liability

General Liability

Legal Terminology and Concepts of Liability

The increasing rate of litigation involving leisure service organizations requires a working knowledge of liability concepts for all professional staff. The laws that deal with liability are based on common law rather than statute law. This means that the legal interpretation rests with the jury and subject to appeal.

Liability

Liability is that condition for which an individual or organization is answerable and out of which arises a responsibility to perform in specific ways, which obligation is enforceable by court action; hence, a legal responsibility. When an individual is injured or property is damaged through proven negligence on the part of an agent or a leisure service organization, that agent and/or the organization may be sued in order to obtain redress. Even though ordinarily protected from liability by reason of the nature of the function performed, the organization, its agents, and its employees can be held liable in the event of negligence. Courts have consistently held that reasonable diligence by members of governing boards or commissions in assigning duties is sufficient to absolve them of personal liability. Commission members act in a corporate capacity and not for themselves. They cannot be held personally liable for the acts of their agents or the doctrine of respondent superior (let the master answer). With respect to the existence of an attractive nuisance, it must be shown that they had prior notice of the condition before liability could be imputed to members of the governing commissions for the existence and continuance of the attractive nuisance.

Tort

Tort is a civil rather than a criminal wrong, not involving a breach of contract, which infringes on the rights of another and entitles the injured party to sue for redress. A tortious act is construed as a legal wrong resulting in some form of injury to another individual or damage to property. Torts may accrue as a result of malfeasance, misfeasance or nonfeasance.

Malfeasance

Malfeasance is an act of commission, without legal justification, with malicious intent to hurt, cause harm, or otherwise injure another party of his/her property through misconduct or abuse of power or position (bribery).

Misfeasance

Misfeasance is an act of commission with legal justification but performed in such a bungling manner as to engender harm or injury to another party of their property. Thus misfeasance is the improper or incompetent execution of a lawful act without malicious intent.

Nonfeasance

Nonfeasance is the omission of a lawful act or failure to perform a legal duty, without malicious intent, which causes damage or injury to persons and/or property (failure to perform first aid).

In Loco Parentis

In Loco Parentis means acting in the place of a parent. When a child is injured in a recreational situation. through some aspect of negligence, it is assumed that the degree of cared owed to the child by the individual acting as the guardian has a recognized obligation to use a high degree of care to prevent exposing the minor to risk.

Due Care

Due care implies the acceptance and practice of a professional "standard of care." It includes three elements.

1) Conformance to area and facility standards set by appropriate sanctioning organizations.

2) Conformance to health, fire and panic, sanitation and other public safety codes and regulations.

3) Providing designated, functional emergency facilities.

Negligence

Negligence is the failure to exercise reasonable and prudent care in relation to a situation. The duties and obligations that are imposed on the managing authority of any public/private facility concern the exercise of reasonable or ordinary care in its operation. Ordinary and reasonable care is the degree of care that would be exercised by a reasonably prudent person under similar circumstances. The question of whether such care has been exercised must be determined by a jury.

Negligence is the fundamental factor to be proved before liability is assessed for injury or damage. In negligence, the law attached great significance to the foreseeability of hazard. Foreseeability describes the extent to which an event or action that could or should have been anticipated and prevented by reasonable and prudent action. Negligence in terms foreseeability, must be based on factual evidence. Recreation professionals should specifically strive to anticipate all possible risks in any given situation and make every effort to alleviate them. For example. A child was visiting a relative in a city away from home. She visited a public playground where two boys were throwing a ball between them. One of the boys threw a wild pitch that struck the child. The court held that the city was not negligent.

It was the court's opinion that "... The mere failure of the city to prevent a single dangerous act of some child or children on the playgrounds ... does not make the city liable when there is nothing to show that the city had reason to suppose that the act would be committed. To hold the city liable under the circumstances disclosed by this record, because the superintendent in charge of this playground did not instantly stop these boys from playing an innocent game of catch, but permitted it to continue for a few minutes, is, to my mind imposing upon the municipality an unreasonable burden. I do not think that this unfortunate occurrence is anything which the city, or its employees, could have foreseen in the exercise of reasonable care''.

Four Elements Necessary to Prove Negligence

1) There must be a duty owed

2) There must be a breach of that duty owed

3) There must be a real loss/injury

4) Proximate cause. The breech of the duty owed, caused the injury or loss.

Last Clear Chance. Last clear chance is the final opportunity to prevent injury to another who, because of contributory negligence has placed himself in a hazardous condition.

Proximate Cause. Proximate cause is a specific act, directly producing events or a set of circumstances leading to some injury.

Res Ipse Loquitur. Res ipse loquitur means the facts speak for themselves. A self-evident condition or situation in which the factor of negligence is obvious.

1. Peterson v. City of N.Y. 204 (1935)

Attractive Nuisance. Attractive nuisance is any dangerous device, instrument, equipment, contrivance, structure, or condition of land that is naturally dangerous and where the hazard is a continuing one. The attractive nuisance doctrine applies to situations involving children whose immaturity prevents them from exercising ordinary common sense. It is based on the theory that the condition, which is naturally and usually attractive to children at play but which may result in injury, is an attractive nuisance - being attractive and a nuisance at the same time. Liability, in such cases, is based on the proposition that any person of reasonable prudence would foresee that a child would be attracted to such a condition and that injuries or death might ensue from the child's attraction. The courts take the position that the doctrine of attractive nuisance does not hold for a child ten years of age or older.

Defenses to Negligence Action. One method of dealing with the risk of liability is by eliminating or reducing the factors or conditions that may cause injury or damage. The recreationist who acts in a competent manner, thereby fulfilling his functions in a reasonable and prudent manner, can expect to escape the burdens of litigation for tortious acts. There are defenses, however, that may be utilized in cases in which the defendant has acted reasonably, the incident could not have been prevented by any known means, or the plaintiff brought the injury on himself

Vis Major. Vis major is an uncontrollable act of nature (act of God) causing injury. It in an accidental occurrence caused by some superior and unforeseeable force beyond human control and one that could not have been prevented even with reasonable and prudent care.

Assumption of Risk. Assumption of risk is an individual's voluntary involvement in a situation with full and complete knowledge of the possibility of hazard to be encountered through participation in that particular situation. Thus, an individual who participated in body contact sports knowingly assumes a certain risk of injury.

The plaintiff played softball on a public playground that had concrete benches and curbing near the playing field. The plaintiff was aware of the risks and fully assumed the hazards. Having done so, the plaintiff must suffer the consequences; his voluntary and knowing exposure of himself to risk precluded recovery from the defendant.

Waivers

Waivers are documents under which the participants agree not to hold the organization liable for accidents that may occur. Waivers are not valid for children, who may not sign away their right to sue.

Contributory Negligence. Contributory negligence is an action taken by an individual who, because of failure to perform properly, sustains personal injury of property damage. People who foolishly expose themselves to danger are subject to contributory negligence. However, primary consideration is accorded to the age of the individual involved and the action in which he was engaged at the time of the injury. Contributory negligence ensues when an individual performs on a lower level or standard of behavior than is required for the activity. When the person fails to offer protection to himself, the courts ordinarily do not allow recovery for damages sustained. If however, the recreationist in charge does not take advantage of a "last clear chance" to prevent the injury or damage, he may be held liable despite any contributory negligence on the plaintiff's part.

2. Scala v. City of New York 102 NYS., 2nd - 709

Negligence is Not Proximate Cause of Damage. When a minor was struck on the head by a baseball thrown on a playground by another minor to a third player who ducked the pitch, proximate cause of injury was unforeseen action of the child who threw the ball. The absence of the recreationist, who was handing out craft supplies from a nearby supply room, was not the proximate cause of the injury so as to impose liability for damage on the recreational service department.

Denial of Negligence. A denial of negligence on the part of the defendant would require a court proceeding thereby presenting a factual situation on which the court or the jury must decide. The defendant would have to prove that he acted in accordance with standard operating procedures universally accepted or known, that his actions were those of a reasonable and prudent person under similar or known, that his actions were those of a reasonable and prudent person under similar circumstances, or other evidence that would absolve him from liability.

Trespasser. A trespasser is one who is in a given location without invitation or right to be present in a given situation. Trespass is a clear violation of the right of protection from infringement on one's person or property through unauthorized presence. An exception to the rule of non-liability to the trespasser is the attractive nuisance doctrine and generally applies to children. swimming facilities, for example, should be enclosed by high fences and the entrance guarded by gates kept locked during the off-season or whenever the facility is closed. Children are likely to visit unfenced and unguarded pools and injury or even death could be the consequence.

This could raise the question of contributory negligence as well as trespassing. A very young child who has not yet reached the age of discretion cannot be guilty of contributory negligence: however, he can be a trespasser regardless of age.

In the case of a young child who enters a pool area by climbing a fence or crawling under a gate and then falls into the pool and drowns, two points may be made. First, negligence on the part of the swimming facility authority for not constructing a better fence, and, second, trespassing by the child on the ground that the facility authority has no obligation other than to refrain from willfully injuring the child. Recent court decisions, however, indicate that public authorities owe more to the trespassing child than mere refrainment from willful injury. The authority must use reasonable care to prevent exposing the child to unreasonable risk or injury.

Recreationists are expected to guide, direct, and operate the various activities under their immediate- supervision in a safe, reasonable, and prudent manner. If precautions are not taken, they risk their employer and themselves to exposure to litigation for redress of tortious acts owing to negligence. Recreational activities at playgrounds and other recreational places involve many unpremeditated hazardous situations. Elimination of all possible hazardous situations would be tantamount to the very denial of the right and opportunity to participate in recreational experiences. Recreational activity is so important to the growth and development of children that departments responsible for playgrounds and other recreational facilities should use all reasonable pre-cautions, including adequate supervision at all times. Supervision should be exercised not only in reference to people, especially children, but to physical facilities and are as well. Unsafe conditions must be removed or repaired with reasonable diligence. To perform incompetently or in a manner that indicates negligence in any way invites litigation and places a greater administrative burden on the department and the citizens of any community.

Supervision

Supervision is cited in the majority of lawsuits in the recreational setting. The two types of supervision are:

General
Specific

[Class] [return to Chapter Seven]