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Transcript

  • 1. CLASS OVERVIEW
    • REVIEW
    • OPERATION IV
      • SPECTATOR INJURIES (MORE)
      • WAIVERS & AGREEMENTS TO PARTICIPATE
    • WRAP-UP
  • 2. REVIEW
    • SPECTATOR INJURY
      • Spectator: People coming to sport venues who have paid for the event
      • Governing law: Negligence (= participant)
      • Primary defense: Assumption of risk (limits, though)
  • 3. SPECTATOR INJURIES
    • DUTY OWED TO SPECTATORS: IN GENERAL
      • Invitee: Sport organization owes a duty of a reasonable inspection & precaution
        • All known danger &
        • The source of risk that would have been discovered by reasonable inspection
  • 4. SPECTATOR INJURIES
    • ASSUMPTION OF RISK & SPECTATORS
      • The most popular affirmative defense
      • Sutton v. ENYYA
        • Fact: A player’s dad injured when hit by soccer ball behind the goal line
        • Rule: Assumption of risk applies not only to participants but also to spectators
  • 5. SPECTATOR INJURIES
    • PROJECTILES (FOUL BALLS)
      • General rule: “Limited duty rule”
      • Benejam v. Detroit Tigers, Inc.
        • Fact: A plaintiff injured from a broken bat that curved around the safety net
        • Rule: Ball club is not liable if some safety measure was there
          • Same policy ground as assumption of risk doctrine
          • Imposes a limited duty upon facility owners
  • 6. SPECTATOR INJURIES
    • PROTECTION FROM 3 RD PARTY: PRIOR SIMILAR INCIDENTS RULE
      • Prior incidents have been so similar (jury decides)
      • Talasazan v. NASL: The history of violence in the past after soccer games (3/5)  facility owner should have provided securities
  • 7. SPECTATOR INJURIES
    • PROTECTION FROM 3 RD PARTY TORT
      • Bearman v. Notre Dame
        • Fact: P injured at a parking lot from a drunk patron (3 rd party)
        • Rule: Sport venue must protect a spectator from not only known but also foreseeable danger
          • Responsible for actual + constructive knowledge
          • “ You should have known” (constructive knowledge)  D had to exercise reasonable precautions
          • Here school knew about the tailgating (drunk spectators)
  • 8. SPECTATOR INJURIES
    • DRAM SHOP STATUTE: A COMMERCIAL ENTITY SERVING ALCOHOL IS LIABLE IF 
      • Serving alcohol to a minor
      • Serving to a visibly intoxicated person + injury to 3rd
      • The law can be justified in terms of causation
        • “ But for” drinks, no accident
        • Proximate cause: Foreseeable risk
  • 9. WAIVERS & EXCULPATORY CLAUSES
    • WHAT IS EXCULPATORY CLAUSE?
      • Definition:
        • “ A contractual provision relieving a party from liability” (very serious in this legal system)
        • Also known as: a release; waiver
      • If it is legally effective (= court upheld the waiver) 
        • The injured party’s claim against the sport organization is dismissed
        • “ You promised not to sue when you signed it ”
  • 10. WAIVERS & EXCULPATORY CLAUSES
    • CAN PARENT WAIVE KID’S RIGHT TO SUE?
      • Cooper v. Aspen Skiing Company
        • Fact: Minor seriously injured after mom signed release
        • Rule: A parent cannot waive children’s right to sue
        • Rationale:
          • Public policy protects minor
          • Parental rights do not extend to this crucial one
      • Colorado legislature later overruled the court decision
  • 11. WAIVERS & EXCULPATORY CLAUSES
    • CAN PARENT WAIVE KID’S RIGHT TO SUE?
      • Sharon v. City of Newton
        • Fact: Minor injured (cheerleading) after dad signed release
        • Rule: A parent can waive his kid’s right to sue
        • Rationale:
          • - Making decisions for kid is a fundamental right for parents
          • - Court worried about deterrence effect on extracurricular programs
  • 12. WAIVERS & EXCULPATORY CLAUSES
    • PUBLIC POLICY DISFAVORS WAIVER
      • Freedom of contract v. public interests
        • If service is essential  generally not effective
        • Unfair dominance  generally not effective
      • No release: VA, MT, LA, & federal land
      • All state courts are against use of waiver
  • 13. WAIVERS & EXCULPATORY CLAUSES
    • LANGUAGE MUST BE CONSPICUOUS
      • Larger typeface
      • Bold letters
      • Location of easy attention
  • 14. AGREEMENTS TO PARTICIPATE
    • CHARACTERISTICS
      • Signed before activities
      • Legal devise different from waiver (only explains risk)
      • Language must clearly explains 
          • The nature of activity
          • What you expect from participants (e.g., skill level, physical condition, must instruction, etc.)
          • Example: Sample_Waiver_1
  • 15. AGREEMENTS TO PARTICIPATE
    • USE OF AGREEMENTS TO PARTICIPATE
      • Preempts action for failure to warn
      • Strengthen your defenses
        • Assumption of risk (“You knew it was dangerous”)
        • Contributory or comparative negligence
      • Used in conjunction with exculpatory clauses
  • 16. WRAP-UP
    • SPECTATOR INJURIES
      • Defenses
        • Assumption of risk
        • Limited duty rule
        • Previous events were different from the present case (If injury from 3 rd party)
  • 17. WRAP-UP
    • EXCULPATORY CLAUSES
      • A.K.A., waiver, release
      • Policy issues (few bright-line rules)
        • Protection of Cs
        • Essential services to public
        • Unfair dominance
        • No more than negligence
        • Cannot override statutory standard of care
      • Language of release must be explicit & conspicuous
  • 18. WRAP-UP
    • AGREEMENTS TO PARTICIPATE
      • Different legal ground to avoid liability
      • Clearly explains risk involved
      • Waiver v. agreements to participate
        • Waiver: If effective, injured party cannot bring an action
        • Agreements to participate: Injured party still can bring an action but your organization has enhanced defense because it explained everything (e.g., assumption of risk)