Res
ipsa loquitur is an operational term,
which allows suit based on what "most
likely" occurred when direct evidence is
unavailable (Wong, 1994).
Cause
 The
failure to act reasonably in
providing the appropriate standard of
care.
Standard of Care
 Reasonable
and prudent professional
– The participant is owed a duty to be
protected from unreasonable risk of
harm regardless of who is in charge.
– When a person accepts a responsibility
they are expected to perform up to the
level of the profession.
Damage
–The extent to which the actual
damage exists
Standard of Care
 Foreseeability
– The ability to identify a situation or
area, expected of a reasonable and
prudent professional, that could expose
the participant to unnecessary harm
Foreseeability of
Unreasonable Harm
 It
should be made clear that one can
have a special relationship and owe a
duty to protect, but because there is
no foreseeable unreasonable risk,
there does not have to be any
proactive action.
Foreseeability
 There
is another aspect of
foreseeability. When an
environmental hazard is open and
obvious, it is not foreseeable that an
individual would place oneself in a
dangerous position of which they
were aware.
 While there may be a special
relationship, there is no duty to be
proactive to protect.
Types of Negligence

Gross Negligence
– An act in which there is considerable lack of
reasonable care as a result of total indifference
toward and disregard to the duty owed but
falls short of willful conduct to injure.

Ordinary Negligence
– An act in which there is a mere failure to
exercise reasonable care that results in an
injury or damage.
Types of Negligence
 Contributory
Negligence
– Occurs when the party to which the
duty is owed contributes to the injury or
damage that is incurred.
Potential Liabilities of Coaches
and Teachers
 Traditionally,
the institution has been
named in litigation due to the
coach/teacher negligent behavior but
not the coach/teacher.
 Recently, since the basis of litigation
is the negligence of the
teacher/coach, the teacher/coach is
being sued individually.
Potential Liabilities of
Administrators & Coaches
• Supervisor is not an insurer of
everyone’s safety
• The supervisor needs only to exercise
reasonable care
• Unless other evidence is presented the
supervisor is legally entitled to assume
that all under his/her supervision will
also be exercising reasonable care
New Trend
Recently cases have appeared in which
the student/athlete has sued the
teacher/coach on the claim of assault and
battery?
 This addresses some questions:

– Can force be used to bring about compliance to
commands?
– Can punishments be used for prohibited
conduct?
– Can force be used when the player or student
does not perform adequately?
Potential Liabilities of Coaches
• Failure to provide adequate supervision
–
Includes
• failure to provide adequate equipment
• failure to provide a safe area
• failure to provide supervision between events
• Duty entails using reasonable care in either
rectifying dangerous situations or warning
others who may encounter hazards.
Potential Liabilities of Coaches
A
supervisor is generally not liable
for any intentional the actions of the
employee unless it can be proved
that he/she was negligent in
choosing or supervising the
employee(s) involved.
Potential Liabilities of Coaches
• Failure to provide proper instruction and
training
–
Includes
• The instructor must be qualified to teach the
subject
• Coach must teach the proper techniques, safety
rules and method of playing
• Both coaches and teachers should keep detailed
records of their training or teaching sessions.
• Risk of injury is greater for those involved in
activities for the first time, those involving
children, or in perceived dangerous activities.
Potential Liabilities of Coaches
 There
have been a number of cases
in football in which the player alleged
that the coach did not provide
adequate instruction and training
concerning tackling.
 This includes proper preseason
conditioning programs.
Potential Liabilities of Coaches
• Failure to provide prompt and capable
medical assistance
–
–
–
The teacher or coach has a duty to refrain
from actions that might aggravate or reaggravate an injury
Teacher/coach are held to a reasonable
standard of care when giving medical
assistance
The institution may be the responsible party
if medical personnel have not been provided
2 Primary Medical Duties of a
Coach
 The
coach/teacher may have to
render aid before medical assistance
arrives.
 The coach/teacher is responsible for
sending an injured athlete/student
for medical treatment immediately.
Potential Liabilities of Coaches
• A coach who orders a player to fight or
attempt to injure an opposing player
may be held liable under vicarious
liability theory in injuries occur
Potential Liabilities of Coaches
 Failure
to provide appropriate
matches
– The coach/teacher is responsible for
making certain that player/students are
similar in size and skill when going
head-to-head, especially in a contact
sport in a practice/class situation.
– Age, maturity, and fatigue are also
factors when matching participants in a
practice or class situation
Potential Liabilities of Coaches
 Teacher/coach
may meet the
standard of care by:
– Player’s experience
– Ability
– Skill level
Liability of Athletic
Administrators
• An administrator, school or university
may also be sued under the theory of
vicarious liability for the alleged
negligence of an employee.
• An administrator may be sued in his/her
role as the supervisor of a coach or
teacher.
Doctrine of Respondeat
Superior
 Also
referred to as “vicarious liability”
 Identifies that the organization is
liable for the negligent behavior of its
employees as long as the employee
or volunteer is acting within the
scope of their responsibility.
Doctrine of Respondeat
Superior
 Thus,
if an employee is negligent in
his/her duty the superior(s) is also
held liable for the employees
action(s).
Failure to Provide Supervision
of Athletic Activities
 In
dealing with personnel, athletic
administrators may be held liable if
they have not exercised reasonable
care in hiring coaches and/or
teachers with proper skills and an
qualifications and insuring that
properly qualified personnel are
supervising
 How does an AD know who to hire?
Foreseeable Conditions
 An
administrator is required to
exercises reasonable care to prevent
foreseeable risks and to make safe
foreseeably dangerous conditions by
repair or warning
Failure to Provide Medical
Assistance
 The
administrator may be liable if
he/she was negligent in providing
medical personnel at a game or
practice.
Failure to Provide Safe
Equipment
 The
failure to provide equipment or
failure to provide satisfactory
equipment has been the basis for a
number of lawsuits.
4 Equipment Considerations for
the Athletic Administrator
 The
first consideration is the
purchase of appropriate equipment
for the athletic activities offered.
 Provision of equipment for the
athletic activities in which equipment
is needed.
 Provision for properly fitting
equipment
 Periodic inspection of equipment and
reconditioning when needed.
Administrator Duty to Spectator
A
spectator injured by another
spectator cannot enforce a claim
against the school unless there had
been previous knowledge of a
potentially dangerous setting and did
not alert the spectator.
 Where might this occur in a
intercollegiate/pro sport setting?
– Bearman v. Notre Dame