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Tort Law

Conduct that harms other people or their property is generally called a
tort.  It is a private wrong against a person for which the person
may recover damages.  The injured party may sue the wrongdoer to recover
damages to compensate him for the harm or loss caused.  The conduct that is
a tort may also be a crime. A crime is a wrong arising from a violation
of a public duty.  A tort is a wrong arising from the violation of
a private duty.  Again, however, a crime can also constitute a
tort.  For example, assault is a tort, but it is also a crime.  A
person who is assaulted may bring charges against the assailant and have him
prosecuted criminally and may also sue the assailant for damages under tort
law.  An employee’s theft of his employer’s property that was entrusted to
the employee constitutes the crime of embezzlement as well as the tort of
conversion.

There are three types of torts: intentional torts; negligence; and strict
liability.  An intentional tort is a civil wrong that occurs when
the wrongdoer engages in intentional conduct that results in damages to
another.  Striking another person in a fight is an intentional act that
would be the tort of battery.  Striking a person accidentally would not be
an intentional tort since there was not intent to strike the person.  This
may, however, be a negligent act.  Careless conduct that results in damage
to another is negligence.

Generally, liability because of a tort only arises where the defendant either
intended to cause harm to the plaintiff or in situations where the defendant is
negligent.  However, in some areas, liability can arise even when there is
no intention to cause harm or negligence.  For example, in most states,
when a contractor uses dynamite  which causes debris to be thrown onto the
land of another, causing damages such as broken windows, the landowner may
recover damages from the contractor even though the contractor may not have been
negligent and did not intend to cause any harm.  This is called strict
liability or absolute liability.  Basically, society is
saying that the activity is so dangerous to the public that there must be
liability.  However, society is not going so far as to outlaw the
activity.

Products liability is major area of sports tort law. Participants
use all different types of sports-related equipment. Products liability refers
to the liability of any or all parties along the chain of manufacture of any
product for damage caused by that product. This includes the manufacturer of
component parts, an assembling manufacturer, the wholesaler, and the retail
store owner. Product liability suits may be brought by the purchaser of the
product or by someone to whom the product was loaned. Products liability claims
can be based on negligence, strict liability, or breach of warranty of
fitness.[1]  In
a strict liability theory of liability, the degree of care exercised by the
manufacturer is irrelevant. If the product is proven to be defective, the
manufacturer may be held liable for the harm resulting from the defect.

Negligence

Negligence is the failure to follow the degree of care that would be followed
by a reasonably prudent person in order to avoid foreseeable harm. A person can
be negligent if he or she acts with less care than a reasonable person would use
under similar circumstances.

Ben drove a car on a country road at 35 miles an hour. The maximum speed
limit was 45 miles an hour. He struck and killed a cow that was crossing the
road. The owner of the cow sued Ben for the value of the cow. Ben raised the
defense that since he was not driving above the speed limit, there could be no
liability for negligence. Was this defense valid? No. A person must at all times
act in the manner in which a reasonable person would act under the
circumstances. The fact that Ben was driving within the speed limit was only one
of the circumstances to consider. The weather or the condition of the road may
have made it unreasonable to drive at 35 miles an hour. Driving slower than the
speed limit does not in and of itself prove that the driver was acting
reasonably.  The reasonable person standard varies in accordance with the
situation. Generally, when a jury is involved, what is reasonable are what
members of the jury believed is reasonable.

The degree of care required of a person is that which an ordinarily prudent
person would exercise under similar circumstances. This does not necessarily
mean a degree of care that would have prevented the harm from occurring. This
degree of care varies. For example, if one is engaged in a service involving
skill (such as a medical doctor) the care must be measured in light of what an
ordinarily prudent skilled person (e.g., doctor) would be. The question the jury
seeks to determine is what care and skill would reasonably be expected under the
circumstances involved in the case. Plaintiff must prove that:

The defendant owed a duty of care to the plaintiff;

The defendant breached that duty to the plaintiff;

The conduct of defendant was unreasonable;

The defendant was the proximate cause of the breach of duty; and

There is evidence of damages.

If the plaintiff fails in proving any of these points, the plaintiff’s
claim should not succeed. In order for someone to be legally responsible for
damages, it is necessary to show that the wrongful act was the cause of the
harm. The legal term is that the act must be the proximate cause of the
harm.

The final element of negligence is damages. A plaintiff may recover monetary
damages to compensate the plaintiff for economic losses such as lost wages and
medical expenses. A plaintiff may also recover non-economic losses such as for
pain and suffering. Punitive damages may also be appropriate. Punitive damages
are designed to punish the defendant for his wrongdoing and are generally only
appropriate if the plaintiff can prove gross negligence or willful
misconduct.

Contributory Negligence versus Comparative Negligence

If the negligence of the plaintiff is partially responsible for his harm, his
recovery from the defendant may be reduced or barred. This is called
contributory or comparative negligence. In a small minority of
states, the contributory negligence rule states that if the plaintiff
contributes to his harm, he cannot recover from the defendant. In most states,
this rule has been rejected because it has been regarded as unjust in situations
where the plaintiff’s negligence was slight in comparison to the defendant’s
negligence.

Comparative negligence provides that there should be a comparing of the
negligence of the plaintiff and the defendant. This is the rule followed in most
states. The negligence of the plaintiff would not bar recovery in these states,
but would only reduce the plaintiff’s recovery to the extent that the harm was
caused by plaintiff. For example, if the jury decides that the plaintiff has
sustained damages of $100,000.00, but that his own negligence was one-fourth the
cause of the damage, the plaintiff would only be allowed to recover
$75,000.00.[2]

Assumption of risk is a defense which a defendant can raise which
basically states that the plaintiff has knowingly assumed the risk of the harm
that was caused. A fan hit by a basketball at a basketball game has assumed the
risk of getting hit because it is a known danger that basketballs sometimes go
into the stands because of a bad pass or if a player misses a pass.

Gross Negligence

What happens when sports participants break the rules so badly that it
appears the sole purpose of a player was to injure another player intentionally
during a game?. This level of recklessness is difficult to prove. However, if
the plaintiff is successful, the plaintiff may recover punitive damages for the
outrageous conduct of the defendant in addition to the general damages (e.g.,
medical bills and loss of wages).

Spectator Injuries

While most sports torts involve personal injuries caused by participants
against each other, a spectator to a sporting event might be injured. Some
examples are foul balls, deflected hockey pucks, and flying debris (at a Nascar
event). In such an event, who is responsible for the spectator’s injuries?
Does the owner of a stadium have a duty to warn or protect spectators from foul
balls or other foreseeable injuries?  American courts have refused to allow
recovery for injuries to spectators caused by the open and obvious rules of the
game, particularly when it comes to foul balls. On the other hand, what about
other sports, such as golf, hockey, and football when an activity on the field
might impact the fans in the stands (e.g. fights between spectators)? Does an
owner of a stadium owe a duty to spectators to prevent all foreseeable injuries,
or does common sense impose some duties on the spectators themselves? Do cities
and counties have to warn recreational swimmers that diving into shallow water
could expose them to a risk of danger?  It is wise to post signs that warn
of potential dangers but to warn of all possible dangers are clearly not
possible in the sports context.  If a sign is at issue, the adequacy of the
posting of the sign is usually the focus of the analysis.

In 2002, a 13-year-old girl died after she was hit in the head by a hockey
puck that shot over the glass during the Columbus Blue Jackets NHL hockey game
in March 2002.  She died two days after she was hit. The ticket stubs had
warnings about the dangers due to flying pucks. It is unlikely that such
warnings provide an absolute defense to death from flying pucks.

When large crowds gather for sporting events, there is a greater likelihood
of injuries to spectators. Balancing fun, safety, and security have been an
issue for organizers of events for many years. A person who operates a place of
public amusement or entertainment must exercise reasonable care with regard to
the construction, maintenance, and management of his buildings or structures and
his premises, having regard to the character of entertainment given and the
customary conduct of persons attending such entertainment. The operator must
employ sufficient personnel to maintain the premises in a reasonably safe
condition. He or she must use ordinary care to maintain the floors and aisles
along which patrons are expected to pass in a reasonably safe condition for
their use; and this principle has been applied in cases where personal injury
resulted from a slippery floor, aisle, ramp or walkway, defective carpet, or the
presence of an object the floor or in the aisle.

Res ipsa loquitur is a Latin term meaning the thing speaks for
itself. It is a doctrine of law that one is presumed to be negligent if
he/she had exclusive control of whatever caused the injury even though there is
no specific evidence of an act of negligence, and the accident would not have
happened without negligence. The traditional elements needed to prove negligence
through the doctrine of res ipsa loquitur include:

The harm would not ordinarily have occurred without someone’s
negligence;

The instrumentality of the harm was under the exclusive control of the
defendant at the time of the likely negligent act; and

The plaintiff did not contribute to the harm by his own
negligence.

The res ipsa loquitur doctrine has been applied in actions for
injuries caused by the falling of various objects in theaters or other public
places of amusement or exhibition, including:

The fall of an object or substance from the ceiling;

The striking of a traveler on the public streets by a baseball which came
over a fence surrounding a baseball park.

The striking of a fisherman in the eye by his or her fishing companion
while the latter was casting.

In some cases involving defective seats or the collapse of a seat, bleachers,
grandstands, a balcony, or the like, it has been held that the doctrine of
res ipsa loquitur was applicable, or at least that such a happening
warranted the inference that the plaintiff’s injury was caused by the negligence
of the defendant. Since the doctrine of res ipsa loquitur generally is
limited to those cases where it appears that the instrumentality which caused
the injury was under the sole and exclusive control and management of the
defendant, the courts have, as a general rule, refused to apply the doctrine
where injury resulted from the pushing, crowding, or jostling of other
patrons.

Wrongful Death

When somebody dies in consequences of a wrongful act a person, either by
negligence or by a deliberate act, such a death is called wrongful
death. This is the civil equivalent of the criminal charge of one of the
forms of homicide, including murder. Should a sports participant be held liable
for the death of another athlete or a spectator? Virtually all sports involve an
activity and an aspect of risk that could lead to the death of a participant. It
is important for architects and administrators to provide protective screening
and appropriate warnings for participants and spectators related to such
concerns. What about fights? What about slugging someone in the face with a
hockey stick?[3]

Malpractice in Sports

Malpractice is a failure by an physician or other professional to use the
care and skill that other members of their profession would use under similar
circumstances. When an accountant, doctor, attorney, or some other professional
contracts to perform services, there is a duty to exercise skill and care as is
common within the community for persons performing similar services. Failure to
fulfill that duty is malpractice. What about team physicians and trainers. What
if a trainer or doctor employed by a team rather than the player recommends that
the injured player participate? To whom does the medical practitioner owe a duty
of care, the player or the team? Sometimes this decision is not clear cut.
Malpractice is a broad category and could involve anything from an improper
diagnosis to the prescription of an inappropriate medication.[4]

Sports Officials

Another area of sports torts involves the officials of games or other sports
contests. Officials in sports can greatly affect the outcome of the sports
contest. Professional sports such as football, basketball, and hockey have
incorporated the use of the television replay to ensure that the often
subjective regulation of the sports contest remains as objective as possible.
Sports officials, however, are often subject to harassment, intimidation, and
sometimes violent, physical or verbal abuse from fans, players, and coaches.
Whether at the professional or amateur level, sports officials are often the
targets of hostile emotions due to the extreme competitiveness in the sports
arena. Due to numerous lawsuits against sports officials for alleged intentional
misconduct, states have been forced to enact laws that protect officials and
provide immunity from such lawsuits. Immunity from civil suits only applies to
unintentional, negligent acts by the officials. This affords the sports official
some protection against litigation.[5]

Workers Compensation

For most kinds of employment, state workers’ compensation
statutes govern compensation for injuries.  The statutes
provide that the injured employee is entitled to compensation for accidents
occurring in the course of employment.  Every State has some form of
workers’ compensation legislation.  The statutes vary widely from State to
State.  When an employee is covered by a workers’ compensation
statute, and when the injury is job connected, the employee’s remedy is limited
to what is provided in the worker’s compensation statute.

Compensation for injuries to an athlete is a prime subject for any collective
bargaining agreement in professional sports that involve a players association
or union When players are injured from an activity arising out of and in the
course of their employment, the private agreement between the players, team, and
league often avoid any necessity of filing a claim under the state’s workers
compensation statute.

Since being an employee is a prerequisite to filing a claim under workers
compensation, usually only professional athletes may consider filing a claim.
Should student-athletes who receive athletic scholarships be entitled to
compensation if they suffer a temporary or permanent injury while participating
in their sport for their school, college, or university? It seems clear that the
student-athlete has not yet been given the right to claim workers compensation
since they are not yet recognized as employees. However, the NCAA has a
Catastrophic Insurance Plan covering every student who participates in college
sports, including managers, trainers, and cheerleaders. One can learn more about
this plan by visiting the NCAA website (www.ncaa.org). [6]

Insurance

Since any sports activity involves a degree of risk or injury, it is
generally recognized that events and participants should purchase insurance to
protect against a claim of negligence arising from that activity. Sports
insurance policies do not relieve an individual or event from liability from
negligent behavior. However, having insurance does ensure that if a judge or
jury believes that damages should be awarded for an injury arising from the
activity, the insurance company stands in the shoes of the defendant and must
therefore pay in accordance with terms of the insurance policy. Exceptional
student-athletes and professional athletes are wise to purchase a policy that
covers their own participation in the activity. Such insurance for the
professional athlete may be referred to as a career-ending injury insurance and
usually requires large premiums to maintain because of the potential for great
financial loss, especially at the professional level.

Commercial Misappropriation

Though athletes may find that a successful suit under defamation standards is
extremely difficult, an area that proves worthy of a lawsuit involves the use of
the athlete’s name, image, or likeness without the athlete’s consent in order to
make a profit or sale. Such non-approved use of an athlete’s persona is referred
to as commercial misappropriation. Since manufacturers and other sellers of
products and services commonly use an athlete in marketing in the form of an
endorsement contract, athletes must be cognizant to protect from the
unauthorized misuse of their image. Establishing a trademark (including an
Internet domain name) for one’s name or image may be necessary for professional
athletes (and certainly professional and amateur leagues and organizations) to
prevent improper use of a name for profit.

Products Liability

Products liability in sports represents an area of negligence involving a
sporting goods. When plaintiffs sue a manufacturer of sporting goods, the
claimants allege that they suffered an injury due to the use of a product that
was defective. Bats, gloves, shoes, helmets, pads and other goods used in a
sport are subject to a lawsuit if there is a defect in the design or
manufacturing process. This may be referred to as a manufacturing defect or
design defect.

Manufacturers of goods may also be sued for failing to warn the user of
potential dangers involving use of the product. Since goods are involved, the
Uniform Commercial Code (UCC) is often called into play, and the user of the
product alleges that there was a breach of the warranty of merchantability or a
breach of the implied warranty of fitness for a particular purpose. UCC Article
2 governs the sales of goods and has been adopted in whole or in part by every
state.

[1] Under the Uniform Commercial Code (UCC), which has been adopted in some
form by almost all states, there are implied warranties in every sales
transaction that the goods sold are fit for the ordinary purposes for which such
goods are to be used.

[2] Some states combine the contributory and comparative negligence rules and
refuse to allow the plaintiff to recover anything if his negligence is more than
50% of the cause of the harm.

[3] Sports Law at p. 69 by Adam Epstein, Delmar Leaning (2003)

[4] Id. at p. 76

[5] Sports Law at p. 77 by Adam Epstein, Delmar Leaning (2003)

[6] Id.

[7] Id at p. 79

[8] Id at p. 79

Tort Law: Related Pages

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