1. chapter 2 Tort Law and Product Liability

2. Chapter Objectives After reading this chapter, you will know the following: The elements of negligence liability and how it applies to sport The defenses to the tort of negligence and the application to sport management Intentional torts and their application to sport settings Product liability and its application to sport management

3. Tort Law Causes of action (types of lawsuits) –Negligence (fault) –Intentional torts (intent or desire) –Products liability (strict liability) Involves civil, not criminal, actions Often determined by civil juries, not judges Differences between torts and criminal law –Burden of proof: Preponderance of the evidence (torts) –Guilt beyond a reasonable doubt (criminal law)

4. Negligence Involves personal injury Requirements: –Duty (standard of care) –Failure to act as a reasonable and prudent person (breach of duty ) –Causation –Damages No intent to injure required; the standard is based on fault

5. Determinants of Standard of Care Case precedent Legislation Municipal rules and regulations Regulations and policies of administrative agencies (e.g., Consumer Products Safety Commission [CPSC]) Standards drafted by professional associations –Engineering, medical –American Society for Testing and Materials Community standards Industry standards Expert testimony

6. Elements of Negligence Duty (standard of care) Breach: The act fell below the standard Causation –Proximate cause: Strong enough connection between an act and an injury –Cause in fact: But for the wrongful act, the injury would not have occurred Injury: Physical or mental and emotional

7. Gross Negligence A higher degree of carelessness Willful, wanton, or reckless conduct No intent to cause the injury but intent to cause the action that resulted in the injury –Hackbart case: Intent to strike player but no intent to cause the injury constituted gross negligence

8. Defense: Comparative Negligence Apportions fault between the parties Types (depending on the state): –Pure –50 percent rule All or nothing Percentage if P less than 50% at fault A partial defense, based on the percentage of fault

9. Defense: Assumption of Risk To prove this defense, defendant must show the following: –The risk must be inherent to the sport. –The participant must voluntarily consent to be exposed to the risk. –The participant must know, understand, and appreciate the inherent risks of the activity. In sum: Defendant voluntarily assumed, knew, and appreciated risk

10. Sources of Assumption of Risk Express assumption of risk: Oral or written language that outlines the risks of the activity; found in participation agreements. Implied assumption of risk exists when the participant’s conduct or actions show that he voluntarily assumed the risks by taking part in the activity. With inherent knowledge of the activity, the act of participation triggers the assumption of risk.

11. Selected Types of Intentional Torts Battery Assault Defamation False imprisonment Intentional infliction of emotional distress Invasion of the right to privacy Trespass to land Trespass to personal property Disparagement of property

12. Elements of Battery Intentional, harmful, or offensive touching of another that is unprivileged and unpermitted Plaintiff must show the following: –Intent to contact –Harmful or offensive touching –Unprivileged –Unpermitted –Damages

13. Elements of Assault The threat of a battery (threat of harmful or offensive touching) Plaintiff must show the following: –Intent –Causing apprehension of immediate battery (harmful or offensive touching) –With apparent ability –Damages

14. Defamation Elements: –False and defamatory statement –Published to a third party –Harms the reputation of the person defamed –Causes injury and results in damages Libel: Written defamation Slander: Oral defamation Defamation per se; damages are presumed in statements involving the following: –Moral turpitude –Loathsome disease –Professional lack of qualification

15. Defamation: Defenses Truth Privilege –Public figures must show actual malice (knowledge of falsity or reckless disregard for truth) as well as falsity and damages –For nonpublic figures, in most states, negligence must be shown as well as falsity and damages.

16. False Imprisonment Intent to confine another within a particular area against the will of the person confined. Plaintiff must show the following: –Confinement actually occurs. –The act caused the confinement. –The person confined is aware of their confinement or harmed by it.

17. Infliction of Emotional Distress Act that represents extreme and outrageous conduct and results in severe emotional distress to another person Must show the following: –An intentional act –Constituting extreme or outrageous conduct –Causing severe emotional distress –Damages (usually emotional, not physical)

18. Invasion of Right to Privacy A very broad tort Four areas: 1. Appropriation of one’s name/likeness 2. Intrusion 3. False light 4. Public disclosure of private facts

19. Invasion of Privacy: Appropriation Occurs when someone uses, without permission and for his own benefit, the name, likeness, or other identifying characteristic of another person –Often done for a commercial purpose –Use of athletes’ names on advertisements, posters, trading cards without permission Defenses: –Consent –First Amendment (if not for a commercial purpose)

20. Invasion of Privacy: Intrusion Arises when someone invades a person’s home or searches personal belongings without permission, if the intrusion is highly offensive to a reasonable person Defense is consent

21. Invasion of Privacy: False Light Similar to defamation Thought not outright false, statements that put plaintiff in a false light –Photo of athlete with a woman other than his spouse in a newspaper with a caption implying (but not saying) they are romantically involved –Very hard to prove Defense is First Amendment

22. Right of Privacy: Public Disclosure of Private Facts Publication of facts that are private and would cause embarrassment and humiliation and would not be a legitimate concern to the public With public figures, this claim is extremely difficult to make Defense is First Amendment

23. Trespass to Land The unlawful entry on the land of another without permission and with the intent to enter the land Defenses: –Necessity –Privilege

24. Trespass/Conversion of Personal Property Trespass: Taking the property Conversion: Keeping the property Civil law “side” of crimes related to theft Defense is permission

25. Disparagement of Property Untrue statements about product or property result in economic loss Types: –Slander of quality (e.g., jeweler is selling fake diamonds) –Slander of title (e.g., jeweler is selling stolen merchandise)

26. Product Liability Liability for harm caused by a consumer product May be based on several legal theories in tort or contract law: Torts –Negligence –Strict liability Contracts: Warranties (express or implied)

27. Product Liability: Negligence Must show the four elements discussed earlier: 1. Standard of care 2. Breach of the standard 3. Causation 4. Damages

28. Product Liability: Based on Strict Liability Liability without fault Exists if the following are present: –Product was defective in design, manufacture, or warning when sold. –Defendant is in the business of selling such products. –Product is unreasonably dangerous because of defect. –Plaintiff is injured by the product. –Defective condition is proximate cause of injury. –Product was not substantially modified since time of sale.

29. Defect Central to the definition of strict product liability –Design makes the product unreasonably dangerous, even if not done with fault. –The manufacture of one or a group of products makes them unreasonably dangerous. –Warning must be reasonable and must deal with foreseeable misuse.

30. Strict Liability: Defenses Contributory negligence Assumption of risk Foreseeable misuse

31. Product Liability: Warranties Buyers often rely on promises or representations about a product made by either the manufacturer or seller. –Warranties are considered a basis of the bargain of the sales contract –Uniform Commercial Code (UCC) controls (continued)

32. Product Liability: Warranties (continued) Types of warranties: –Warranties of title –Express warranties: Based on representations –Implied warranties: Based on law Merchantability: Goods are of ordinary purposes of which they are used; average quality Fitness: Goods are fit for the particular purposes of the buyer