Pleasantly surprised that this chapter is under 30 pages.

This chapter centers around information exchange, since failure to warn etc. can fall under negligence.

The language you use really matters, if you say the trail will be perfect you can be sued for it not being perfect. So get your marketing department hip with the times.

An exculpatory agreement is a contract where a person or entity that is legally “at fault” tries to excuse itself from fault (also comes in clause format). Can be in either a waiver or a release.

Tort law and contract law are at odds in this case because contracts can include waiving of rights including the right to sue, while tortious acts still create accountability that can be rectified with litigation. These two pillars are at odds and so resolving disputes can get messy.

The main way that waivers turn out to be valuable is when they have the right context and they contain the right content.

Context considerations:

• Minority
  • Contracts entered into by minors are voidable
  • Parents cannot give up their children’s right to sue
    • Woodman and Hamill cases reflect opposite outcomes when injury occurs to a minor with a charge of negligence against the operator
• Public Policy
  • Some jurisdictions will not uphold waivers
  • Consideration whether an essential service is being provided
    • e.g. waivers not valid in medical setting
    • Tunkl vs UC Regents case sets precedent for college activity being an essential service
    • A university cannot release itself from all liability with a required waiver
  • The principle of unfair dominance is that a waiver that is one-sided will not be upheld
    • e.g. if the activity is required and no alternative is provided
  • Waivers cannot be used to violate a statuatory duty of care
    • e.g. not caring for and maintaining the premises

Content considerations:

• Terms must be conspicuous
• Language must be clear, unambiguous, and explicit
• Language cannot exonerate beyond negligence
  • Gross negligence, reckless behavior, and intentional torts cannot be waived away
• Decision whether to use exculpatory clause is important
  • Must be consistent with mission of org

Sample Agreement to Participate:

On the one hand, a vital chapter for TSL and for karate stuff. On the other hand, probably going to get covered again in the Sport Facility Mgmt course, so ¯\_(ツ)_/¯

This chapter has two main thrusts: premises liability, the extension of liability materials from the previous chapter; and legality surrounding construction and operation of sport facilities. It’s a beefy chapter (almost 50 pages!!) but that seems reasonable when considering there’s an entire course on this chapter separately.

People at events must be classified as one of the following:

• Invitee: a person granted permission to be on the premises by the owner and who brings economic benefit to the owner
  • Business invitee is there for the owner’s economic gain
  • Public invitee is anyone attending something on public property
  • Invitees are owed a duty of reasonable care (same as in chapter 15)
• Licensee: a person granted permission to be present but brings no economic benefit
  • Licensees are owed only safety from intentional harm
  • Liability can still exist if the owner knows about something dangerous and the licensee does not
• Trespasser: a person not granted permission to be present but is present anyway
  • Owner has only the duty of not wantonly inflicting injury on trespassers (except in Texas, HEYOOOOO)
  • Child trespassers are still owed some care due to the attractice nuisance doctine where private property with something children will want to get involved with (e.g. swimming pool) grants the duty of ordinary care by the owner

Defenses against premises liability:

• Open and obvious danger
  • If the danger is open and obvious it can protect a defendant from liability claims
  • Exception: deliberate encounter exception where the operator must be able to account for the typical behavior of the participants
  • Exception: distraction doctrine where participants may be distracted (e.g. by mascots) and thus not able to react to open and obvious danger
• Recreational use statutes
  • Immunity on this basis covered in chapter 15

Duties owed to invitees:

• Duty to design the facility safely
• Duty to warn
• Duty to inspect
  • Actual notice: dangers discovered during inspection
  • Constructive notice: dangers that would have been discovered by competent inspection but weren’t because inspection was not done or not done properly
• Duty to repair dangers
• Duty to provide emergency medical assistance
  • There’s some really sad stories in here about AEDs

Spectator injuries

• In tort law, it is rare to be liable for third party harm, but venue owners/operators do have that obligation
• Safe Place statutes can elevate the obligations on venue owners
• Alcohol increases the foreseeability of injuries and mayhem
  • The dram shop acts increase penalties against commercial enterprises when intoxicated individuals or minors are served alcohol and then go on to injure someone else
• Injuries from sports projectiles are covered under limited liability rules (so long as the owner puts up a screen and provides warnings they have sufficiently protected the spectators)

There’s a whole section on the legalities of publicly financed stadiums, teams building new venues and changing cities, and acquiring land through eminent domain.

This particular section is grisly and I’m pretty sure I know the basics so I don’t feel like taking notes on it.

When an event happens in a venue, the owner, operator, city, and league are usually all separate entities and thus must enter into a leasing agreement with each other. Leasing agreements have the following components:

• Right to use and occupy
  • Defines the terms and the times involved
• Rental fees
  • “Always take a percentage”
• Fee for additional services
• Revenue sharing
• Kitchen sink provisions:
  • Nonassignment clause: preventing lessee from assigning its rights to another org
  • Choice of law: identifying what state’s laws apply
  • Hold harmless: the lessor will be held harmless by the lessee in the event of any negligence or liability suits
  • Indemnification clause: the lessee will indemnify the lessor (compensate any losses as a result of injury to guests)
  • Insurance clause
  • Force majeure clause: acts outside the control of anyone can void the contract
  • Damage clause: holds the lessee responsible for damage to the venue

Tickets are “revocable licenses” and so long as the terms are spelled out, revocation can happen at any time. Personal seat licenses (PSLs) can get more complicated.

When two teams play and one team owns the venue (e.g. university court/stadium) the teams enter into a game contract. Such a contract might include:

• Location, date and time
• Financial arrangements
• Eligibility and game rules
• Termination provision
  • In the event of a breach of contract, this is how you recover that loss
• Force majeure clause
• Broadcast rights provision
• Insurance and indemnification clauses
• Complimentary tickets
• Promotional rights

There’s a big block on ADA compliance w/r/t wheelchair accessibility etc. If I ever need it I know where to look again.

There’s a little bit on surveillance of spectators including searching them. Sigh. MUH RIGHTS folks amirite.

That’s all for this! Last week of class let’s goooo!

I skipped chapter 14 because it was awful.

Part IV: Operations Management seems really important for both quidditch and karate! I sort of wish it was block 3, as the block 3 we dealt with was rough and I mailed it in. Though I guess I had a break on that block and now I can put the pedal to the metal.

This chapter is 40 pages but it looks way more interesting than some of the previous stuff.

The central idea that liability revolves around is establishing negligence (negligence is not eligible for punitive damages since punitive damages revolve around intention and negligence doesn’t count for that).

The four elements of negligence: duty, breach of duty, causation, and damages.

• DUTY: The defendant has a legal obligation to protect the plaintiff from unreasonable risk
  • In loco parentis: in place of the parent, establishes duty of teachers and coaches of minors
  • A special relationship can also occur in collegiate circumstances (college JV cheerleaders with no supervision)
• BREACH OF DUTY: The defendant has failed to meet the standard of care required.
  • Objective standard: the reasonably prudent person is the hypothetical individual who behaves rationally and if that person would suffer the injury that the plaintiff suffers, breach of duty can be established.
  • If the defendant has experience or education above the typical person they are accountable to that level of expectation
  • If the duty that was breached was a statuatory requirement, the breach of standard of care that results is called negligence per se. This automatically checks boxes 1 and 2 and the plaintiff just has to establish causation and damages.
• CAUSATION: A causal connection between the breach of duty and the resulting injury
  • When an act or failure to act directly causes the injury, it is proximate causation
  • The courts often have to address foreseeability in this context
  • I was expecting some other kind of causation in contrast to proximate causation but apparently not!!
• DAMAGES: When some actual loss or damage has been sustained as a result of the breach of duty. Threat of future harm is not sufficient.

If the four elements are established, negligence is established, but the defendant has recourses to defend against the negligence charge.

DEFENSES AGAINST NEGLIGENCE

• Statute of limitation
  • Often within 2 years
• Act of God
  • There has to be an actual natural disaster
  • The natural disaster has to be unforeseeable (not heeding warnings is once again negligence)
• Contributory and comparative negligence
  • Contributory negligence is when the plaintiff did not act as a reasonably prudent person and thus invited catastrophe, invalidating their entire claim
  • Comparative negligence is a modulation of the damages if the plaintiff and defendant are both partially at fault (percentages are established)
  • Pure comparative negligence is when the damages are modified directly by the percentages
  • Modified comparative negligence is when the damages can be completely invalidated if the plaintiff bears more than a threshold (e.g. 50%) of the fault
• Assumption of risk
  • Primary assumption of risk: the plaintiff understands and voluntarily agrees to accept the inherent risk of an activity.
    • In karate or quidditch, the activity bears inherent risk and playing voluntarily cannot make the supervisors automatically negligent if injury happens
    • Negligent supervision is not supposed to be an inherent risk, except when it is??
  • Secondary assumption of risk: the plaintiff deliberately chooses to encounter a known risk and in doing so acts unreasonably
• Immunity
  • Governmental immunity: when acting to effect law, organizations are immune to charges of negligence as per the FTCA
  • Charitable immunity: charities used to have more immunity than they do now but some may still exist
  • Good Samaritan statutes: individuals trying to help someone in distress may not be sued for negligence, depending on the state they’re in
  • Recreational use statutes: private landowners opening their land for free public use are immune to negligence charges
  • Volunteer immunity statutes: volunteers in many sports settings are protected from directly being sued
  • Sport safety acts/shared responsibility statute: similar to primary assumption of risk for a group sport activity

COMMON LIABILITY ISSUES:

• Lack of supervision
  • Quality of supervision
  • Quantity of supervision
• Improper instruction or training
  • Selection and supervision of properly qualified instructors
  • Adequacy of instruction
  • Proper progression of skill
  • Dissemination of safety rules and warnings
  • Mismatch of opponents
• Unsafe use of equipment
• Improper medical care
  • Preventative health concerns
  • Emergency medical care
    • Availability of qualified personnel
    • Clear protocol for outside emergency personnel
  • Medical malpractice
  • Fraudulent concealment
• Negligence in transportation
  • The selection of competent drivers
  • Selection of a safe mode of travel
  • Proper maintenance of vehicles
  • Proper training of drivers

Manufacturers can also be liable if their equipment is defective: Products Liability

• Negligence
  • Negligent design
  • Negligent failure to warn
  • Defenses:
    • Not the proximate cause of injury
    • Contributorily negligent
    • Assumed risk
    • Adequate warning was provided
• Strict Liability
  • The essential idea is whether something can be made sufficiently safe while still serving its purpose (social utility)
• Breach of Warranty
  • Express warranty
  • Implied warranty

WHOOF this was a big chapter! And an important one obv.

Blackboard is broken! Luckily I remember the relevant chapters were 13 and 14.

Boooo it’s another 30-pager.

Booooo the NCAA. The high schools are regulated by the NFHS.

Typical issues for high school athletics:

• Eligibility
• Home-schooled students
• Racial taunting
• Athletics associations are state actors (entwinement, as the SCOTUS ruling finds)
  • The NCAA is somehow not a state actor
  • But the NCAA can still wind up participating in state actions
  • Only state actors must grant due process (??)

I really hate the NCAA

One good thing it could do is enforce Title IX through certification, but surprise surprise, this doesn’t seem to be highly effective.

I feel really gross after readong this chapter. Probably wouldn’t be this bad if I hadn’t heard all the thing I’ve heard about the NCAA. But still sucks.

I’m skipping chapter 7 because I’m already familiar with it. Chapter 8 seems like it is probably relevant to the case study (the part relating to Title IX)

The US Dept of Labor oversees these laws and regulations. It administers the regulations set forth by the Fair Labor Standards Act, passed in 1938 (!!).

• Enterprise coverage
  • Employees who work at a company with at least $500,000 in business a year and/or have at least two employees
• Individual coverage
  • Not covered by enterprise coverage but employee regularly engages in interstate commerce or the production of goods for interstate commerce

(This really seems like just about everyone except self-employed local family businesses)

Minimum wage, overtime, etc. rules are created by the FLSA

The three-part test to determine if a salary position should be exempt:

• Salary basis test: the employee is paid a fixed salary
• Salary test: the salary must be above a minimum level
• Duties test: the salaried employee must be involved in the executive, administrative, or professional functions of the business

Assistant coaches and trainers are probably not exempt because they are not “learned professionals” nor are they “administrative” employees.

Another exemption is available if the organization is recreational and makes most of its money in 6 months or less of the year, or does not operate more than 7 months. Can’t get around it by making multiple businesses that only operate part of the year.

Internships have their own rules. Lots of them.

Volunteers are individuals who are not paid and do not expect to be paid, for a public service, religious, or humanitarian objective. Volunteers cannot volunteer for private for-profit orgs except through their charitable endeavors.

OSHA: Safety!!!

Things OSHA regulates, relevant to sports:

• General duties
• Specific hazard standards
• Construction records and safety
• Prevention of transmissible diseases
• PPE for exposure of various kinds
• Retaliation for making reports

Worker’s compensation requires three things:

• A compensable injury must have occurred
• The injury must be accidental
• The injury must arise out of employment
  • This is the most complex one, since the employee doesn’t have to be on the premesis for this to be valid

Professional athletes are entitled to worker’s comp for injuries (was not expecting that but still happy for it). Unfortunately, student-athletes are not employees (boooooo).

That’s it! Looks like the Title IX retaliation stuff was in chapter 7 after all. It’s not too complicated so I’ll use it directly to do the thing (on pages 149-150).