Chapter 3: Sports Chapter 3: Sports TortsTorts

Tort Law GenerallyTort Law Generally

Tort = Personal Injury lawTort = Personal Injury law Latin: to “twist” or “twisted”Latin: to “twist” or “twisted” Tort lawyers are often referred to as Tort lawyers are often referred to as

plaintiff- lawyersplaintiff- lawyers Civil law as opposed to criminal law Civil law as opposed to criminal law

(though closely related).(though closely related). Goal of Tort law is to compensate for Goal of Tort law is to compensate for

injuriesinjuries

Tort Law BasicsTort Law Basics

Plaintiff must prove case by a Plaintiff must prove case by a “preponderance of the evidence.”“preponderance of the evidence.”

4 Major Tort Theories (not mutually 4 Major Tort Theories (not mutually exclusive):exclusive):

NegligenceNegligence Intentional TortsIntentional Torts Products LiabilityProducts Liability Strict (Absolute) LiabilityStrict (Absolute) Liability

NegligenceNegligence

Failure to act as the reasonable personFailure to act as the reasonable person Who decides what was reasonable: a Who decides what was reasonable: a

judge or jury.judge or jury. Most states use comparative negligence Most states use comparative negligence

today.today. Outdated discussion of negligence Outdated discussion of negligence

involved phrases such as contributory involved phrases such as contributory negligence and assumption of the risk. negligence and assumption of the risk. Some states, very few, still use Some states, very few, still use contributory (contrib.).contributory (contrib.).

Elements of NegligenceElements of Negligence

Duty of careDuty of care Breach of dutyBreach of duty Causation (proximate cause)Causation (proximate cause) DamagesDamages If any of the above are missing, a If any of the above are missing, a

negligence claim should fail.negligence claim should fail.

Levels of NegligenceLevels of Negligence

NegligenceNegligence: Failure to act as the : Failure to act as the reasonable person.reasonable person.

Gross NegligenceGross Negligence: Failure to use even : Failure to use even a small amount of care.a small amount of care.

RecklessnessRecklessness: So lacking in care that : So lacking in care that one can construe the conduct as one can construe the conduct as being intentional.being intentional.

Punitive (exemplary) damages: most Punitive (exemplary) damages: most likely in recklessness cases.likely in recklessness cases.

Negligence and SportsNegligence and Sports

Spectator/fan injuries?Spectator/fan injuries? Participant (athlete) injuries?Participant (athlete) injuries? Referee injuries?Referee injuries? Coaching injuries?Coaching injuries? Death by spectators or participants Death by spectators or participants

(called wrongful death).(called wrongful death). Malpractice in sports?Malpractice in sports?

Additional Negligence Additional Negligence ConsiderationsConsiderations

What role does insurance play in the What role does insurance play in the analysis, if at all?analysis, if at all?

What about waivers (disclaimers, releases, What about waivers (disclaimers, releases, exculpatory clauses)?exculpatory clauses)?

Waivers on ticket stubs?Waivers on ticket stubs? Minors and waivers?Minors and waivers? Statutes of limitation for personal injury in Statutes of limitation for personal injury in

sports?sports? Injury “arising out of” the course of Injury “arising out of” the course of

employment: workers compensation issues.employment: workers compensation issues.

Intentional TortsIntentional Torts Most closely associated with the criminal Most closely associated with the criminal

law. law. Some are crimes and torts as wellSome are crimes and torts as well Assault, Battery, Defamation (Libel, Assault, Battery, Defamation (Libel,

Slander), Intentional interference with Slander), Intentional interference with contractual relations, False Imprisonment, contractual relations, False Imprisonment, Fraud, Invasion of Privacy, Right of Fraud, Invasion of Privacy, Right of publicity (commercial misappropriation), publicity (commercial misappropriation), and so on.and so on.

How do they relate to sports?How do they relate to sports? Contact v. non-contact sports?Contact v. non-contact sports?

Products LiabilityProducts Liability

Focus on “defect”Focus on “defect” Defect in designDefect in design Defect in manufacturingDefect in manufacturing Defect in warningDefect in warning How and when might this relate to How and when might this relate to

sports?sports?

Strict (Absolute) LiabilityStrict (Absolute) Liability

Very rare in sportsVery rare in sports Hold defendant responsible no matter Hold defendant responsible no matter

what degree of care they used.what degree of care they used. Usually considered for demolishing Usually considered for demolishing

projects, housing wild animals, projects, housing wild animals, storing and transporting dangers storing and transporting dangers chemicalschemicals

Can you think of any in sports?Can you think of any in sports?

DamagesDamages

GeneralGeneral SpecialSpecial CompensatoryCompensatory Punitive (not for breach of contract)Punitive (not for breach of contract) Liquidated?Liquidated?