PRT 3520

Liability
Risk- The uncertainty of a result happening or loss the chance of injury
damage or loss; especially the existence and extent of the possibility of
harm.
Types of Risk- Physical, Financial, Psychological, Political.
Can we eliminate all risk?- NO
Should we?- No!
Who should we protectThe procedure of systems used to minimize accidental losses.
Focus onCustomer
Employee (volunteers are considered employees)
Organization
LEGAL TERMS
Foreseeability- Requires actual knowledge of a dangerous condition, which
imposes a special duty to do something about that condition.
(people will fall skiing so have patrol on duty)
(how likely is something going to happen)
(and who will it effect)
(industry standard should be your minimum)
Duty- A legal obligation that is owed of due to another and that needs to be
satisfied an, an obligation for which somebody else had a corresponding
right.
(we owe them the right to keep them as safe as we can)

LAW
Criminal Law- Government Prosecution. Jail time or fines. See book
chapter 1. Beyond a reasonable doubt
Reasonable Doubt- The doubt that prevents one from being firmly
convicted of a defendants guilt or the belief that there is a real possibility
that a defendant is not guilty, must begin with the assumption that the
defendant is innocent.
Civil Law- the law of civil or private rights, as opposed to criminal law or
administrative law.
Not to punish but to gain compensation.
Standard of judgment Preponderance of evidence
Preponderance of Evidence- the greater weight of evidence, not
necessarily established by the greater number of witnesses testifying to a
fact but by evidence that has the most convincing force; superior evidentiary
weight that, thought not sufficient to free the mind wholly from all
reasonable doubt, is still sufficient to incline a fair and impartial mind to one
side of the issue rather than the other.
Torts- See book.
Contracts- An agreement between two or more parties creating obligations
that are enforceable or otherwise recognizable as law.
Negligence- A tort committed by failure to observe the standard of care
required by law under the circumstances.
Standard of care- the degree of care that a reasonable person would
exercise.
Strict Liability- Liability that does not depend on actual negligence or
intern to harm, but that is based on the breach of an absolute duty to make
something safe. Strict liability most often applies either to ultra-hazardous
activities or in product liability cases.

Nuisance- A condition, activity, or situation that interferes with the use or

enjoyment of property, especially a nontransitory condition or persistent
activity that either injures the physical condition of adjacent land or
interferes with its use or with the enjoyment of easements on the land or of
public highways. The class of torts arising from such conditions, acts, or
failures to act when they occur unreasonably.
Constitutional Torts- A violation of ones constitutional tights by a
government officer redress able by a civil action filed directly against the
officer.
Intentional Torts- A tort committed by someone acting with general or
specific intent.
Personal Tort- A tort involving or consisting in an injury to ones
person, reputation, or feelings as distinguished from an injury or damage to
real or personal property.
Property- A tort involving damage to property.
Risk Management Case Study

Due June 5

The Legal ProcessEnglish common law-A system of laws derived from centuries of experience, study and
tradition
-Deals with legal relationships, power and liabilities.
-Recognizes the power of government lies with the common people
not in an elite group
-Judge is impartial referee to the dispute
- bound to protect rights of parties in the dispute
How Laws are Created
-Legislated laws- Elected officials develop and pass laws
-Regulatory Laws- Civil servants write regulations that creates the
rules by which the law is implemented
-Case laws- Court decisions create a law for a particular subject as a
result of adjudicated cases

Federal Judicial System

US district Court
Trial court
US Circuit Court of Appeals
Divided into twelve judicial circuits
US Supreme Court
Decisions become the standard of laws
Pre-Trail Procedures
Event- Property loss, injury or death
Complaint/summons- issued by the court
Answer- Defendant must respond within 21 days
Motion- dismissal, summary or defeat
Discovery- Depositions, interrogations, documents, medical exams
Pre-trial conference- More than 90% of cases settled, the rest proceed
to trial
Defendant responds to Civil Complaint
Must file an answer to complaint in order to avoid a default judgment
against him
Demurrer- A statement by the defendant claiming that the
plaintiff has not stated a cause of action
Admission and Denials- A defendant can admit the truth of
some allegations and deny the truth of others
Counterclaim- Defendant responds by stating he ha his own
cause of action
Preporarion for TrialImpaneling jurors- The clerk of the court makes a list of jurors who
have been selected for a particular trial. The clerk determines the
preliminary qualifications of the potential final jurors.
Voir Dire- To speak the truth
The preliminary examination, which the court may make of a
potential juror, where his or her competency, interest or objectivity may be
challenged

Trial Procedures
Jury selection
Opening statements
Presentation of plaintiffs case
Presentation of defendants case
Closing arguments
Jury instruction
Jury Verdict
Judgment
Jurisdiction
Federal subject matter jurisdiction includes, but is not limited to:
Questions arising from the use of federal property
Violations of federal laws or statutes
US constitution questions
International disputes
Conflicts among states or among citizens of different states.
VenueThe location of the court is important to jurisdiction as well as fairness
to all litigants
Sates have long arm statutes that allow them to serve summons to
persons outside their political boundaries
Jurisdiction can include; criminal, bankruptcy, civil, military, contract,
maritime, international, ect.
Pleadings
Defendant may ask for a dismissal of the case based upon:
Lack of subject matter jurisdiction (ie bankruptcy)
Lack of personal jurisdiction (ie military)
Improper venue (court location)
Insufficiency of process (court procedures)
Insufficiency of service of process (mailed)
Failure to state a claim (no damages)
Failure to join an indispensable party
Cross claims
A cross claim is against a person or persons on the same side of the
litigation stating that they may be more responsible than the complainant

Third party practice

Third party practice is a claim against another party that alleges that
the third party is or may be liable for all or part of the damages
Class Action
Class action claims proceed a means by which a large group of
persons may sue or be sued as representatives of the class
Interpleader
Interpleader is when two or more persons claim the same funds or
property from the defendant. This requires other plaintiffs to enter a case so
the same facts do not have to be presented twice.
Amicus Curiae
Is a person or party with strong interest, but not a litigation. Usually a
A.C. files a brief on broad public interest issues. Literally they are a friend
of the court
Post trail appeals
Trial attorneys representing the litigant can appeal the decision of the
court based upon
Abuse of discretion in cases involving discretion
Clearly erroneous findings of fact
Mistakes in the application of law
Collateral estoppels doctrine prohibits re-litigation of issues of
fact
Recovery
The final judgment or verdict in a civil action. This action obtains
again the rights or restitution by formal judgment
Categories of Recovery
Money judgment
Court ordered actions
Decree (non-monetary requirement)
Restraining order
Temporary restraining order

Divorce order
Categories of monetary awards
Compensatory damage- damages awarded as compensation or
restitution for harm done. To replace losses such as wages, medical,
property.
Punitive damages- damages awarded to punish the defendant because
of their outrageous conduct
Consequential damage (pain and suffering)- damages awarded for
suffering because of the act of the defendant
NEGLIGENCE
The failure to exercise the standard of care that a reasonable prudent person
would have exercised in a similar situation; any conduct that falls below the
legal standard established to protect others against unreasonable risk of
harm, except for conduct that is intentionally, wantonly, or willfully
disregardful of others rights.
Elements of negligence
Duty-The legal obligation that is owed or due to another and that needs to be
satisfied; an obligation for which somebody else had corresponding right.
Breach-The violation of a legal or moral obligation; the failure to act as the
law obligates one to act.
Causation-Something that produces and effect or result.
Cause in Fact-The cause without which the event could not have
happened.
Proximate Cause-A cause that is legally sufficient to result in
liability; an act or omission that is considered in law to result in a
consequence, so that liability can be imposed on the actor.
Injury-Actual loss or damage to the plaintiff (real, verbal, criminal, slander)
Degrees of Negligence

Slight-The failure to exercise the great care of an extraordinarily prudent

person, resulting in liability in special circumstances in which lack of
ordinary care would result in liability; lack of great diligence.
Ordinary-Lack of ordinary diligence; failure to use ordinary care.
Gross-A lack of slight diligence or care. A conscious voluntary act or
omission in reckless disregard of a legal duty and of the consequences to
another, who may typically recover exemplary damages (also referred to as
willful wanton negligence)
Willful-Voluntary and intentional but not necessarily malicious.
Wanton-Unreasonably or maliciously risking harm while being
utterly indifferent to the consequences.
Other Important Factors
Physical Characteristics
Mental Characteristics
Skill and Knowledge
Product Liability-A manufacturers or sellers tort liability for any
damages or injuries suffered by a buyer, user, or bystander as a result of a
defective product.
Defenses of Negligence
Comparative Negligence
-A plaintiffs own negligence that proportionally reduces the damages
recoverable from a defendant
-Defendant needs to be at least 50% liable
-Applies to the proportion of damages they receive
Contributory Negligence
-A plaintiffs own negligence that played a part in causing the plaintiffs
injury and that is significant enough (in a few jurisdictions) to bar the
plaintiff from recovering damages.
-Any fault of the injured party precludes recovery.
-Based on what a prudent person would do
-Exists only in a few states.

Statute of Limitations
-A law that bars claims after a specified period; specifically a statute
establishing a time limit for suing in a civil case, based on the date when the
claim accrued.
-Maximum time period between the event and when the suit can be
filed.
Failure of Proof
-The defense that a partys proof does not establish a fact essential to a
claim or defense.
-The plaintiff is responsible to prove each of the elements of
negligence.
Assumption of Risk
The principle that one who takes on the risk of loss injury, or damage
cannot maintain an action against a party that causes the loss, injury or
damage.
-Inherent risks commonly associated with the activity.
-Presumed to have been accepted
Orally
Written
Implicitly
Governmental Immunity
-Allows government entities to be free form liability.
-Federal Tort Claims Act/State Tort Claims Act
-All void when Willful and wanton conduct is present
Last Clear Chance
Act of God
Unforeseeable Circumstances
Unforeseeable Plaintiff

Doctrine of Respondent Superior

-If an employee acts at the insistence or direction of his or her
employer, the employer can be held liable for the wrongful acts of an
employee.

Legislative Authority
-Laws that restrict or prohibit suits that result in property loss or injury
(recreation land use status)
Consent
-Voluntary and reasonable consent by a person with the mental
capacity to make a rational decision.
Exculpatory Documents
-A document that relieves a person or organization from liability that
results from a negligent or wrongful act.
-Does not relieve a person or organization from absolute liability
resulting from gross or willful and wanton acts.
Valid Waivers and Releases Must
-Be clearly written and easy to understand
-be made obvious that it is a waiver
-be signed by an adult
-be specific about what it does
-be signed voluntarily
-not be against public policy
_________________________
Intentional Torts!
-Does not relate to something that you did not do (negligence) but rather
something you did do.
Intentional Torts to Persons
Battery
Assault
False Imprisonment

Intentional emotional distress

Defamation
Intentional Torts to Property
Trespass to land
Trespass to Chattel
Conversion
Battery
-An intentional and offensive touching of another without lawful
justification
Elements
-1) An act by the defendant
2) Intended to result in actual touching or the apprehension of
imminent touching.
3) Which act does cause such (harmful and offensive) touching
Filing against the PERSON who touched you.
Your right to throw your fists stops at the end of my nose
Assault
-The threat or use of force on another that causes that person to have a
reasonable apprehension of imminent harmful or offensive contact.
-Elements
1) An act by a defendant intended to
2) Cause an apprehension of an immediate battery
3) With the apparent ability to commit the battery
False Imprisonment
-A restraint of a person in a bounded area without justification or consent
-Private as well as governmental
-Elements
1) An act by a defendant to
2) Confine the plaintiff
3) Within definite physical boundaries
4) With an awareness of the confinement, and
5) Without the plaintiffs consent
Intentional Infliction of Emotional Distress

-Intentionally or recklessly causing another person severe emotional distress

through ones extreme or outrageous acts.
-Elements
1) An intentional or reckless act by the defendant,
2) Constituting extreme or outrageous conduct
3) Causing severe emotional distress to the plaintiff
4) Resulting in damages
Defamation of Character
-The act of harming the reputation of another by making a false statement to
a third person
-Elements
1) A false and defamatory statement about another
2) Intentionally published to a third party
3) Which causes injury to another
LiableTo publish in print (including pictures), writing or broadcast
through radio, television or film, an untruth about another which will do
harm to that person or his/her reputation, by tending to bring the target into
ridicule, hatred, scorn or contempt of others.
SlanderOral defamation, in which someone tells one or more persons
an untruth about another, which untruth will harm the reputation of the
person defamed.
Four Deadly Defamatory Statements in which a Defamation suit will
likely be filed.
-Dishonest business practices
-Child molester or spouse abuser
-Deviate sexual behavior
-Loathsome disease
INTENTIONAL TORTS TO PROPERTY
Trespass to Land
-A persons unlawful entry on anothers land that is visibly closed.
-Elements
1) An intentional act by a defendant

2) To enter or cause a third party or object to enter

3) The land in possession of another or causing the act to occur.
Land below and air above

Duty of Care
-Invitee (pays fee to enter)
-Owed highest degree of care
-Licensee (enters by permission business or social)
-Owed reasonable and ordinary care warning of hidden conditions.
-Trespasser (enters legally without paying or without specific permission)
Owed least amount of care reasonable and ordinary standard.
Invitations on to property
-Mailbox
-Sidewalk
-Utility Service
-Attraction nuisance
-A dangerous condition that may attract children onto the land,
thereby causing a risk to their safety.
(small children cannot be considered trespassers)
Attractive Nuisance
-Elements
1) The owner of the property had knowledge or should have had knowledge
of the condition of his property
2) Children are attracted to the property, or it is foreseeable that children
would be attracted to the property
3) Features on the property would be perceived as being inherently
dangerous to children by the average adult
40 The owner of the property failed to exercise reasonable care to protect the
children
Trespass to Chattel (theft in criminal court)
- The act of committing, without lawful justification, any act of direct
physical interference with a chattel possessed by another
- -Chattel: moveable or transferable property

- Elements
o An intentional act by the defendant
o To interfere with the personal property of the plaintiff
o Which act did interfere with the plaintiffs right to possession
o Causing damages
Conversion
- The wrongful possession of disposition of anothers property as if it were
ones own
- A serious trespass, completely denying the plaintiff access to his or her
property
Risk Management
-Identify risks
-Be alert to unsafe conditions
-Take quick action to avoid that risk
Skill level of participants
-more risky or less risky
Supervision- The level you need to safely supervise participants
-You need to know the skill level of your employees.
Weather Conditions- Outdoors have different risks that inside
-can be unpredictable
Power back ups- can be due to weather
Physical conditions of participants
Understand what standards people must have to play
Understand the level of play that will fit the people playing
Knowledge of your equipment and the environment
Held to standards especially if costumers(invitees) use
And what they will need in the outdoor environment

How to determine risk.

1) where things have happened before
-keep an accident map.
-Know where things happen.
2) High public use area
3) High danger areas
Coverage Consideration
1) Facilities and events
2) Categories of people
Invitees vs. trespassers
Who, when and where
3) types of loss
4) Locations
5) Time periods
Types of insurance
1) Accident
2) Automobile
3) Weather
4) Travel/Event
5) Product Liability
6) Professional liability
7) Theft
8) Property Loss
WORKPLACE RISK
Employee termination
Document everything
Performance related
Discrimination
The person replacing you is not part of your group Race,
gender exct..
You might have a wrongful/discrimination claim
Burdon of proof must be produced by plaintiff

Sexual Harassment
Unwanted advances
Power structure involved
Doesnt have to be overt sex
Comments
Employers can be held liable as well
Harassment was reported and nothing was done
Administrators having sex with under employees will be held liable
Documented sexual harassment training for all employees
Americans with disabilities Act ADA
Every employee must be able to do his or her job
Must accommodate everyones needs
To a reasonable point
Enforced through the court system (civil law)
Employee Evaluations
Every employee must evaluated multiple times including before they are
hired
Whoever can perform the job the best
Job description
Poor job descriptions will get you in trouble
Enforce evaluations equally and consistently
If you dont the double standard will get you with a lawsuit
Avoid any chance of defamation of character lawsuits
Untrue, told to a third party
Evaluations done in private
You must be honest; it will cover you against litigation
They must sign the evaluation
You must have an appeals process