AVOIDING PERSONAL LIABILITY in ATHLETIC PROGRAMS

AVOIDING PERSONAL LIABILITYinATHLETIC PROGRAMS Mary Sue Linville Raymond A. Roberts Washington Schools Risk Management Pool

OBJECTIVES • Personal Liability –vs- Employer Liability • Review Legal and Social Aspects of Athletics • Overview of Litigation and Claims Process • Defensive Coaching and Teaching • Coordination with other Departments • Equipment and Facilities Exposures.

Changes in Society • Population Changes • Gender Issues in Athletics • Budget Stresses • Litigation and Claims in Athletics

The Five “Time Bombs” • Equipment & Facilities • Failure to Act on Medical Emergencies • Supervision & Instruction • Failure to Document • Failure to Report Criminal Sexual Conduct

Explain This to a Parent

Three Acts to Avoid • Negligent Acts • Unintentional errors in performing employment duties. • Are you acting within the Course and Scope of your position? • Examples: Failure to Supervise, Failure to maintain equipment • Criminal Acts • Violation of Criminal Codes cannot be covered by insurance • Examples: Sexual Misconduct or Failure to Report, Assault and Battery, False Imprisonment • Intentional Acts • May be Criminal • May not be covered by insurance • Examples: Discrimination, Harassment, Intentional Disregard

Four Elements of Negligence • Duty Owed • Duty Breached • Proximate Cause • Damages Resulting

Liability, Negligence & Insurance • Negligence is “The failure to use such care as a reasonably prudent and careful person would use; the doing of some act which a person of ordinary prudence would not have done under similar circumstances…” • Liability is established through Intentional or Negligent acts that damage a third party by commission or omission. • No insurance coverage for intentional or criminal acts!

Person Liability -vs- District Liability • Employees are acting as agents of their employer as long as they stay within the Course and Scope of their duties. • Acting outside of job description or committing intentional or criminal acts will expose personal assets. • Employees, Administrators and their spouses can be named as individuals in suits against school districts • Failure to report suspected criminal sexual conduct between staff and student is a separate crime punishable by incarceration.

Personal Liability for Coaches • Hazing • Failure to Report Criminal Sexual • Transporting students is your personal vehicle • Having students at your home. • Failure to Render Prompt Medical Care • Failure to control overly aggressive players • Failure to supervise volunteers • Job Descriptions • Do you have one? When did you last read it? • Staying within that Description?

Failure to Report • Certified and Classified Employees are Required to Report Criminal Sexual Conduct to Administrators. • Administrators Have 48 Hours to Report to Law Enforcement • Failure to Due So is a Separate Criminal Offense!

Ramifications of Personal Liability • Loss of Career • Personal Assets are Exposed • Reputation Damage

Documentation is Your Friend • Being right is not enough-we have to prove it! • Must have proof of maintenance, WSP checks, First Aid/ CPR training. • Written Practice Plans • Written and practiced Emergency Plan

Coverage, Defense and Indemnity“What does that mean?” • Course and Scope of Duties Requirement. • Volunteers must be under supervision of an employee. • The District is covered as an entity. • Insurance can only apply to negligent acts. • If your action is determined to be criminal, willful and / or intentional, you will not be covered

Claims and Litigation Process • Report all injuries to AD or building administrator • Designate parent contact person • Must cooperate with investigation and defense attorney. • Depositions • Witness testimony at trial • Maintain confidentiality-Loose Lips Sink Ships

Duties Owed to Student Athletes • Proper Supervision & Instruction • Provide Safe Equipment & Facilities • Warn Participants • Maintain All Records

Duties Owed to Student Athletes (Continued) • Evaluate Fitness of Participants • Transport Athletes Safely • Match Participants • Foresee Danger • Provide for Emergency Health Care

Duty to Provide Safe Equipment & Facilities • Discover dangerous conditions and make repairs. • Document Your Requests for Repairs

Facilities Recommendations • Regular Documented Inspections. • Prompt Repair of Hazardous Conditions. • Keep records. • Formal Reporting and Repairing Procedures.

Facilities Recommendations(continued) • Coordination between Athletic Department and Maintenance Department • Post proper signs and warning. • Do not give keys to students! • Never allow unsupervised use of facilities

Court Case Kirk v. Washington State University Kirk was injured during a cheerleading practice, the squad was practicing shoulder stands and Kirk fell to the Astroturf. She landed with her full weight on her left elbow, shattering three bones in the elbow and injured her ankle. The elbow injury was permanent. The jury found the defendants negligent for : Failure to provide adequate training Failure to provide adequate supervision Failure to provide adequate coaching Failure to provide safety padding Failure to provide a warning regarding the hardness of the surface Failure to provide adequate literature on safe methods

Supervision Common Problem Areas: • Multiple activities at the same time • Multiple skill level • Locker rooms • Unlocked Rooms If you can’t see them, you’re not supervising them !

Duty to Stop Harassment & Hazing • Know your school district policies on harassment & hazing. • Hazing is illegal. • Documentable NO TOLERANCE stance! • Document your actions!

Emergency Medical Assistance….Do You Have a Plan? • When in doubt, call 911 • Current training in first aid/CPR • AEDs • Adequate first aid supplies. • Report injuries. • Written Medical clearance prior to return. • DO NOT have another student transport the injured athlete.

SCENARIO ICoarse and Scope of Employment Wrestling Coach Ray is taking his team to an out-of-town meet. Ray’s employer, Deep Valley School District, requires all teams to use school buses. Ray’s ex-spouse works for the Transportation Department and coordinates all such travel. Ray decides to sidestep this requirement. Ray and the Assistant Coach decide to just rent a couple vans in their name and not tell the AD. One of the vans gets into an accident when Ray decides to let one of the students drive. Several occupants are injured.

COURSE AND SCOPE SCENARIO DISCUSSION QUESTIONS HAVE THE COACHES STEPPED OUTSIDE OF THE COURSE AND SCOPE OF THEIR JOB?WHAT ARE THE RAY’S PERSONAL LIABILITY EXPOSURES?WHAT ARE THE DISTRICT’S LIABILTY EXPOSURES? WHAT STEPS COULD BE TAKEN TO PREVENT THESE EVENTS?

Duty To Instruct • Teach the rules of the game. • Students must understand and appreciate risk. • Demonstrate students understand proper techniques. • Documenttraining activities by time, place, subject and method. • Enforce safety rules-No Exceptions. • Ensure participants have adequate training and physical requirements for the sport.

Duty to Instruct(Continued) • Conditioning, nutrition, exercises and drills to prepare the athlete for the vigor and dangers of the sport. • Documented Progression of Skills Plan • Mechanisms of the head and the neck and techniques for injury prevention. • Watch for and prohibit playing with injuries. • Return from injury procedures / Medical Doctor’s Release

Fitness of Athletes & Insurance • Court decisions held that coaches have the duty to acknowledge the athletes’: Physical Fitness Medical Condition Skill Level • Require evidence of medical insurance. • Provide “no-fault” catastrophic coverage for interscholastic athletic activities.

Match Competitors • Match player to player and player to activity • Coaches must never scrimmage against players • Factors for matching competitors: • Height and Weight • Age and Maturity • Skill and Experience • Mental State • Injury, Fatigue or Incapacity

Duty to Reasonably Foresee • Must reasonably foresee potential danger. • Control over-aggressive behavior. • Plan ahead to provide proper equipment and facilities.

Duty to Warn • Documented warning to parents and athletes of the inherent risks unique to each individual sport. • Obtain signed acknowledgement from parent andathlete. • Warn when there are changes in equipment, rules, techniques and strategy. • Documenttime, place, subject and method. • Forms • Meetings • Training Plan

Defensive Recordkeepingfor Injured Athletes • Communicate with School Nurse regarding Individual Health Plans • A minor can file a claim or suit up to age 21. • Keep all records relating to an athlete who has suffered a significant injury. • The district may send injury records to the insurance carrier for safekeeping.

Document, Document, Document Recommended records to save: • Health/Physical exams • Parental consent to play • Injury and incident forms • Return-to play/Doctor’s clearance(LYSTEDT LAW) • Warnings of risk and signed receipt • Use of alternative transportation • Facility and equipment inspection/maintenance • Written practice plans • Eligibility information

Court Case Hobbs v. Kent School District During a baseball game, a 15-year old slid head-first into home plate sustaining a neck fracture, which resulted in quadriplegia. Plaintiff claimed defendant negligently failed to provide an ongoing safety program to teach safe sliding techniques and to warn of the dangers of head-first sliding. Settlement for $2 million

Court Case Ondras v. Snohomish School District A 14-year old student suffered quadriplegic injuries during a football tackling drill. The tackling drill positioned a tackler and a ball carrier 10 to 12 yards apart, run at full speed, straight ahead at each other. The plaintiff who was the carrier, had never been taught how to carry the ball. Both players were known by coaches as hard hitters. All players and the coaches watched in anticipation of the hit. Settlement for $6,250,000

SCENARIO IISAFETY, SUPERVISION&JOB DUTIES • Coach Ray got a new job as a soccer coach in another state. Bob, a long time friend and the Athletic Director from his old employer, Deep Valley School District, gave a glowing “Hallmark Card” reference. • Sean, a returning senior, has aggression issues and is suspected of steroid use but is the star player. During a practice, Sean picks up a sophomore rookie and pile drives him into the ground. The sophomore sustains a cervical fracture and other internal injuries. • There are no cell phones and no insurance/medical records on the field. Ray did not think that a formal emergency plan was necessary. The school board policies require that all athletic teams have one. • The Assistant Coach is out ill today. Ray gives his key to a student to go find a phone somewhere and call 911. Ray stays with the student and starts first aid. • His parents call the Superintendent, the media and a very good personal injury lawyer .

SCENARIO II DISCUSSION QUESTIONS • WHAT WENT WRONG? • WHO HAS POTENTIAL PERSONAL LIABILITY EXPOSURES? • WHAT ARE THE EXPOSURES FOR THE SCHOOL DISTRICTS? • WHAT WENT RIGHT?

Equipment Recommendations • Document your actions • Properly fit equipment • Routine equipment inspection-watch for “customizing • Install & repair equipment with qualified personnel only. • List & post the rules & warnings for equipment use. • Retain all inspection, maintenance & destruction records. • .

Equipment Recommendations (Continued) • Use District Issued Equipment Only • No personal equipment unless there is a documented medical need • Clear warnings and consequences for misuse of and alteration of equipment. • Never use illegal and/or improper equipment (e.g. corked bat). • Destroy old equipment that is not to be reused (e.g. football helmets).

Transportation • School buses are the safest mode of transportation. • Vans must have a capacity of ten or under. • “Parents will be responsible for transportation” in writing if no district transportation provided. • Parent signature if athlete released to them rather than traveling back with team. • Never transport students alone in your car!

SUMMARY • Some injuries are preventable, others are not. • less time, energy and resources are expended in prevention. • If there is a serious incident, you will spend far more time with insurance adjusters and attorneys, in depositions and in court. • Coaches are responsible for the supervision of the student athletes and the Volunteers. • Think and act defensively…It’s Your Career!

Thank Youfor Your Participation! Mary Sue Linville Raymond A. Roberts Washington Schools Risk Management Pool P.O. Box 88700, Tukwila, WA 98138 Phone:(206) 394-9719 or (206) 459-8198 Email: rroberts@wsrmp.com

AVOIDING PERSONAL LIABILITY in ATHLETIC PROGRAMS