Chapter 13

LEGAL LIABILITY,

RISK, AND INSURANCE MANAGEMENT

LIABILITY DEFINED

• ONE’S LEGAL RESPONSIBILITY

• STATE OF ONE WHO IS BOUND IN LAW AND JUSTICE TO DO SOMETHING WHICH MAY BE ENFORCED BY COURT ACTION

- BLACK’S LAW DICTIONARY (1990)

LEGAL LIABILITY IN PHYSICAL EDUCATION AND SPORT

THE CHANGING IMMUNITY DOCTRINE

• THE KING CAN DO NO WRONG

• GOVERNMENTAL IMMUNITY

• SAVE HARMLESS LAWS

• THE DOCTRINE OF RESPONDEAT SUPERIOR

GOVERNMENT EMPLOYEES ARE IMMUNE ONLY WHEN:

1. ACTING IN COURSE OF EMPLOYMENT & WITHIN SCOPE OF THEIR AUTHORITY

2. ACTING IN GOOD FAITH

3. PERFORMING ACTS THAT ARE: DISCRETIONARY-DECISIONAL RATHER THAN MINISTERIAL-OPERATIONAL

LEGAL CONCEPTS

• TORT– INTENTIONAL

– UNINTENTIONAL

• NEGLIGENCE– COMMON NEGLIGENCE

– GROSS NEGLIGENCE

TORTS

• INTENTIONAL– ASSAULT

– BATTERY

– OFFENSIVE TOUCHING

• UNINTENTIONAL– HORSEPLAY

TO BE FOUND NEGLIGENT

THE PLANTIFF MUST SHOW:

1. THERE WAS A DUTY

2. THERE WAS A BREACH OF DUTY

3. INJURY ACTUALLY DID OCCUR

4. THE BREACH OF DUTY WAS THE PROXIMATE CAUSE OF INJURY

DEFENSES TO NEGLIGENCE

• CONTRIBUTORY NEGLIGENCE

• COMPARATIVE NEGLIGENCE

• ASSUMPTION OF RISK

• ACT OF GOD

• SUDDEN EMERGENCY

NEGLIGENCE COMPLAINTS

• IMPROPER SUPERVISION

• FAULTY INSTRUCTION

• FAULTY FACILITIES

• DAMAGED OR INAPPROPRIATE EQUIPMENT

• FAILURE TO WARN

CARDINAL PRINCIPLES OF SUPERVISION

• ALWAYS BE THERE!• BE ACTIVE AND HANDS-ON• BE QUALIFIED AND CERTIFIED• KNOW PARTICIPANTS’ HEALTH• ENFORCE RULES AND REGULATIONS• INFORM STUDENTS ABOUT SAFETY• BE VIGILANT• BE PRUDENT, CAREFUL, & PREPARED

SPORT PRODUCT LIABILITY

LITIGATION MAY INCLUDE:

• DEFECTIVE DESIGN

• MANUFACTURING DESIGN

• FAILURE TO PROVIDE WARNINGS OR INSTRUCTION FOR PROPER USE

CIVIL RIGHTS AND THE COURTS

• FIRST AMENDMENT

• FOURTH AMENDMENT FOURTEENTH AMENDMENT– EQUAL PROTECTION CLAUSE

• GENDER EQUITY• AMERICANS WITH DISABILITIES ACT

– DUE PROCESS

LAWSUIT AVOIDANCE

• PREPARTICIPATION MEDICAL EXAM

• HEALTH AND LIABILITY INSURANCE

• PRESEASON PREPARATION

• ACCEPTANCE OF RISK

• PLANNING AND SUPERVISION

• EQUIPMENT AND FACILITIES

• EMERGENCY CARE

• RECORD KEEPING

ACCEPTANCE OF RISK

• CONSENT FORMS AND PERMISSION SLIPS INFORM PARENTS AND REQUEST PERMISSION

• WAIVERS GIVE UP THE RIGHT TO SUE(PROBLEMS WITH WAIVERS)

– A PARENT CANNOT WAIVE THE RIGHTS OF A MINOR CHILD

– A MINOR CHILD CANNOT ENTER INTO LEGAL AGREEMENTS AND SO CAN’T SIGN AWAY HIS/HER OWN RIGHTS

GOVERNMENTAL VERSUS PROPRIETARY FUNCTIONS

• GOVERNMENTAL– EDUCATION– POLICE– PARK AND RECREATION DEPARTMENTS

• PROPRIETARY– CHARGING FEES FOR PRIVATE EVENT– RENTING FACILITIES/EQUIPMENT FOR

PRIVATE ACTIVITY

• FEES AND FUNCTION

LIABILITIES

• MUNICIPALITY

• SCHOOL DISTRICT

• SCHOOL BOARD MEMBERS

• ADMINISTRATOR/SUPERVISOR

• TEACHERS, COACHES, AND LEADERS

RISK MANAGEMENT

• IDENTIFY ALL POTENTIAL RISKS

• ANALYZE AND EVALUATE THE LEVEL OF EACH RISK– AUDIT THE RISKS

– DEVELOP POLICIES AND PROCEDURES

• USE A TEAM EFFORT

• TAKE ALL POSSIBLE PRECAUTIONS

RISK OPTIONS

• ACCEPT THE RISK AND ASSUME RESPONSIBILITY

• TRANSFER THE RISK THROUGH CONTRACT OF INSURANCE

• CHANGE THE ACTIVITY/EVENT TO REDUCE THE LEVEL OF RISK

• ELIMINATE THE ACTIVITY/EVENT

INSURANCE MANAGEMENT

SHIFTS THE RISK TO ANOTHER -

• PROPERTY INSURANCE

• LIABILITY PROTECTION

• CRIME PROTECTION

TYPES OF SCHOOL ACCIDENT INSURANCE PLANS

• INDIVIDUAL POLICIES

• GROUP MEDICAL PLANS

• STATE HIGH SCHOOL ATHLETIC ASSOCIATION PLANS

• CITY/SCHOOL DISTRICT PLANS

• SELF-INSURANCE

SPORT AND INSURANCE

• FAMILY POLICY COVERAGE

• SCHOOL RECOMMENDED GROUP INSURANCE (PAID BY PARENTS)

• SCHOOL PURCHASED INSURANCE

• CATASTROPHIC INSURANCE PLAN