The Legal System

1. The Legal System The Basics PHED 300 Sport Law & Risk Management Dr. Charles Davis.

2. Trends In Risk Management • The nature of Sport • Work Ethic • Litigation in Society

3. Value of Risk Management Program

4. Born of Necessity …Human, legal and political. In the 1800’s the labor movement, particularly coal mining unions, saw their minors endangered by careless mining practices. Underground explosions, collapsed mines, toxic gases, and black lung disease were common and considered simply a fact of life in the mines. Factory assembly line work was not much better, with dangerous machines, no medical insurance, and little care about the fate of the worker. Laws were passed and strikes called as a result of the mining and factory safety problems. The end result today holds the owners and operators of mines and factories with expensive litigation if an accident occurs. During a forestry school trip a group of students heard a timber company executive proclaim that he would rather have a logger killed in an accident than permanently injured. He stated his rationale was that the cost of a long-term permanent injury was much higher than “paying off” a death. The cost factor was correct (however, significant moral and ethical questions remain).

5. The Value of Risk Management (Cont’d) • Prevention Elements of Risk Management • Case: SW and JW v. Spring Lake Park School District no.16 C9-98-1912 • A fifteen year old girl was sexually assaulted in a girls’ locker room adjacent to a school complex swimming pool. She was at the pool to take a swimming test. After the test, she went to the locker room to take a shower and change clothes. It was at this time that she was sexually assaulted. The predator was later caught and convicted of first-degree sexual assault and kidnapping. Prior to the incident, the school secretary, a janitor , and the assistant pool director all saw the man as he exited the girls’ locker room. He was neatly dressed and carried what appeared to be flower boxes. They did little in response to the man’s presence, given their belief that he was on the premises for a harmless purpose and that he had merely lost his way and ended up passing through the girls’ locker room by mistake. The school district had no security policy n place. Additionally the employees had no official guidance in how to deal with non-student who were on the premises. • The parents sued, claiming the school district was negligent in failing to provide adequate supervision, protection, and security. The court held that the attack upon the girl was foreseeable since three employees were aware the attacker had been in the girls locker room and understood that he was not a student and did not belong on the school premises. Foreseeability , reasoned the court, requires actual knowledge of a dangerous condition which imposes a special duty to do something about that condition. The court found the defendant guilty of negligence and not entitled to governmental immunity. • Supervision • Safety • Protection • Foreseeability • The courts recognize programs that attempt to provide a safe program.

6. The Value of Risk Management (Cont’d) http://www.sportslawnews.com/home.html

7. What is Law? • A system of principles that defines relationships between people Tells us how to behave Enforceable in court (If you hurt another person due to your carelessness that person may assert the right to be compensated for their injuries). • Prohibits behavior (Criminal acts) • Determines the reasonableness of behavior (You should not speed if a road is covered with ice) • Creates and limits our freedom (The right to free expression does not guarantee you the right to slander your neighbor) (We get the greatest freedom consistent with the freedom of our fellow citizens)

8. Why do we have Laws? • Goodness(The evil intent of your attacker is considered when determining you are innocent or guilty). • Fairness( law levels the playing field between the rich and the poor so the wealthiest or strongest doesn’t always prevail). • Consistency(allows commerce to run smoothly- contracts, pricing). • Enforcement(so promises can be enforced). • Compensation(make the injured person whole). • Ownership of Property(job, property).

9. The Basic Categories of Law • Natural Law Inalienable Rights: Illustrates the first move away form the concept that right makes right. Life, liberty and the pursuit of happiness, and ownership of property Is the foundation upon which all other law is based. • Statutory or Codified Law: Federal and State Constitutions • Case Law: Operates under prior precedence “stare decisis” (let it stand) • Common law: Created through judicial decisions • Criminal law: Offences committed against the rules of society • Civil law: Suit brought if person suffers injury or loss due to actions of another Or because of a person’s failure to act

10. The Basic Categories of Law (Cont’d) • Administrative Law: • Represent regulations issued by regulatory agencies at Federal/state/local levels • NCAA, USOC, NFL, MLB, State HS Athletic Associations • Has the force of law 1. Rule making authority- Creates regulations 2. Judicial authority- Hears cases 3. Enforcement authority- Renders binding decisions 4. Investigatory authority- can subpoena and require production of evidence • Plays an important role in sport and physical activity

11. Where Does the Law Come From?

12. Delegation of power from the Constitution to Government • The constitution actually states how the power given to the government is to be used. It does this by establishing 3 branches of government. • Congress - Make &Enacts Laws. • Executive Branch-Enacts,regulates and enforces laws. • Judicial Branch-Reviews &Interprets laws to assure consistency with constitutional intent. *Most Federal law doesn’t apply to Sport unless there is a violation of an individual’s constitutional rights.

13. Jurisdiction 11 Federal District Courts

14. Steps in Federal/State Courts Federal State* U.S. Supreme Court NYS Court of Appeals Court of Appeals State Appellate Court District Court State Court (State Supreme Court or Court of Common appeals) *State courts follow the structure established by the Federal Courts.

15. Criminal Court Structure

16. Adult Criminal Court Structure(Every case is unique and can diverge from the basic scheme) Reported Crime Out of System Trial (Venue) Deposition: Interrogatories Expert Witnesses Physical Evidence Investigation Jury Selection Not Arrested Opening Statements Warrant Probable Cause Arrest Presentation of Witnesses No Warrant Reasonable Suspension Closing Arguments Booking Jury Instructions Initial Appearance Verdict Guilty Not Guilty (Acquitted) Out of System Bail Detention Preliminary Hearing Sentencing Probation, Penitentiary (Parole) Charges Dismissed Felony-Pretrial Plea Bargaining Appeal Grand Jury Indictment Out of System Plea (Guilty, Not Guilty, No Contest)

17. Criminal Court Pre-Trial Reported Crime Out of System Deposition: Interrogatories Expert Witnesses Physical Evidence Investigation Not Arrested Warrant Probable Cause Arrest No Warrant Reasonable Suspension Booking Initial Appearance Out of System Bail Detention Preliminary Hearing Charges Dismissed Felony-Pretrial Plea Bargaining Grand Jury Indictment

18. Criminal Court Trial Trial (Venue) Jury Selection Opening Statements Presentation of Witnesses Closing Arguments Jury Instructions Verdict Guilty Not Guilty (Acquitted) Sentencing Probation, Penitentiary (Parole) Appeal Out of System

19. Civil Court Structure Trial (Venue) Complaint or Partition Answer Jury Selection Opening Statements Discovery Deposition Interrogatories Physical Evidence Expert Witnesses Presentation of Witnesses Closing Arguments Pre-trail Conference (Mediation) (Arbitration) (Negotiation) Settlement Summary Judgment Jury Instructions Verdict Appeal

20. Civil Court Pre-Trial Complaint or Partition Answer Discovery Deposition Interrogatories Physical Evidence Expert Witnesses Pre-trail Conference (Mediation) (Arbitration) (Negotiation) Settlement Summary Judgment

21. Civil Court Trial Trial (Venue) Jury Selection Opening Statements Presentation of Witnesses Closing Arguments Jury Instructions Verdict Appeal

22. Similarities and Differences Between Criminal and Civil Law CriminalCivil 1. Government files suit 1. Individual files suit 2. Defendant is innocent or guilty 2. Defendant is Contributory Comparatively guilty 3. Results in penance – fine, Imprisonment or both. 3. Results in retribution. “make the person (financially, pain and suffering). 4. Classified a misdemeanor or felony 4. Classified as contributory or comparative* 5. Burden of proof on plaintiff 5. Burden of proof on plaintiff 6. Guilty if “beyond a shadow of a doubt.” 6. Guilty if there is a preponderance of evidence. *In comparative states such as NY defendant must be at least 50% at fault or case is thrown out. Plaintiff gets the percentage of the amount awarded by the courts. ** Contributory negligence on part of injured party prevents recovery.

23. Basis for Appeal (Within 10 days of Judgment)

24. Elements That Must Be Proven • Abuse of Discretion • Erroneous Facts • Erroneous Application of the law. • Otherwise the judgment stands. • The final judgment rendered in one state is valid in all others. “Full Faith & Credit”

25. Playing your part in a court case

26. Discovery Equipment Lesson Plans Curriculum Guide Records Emergency Plans Job Descriptions Manuals Code books Log books Informed consent, agreements to participate Game films

27. Deposition

28. Depositions • Depositions: Are verbal statements. • Purpose- • Search for the facts • Search for evidence to support their case • Commit you under oath • Evaluate you as a witness • Seek to discredit you or others • Preserve testimony for trial

29. Interrogatories • Interrogatories: Are written statements. • Goal: to provide as little information as possible within the limits of truth and the law. • Steps- • Prepare a draft • Answer only the questions asked • Do not embellish- anything you same is under oath • Let your attorney shape the language

30. Your obligation in a Deposition Tell the truth – you are under oath Be accurate – others will learn facts from you Be fair – your task is not to try to slant the truth

31. Preparing for your Deposition: • Do your homework • Never volunteer information • Understand the question before answering the question • Take time to think • Speak clearly • Always finish your answer • Correct wrong answers. At the end of your deposition they will read it back to you for accuracy. So…correct in a polite but firm way • Remember no one can remember everything…. So never guess or speculate. If you do… say I am estimating or giving my opinion • Never loose your cool • Be polite but firm

32. Types of Negligence in Civil Trials Contributory: You take part in your own injury. Any fault on the part of the plaintiff precludes recovery. Comparative: is based upon your percentage you contributed to the injury. The defendant must be at least 50% negligent for you to collect damages.

33. Examples:Smith v. North Carolina The Smith Family had visited Stone Mountain State Park. While at the park, they had decided to have a picnic on the stream above a waterfall. The family had been to that location a month earlier and had noticed the sign that warned “Danger, Falls Below.” Mrs. Smith was awakened from her nap by the screams of her son. Her husband had slipped on a rock above the falls and had fallen to his death. She sued the state for failing to warn of a dangerous condition. Mrs. Smith lost the case. The court concluded that the danger of falling from the waterfall was open and obvious. Since Mr. Smith knew of the danger from his previous visit and the presence of the warning sighs, the court held that Mrs. Smith did not act reasonably and contributed to his own negligence. North Carolina is a contributory negligence state, any fault on the part of the injured party precludes recovery. Mesick v. State A 17- year old plaintiff fell into rocks while attempting to swing on a rope at a park owned and operated by the State of New York. Mesick received a serious back injury that left him a permanent quadriplegic. The State know of the danger and had previously had a serious accident at the same site. The State failed to warn the users of the area of danger or remove the rope from the tree that was used to swing over the rocks. Mesick sued the state for 6 million dollars. The trial court found the State to be 75% at fault and awarded him $4 million dollars. The State appealed the decision to the Supreme Court of New York, claiming that the plaintiff assumed the risk of injury when he swung over the rocks. The Supreme Court affirmed the lower court decision; however, it determined that because of Mesick’s contribution to the accident, they would receive 50% of the claim ($3,000,000). Formula to determine degree of Comparative Negligence: Scenario #1. If the award is $1,000,000 The State is 75% negligent. The court rules you are to receive 50% of the claim. 75% of $1,000,000 = $750,000. (State’s obligation) You are to receive 50% of the award. (.50 X 750,000) = $375,000 Your final award = $375,000 Scenario #2. The State is found to be 49% negligent. What is your award?