law research paper
kevin19940824
negligence.pptxDavid B. Falk College of Sport and Human Dynamics
Negligence
Your Notes
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Tort Law
Intentional Torts
Negligence
Reckless Misconduct
Negligence
- Is the Failure to Use Such Care as a Reasonably Prudent and Careful Person Would Use Under Similar Circumstances.
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Negligence
Elements:
Duty
Duty
An Obligation Recognized by Law Requiring an Individual to Conform to a Certain Standard of Conduct Toward Another.
Duty is Based on Relationship Such as a Coach / Athlete.
Negligence
Elements:
Duty
Breach of Duty
Breach of Duty
A Failure to Conform to the Standard of Care Set By Law.
TEST: How Would a Reasonable Person, With Similar Skills and Knowledge, Have Reacted Under Similar Circumstances?
Hockey Game Injury
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Negligence
Elements:
Duty
Breach of Duty
Causation
Causation
There Must be a Reasonable Close Causal Connection Between the Conduct and the Resulting Injury.
Actual Cause - “But For Test”
Proximate Cause - Reasonably Foreseeable Consequence of Defendant’s Conduct.
Negligence
Elements:
Duty
Breach of Duty
Causation
Damages
Damages
Plaintiff Must Have Suffered an Actual Injury (Damages).
TYPES OF DAMAGES
Compensatory – Relating to Damages Suffered (ex: Lost Income, Medical, Pain and Suffering)
Punitive – Awarded as a Punishment for Outrageous Conduct and to Deter Future Transgrassions
McDonald's Coffee Case
By awarding $2.7 million (reduced to $480,000 on appeal) - or two days' worth of its coffee sales - the jury penalized McDonald's on a scale appropriately suited to deterring this corporate giant from engaging in further dangerous conduct.
McDonald's had received over 700 complaints of burns caused by its coffee before the injury.
General Motors Case
In 1993, a Georgia state court jury awarded the family of 17-year-old Shannon Moseley -- killed in an explosion involving a 1985 GM pickup truck with "side-saddle" gas tanks -- $ 4.2 million in compensatory and $ 101 million in punitive damages. (See: Moseley v. GMC., Fulton Cty., GA Ct., No. 90-V-6276 ).
Defenses to Negligence
Assumption of Risk
Contributory Negligence
Comparative Negligence
Statute of Limitations
Immunity
Act of God
Good Samaritan Statute
Assumption of Risk
Plaintiff Assumes All Risks, Either Expressly(tell or write) or Implicitly(show the risk), that are Normally Associated With an Activity.
Minor can not assume risks. (under 18 years old)
Inherent risk, expressly risk
ELEMENTS
PLAINTIFF MUST KNOW THE RISKS
PLAINTIFF CHOICE TO INCUR THE RISK MUST BE FREE AND VOLUNTARY
Waivers
A Waiver, Release, or Exculpatory Agreement in the Sport Setting is a Contract in Which the Participant or User of a Service Agrees to Relinquish the Right to Pursue Legal Action Against the Service Provider in the Event that Negligence of the Provider Results in an Injury to the Participant.
Waivers
In at Least 45 States, a Well-Written Waiver Voluntarily Signed by an Adult will Protect the Service Provider from Liability for Ordinary Negligence of the Provider and its Employees.
1Some state do not have waiver
2Waiver needs to have the word negligence
3Electronic is fine
4The waiver has to be very clear
Case Study #1 – Violates Public Policy
Robert Hiett was rendered a quadriplegic, while participating in the “Teflon Man Triathlon.”
The injury occurred at the start of the event when Hiett dove into the water and struck his head on an object beneath the water surface.
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Case Study #1 – Violates Public Policy
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The waiver for the Triathlon, which all participants were required to sign, stated:
“In consideration of this entry being accept[ed] to participate in the Lake Barcroft Teflon Man Triathlon I hereby, for myself, my heirs, and executors waive, release and forever discharge any and all rights and claims for damages which I may have or m[a]y hereafter accrue to me against the organizers and sponsors and their representatives, successors, and assigns, for any and all injuries suffered by me in said event.”
Case Study #1 – Violates Public Policy
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In a preliminary ruling, the trial court held that, absent fraud, misrepresentation, duress, illiteracy, or the denial of an opportunity to read the form, the entry form was a valid contract and that the pre-injury release language in the contract released the defendants from liability for negligence.
Case Study #1 – Violates Public Policy
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On appeal, the Supreme Court of Virginia in overturning the trial court’s decision stated that the law in Virginia has been settled for over a hundred years and that an agreement entered into prior to any injury, releasing a tortfeasor from liability for negligence resulting in personal injury, is void because it violates public policy.
Case Study #1 – Violates Public Policy
Waivers are not Enforced in:
Louisiana
Montana
Virginia
Case Study #1 – Violates Public Policy
What we can learn from this case study?
What can we take-away from this case study?
Robert Hiett v. Lake Barcroft Community Association, 244 Va. 191; 418 S.E.2d 894 (Va. 1992)
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Case Study # 2 – The word “Negligence”
Francesca Hyson claimed that she suffered injuries when her inner tube failed to stop at the bottom of the hill, and continued over a “cliff.”
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Case Study # 2 – The word “Negligence”
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Hyson claimed that White Water Mountain:
permitted the slope at the bottom of the hill to be excessively slippery;
failed to maintain an adequate barrier at the bottom of the hill designed to stop patrons;
failed to stop inner tubes as they reached the bottom of the hill; and
failed to post any signs warning patrons of dangerous conditions at the bottom of the hill, namely, that the bottom of the hill ended in a cliff, below which the ground was rocky and hard.
Case Study # 2 – The word “Negligence”
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As for the waiver, Hyson claimed that the release did not relieve White Water Mountain of liability for its negligence because “negligence” was not expressly mentioned in the document.
Case Study # 2 – The word “Negligence”
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While the release signed by Hyson did not specifically refer to possible negligence by White Water Mountain, the court found that it provided examples of such risks and stated that "all of the inherent risks of [snowtubing] present the risk of serious and/or fatal injury."
Case Study # 2 – The word “Negligence”
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Therefore, the court found that while there was widespread support in other jurisdictions for a rule requiring that any agreement intended to exculpate a party for its own negligence state so expressly, such a rule was nor necessary in Connecticut.
Case Study # 2 – The word “Negligence”
What we can learn from this case study?
What can we take-away from this?
Hyson v. White Water Mountain Resorts of Connecticut, 265 Conn. 636; 829 A.2d 827; (2003)
Add a case study or class simulation to encourage discussion and apply lessons.
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Case Study #3 – Electronic Waivers
Charlene Johnson was on a cruise operated by Royal Caribbean Cruises.
While on ship, Johnson purchased a private lesson on the FlowRider. Her participation was voluntary and required payment of a fee that was separate and distinct from the cruise fare.
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Case Study #3 – Electronic Waivers
Prior to using the FlowRider, Johnson signed an electronic Waiver that stated at the top in bold, "Express Assumption of Risk - Waiver & Release of Liability."
Johnson, signed and executed the Waiver, thereby agreeing to "fully release and forever discharge" Defendant from "any and all actions" arising from "any accident [or] injury" in any way connected to Plaintiff's use of the FlowRider.
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Case Study #3 – Electronic Waivers
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The Waiver expressly warns passengers that the “rider/participant can, intentionally or inadvertently, move quickly and unexpectedly from side to side or any direction, which will necessarily result in falls from the bodyboard” and which may cause serious injury.
The Waiver further provides that the passenger agrees not to use the FlowRider until she has watched a safety video.
Case Study #3 – Electronic Waivers
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During the lesson, when the instructor let go of the board, Johnson immediately fell off the board and fractured her ankle. As a result, she filed a negligence lawsuit against Royal Caribbean.
Royal Caribbean argued that the suit was barred by her execution of a waiver which released Royal Caribbean from liability for any negligence.
Case Study #3 – Electronic Waivers
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The Court found the Waiver – here limited to the inherently dangerous simulated surfing activity - to be valid and enforceable.
Because Johnson's execution of the Waiver released the cruise line from liability for any negligence or damages associated with her use of the FlowRider, the suit for negligence is barred.
Case Study #3 – Electronic Waivers
What we can learn from this case study?
What can we take-away from this?
Johnson v. Royal Caribbean Cruises, 802 F. Supp. 2d 1316 (2011).
Add a case study or class simulation to encourage discussion and apply lessons.
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Case Study #4 – Indemnification Language
Gary Lloyd was injured in a bicycle accident when he was participating in a practice session prior to the Widowmaker Challenge at Sugarloaf ski resort.
The race was sponsored by National Off-Road Bicycle Association (NORBA).
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Case Study #4 – Indemnification Language
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Lloyd argued that because he signed two releases, which were inconsistent, the releases did not apply.
The appellate court held that while the releases overlapped, they were not inconsistent. The fact that one release specified negligence and the other was more general did not create an inconsistency, nor did the fact that the entry release contained an indemnification clause.
Case Study #4 – Indemnification Language
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Lloyd also argued that judgment should not have been granted to Sugarloaf and NORBA on their counterclaims for indemnification.
The court held that Sugarloaf and NORBA were entitled to an award of fees because of the indemnification language in the entry release could not have been clearer.
Case Study #4 – Indemnification Language
What we can learn from this case study?
What can we take-away from this?
Lloyd v. Sugarloaf Mountain, 833 A.2d 1 (ME. 2003).
Add a case study or class simulation to encourage discussion and apply lessons.
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Case Study #5 – Waivers & Minors
Traditionally, the courts have refused to apply waivers against minors.
The reason behind this rule is that due to their age, minors are unable to appreciate the legal significance of the document and its’ impact on them.
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Case Study #5 – Waivers & Minors
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However, while this may be the general rule, a growing number of jurisdictions seem to have started apply waivers to minors too.
While participating in a summer softball League, Taylor Thompson suffered an injury when she slid into second base, which was fixed as a rigid obstacle and, thereby, posing a clear safety hazard.
Case Study #5 – Waivers & Minors
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Thompson claimed that the Wabash YMCA, which owned the premises, was negligent for her injuries.
The YMCA, however, claimed that the waiver signed by Thompson's mother, in exchange for Taylor's participation in the league released them from any liability for Thompson’s injury.
Case Study #5 – Waivers & Minors
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In ruling for the YMCA, the State Supreme Court held that since sliding into second base, notwithstanding its rigidity, is an activity inherent in the nature of playing baseball or softball, Taylor's injury was derived from a risk inherent in the nature of the activity.
Waivers and Minors
As a General Rule -
Waivers Are Not Enforceable Against Minors.
Question: What Happens When Both the Parents and Minor Sign the Waiver?
Case Study #5 – Waivers & Minors
What we can learn from this case study?
What can we take-away from this?
Wabash County YMCA v. Taylor Thompson, 2012 Ind. App. LEXIS 428
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Waivers
Requirements
Clear Language
Consideration
Clearly Title Document “Waiver”
One Page
Use Word “Negligence”
No Fraudulent Statement
Statement Indicating Signer Read Statement
Indemnification Language
Waivers and Minors
As a General Rule -
Waivers Are Not Enforceable Against Minors.
Question: What Happens When Both the Parents and Minor Sign the Waiver?
Contributory Negligence
Does the Conduct by the Plaintiff in Some Way Contribute to His or Her Injury?
Where Recognized, Contributory Negligence is a Complete Bar to Plaintiff’s Recovery.
Your negligence contribute to the injury
Voluntarily participate
Fail to follow rules
Comparative Negligence
Technically Not a Defense but a Method of Apportioning Blame or Fault for the Injury.
Proportion falult
Types of Comparative Negligence
PURE (both small and big win)
NEW YORK, RHODE ISLAND
MODIFIED (large portion win)
MASS, PA, CT, OH, NJ, VT, NH, ME
SLIGHT/GROSS
NE, SD
Statute of Limitations
Statute Setting Maximum Time Period During Which a Certain Action Can be Brought or Enforced.
The Statute for Torts is Usually 2 or 3 Years from the Date of Injury.
Krueger v. 49ers
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Charlie Krueger, a defensive tackle with the San Francisco 49ers from 1959 to 1973, sued the team and its orthopedist for malpractice.
He testified that he received numerous injections of cortisone and Novocain in his knee without being advised of the consequences.
Krueger v. 49ers
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Krueger settled for $1.5 million in 1989.
He had been awarded $2.366 million in damages, but settled after three trials and hearings that went to the California Supreme Court.
Statute of Limitations
Act of God
Any Act of Nature Which is Uncontrolled and Uninfluenced by Man.
Examples:
Lightning, Tornados, Earthquakes
Good Samaritan Statute
Lesser Standard of Care Legislatively Imposed on Doctors and Other Individuals Who Gratuitously Render Assistance to Any Sick or Injured Person.
Exception: Gross Negligence
Example: doctor stop on highway for helping an accident, not negligence
