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Legal Liability

Legal Liability. PE 254. Negligence. The legal claim that a person failed to act as a reasonable and prudent person should, thereby resulting in injury to another person. Negligence. 4 Required Elements. Duty Breach Cause Harm. Negligence.

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Legal Liability

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  1. Legal Liability PE 254

  2. Negligence • The legal claim that a person failed to act as a reasonable and prudent person should, thereby resulting in injury to another person.

  3. Negligence 4Required Elements Duty Breach Cause Harm

  4. Negligence • Four factors must exist for negligence to be proven: • Presence of a duty (such as providing supervision of a class) • A breach of the legal duty of care (failure to act as a reasonable and prudent person would under similar circumstances) • Proximate cause of the injury (the action or failure to act caused the subsequent injury) • Substantial nature of the injuries (the extent of the injuries)

  5. Negligence DUTY Examples of Duties: • Proper Instruction • Access to Medical Care • Proper Progressions • Safe Facilities • Appropriate Supervision • Teach safety procedures

  6. Negligence DUTY ? Example: The facilities are dangerous. As the teacher, you owe a duty to provide safe facilities. If you teach in dangerous facilities and someone is hurt, thereby you may be liable for negligence.

  7. Negligence DUTY ? Your supervisor may also owe a duty to provide safe facilities. So if you teach in dangerous facilities and someone is hurt thereby, you may be liable for negligence but your supervisor may also be liable. You may BOTH be liable.

  8. Negligence BREACH Breach = Failure to meet the standard of Care

  9. Negligence BREACH How is the standard of care determined? How good do I have to be?

  10. Negligence BREACH The standard changes based On things such as: • Participant’s age, preparation • Dangerousness of activity, etc. How good do I have to be?

  11. Negligence BREACH How is the standard determined? •Expert testimony •Professional standards (AAHPERD, NATA, Red Cross, etc.) •Reasonable, prudent, up-to-date _________.

  12. Negligence BREACH How is the standard determined? What would the prudent, reasonable, up-to-date teacher, coach, administrator, etc. have done?

  13. Negligence BREACH Prudent, reasonable, Up-to-date _ _ _ _ _ The standard is set by the role played, not whether volunteer or paid. Teacher, coach, administrator

  14. Negligence BREACH ? If I follow professional guidelines, am I safe from negligence claims?

  15. Negligence BREACH ? Not necessarily. I must still act as would a reasonable, prudent, up-to-date _ _ _ _ _ _ _ would. If the guidelines are bad, following them may be bad. Teacher, coach, adm.

  16. Negligence Cause The breach must be the cause of the harm. Not all breaches cause harm.

  17. NegligenceCause ? I don’t have a lesson plan. A student is hurt because of dangerous equipment. Am I negligent because of the lack of a lesson plan?

  18. NegligenceCause ? No. The lack of the lesson plan was NOT the CAUSE. If I am negligent, the cause would be the unsafe equipment.

  19. NegligenceHarm In most jurisdictions, the harm must be physical. Solely psychological or emotional harm is generally not sufficient for a claim of negligence.

  20. NegligenceHarm ? I breached a duty but the student was only scared, not injured. Can I be found negligent because the student was scared?

  21. NegligenceHarm ? No. Physical harm must exist In order to find negligence. No Harm, No Foul

  22. Negligence Liability for negligence may exist even if you are not actively involved.

  23. Negligence • Agent/principal • Respondent Superior

  24. Negligence • Agent/principal Examples: Coach - athlete teacher - student teacher

  25. Negligence • Respondent Superior Example: Boss - Employee

  26. Negligence • Respondent Superior Risk management techniques: •Pre employment screening •Pre service training •Supervision •Good curriculum •In-service training •Workshops, conventions •Open minded evaluations of adverse incidents

  27. Negligence • Liability from 3rd party violence. Example: Your athlete has history of violence or uncontrolled anger. The game is intense and the player is getting angry. Should you take the player out of the game?

  28. Negligence Liability from 3rd party violence. If you leave the player in the game and the player’s anger causes injury to someone else, you could be liable. You may have breached your duty to protect from the foreseeable risk of unreasonable harm.

  29. Negligence • Legal defenses against negligence: • Assumption of risk: Knowing, understanding, and appreciating the risk associated with a chosen activity. • Contributory negligence: Behavior by the plaintiff that contributed to the injury. • Comparative negligence: Apportions (divides) damages between a negligent plaintiff and a negligent defendant who each played a part in the injury.

  30. Negligence • Avoiding negligence: • General supervision: action required whenever activity is occurring by those for whom the person is responsible. • Specific supervision: mandated action required whenever a higher level of risk is associated with the activity of the persons for whom the adult is responsible. • Actual notice: refers to the removal of known hazards by a responsible person • Constructive notice: Refers to hazards that a responsible person should have noticed and eliminated.

  31. Negligence • Several other steps to avoiding negligence: • Provide proper and clear instructions. • Ensure each participant’s fitness, conditioning, and ability levels are appropriate to the expectations. • Enforce safety rules and regulations. • When injuries occur, the supervisor must respond appropriately. • Do not use inadequate, ill-fitting, or defective equipment. • Only qualified individuals should supervise physical activity.

  32. Negligence • To understand the extent of your obligations to clients served, consider these example questions: • What are your obligations to a person who will be participating in a cardiovascular fitness test that involves a submaximal treadmill run? • As a personal trainer, what are your legal responsibilities for the welfare of your client who is participating in a strength training program?

  33. Agreement to Participate • A signed acknowledgement of a participant’s knowing, understanding, and appreciating the risks associated with an activity. Note: This is not a waiver form.

  34. Tort Law • Tort: a French word for wrong; a private or civil wrong or injury, other than breach of contract, suffered due to another person's conduct. • Tort law: a part of the civil law that provides remedies for acts that cause harm; therefore, injured parties may file civil lawsuits in an attempt to seek compensation for their injuries.

  35. Tort Law • Tort damages are monetary damages that are sought from the offending party. • They are intended to compensate the injured party for the injury suffered.

  36. Tort law imposes a duty on persons and business agents not to intentionally or negligently injure others in society. ns and business agents not to intentionally or negligently injure others in society.

  37. Categories of Torts Intentional Torts Unintentional Torts (Negligence) Strict Liability Torts

  38. Types of Torts • Intentional torts: injuries caused by intentional acts. • Negligence: harm caused by careless acts or failure to perform a legal duty. • Strict liability: requires the person causing the harm to compensate the injured party without regard to fault.

  39. Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29 Facts: • Ms. Cole attended a champagne breakfast at the South Tweed Heads Rugby League Football Club. • She spent the day drinking at the Club. • The Club stopped serving Ms Cole after 12:30 pm, but her friends provided her with drinks for the rest of the afternoon. • At 5:30 pm the Club’s manager asked Ms. Cole to leave the premises after she was seen behaving indecently with 2 men.

  40. Cole v South Tweed Heads Rugby League Football Club Ltd • The manager offered Ms. Cole a taxi home, but Ms. Cole rejected the offer in blunt and abusive terms. • She then left the Club with the 2 men, who assured the manager that they would take care of her. • At 6:20 pm Ms. Cole was struck by a car near the Club and was seriously injured. • She was found to have a blood alcohol concentration of 0.238%.  Who was responsible for Ms. Cole’s injuries? Why?

  41. Who was responsible for Ms. Cole’s injuries? Issues before the court: • Did the Club owe a duty to take reasonable care: • to monitor and moderate the amount of alcohol served to Ms. Cole? • that Ms. Cole travelled safely away from the Club’s premises? • Does a general duty of care exist to protect persons from harm caused by intoxication following a deliberate and voluntary decision on their part to drink to excess? • Did the car driver owe Ms. Cole a duty of care? • Did Ms. Cole in any way contribute to her own injuries?

  42. Additional Source • http://www.authorstream.com/Presentation/smcdill-69298-Tort-Law-Define-Explain-Intentional-Negligent-Strict-Liability-Describe-Conditions-Education-ppt-powerpoint/

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