KNR 382 notes
KNR 382 notes KNR 382
Popular in Legal Aspects of Recreation and kinesiology
Popular in Kinesiology
This 10 page Study Guide was uploaded by Daniel Meyer on Tuesday February 16, 2016. The Study Guide belongs to KNR 382 at Illinois State University taught by Clinton Warren in Winter 2016. Since its upload, it has received 43 views. For similar materials see Legal Aspects of Recreation and kinesiology in Kinesiology at Illinois State University.
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Date Created: 02/16/16
KNR 382: Legal Aspects of Recreation and Kinesiology Clinton Warren Tort Law Causes of action (type of lawsuit) Negligence (fault) Intentional (intent or desire) Products liability (strict liability) Involves civil, not criminal, actions Often determined by civil juries, not judges Negligence Personal injury Can be ﬁnancial loss ex. accountant takes money Requirements 4 elements Duty (standard of care) Breach of Duty Failure to act as a reasonable and prudent person Loss Proximate cause No intent to injure required, standard based on fault Determinants of Standard Care Case precedent Legislation Municipal rules/regulations Regulations/policies of administrative agencies Consumer Products Safety Commission Standards drafted by, professional associations Engineering, medical American Society for Testing and Materials Community standards Industry standards 4 Elements of Negligence Duty, you owe standard of care Breach, act falling below standard Loss, physical injury or mental and emotional distress Proximate Cause, Causation Injury (situation) your fault because of breach So… Howard breaks patella during training session at Globo Part of training session Signed a document with trainer and club Was the mechanism of injury the machine (care and maintain)? Howard isn’t ﬁt/clueless Suffers from pre-existing conditions Duty-trainer supervises Howard while he exercises Breach-Walked away/talked to Lisa Loss-Knee cap injury Proximate cause- trainer walked away while an unﬁt/clueless Howard attempted to work out Gross Negligence A higher degree of carelessness Willful, wanton or reckless conduct Not that you meant to cause the injury but you should have known No intent to cause injury but intent to cause the action that resulted in the injury Intentional torts are expensive to “make whole” Defendants owe plaintiff a lot of money Result in jail time Defense: Comparative Negligence Appropriations (fault) between parties Types (depending on state): Pure 50% rule Percentage if Plaintiff (Howard) is less than 50% at fault Defendant is is off the hook if Howard is greater than 51% at fault Partial defense is based on percentage of fault Howard’s health=10% Jim (Trainer)=20% Manufacturer=70% Defense: Assumption of Risk To prove defense, defense must show Risk inherent to sport Participant voluntarily consents to be exposed to risk Participant must know, understand, appreciate inherent risks of activity In sum: Defendant voluntarily assumed, knew, appreciated risk Assumption of Risk Express Contractual Implied Participant’s conduct or actions show that he voluntarily assumed the risks by taking part in the activity Inherent knowledge of activity, act of participation triggers assumption Selected Types of Intentional Torts Battery Assault Defamation False imprisonment Intentional inﬂiction of emotional distress Trespass to land (golds gym/stadiums) Trespass to personal property (golds gym/ stadiums) Disparagement of property Elements of Battery Intentional, harmful, or offensive touching of another that is unprivileged /-permitted Plantiff must show: Intent to conduct Harmful/offensive touching, loss, unprivileged/-permitted There is inherent violent in competition You can’t strike/tackle someone in public but you can in sports Fighting rules in hockey are deﬁned in terms of when This implies it will happen Elements of Assault Threat of a battery (harmful/offensive touching) Plaintiff must show… Intent Causing apprehension of immediate battery With apparent ability Loss stick/stone/frisbees/baseballs No loss if a thrown object misses the targeted individual A gunshot can miss but be emotionally terrifying and damaging Was there a case? Shea McClellin sacks and separates Aaron Rodger’s shoulder, there is no case This was a privileged environment Intent to sack B. Meriweather leads wit his head on T. Smith Intent to hurt Harmful He said 3x before similar hits are “part of my job” Saints Bounty Scandal Maybe the coach is liable? Is it an unspoken motive in football? Rules are in place for “when it happens” These rules create privileged environment Haynesworth face stomps/seriously injures Gurode’s eye Harm: Misses the rest of the season In between plays: makes it un-permitted Does Gurode want to be “that guy” and take Haynesworth to court? Later in his career an ofﬁcial threw a ﬂag into his helmet Injured his bad eye again Did he want to be “that guy” yet again? Defamation Elements False/defamatory statement Published to a third party Harms rep of person defamed Causes injury or results in damages Libel is written defamation Slander is oral defamation How do you ﬁnd evidence and prove Slander? Defamation per se; damages are presumed in statements involving the following: Moral turpitude Seedy behind closed doors Loathsome disease Ebola/avoid this western Africa travelers Professional lack of qualiﬁcation Defamation: Defenses Truth Privilege Public ﬁgures must show actual malice ( knowledge of falsity or reckless disregard for truth) as well as falsity/damages proof someone tried to seek out opportunity to ruin their reputation Ray Rice was on video hitting his wife No defamation because it was true K. Olberman “said it” on air Public ﬁgure R. Goodell was the target of his words Was it intended to ruin his reputation? Did Goodell create a corrupt environment? if this can be proven it is proof the claim is true Inﬂiction of Emotional Distress Act that represents extreme/outrageous conduct and results in severe emotional distress to another person Must show… Intentional act Constituting Extreme/outrageous conduct Causes severe emotional distress Loss (emotional) Invasion of Right to Privacy Very broad tort Four Areas Appropriation of one’s name/likeness Intrusion False Light Public disclosure of private facts Appropriation Someone uses, without permission/for his own beneﬁt the name, likeness, or other identifying characteristic of another person Often done for commercial purpose Use of athlete’s name on advertisements, posters, trading cards without permission Defenses: consent, ﬁrst amendment If not for commercial purpose Intrusion someone invades a person’s home or searches personal belongings without permission, if intrusion is highly offensive to reasonable person Defense is consent: a public locker someone owns the public locker Defense is ﬁrst amendment False Light Similar to defamation Thought not outright false, statements that put plaintiff in a false light Photo of athlete with woman other than his spouse in newspaper… Public Disclosure of Private Facts Publication of facts that are private/would cause embarrassment and humiliation and would not be a legitimate concern to the public With public ﬁgures this is hard to make Defense: 1st amendment Product liability Liability for harm caused by consumer product May be base don several legal theories in tort/contract law Torts Negligence Strict liability Contracts: warranties (express/implied) Product liability is Based on Strict Liability Liability without fault Exists if following present: Product defective in design, manufacture, or warning when sold Defendant in business of selling such products Product unreasonably dangerous because of defect Plaintiff injured by product Defective condition=proximate cause of injury Product was not substantially modiﬁed since time of sale Release of Liability vs. Waiver Release of Liability Signed after injury More power in court room You admit it wasn’t their fault You could argue, pressure/unclear minded at time of signing Waiver Manages risk/signed before injury Less power you can prove they didn’t understand inherent risk Waiver is never enough Risk Management Objectives Foundation of risk management Key elements of decision making process Deﬁnition of R.M. Process of reducing/eliminating risk of injury and liability associated with recreational facilities or services Loss prevention: what is the loss of most concern to the organization, to insurance company, society, plaintiff’s lawyer Process of Managing Risk Recognition (acknowledge safety/loss potential, understand people involved/what risk might come) Self evaluation Personal experience Media inﬂuence Peer inﬂuence Education/training Management Issues Upper management support Personal Time/expense Analysis (identify/evaluate risk) Risk identiﬁcation Standard of care Legal mandates Professional judgement Figure out program/bad things that could happen Risk evaluation Severity of risk Probability of risk Action Performance “the plan” Retention just deal with (ignore) it Treatment just deal with (ignore) it Transfer pass risk onto someone else insurance policy Avoidance not doing something, a risky idea avoided completely Implementation “carrying out plan” policies/procedures In scenarios… Recognize yourself/ staff? Analyze Program What is going on Outcomes and potential scenarios How bad/How likely? Act What to do? If there is alcohol and minors present underage and over-consumption will be a problem Wristbands will be necessary for underage people Security will be necessary for over consumed people Agency Law Chapter Objectives Know… How agency relationships work and the authority that agents have Function of sport agents Duties… What is agency law? It is a law that applies to/explains relationship between principal/agent Three key ares (considerations/when you know authority) Rights/responsibilities of principals/agents Authority of agent as he/she works on behalf of the principal Governs creation of agency relationship in an of itself Areas within recreation/sport that involve potential, formal agency relationship Contract negotiations Athlete/coach, facility, sponsor Financial Management Concepts in Agency Law Restatement of Agency “Fiduciary relationship that arises when one person (principal) manifests assent to another person (agent), agent shall act on principal’s behalf/subject to principal’s control, agent consent so to act” Relationship of trust/knowledge - ﬁduciary relationship Manifest assent - giving permission Agent will represent principal’s best interests Agent helps principal The principal sets the guide line Creates relationship “as long as you listen” Agency Relationships Creating agency relationship Relationships founded on consent Often written in the form of a contract, oral agreement is possible No formality required Both parties must have capacity to agree Authority Critical concept governed/transferred in agency law/agency relationships If agent does not have authority to act on behalf of the principal, or exceeds authority given, the agent’s actions cannot bind the principal, principal should not be liable Types of authority Actual authority-reasonable belief that authority has been granted to act Express: written/oral agreement to perform speciﬁc tasks Implied: reasonable belief that speciﬁc tasks may be performed to support expressly granted authority tasks Apparent Authority- actions suggest authority has been granted Scenario 1 (ticket agent for HS, volunteer) Was permission given? Volunteer told “sell tickets for $2” What authority does volunteer ticket agent have to sell ticket for $4? Reasons Raise more money(what was the motive/ethics?) Pocket extra $2(what was the motive/ethics?) Are there other similar events at $4 (hustling)? The authority is implied Scenario 2 (personal trainer with written contract stating her job is to generate revenue by selling training packages) Gives 10 people free week trials agency relationship exists Role=generate revenue Implied authority because selling and generate revenue was interpreted as get you in The door with free trial (future proﬁt) Not apparent because no pre existing relationship with past authority This contract is fresh/expressed objectively Generate revenue! Scenario 3 (student volunteer at Parks/Rec department) Told to “lock-up” Turns off all computers/locks doors First saves everything on desktops What could go wrong? Express authority to act Scenario 4 (Peyton Manning signs Tom Condon as agents and gives permission to negotiate with NFL and its clubs) Lands Peyton multi-million endorsement for car dealership Outside principal’s permission Tom Condon would argue implied consent Peyton may not want his face on that car dealership This makes things messy Duties in Agency Relationship Agent duties to the principal Duty of loyalty Act solely/completely to beneﬁt principal Principal duties to the agent Duty to compensate fairly Pay them for what they are worth Agent Duty Duty of obedience Follow reasonable instructions Duty to avoid conﬂicts of interest Not disclose other business dealings that may impact the principal’s dealings Principal Duty Duty to reimburse for expenses Pay back all expenses incurred while working for the principal Duty of good conduct Do no disparage agent in a manner that would impact future employment Liability in Agency Law Contractual Liability Disclosed principal In working with third party the principal is known by the third party Partially disclosed principal in working with third party the third party knows someone else is involved Undisclosed principal… Tort liability Scope of principal principal responsible for agent heavier when acting as an employee of the principal Respondeat superior/vicarious liability If agent is negligent the principal is negligent Contract=written/verbal promise or set of promises, which law gives a remedy or the performance of a recognized duty Entering into a contract each party agrees to do something Elements of a Contract Offer- I promise X if you promise Y creates “power of acceptance” detailed direct clear P of A party to whom the offer was made has the power to bind the person making the offer to the agreement Acceptance- I agree to provide Y if you provide X A valid contract can only be created if both parties agree to the terms Some form of action must be present to suggest the agreement occurred Common manners of acceptance Signature Verbal agreement Action Offer should specify method of acceptance Third party Consideration - We both understand something of value has been exchanged Deﬁned=value/beneﬁt each party agrees to give up as result of the agreement “price for the promise” In most typical contract scenarios considerations may seem hard to deﬁne but is generally easy to ﬁnd You are given new iPhone as graduation gift but it doesn’t work You want to pursue legal action to get a working iPhone Legality- We agree this transaction is legal Courts will not enforce a contract base don an illegal promise/transaction Typically very straight forward Capacity- We are both cognitively able to agree to these terms Courts will not enforce a contract that is made by someone who is under the age Adulthood/consent or is cognitively impaired Adulthood/consent- typically 18 years of age or older (although) some Jurisdictions may be 16 Cognitively impaired Unable to fully understand and appreciate the terms of the agreement Typically subject to the “reasonable person” standard Breach of Contract A legal cause of action in which a binding agreement or bargained for exchange is not honored by one or more of the parties involved in the contract Categories Minor breach Breach of literal contract terms that do not affect the overall execution of the contractual agreement Material breach Breach via a failure to perform terms of the contract that do affect the overall execution of the contract No cup holder vs. cup holders Fundamental breach Breach via a failure to perform terms of a contract that makes satisfying the terms impossible No seats vs. seats Typical Remedies Compensatory damages Money necessary to make up for what ever monetary loss a party has suffered attributable to the breach of contract Consequential damages Monetary relief for a party’s economic losses that were caused indirectly by the original breach of contract Liquidated damages Speciﬁc amounts of damages that the parties agreed to within the contract itself Speciﬁc performance Court order to uphold all promises of the contract
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