Immunity

1. Immunity A condition which protects against tort liability regardless of the circumstances 3 Types of immunity defense Sovereign immunity Charitable immunity Civil liability immunity legislation

2. Sovereign Immunity Most common type of immunity defense used Need to first consider if it is a governmental agency since the idea rests on the concept that the state must give its consent to be sued

3. Reasons for Sovereign Immunity Suing a public entity restricts the amount of funds that could be used for the public welfare The idea that the state can do no wrong (historical) The public cannot be held responsible for the torts of the governmental employees. The trend has been recently to repeal or limit the idea of sovereign immunity

4. Sovereign Immunity Using sovereign immunity a distinction must be made between what is governmental activity and proprietary activity Governmental activity Activity that can only be performed by the state and is commonly protected by sovereign immunity Proprietary activity Activity done by the state but could be undertaken by the private sector and therefore cannot be protected by sovereign immunity

5. Tort Case 1 A 6 year old boy was playing with friends at a local swimming pool in Illinois. The boy dove off the 1 meter diving board and grazed his head on the board. The blow was sufficient enough to knock the boy unconscious. The boy sunk to the bottom of the 12 foot deep pool. His friends frantically alerted the lifeguard on duty at the diving well. The guard responded that the boy has “faked” an injury like that before and that he (lifeguard) was not going to fall for it again.

6. Tort Case 1 The friends alerted a second lifeguard who responded apathetically and did nothing. Finally, one of the friends went to the head lifeguard/pool manager who was located in the pool office. He rushed to the scene, dove in the water in an attempt to save the boy. After repeated attempts to revive the boy, the boy died. The parents of the boy sued the city parks department for recovery due to willful negligence. How much did the court award and why?

7. Verdict The court rules in favor of the Parks and Recreation department for 2 reasons: As a governmental agency the department was entitled to sovereign immunity The plaintiff’s could not prove that the inaction of the lifeguard was willful in that they could not prove that the lifeguard wanted the boy to die.

8. An 8th grade student broke his neck in physical education class after landing on his head in an attempt to do a headspring over a rolled mat. Quadraplegia resulted for the boy. The instructor was a first year teacher who introduced the activity without appropriate lead up activities. The principal at the school did not participate in the development of the curriculum and delegated those duties to the first-year teacher.

9. Verdict The court found for the plaintiff on the grounds that it was negligent for the teacher not to introduce lead-up activities to make certain that the student could safely to the action. The school system and the principal were found negligent through the theory of vicarious liability

10. Tort Case 3 A middle school physical education teacher in Tucson, Arizona reprimanded a student who “acting up” in his class by punishing the student after school. The punishment was for the boy to walk on his hands for 100 yards. Though the student was able to do so with difficulty it was not the extreme. The place that the student had to walk on his hands was the school parking lot which was black topped. The punishment took place in August of 2000 at 3:00 pm while the temperature was about 100 degrees. The student developed second hand burns on both hands.

11. Verdict The case is still pending however, the teacher was dismissed and after due process fired from the position.

12. Governmental Activity In the case of a public school using its own facility, the courts have usually found that the holding of athletic contests are part of the educational function of the state and is therefore a governmental function protected by sovereign immunity

13. Proprietary Activity If the facility is leased for use by the public sector, the courts have generally found that the school is conducting a proprietary activity (by leasing) and will therefore be liable for injuries sustained as a result of negligent maintenance or construction of the facility

14. Charitable Immunity Justifications: Donations to charitable organization constitute a trust fund which may not be used for an unintended purpose No profits have accumulated, so the doctrine of vicarious liability cannot be applied Charities perform public or governmental duties and are therefore immune The overall good of a charity is protected by not diverting its money to pay damage goods

15. Civil Liability Immunity Justification: The increase of civil lawsuits threatens many individuals, especially volunteers, to participate. Youth sport organizations cannot carry out their roles without fear of being sued for damages

16. Common Law Defense Need to identify if the risk could be foreseen by a reasonable and prudent professional If the the answer is no, that is the defense If the answer is yes, the question relates to the standard of care given. Was it satisfactory or did it fall short?

17. Consent Based on the consent of the participant or injured party and is a bar to recovery To have this occur the following must happen: Participation must be free and voluntary The individual consents only to the risks inherent in the activity The participants knowledge of the activity and understanding of their skill level The participants understanding of the potential injuries inherent in the activity

18. Types of Primary Assumption of Risk Implied Having knowledge of potential risks, the individual participates anyway Express A written or oral presentation in which the inherent risks are are categorically stated

19. Secondary Assumption of Risk Refers to the conduct of the participant in which the injury or damage is directly reflected from their failure to obey rules and warnings

20. Comparative Fault Basically a method of determining the damages award. 2 Ways to Determine Damage Awards Pure form 1 million dollar suit in which the defendant is found to be 80% at fault and the plaintiff 20% of the award received by the plaintiff would be $800,000. 50/50 If the plainitff contributed more than 50% of the fault to the damages or injuries, there is no award

21. Contributory Negligence If the plaintiff’s negligent actions helped in any way to cause or aggravate an injury the plaintiff cannot win the lawsuit regardless of the negligence of the defendant

22. Warnings and Participation Forms Primary reasons for warnings are to communicate: As to how a person should engage in the activity What is required to prevent unreasonable risk of injury The condition of the physical environment Modifications needed to prevent injury

23. Warnings and Participation Forms For warnings to be effective they should: Be obvious and direct Specific to the risk Understandable Located at the point of the potential hazard

24. Participation Agreements Used to identify potential risks of the activity and to explain expectations for the participant. Gives documentary evidence that efforts were made to inform and educate the participant. Minors as well as parents should sign the participation form for the reasons given previously

25. Participation Agreements A document in which the participant or his/her parents sign which identifies: An understanding of the risks An appreciation of the risks An understanding of the safety rules and procedures An agreement to comply with the safety and procedure rules Specifically request that the person be allowed to participate in the activity

26. Releases Releases A contract signed by the participants or their parents that absolve the institution, coach, or administration from liability if an injury is incurred

27. Releases Generally not considered valid by the courts because: No one can legally waive the rights of another Children considered minors cannot legally enter into contracts that waive their rights Violates public policy and is therefore invalid Courts do no like to grant pre-event protection of the participants from the consequences of their own actions

28. Releases May be valuable for adults, in the private sector when the following are available: Options are reasonable and present Adults better understand the risks and responsibilities

29. Privilege Allows a person to act in way that may usually be considered assault and battery 2 most common examples are: Self-defense Acting in defense of a third party

30. Self-Defense Varies by state Need to question Did the person use reasonable force to get away from the situation? Did the person who was attacked retreat when the opportunity presented itself?

31. Third Party Defense Varies by state Usually refers to people who are defending another family member

32. Assault Defenses If the defendant can prove that any of the 3 elements of assault is missing defendant intend to cause harm or apprehension plaintiff felt reasonable apprehension of imminent harm no consent on the part of the plaintiff, That is the primary defense. Examples?

33. Battery Defenses 2 primary defenses are: Touching was not intentional Plaintiff consented to the touching What are some examples?

34. Battery Defenses 2 primary defenses are: Touching was not intentional Plaintiff consented to the touching What are some examples?