Reed Wainwright

Don’t Lose it All Before Game Day!

Recurring Allegations

• Some form of negligence, carelessness or recklessness is usually the recurring allegation associated with legal liability

Legal Liability Careless •The fact, condition, or instance of a person’s either not having done what he or she ought to have done, or having done what he or she ought not to have done. Black’s Law Dictionary, 7th Edition, Bryan Garner, Editor in Chief, West Publishing Company, 1999, p. 204.

Negligence•The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation. Black’s Law Dictionary, 7th Edition, Bryan Garner, Editor in Chief, West Publishing Company, 1999, p. 1056.

Reckless•Characterized by the creation of a substantial and unjustifiable risk of harm to others and by a conscious (and sometimes deliberate) disregard for or indifference to that risk; heedless; rash. Black’s Law Dictionary, 7th Edition, Bryan Garner, Editor in Chief, West Publishing Company, 1999, p. 1276

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Allegations!

• DOES NOT MEAN THE CONTENT IS TRUE!

• It is only “ALLEGED!”

• Alleged incident date: September 28, 2009• Lawsuit filed on: January 24, 2011• Defendants: USC (private institution) and assistant strength coach• Allegations of negligence, recklessness, and carelessness:

• Reputable and competent strength and conditioning coaches• Player was relying on assistant strength and conditioning coach’s

previously represented abilities and competence• “The bar was dropped, hit and/or fell onto player’s neck by reason of, and

result of, the negligent, reckless, and careless acts and omissions of each of the Defendants.”

• Was not enough that defense argued that players “assume inherent risks”• Notice of Settlement filed: On or about January 17, 2012

USC “Spotting” Case (Case No. BC453551, Superior Court of State of California County of Los Angeles, Central District, The Douglas La Group Antablin & Bruce, Carl E. Douglas, Esq.).

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USC “Spotting” Case

Public InstitutionsPublic institutions - Texas•Sovereign immunity definition: (1) A government’s immunity from being sued in its own courts without its consent. Congress has waived most of the federal government’s sovereign immunity. See Federal Tort Claims Act. (2) A state’s immunity from being sued in federal court by the state’s own citizens. Black’s Law Dictionary, 7th Edition, Bryan Garner, Editor in Chief, West Publishing Company, 1999, p. 753Sec 104.002: No indemnification if willful or wrongful act or an act of gross negligence

•Texas Civil Practice and Remedies Code; Sec. 101.021.  GOVERNMENTAL LIABILITY. Personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law

•Texas Civil Practice and Remedies Code; Sec. 104.002.  STATE LIABILITY; CONDUCT COVERED. (a) …the state is liable for indemnification under this chapter only if the damages are based on an act or omission by the person in the course and scope of the person's office, employment, or contractual performance for or service on behalf of the agency, institution, or department and if: (1)  the damages arise out of a cause of action for negligence, except a willful or wrongful act or an act of gross negligence

•Texas Civil Practices and Remedies Code; Sec. 41.001 (11). Gross negligence means an act or omission: (A) which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and (B) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others

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Private Institutions and Athletic Associations

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Private institutions•Sovereign immunity will not apply

Athletic Associations•Sovereign immunity will not apply•If an association of public institution, case law has reasoned that sovereign immunity does not apply

Wrongful Death

High school cases:•Florida High School Case Allegations

• A year earlier player had been hospitalized for heat stroke• Took too long to call 911; and • Did not immediately get player into a cooling tub at the first sign of trouble

•Georgia High School Case Allegations• Took too long to call 911; and • Passed out the night before, but was still expected to show up for training the

next day

•Collegiate: University of Southern Mississippi Case - Eric Sorey (1987)849 F.2d.960; 42 USC Sec. 1983 – Civil Action for Deprivation of Rights,

State Tort and Contract Law

Wrongful Death – plaintiff must establish the defendant’s wrongful act caused the defendants death (Christus St. Mary Hosp. v. O’Banion 227 SW 3d 868)

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A defendant can be held liable for the decedent’s death if the death was caused by the defendant’s (or its agent’s or servant’s) wrongful act, neglect, carelessness, unskillfulness, or default (Texas Civil Practices and Remedies Code; Section 71.002(b))

Wrongful DeathFlorida State University – Devaughn Darling•Alleged incident date: February 26, 2001•Lawsuit filed: On or about October 2, 2002 •Allegations:

• During conditioning drills• Cause of death was apparent “cardiac

arrhythmia;” and• Medical Examiner stated that sickle cell trait

may have contributed to players death•Settlement Date: On or about June 28, 2004, but still unresolved

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University of Missouri – Aaron O’Neal•Alleged incident date: July 12, 2005•Allegation: Failure to follow Emergency Action Plan•Settlement date: On or about March 12, 2009

Premises LiabilityA landowner’s or landholder’s Tort Liability for conditions or activities on the premises. Black’s Law Dictionary, 7th Edition, Bryan Garner, Editor in Chief, West Publishing Company, 1999, p. 1199.

•Exposure to liability includes, but is not limited to:• Equipment purchase• Equipment maintenance• Equipment cleaning• Access

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Products LiabilityA manufacturer’s or seller’s Tort Liability for any damages or injuries suffered by a buyer, user, or bystander as a result of a defective product. Black’s Law Dictionary, 7th Edition, Bryan Garner, Editor in Chief, West Publishing Company, 1999, p. 1225.

•Bat Case (NewJersey.com)• Youth was nearly killed while pitching in a Little

League game in 2006 when he was 12 years old. A batted ball struck him in the chest, causing his heart to stop beating and depriving his brain of oxygen for 15 to 20 minutes. Intensive physical therapy has enabled him to regain some speech.

• His parents sued in 2008, claiming a bat manufacturer a national sports retailer and a state Little League entity were responsible for their son’s brain damage

• The parents sued for emotional pain and suffering, punitive, and other damages under product liability and consumer fraud laws

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EqualityStudent athletes. Title IX of the Educational Amendments of 1972 – A federal statute generally prohibiting sex discrimination and harassment by educational facilities that receive federal funds. Black’s Law Dictionary, 7th Edition, Bryan Garner, Editor in Chief, West Publishing Company, 1999, p.1494.

•Employment• Qualified • Equal opportunity – Title VII of the Civil Rights Act of 1964—a deferral

law that prohibits employment discrimination and harassment on the basis of race, sex, pregnancy, religion, and national origin, as well as prohibiting retaliation against an employee who opposes illegal harassment or discrimination in the workplace. Black’s Law Dictionary, 7th Edition, Bryan Garner, Editor in Chief, West Publishing Company, 1999, p. 1494.

• Disparate impact – The adverse effect of a facially neutral practice that nonetheless discriminates against person because of their race, sex, national origin, age, or disability and that is not justified by business necessity. Discriminatory intent is irrelevant in a disparate impact claim. Black’s Law Dictionary, 7th Edition, Bryan Garner, Editor in Chief, West Publishing Company, 1999, p. 483. The “Unpaid” Intern

• Bona fide occupational qualification13

Warning Label!Verbal/Announcements/Bulletin Board/Website

•Prevention of heatstroke

•Dehydration

•Resource Exchange Center (REC: www.drugfreesport.com/rec)

•Concussion

•Rhabdomyoloysis

•Sickle cell

See NCAA Publications

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Annual Policies and Procedures Manual (not an exhaustive list)

• Emergency action plan;• Lightening safety plan;• Catastrophic incident guidelines;• Privacy;• Scheduled meetings with strength staff and training staff;• Equipment upkeep and cleaning guidelines (OSHA);• Student-athlete mental health consideration plan;• Access to facilities;• Workout progressions for student athletes after concussions and

rhabdomyoloysis, heat-related problems and dehydration;• Supervision;• Drug testing policy and guidelines;• Strength and conditioning programs/athletic performance

training (detailed as possible); and• Pre-participation• Competitive• Offseason – mid-day T.V. game alert!

• Get approval from general counsel or other retained attorney

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