Legal Liability in Recreation, Sport, and Tourism Spengler & Hronek

Legal Liability in Recreation, Sport, and Tourism Spengler & Hronek
Teaching Aids Legal Liability in Recreation, Sport, and Tourism Spengler & Hronek

Part 1- Foundation Introduction Trends Categories of Legal Liability
International Issues Legal Research Legal process The Judicial System Civil Procedure

Risk Management When you take the risk out of life, you take the life out of life. Risk must be managed and reduced, not eliminated. The playground swing has all the risk factors possible - immature users, velocity, height, and moving parts; yet, children will continue to use and enjoy playground swings.

Trend in Federal Cases (Same trend pattern exists in State Courts)

Trends in Federal Civil Litigation
Year/ Category 1885 1980 1990 2000 2004 U.S. Dist. Court Cases Filed <2200 112,734 241,992 259,517 281,338 U.S. Court of Appeals Cases <200 24,122 40,103 54,697 62,762 Authorized Judges No Data 156 167 U.S. Cases in Bankruptsy <100 763,072 846,421 1,307,102 1,612,056

Legal Liability Categories in Recreation, Sports, and Tourism
Criminal Liability Civil Liability Constitutional Torts Contract Intellectual Law Tort (Tort Claims Act) Other Categories Strict Liability Intentional Torts Nuisance Negligence

Categories of Damages (Court Awards)
Compensatory Damage – damages awarded as compensation or restitution for harm done Punitive Damage – damages awarded to punish the defendant because of their outrageous conduct Consequential Damage (pain and suffering)- damages awarded for suffering because of the act of the defendant *Under special circumstances attorney fees can be awarded

Basics of the International Legal Systems
Nations have different legal systems, some functioning on behalf of the people and some functioning on behalf of the rulers of the country. Tourism is becoming an important economic factor effecting GNP; therefore, equity is critical. Many countries have not recognized that legal liability and personal protection issues must be considered as an important component in attracting tourists.

Basics of the International Legal Systems
Countries who do not offer legal and personal protection to visitors will significantly reduce the economic benefits of tourism. International maritime (cruise ships) present a particularly complex legal problem. Nation of registry laws apply on the high seas When in territorial waters, the individual country laws apply Crime on the high seas is routinely ignored

English Common Law (U.S. System)
A system of laws derived from centuries of experience, study and tradition. The laws based upon the Judo-Christian beliefs in the Ten Commandments. Common law deals with legal relationships, powers, and liabilities. It recognizes the power of government lies with the common people not in an elite group.

English Common Law (U.S. System) continued
A judge under common law is an impartial referee of the dispute. Judges are bound to protect the rights of the parties to the dispute. English Common law is used for the legal basis of laws in Australia, Canada, England, India, Ireland, New Zealand, South Africa, United States, and other nations that were once part of the British Empire. i.e. Hong Kong.

European Legal System The European Legal Systems are based upon the early Roman legal system. The laws are codified. In this system the laws are listed by crimes or civil offenses. The judgment and punishments are based upon precedent, on rulings that previous judges and juries have made. The early Roman Legal System significantly influenced the structure of English common law.

European Legal System continued
The non-criminal legal system protects human rights, property, and allows actions in tort. Although there is some differences among nations the system is used in France, Germany, Belgium, Netherlands, Denmark, Spain, Portugal, Italy, Poland, Czechoslovakia, Sweden, Norway, Switzerland, and some other counties in South and Central America, and Africa.

Japanese Legal System Japanese System – The modern legal system was initially based on the European legal system but significantly modified using the American/British legal system following World War II. The Japanese system includes a bill of rights and thirty-one articles related to human rights.

Japanese Legal System continued
There is one supreme court, eight high courts and fifty district and family courts. The nation is not litigious by nature, while many laws are codified, the social mores and desire to maintain harmony and subjugation dominate the culture. Most suits are related to business. Japan has both a civil and criminal court system. (The Korean Legal system is similar to the Japanese system)

Chinese Legal System China’s legal system is made up of a complex group of custom and statue, largely criminal law with a rudimentary civil code. During recent years China has passed many new laws and regulations. The legal system tends to protect the rights of foreign investors as much as its own citizens.

Chinese Legal System Continued
The Constitution (1954) is the basis of the codified legal system. Business related laws are implemented with international trade considerations. Tourism law is receiving much attention in the business community and the “rule of law” is adopted by the courts. The Chinese legal system could be described as a legal system in transition.

Islamic Law System Islamic Law System (the Sharia) is based upon the rules and requirements found in the Muslin holy scriptures (Qur’an). The Sharia system dominates the legal system of the Muslim world. It forms the basis for relations between man and God, and among individuals.

Islamic Law System continued
The Hadith and Sunna and codified laws follow in most part in accordance with generally accepted western jurisprudence. The Fiqh is rulings by Islamic scholars to direct the lives of the Muslin faithful. The Council of State or Majlis al-Dawla is the highest administrative court, usually headed by leading Muslin cleric.

Maritime Law (Admiralty Law)
Maritime Law is a complex and difficult area of law. In recreation and tourism activities cruise ships and ocean fishing activities are under the jurisdiction of admiralty laws unless the incident takes place in the territorial waters of a nation, in such case the laws of the nation would dominate.

Maritime Law (Admiralty Law) continued
There are separate courts (Admiralty Courts) that hear maritime cases. The basis of Maritime Law in the United States is known as the Jones Act. Under admiralty law the ship’s flag determines the source of law that applies to the crime, property loss, or tort.

International Courts of Arbitration
International Court of Justice, also known as the World Court, Hague, Netherlands Maritime problems are referred to as private international law. Disputes and crime are regulated by the nation of ship’s registry unless the incident was within territorial waters.

International Courts of Arbitration Continued
International Intellectual Property (trademarks, patents, and copyrights) by international treaty International Courts Serving Individual Countries (Torts) International Court of Arbitration (International Chamber of Commerce, mostly related to trade)

How Laws Are Created Legislated Laws – Elected officials develop and pass laws Regulatory Laws – Civil servants write regulations that creates the rules by which the law is implemented Case Laws – Court decisions create a law for a particular subject area as a result of adjudicated cases

Cites for Case Law (Example)
Navarro v. Country Home Association 654 So.2d 167 (Fla.App.1995) Navarro Plaintiff Country Home Association Defendant Volume of reporter So.2d Case book name Page Number (FlaApp.1995) Location of trial and year tried

Some Selected Case Reporters
U.S. Supreme Court Cases A.2d Atlantic Reporter 2nd Ed. P.2d Pacific Reporter 2nd Ed. N.E.2d North Eastern Reporter 2nd Ed. N.W.2d North Western Reporter 2nd Ed. S.2d Southern Reporter, 2nd Ed. S.E.2d South Eastern Reporter 2nd Ed. S.W.2d South Western Reporter 2nd Ed. F.2d Federal Reporter F.Supp. Federal Supplement N.Y.S.2d New York State Reporter, 2nd Ed.

Federal Judicial System (States have similar system)
U.S. District Court Trial Court U.S. Circuit Courts of Appeal Divided into twelve judicial circuits U.S. Supreme Court Decisions become the law of the land

Pre-trial Procedures Event – Property loss, injury, death
Complaint/Summons – Issued by the court Answer – Defendant must respond within 21 days Motions – dismissal, summary or default judgment Discovery – Depositions, interrogatories, documents, medical exams Pre-trial Conference – 95% if cases settled, 5% proceed to trial

Preparation for Trial Impaneling Jurors-The clerk of the court makes a list of jurors who have been selected for a particular trial. The clerk determines the preliminary qualifications of the potential final jurors

Voir dire Voir dire – To Speak the Truth
The preliminary examination which the court may make of a potential juror, where his or her competency, interest or objectivity may be challenged.

Trial Procedures Jury Selection – jury determines facts
Opening Statement – outlines nature of the case Presentation of Plaintiff’s Case Presentation of Defendant’s Case Closing Arguments Jury Instruction – given to jury by judge Jury Verdict Judgment – given by judge

Civil Procedure An understanding of legal liability requires an understanding of civil court procedures. The federal civil procedures process constitutes the approach used in this section. Most state courts follow the general outline of procedures in the federal court system

Defendant Responds to Civil Complaint
Must file an answer to complaint in order to avoid a default judgment against him. Demurrer – a statement by the defendant claiming that the plaintiff has not stated a “cause of action.” Admission and Denials – a defendant can admit the truth of some allegation and deny the truth of others. Counterclaim – defendant responds by stating he has his own “cause of action.”

Jurisdiction Federal subject matter jurisdiction includes, but it not limited to: Questions arising from the use of federal property Violation of federal laws or statutes U.S. Constitution questions International disputes Conflicts among states or among citizens of different states.

Venue The location of the court is important to jurisdiction as well as fairness to all litigants States have “long arm statutes that allows them to serve summons to persons outside their political boundaries Jurisdiction can include: criminal, bankruptcy, civil, military, contract, maritime, international, etc.

Pleadings Defendant may ask for dismissal of the case based upon:
Lack of subject matter jurisdiction (i.e. bankruptcy) Lack of personal jurisdiction (i.e. military) Improper venue (court location) Insufficiency of process (court procedures) Insufficiency of service of process (mailed) Failure to state a claim (no damages) Failure to join an indispensable party

Counterclaim A counterclaim is a claim presented by a defendant to defeat the claim or charge of the plaintiff. If damage to the defendant’s interest arose from the same incident a counterclaim would be made by the defendant against the original plaintiff.

Cross-claims A cross-claim is against a person or persons on the same side of the litigation stating that they may be more responsible than the complainant

Third Party Practice Third party practice is a claim against another party that alleges that the third party is or may be liable for all or part of the damages.

Class Action Class action claims provide a means by which a large group of persons may sue or be sued as representatives of the class.

Intervention Intervention is when a third party, not originally a part of the suit, comes into the case

Interpleader Interpleader is when two or more persons claim the same funds or property from the defendant. This requires other plaintiffs to enter a case so the same facts do not have to be presented in court twice.

Amicus curiae Amicus curiae is a person or party with strong interest, but not a litigant. Usually a Amicus curiae files a brief on broad public interest issues. Literally, they are a “friend of the court.”

Issue or Claim Preclusion
Collateral Estoppels When an issue of fact has been determined that issue cannot be litigated again. The doctrine bars re-litigating an issued which has already been tried between the same parties The doctrine is also applicable to criminal cases and is referred to as “double jeopardy.

Full Faith and Credit State to State – Valid judgment in one state must be treated as valid judgment in reviewing state. Federal to State – Federal courts must give full faith and credit to state court decisions; however, federal cases dominate as precedent

Pre-trial Summons Must be delivered personally to the defendant
The service (delivery of a summons) must comply with the following guidelines: Must be delivered personally to the defendant Publication notice can only be used as a last resort The complaint must be delivered to an adult (not a minor).

Trial Preparation Prepare subpoenas
Prepare trial exhibits in order of their use Digest of oral depositions Introduce evidence unavailable at trial Establish facts Attack witness credibility

Pre-Trial Memorandum List of witnesses Schedule of exhibits
Disputed rules of law Special damages Statement of undisputed facts Proposed findings of fact Conclusions of law

Limits on Discovery Must be relevant matters
No confidential matters (trade secrets) No attorney/client communications Prohibits mental impressions, opinions, legal theories Work products not discoverable (qualified)

Post Trial Appeals Criminal or Civil
Trial attorneys representing the litigant can appeal the decision of the court based upon: Abuse of discretion in cases involving discretion Clearly erroneous findings of fact Mistakes in the application of law Collateral estoppels doctrine prohibits re-litigation of issues of fact.

Stages of Litigation – Appeals
Motion to stay execution of judgment pending appeal Filing a notice of appeal Filling of Appellant’s brief Filing of Appellee’s brief Oral Argument Decision is rendered Appeal to highest court in jurisdiction Briefs filed, oral argument, decision rendered

Recovery Recovery - The final judgment or verdict in a civil action. This action obtains again the rights or restoration of a right or restitution by formal judgment

Categories of Recovery
Money Judgment Court Ordered Actions- Decree (Non-monetary requirement) Restraining order (permanent) Temporary restraining order Divorce order

Types of Money Judgments
Compensatory – to replace losses , such as wages, medical, property, etc. Consequential – damages that flow from the act, such as pain and suffering Punitive – also called exemplary, to punish for willful behavior Attorney Fees – are rarely granted to a successful litigant, except in civil rights cases

Settlement Documents Stipulations for dismissal Releases
Settlement agreements Final judgment (court order)

Dismissal of Case A dismissal without prejudice allows a new suit to be brought on the same action A dismissal with prejudice does not allow the issued to be brought to court again.

Part 2 Negligence Cause of Action Strict Liability Defense
Contractual Protections (Waivers)

Negligence Categories
Premises Supervision Design Maintenance Construction Facilities Training Employees Programs

Negligence Elements of a Cause of Action
1. A duty or obligation recognized by law

1. A duty or obligation recognized by law 2. A failure on the part of the defendant to conform to the standard required

1. A duty or obligation recognized by law 2. A failure on the part of the defendant to conform to the standard required 3. A reasonable close causal connection between the conduct and the resulting injury

1. A duty or obligation recognized by law 2. A failure on the part of the defendant to conform to the standard required 3. A reasonable close causal connection between the conduct and the resulting injury 4. An actual loss or damage

Strict Liability Strict Liability Animals Product Liability Water and
Food Dangerous Activities Zoos Pets Drugs Equipment Warranty Appliances Others Potable Water Food Services Dram Shop Blasting Automobiles Aircraft Applying Chemicals

Strict Liability –Found Guilty
Loose animals on another’s property Damage to crops by spray drift Infecting another with a know disease (herpes) Electrical emission causing interference Third person lets lion out of easily opened cage New toaster toasts toastee

Strict Liability – Found Not Guilty
Stampeding cattle caused by lightning Dynamite blasts hurtles rock long distance Bear mauls drunk teenager in bears cage Water poisoned by a third person (unforeseeable doctrine) Boxing glove causes injury, unrelated to construction of glove.

Contemporary Strict Liability Questions
Second hand cigarette smoke Professional liability in quality of tourist experience Seller of defective product Coach directed actions that result in sports related injuries

Defenses to Negligence
Notice of Claim Statutes of Limitations Release/Waiver Assumption of Risk Comparative Negligence Failure to Proof Governmental Immunity

Exculpatory Documents
A document that relieves a person or organization from liability that results from negligence. Does not relieve person or organization from absolute liability resulting from gross or wilfull and wanton acts.

Informed Consent An agreement used to protect the provider from liability for the inherent risks of participation or treatment.

Waiver or Release An agreement between a provider and the participant signed prior to participation by which the participant agrees to excuse or absolve the provider of any fault or liability for injury resulting from the negligence of the provider. In some states “release” refers to a document signed after the injury or damage has occurred usually in connection with settlement.

Indemnification Agreement
Sometimes referred to as a “hold harmless” agreement. Generally applies to permit and lease relationships. This agreement shifts the responsibility of an award to a third party. The third party agrees to be responsible for any court awarded damages or expenses caused by the third party.

Agreement to Participate
Generally applies to minors and is signed by their parents or guardians. An agreement by which the participant and the participant parents are informed of the inherent risk of the activity, what behavior is expected of the participant, and affirms that the parents know of and assumes the inherent risks of their child’s participation in the activity.

Assumption of Risk Agreement
This agreement is essentially the same as the agreement to participate and applies to both minors and adults. It generally informs the participant of the inherent risks and affirms voluntary participation and assumption of the inherent risks.

Parental Permission Form
A document by which the parent gives permission for a minor to participate in a designated activity. The document has no legal effect on the liability of the provider, but may have some public relations value in informing the parent of the activity. It can be used to gain permission for emergency medical treatment or assign financial responsibility for such treatment.

Comparison of Exculpatory Documents
Risk Parties Activities Legal Effect Waiver & Release Negligence Adults Voluntary participation Lowers standard of care owed Indemnification Agreement - Hold harmless Contractual Where waivers or contracts are used Shifts risk to third party Informed Consent Human subject training, therapy Strengthens assumption of risk defense Agreement to participate Inherent risks Negligence Adults and Minors Any volunteer activity –sport or recreation Parental Permission None Minors Any volunteer activity – sport or recreation No legal effect Medical treat-ment approval

Valid Waivers and Releases Must
be clearly written be made obvious that it is a waiver be signed by an adult be signed voluntarily be specific as to what it covers

Waivers & Releases are Invalid When
The language of the waiver is unclear The actions are contrary to public policy Minors sign waivers or their parents sign them on their behalf Participant does not have full knowledge as to what they are signing Participant is tricked or forced into signing

Part 3 Intentional Torts
Harm to Persons Trespass Defenses to Intentional Torts

Intentional Infliction
Intentional Torts Intentional Torts Property Persons Trespass to Property Trespass to Chattel Conversion Assault Battery False Arrest Defamation Intentional Infliction of Emotional Distress

Defamation The act of harming the reputation of another by making a false statement to a third person.

Four Deadly Defamatory Statements in which a defamation suit will likely be filed
1. Dishonest Business Practices 2. Child Molester or Spouse Abuser 3. Deviate Sexual Behavior 4. Loathsome Disease

Defenses to Intentional Torts
Privilege Mistake Consent Self Defense Defense of others Defense of Property Discipline Recapture of Chattels Forcible Entry on Land Necessity Legal Process Arrest Without a Warrant

Nuisance Nuisance Noise Light Health Use of Property Unsightly Odor
Obstruction Inconvenience Community Standards

Criminal Liability Legal Liability Crimes Against Persons
Crimes Against Property Assault Battery Trespass to Land to Property Others: Drugs Murder Rape Etc. Robbery Burglary Fraud etc

Purposes of Law Enforcement in a Recreation, Sports and Tourism Setting
Protect people from other people Protect the environment from people Protect the people from the environment

Governmental Immunity Limited (States have similar legislation)
The doctrine of Sovereign Immunity (the King can do no wrong) essential disappeared upon passage of the Federal Tort Claims Act of 1946. Provisions Allows citizens to sue the government Suits must begin within 2 years of injury Suit must relate to operational questions Exceptions: Policy decisions cannot be challenged Fiscal decisions cannot be challenged Government exempt from punitive damages

State Recreation Land Use Statutes
Forty-eight states have enacted laws providing legal protection of private and public landowners who allow their land to be used for public recreation The other states have case law precedent that essentially accomplishes the same result.

General Provisions of State Recreation Land Use Statutes
Protection not applicable if fee is paid Plaintiff must prove gross negligence or willful intent if no fee is paid Some state statutes vary in content Some states apply the laws differently

Good Samaritan Laws One who helps a person in peril cannot be charged with contributory negligence. Under this doctrine, negligence of a volunteer rescuer must worsen condition of a person in distress

Who is legally liable Employees Volunteers Supervisors Administrators
Contractors Sponsors Manufacturers

Duty of Care Classification of User Level of Care Owed
Invitee (pays fee to enter) Licensee (enters by permission – business or social Trespasser (enters legally without paying or without specific permission Level of Care Owed Owed highest degree of care Owed reasonable and ordinary care warning of hidden conditions Owed least amount of care – reasonable and ordinary standard.

Deep Pocket Doctrine Suits are guided by the doctrine of:
Sue all wrong doers Collectability This simply means it is important to sue all parties involved and it is plain dumb to sue someone who does not have the assets to pay the court judgment.

Legal Duty Based Upon the Plaintiff’s
Physical Characteristics Age Gender Disability Mental Capacity Skills and Knowledge Training Education Language

Part 4 Constitutional Rights
Human Rights Due Process Privacy Discrimination

Constitutional Torts and Protection of Individual Rights
Due Process Bill of Rights Human Rights Liberty Property Hearing Privacy Search Right to Counsel Religion Speech Race Gender, Age Self- Incrimination Disability

Elements of Rights of Privacy
An act by the defendant 1. Constituting a serious and unreasonable invasion of privacy 2. Causing the invasion to occur 3. Resulting in damages

Four Distinct Forms of Invasion
Appropriation Intrusion Public Disclosure of Private Facts Placing a Person in False Light in Public (Defamation)

Part 5 Risk Assessment Risk Management Process
Risk Assessment Overview Approaches to Risk assessment Insurance

Risk Management Process
Risk Identification Tort Contract Fidelity Property Loss Risk Implementation Policy Procedure Timeliness Risk Evaluation Frequency Severity Risk Treatment Retain Reduce Transfer Avoid or close

Risk Management Process
Retain or Reduce Avoid Close Transfer high> Frequency of Accidents low> low^ Magnitude of Loss in Dollars high^

Two Most Important Risk Considerations
Be alert to unsafe conditions Take reasonable and timely action when you become aware of hazardous conditions

Agency Responsibility (as determined by the courts
To use ordinary and reasonable care to keep the premises reasonably safe for the visitor and to warn the visitor of any known danger.

Rule of Seven Age of Child 0-7 8-14 14-18 (21) Adult
Responsibility of Child Not responsible for their actions Partly responsible for their actions Mostly responsible for their actions Responsible for their actions Note: The Rule of Seven provides a basic framework and is rapidly being considered as part of the comparative negligence legal theory.

Degrees of Negligence Ordinary Negligence- the failure to exercise such care as would be expected by the majority of people under like circumstances Gross Negligence- The disregard of life and property of others. It consists of conscious acts of negligence Willful and Wanton Negligence- The conduct so gross as to have something of a criminal character, evil intent, wantonness or recklessness, indicative of malice

Common Sense Rule – Office of General Council, USDA
By taking risk management actions under the following circumstances successful suits can be significantly reduced – 1. Where accidents have previously occurred 2. Areas of high public use 3. Areas that pose extraordinary danger

Reasonable Care Doctrine
Compares the actions of the defendant to that of a reasonable man or women in the same or similar circumstances

Part 6 Workplace Risk Employee Termination Sexual Harassment
Employee Safety and Health Americans with Disabilities Act Employee Evaluations

Important Legislation Applicable to Employment
Fair Labor Standards Act of 1923 National Labor Relations Act 1935 as amended by the Taft-Hartley Act of 1947 Civil Rights Act of 1964 Age Discrimination Act of 1967 Rehabilitation Act of 1973 Equal Pay Act of 1982 The Americans with Disability Act of 1990

Fair Labor Standards Act of 1923
First major act to protect workers from abuses by employers

National Labor Relations Act of 1935 as amended
Primary body of federal law controlling labor-management relations in private industry. Regulates collective bargaining, strikes, worker rights to labor unions, etc.

Civil Rights Act of 1964 Title 1 - Voting rights
Title 2 - Equal access to public facilities Title 3 - Equal access to accommodations Title 4 - Discrimination in public education Title 6 - Discrimination in federally assisted programs Title 7 – Discrimination in employment

Civil Rights Act of 1964 continued
Coverage or more employees Protected Classes Race Color Sex (Gender, not sexual orientation) National Origin Religion Alienage Opposition and Participation

Defenses Bona fide occupational qualifications Seniority Good faith reliance Undue hardship Religion practice Statutory defenses Veteran’s preference Security clearances

Remedies for violations Injunctive relief Monetary relief Remedial seniority Attorney’s fees Affirmative Action – snap shot of racial and ethnic population of workforce as compared to area population

Age Discrimination Act of 1967
Protects older workers from discrimination. Basically provides relief from: Unfair Pay differential Early dismissal Arbitrarily Set Age Limits on Employment Other Age-Related Exclusions (i.e insurance, retirement, etc.)

Rehabilitation Act of 1973 This act protects the rights of the disabled by reducing architectural barriers that limit access in public facilities.

Equal Pay Act of 1982 No employer can discriminate between employees doing the same work on the basis of gender.

Equal Pay Act of 1982 continued
Enforcement and Remedies Public and private court actions Back wages can be awarded Employers pay both compensatory and punitive damages Must be brought within 2 years of incident Pays successful plaintiff’s attorney fees No retaliation against plaintiff

Equal Pay Act of 1982 continued
Defenses to discrimination charges Seniority Merit (training, etc.) Production quantity or quality Differential not based on gender (education)

Constitutional Protection in Employment
1st Amendment – speech and religion 5th Amendment – no person shall be deprived of life, liberty and property without due process States cannot violate Constitutional rights Right-Privilege Doctrine – rights may be suspended due to security and federal law.

Other Employment Protections
Abuse by government (Bivens v. Six Unknown Named Agents) Freedom of Information Act (1976) Privacy Act of 1974 (Economu v. Butts) Pregnancy (Geduldig v. Aiello) Residency (Shapiro v. Thompson) Association (NAACP v. Alabama)

Americans with Disabilities Act of 1990
Provides both protection in employment and access to all public facilities for a number of disability classifications. Significantly expands the Rehabilitation Act of 1973.

Performance Appraisal: Seven Concerns
Evaluating an employee’s job performance is important to the vitality of the organization, the employee, and the supervisor. How else can we learn about expectations and perceived performance except through a performance appraisal.

Concern 1 Lack of Policy Enforcement
Each employee should have a private discussion related to personal performance with their supervisor at least once a year. Dell v. Montgomery Ward, 811 F.2d 970

Concern 2 Improper Evaluation Criteria
Valuations criteria should be directly related to those task necessary to perform a particular job. Job analysis is highly desirable when selecting evaluation criteria. Griggs v. Duke Power Company 721 US 430

Concern 3 Communication Leading to Defamation
Communications between an employer and employee should not involve a third party that is not in a direct “need to know” category of supervisor. The real reason for dismissal should be given the employee, not a lie. Gaines v. Cuna Mutual Insurance Society 681 F.2d 982

Concern 4 Lack of Communication
Managers should discuss the performance appraisal process with all newly hired employees. Failing to discuss deficiencies to protect the feelings of an employee can prove to be legally devastating. Employees must read and sign performance evaluations. Wollery v. Brady 741 Ff. Supp 667

Concern 5 Nonexistent or Inadequate Rater Training
Raters need training in evaluating employee performance. A rater training procedure should be in place. The key to having a legally correct appraisal is a thorough study of the employee job description.

Concern 6 Non-use of Minority Raters
There is a need for minority raters which reflect the diversity of the workforce. Rowe v. General Motors 457 F.2d 348

Concern 7 Failure to Monitor the System
Employers must see that there are safeguards to insure that the system in not discriminatory. There must be a formal appeal process Loiseau v. Department of Human Resources of the State of Oregon 567 F. Supp 1211

Insurance Insurance is a vital part of transferring legal responsibility for property loss or negligence to someone else. Insurance does not transfer personal criminal liability.

Types of Policy Coverage
Owners and Tenants liability (homeowners, renters, business, etc.) Automobile Product liability Professional liability Theft and Dishonesty (fidelity) Participant Accident Contractual Liability Errors and Omissions (CPA, Lawyers, etc)

Structure of an Insurance Policy
Declarations Insuring Agreement Exclusions Conditions Payment Plan

Life and Health Insurance
Life Insurance Whole life insurance (pay all your life) Ordinary life insurance (specific number of years) Endowment life insurance Term life insurance (cheapest, not savings value) Health Insurance Cost depending on high or low options, family or individual, age Coverage varies considerably, hospital, doctors, dentists, long term care, etc.

Life Insurance Settlement Options
Lump Sum – pays recipients in a single payment. Taxes may be considerable on annuity plans Interest Option – pays recipients in monthly payment for the rest of their life, amount of payment based on percentage and total value

Managing Insurance Costs
Shop for insurance and get quotes Join with similar businesses or organizations to reduce cost Review who and what is covered Season or time of day of insurance applicability can be limited Increase deductibility Include a risk management plan

Part 7 Outdoor Recreation Management
Natural Hazards Concessionaires, Leases and Contracts Protection Issues

Natural Hazards – and the list goes on
Weather Lightning. flooding, temperature extremes, wind, humidity, tidal conditions. etc Terrain Falls, fatigue. rock slides, caves, lost, etc Animals Predators, being part of their food chain, etc Insects Poisonous, disease carrying, etc Plants Poisonous, physical damage (barbs), etc

Thunderstorms Thunderstorms affect relatively small areas when compared with hurricanes and winter storms. The typical thunderstorm is 15 miles in diameter and last an average of 30 minutes. Nearly 1,800 thunderstorms are occurring at any moment around the world. That’s 16 million a year. Heavy rain from thunderstorms can lead to flash flooding. Strong winds, hail and tornadoes are also dangers associated with thunderstorms.

Who’s Most At Risk From Thunderstorms?
From Lightning - People who are outdoors, especially under or near tall trees, in or on water, or on hilltops From Flooding – People who are in automobiles when flash flooding occurs near them From Tornadoes – People who are in mobile homes and automobiles

When Are Thunderstorms Most Likely?
Spring and summer months during the afternoon and evening hours. Along the Gulf Coast, Southeast, and Western states, during the afternoon. In the late afternoon and at night in the Plains and Lake states. Thunder and lightning occasionally accompany snow or freezing rain.

Downbursts Straight Line or Shear Winds
A small area of rapidly descending air beneath a thunderstorm Can cause damaging winds in excess of 100 mph Usually approach from one direction and are known as “straight-line” winds Can reach wind speeds equal to a strong tornado Winds may or may not be accompanied by rain

Straight-line Winds Sometimes call shear winds
Responsible for most thunderstorm damage Winds exceed 100 mph Extremely dangerous to aviation Produce little rain, but very strong dust storms

Hail Large Hail Causes over one billion dollars in damage to property and crops annually Known to have killed livestock and humans

Large Hail The strong rising currents of air within a storm, called updrafts carry water droplets to a height where freezing occurs Ice particles grow in size, finally becoming too heavy to be supported by the updraft and fall to the ground Large hailstones fall at speeds faster than 100 mph.

Last Year, People Were Killed by Lightning While:
Boating Swimming Golfing Bike Riding Playing Sports Fishing in a Boat Standing Under a Tree Talking on a Cell Phone Mountain Climbing Riding a Lawn Mower

Lightning Occurs with all thunderstorms
Causes hundred of million dollars in damages to property and forests annually Results in dozens of deaths each year

Lightning and Forest Fires
Most fires in the western United States and Alaska are started by lightning. Over 1,500 fires per year are started by lightning and result in an average of over 20 million dollars suppression cost per year. The air near a lightning strike is heated to 50,000 degrees Fahrenheit.

Tornadoes Natures most violent storms Winds can exceed 200 mph
Result in an average of 80 deaths and 1,5000 injuries each year Most fatalities occur when people do not leave mobile homes and automobiles

Flash Floods #1 Weather Related Killer in the United States

River Floods are Historic Flooding along rivers is a natural and inevitable part of life. Some floods occur seasonally when winter or spring rains fill river basins too quickly.

Historic Floods Johnstown, Pennsylvania – 1889 worst flood in U.S. history – dam broke wall of water killed 2,200 people South Central Texas – wide spread river flooding on Guadalupe, Brazos, Trinity, and Colorado river basins- 17 inches of rain fell, 15 dead, 100 million d0llars damage. Shadyside, Ohio, 1990, 4 inches of rain in an hour, 30 feet wall of water, 26 dead, 8 million dollars damage

Coastal Floods – usually the result of hurricanes or winter storms
Winds generated from tropical storms and hurricanes or intense offshore low pressure systems can drive ocean water inland and cause significant flooding Coastal flooding can also be produce by underwater earthquakes that create sea waves or Tsunamis.

Weather Warnings Available From the National Weather Service
General Weather Forecasts Hurricane Warning (Typhoon in the Pacific Ocean) Tornado Warning Severe Thunderstorm Warning Heat Advisory Cold Temperature Advisory Maritime Weather Drought Predictions Fog Advisory Flood Watch Flash Flood Warning Rip Tide Advisory Severe Thunderstorm Watch Small Craft Advisory Air Quality Advisory

Contracts A voluntary promise between competent parties to do (or not to do) something An agreement, oral or written, that is enforceable in the courts.

Types of Contracts Contracts Under Seal (Formal)
Contracts of Record (Court Imposed) Simple Contracts Expressed Contract (oral or written) Implied Contract (by act or conduct) Quasi-contract (obligation)

Remedies for Breech of Contract
You can revoke the contract (cancel your obligations) You can bring action for damages against the person who breeched the contract. (file a suit) You may bring suit to obtain specific performance. (force them to complete the contract).

Voiding Contracts How do you get out of the rotten contract?
Deliberate Delays Misrepresentation Quality of Product Failure to Perform Illegal Act By Other Party to Contract

Agreement Offer Bilateral Contract - one promise is made in return for another Unilateral Contract - an obligation is made only when something is done by another (i.e. reward) Requirement of an offer: Contractual intention Definiteness Communication to intended offeree

Termination of an Offer
Revocation of the offer by the offeror Lapse of time Rejection of offer by the offeree Counter-offer by the offeree Death or disability of either party Subsequent Illegality

Statute of Frauds (common law)
Oral contracts cannot be enforced by witness statements Written contract is required if performance is longer than one (1) year Contracts to sell land, buildings, or interests in land shall be in writing

Statute of Frauds (common law) continued
A promise to pay the debt or default of another must be in writing Marriage agreements must be made in writing Parole evidence (spoken words) are not allowed to modify the terms of a written contract

Contract Considerations
Legal contracts require mental health and maturity A person can transfer their duties under a contract, unless the contract specifically says they cannot be transferred In order to modify a contract there must be consideration on both sides A promise of a gift is not a contract

Contract Considerations (Continued)
Valid contracts are binding and enforceable Voidable contracts may be rejected by one or both of the parties Lack of intention voids contracts. Social Invitations Offers made in jest or excitement Invitations to negotiate

How does an organization protect itself from poor quality work?
Surety bonds Performance bonds Warranties Specific specification in contract language Insurance

Doctrine of Promissory Estoppel
That which arise out of a promise (contract) that requires the individuals making the promise to fulfill their obligations

Negotiable Instrument A type of contract
Personal Check Certified or Cashiers check (issued by bank on itself) Bank draft (check drawn by a bank on another bank) It can be passed from person to person as if it were money Certificate of Deposit - acknowledges the deposit of money that will bear interest Order or promise to pay money (IOU) Note: A check is payable on demand if- No stop payment order is issued Sufficient funds are available Check is not post-dated

Promissory note (a legal I.O.U.)
A signers written promise to pay the recipient a specific sum of money on or before a certain date. (Commonly used to pay loans)

Bill of Exchange (A draft)
A written order from one person to another, requiring that the recipient pay a certain amount of money to a third person. The third person may be named or may be designated as the bearer.

Leases and Permits Must include actual occupancy
Can specify tenancy for a specified number of years Can specify tenancy from year to year Can specify tenancy at will – either party can cancel lease or permit Illegal occupancy of a lease is considered land trespass

Leases and Permits (continued)
Legal leases and permits must include: Date of execution Identification of parties Description of premises Terms of the lease Financial arrangement Obligation of the parties Signatures of the parties

Leases and Permits (continued)
Classification of Tenancy: Tenancy for years – lease designates the duration of the contract Tenancy from year-to-year – holds tenancy for an indefinite period, pays an annual rent as determined by the contract Tenancy at will – can be terminated at any time by either party.

Part 8 Managing Events and Recreational Activities
Personnel Facilities and Equipment Security Issues Playgrounds Aquatics

Tour and Event Managers Must:
Identify situations which may make organizations vulnerable to professional liability claims Reduce the frequency and severity of professional liability claims – false marketing Warn passengers and those with whom they are contracting about potential dangers. Travel warnings Weather cancellations Dangerous facility situations Health issues, etc.

Provider Responsibility
Clearly disclosure of conditions and situations that the customer will/may face is the single most important step in avoiding legal liability. Disclosure should be in writing and if possible, acknowledged by the customer

Supplier Liability Most hotels, restaurants, airlines, cruise ships, motor coaches, etc. carry their own risk insurance; however, the travel agents may be responsible for injury/death or property loss if they know of hidden or re-occurring problems and do not tell their customer Suggestion: Be prudent in selection of service suppliers.

Tourism Business Legal Obligations
Will your organization be able to fulfill all obligations promised? Does your organization represent all products fairly without exaggerations as to quality or scope of services?

Important considerations to reduce litigation in tourism
Read service provider contract carefully Examine indemnity provisions (hold harmless clauses) Formalize office/operating procedure Employee training Client refunds Reactions to a claim Care and treatment of minors Americans with Disability Act

Travel Insurance Travel Insurance important to deter small nuisance suits Travel insurance can cover cancelled trips, injuries, death, medical expenses, etc. Insurance can be purchased by the provider or the participant or both Insurance provides a peace of mind factor for organization and client Hosting functions (usually not covered) Best to have third parties host food and alcoholic beverage service

Case Example A travel company contracted a van company to transport groups in a third world nation. An accident occurred causing severe injury to several passengers. The driver was not properly licensed. The operator’s insurance would not cover the incident. The passengers sued the tour company for negligence in selection of an unsafe supplier. Results: $430,000 indemnity payment and $45,000 in legal expenses .

Case Example Every year a “newcomers Club arranges for a weekend trip to Atlantic City through a local travel company. In an effort to save on the cost of the trip the travel company contracted with a bus company with whom they had not dealt before. Although four buses were chartered only two arrive for the departure time, leaving half the group in town. Other arrangements were made quickly, but one of the replacement buses became disabled en route. The passengers missed the dinner show. An accident with injuries occurred to one of the buses on the return trip. Suites were filed against the bus company, its driver, and the travel company. Total damages exceeded $4,000,000

New Developments A serious injury accident occurred at the swimming pool on a Caribbean Carnival Cruise Ship sailing outside of U.S. territorial waters. The courts allowed the case to be tried in the Federal District Court in Chicago, Illinois. It was tried under U.S. tort law rather than Maritime Law. Compensatory damages were given the plaintiff.

ADA Application on Cruise Ships
In a U.S. Supreme Court case, Spector v. Norwegian Cruise Line LTD, the courts determined that the ships must make “reasonable” accommodations to meet ADA requirements. The requirement would not apply if removal of barrier would bring the vessel into non-compliance with international maritime safety standards.

Safety and Risk Management Issues
Activity Management Safety and Risk Management Issues

Responsibilities of Activity Managers and Supervisors
Duty to Provide Emergency Medical Care Duty to Provide Safe Facilities Duty to Warn Duty to Supervise Properly Duty to Instruct Properly Duty to Provide Safe Equipment

Duty to Provide Emergency Medical Care
Kleinknecht Be trained in CPR and First Aid Or have someone on staff in program area with training Have communication system in place with emergency numbers- Communicate plan Emergency Action Plans (EAPs) Comprehensive written emergency plan

Duty to Provide Safe Facilities
Be aware of prior accidents Be aware of areas of greatest potential risk Think about all possible uses

Duty to Warn Hammond Waivers and Agreements to participate
Be aware of age, knowledge and skill level considerations

Duty to Supervise Stay within sight and hearing of players
Vision, Hearing, Position Provide an adequate replacement if required to leave Have a plan in case of an emergency Don’t be put in a situation where you are not qualified

Supervision General vs. Specific Supervision
Depends on level of risk, participant skill, participant maturity Specific Supervision: Highest Level higher-risk activity and/or less experience and/or lower maturity: close supervision, experienced teacher General Supervision: Lowest Level lower-risk activity and/or more experience and/or higher maturity: observational duty- general control, accessible, be within sight and hearing of participants

Duty to Instruct Instruction and supervision are closely related concepts Never instruct to injure Teach proper technique and correct improper technique Use progression Start with safety instructions Teach basics Only put in high risk situation when ready

Duty to Provide Safe Equipment
Product liability Duty of Manufacturer Strict Liability if defective Or inherently dangerous Duty of Recreation Manager May be liable if alter Even with good intentions May be liable if don’t inspect and there are obvious defects May be liable if take warnings off products

Other Management Issues
Facilities and ADA Compliance New buildings must comply- post 1990 Old buildings- financial considerations ADA and reasonable accommodation Workplace issues- Duty of Care for Supervisors/Management Inclusion: Participants, Coaches, Referees

Disabled Participants
Duty of Care Owed Case Law: Association for Retarded Citizens v. Fletcher 741 So.2d 520 (Fla. App. 1999) Waechter v. School District No , 773 F.Supp 1005 (W.D. Mich. 1991).

Medical Information Issues
Be aware of disabilities and medical conditions Communicate, but Be aware of confidentiality concerns How should you acquire, treat sensitive information?

Participation Issues In July 1990 Congress passed the Americans with Disabilities Act prohibiting the discrimination against citizens with disabilities in such matters as employment, transportation and access to public facilities. Section 302 read in part: “No individual may be discriminated against on the basis of a disability in the full and equal enjoyment of goods, services, facilities, privileges, advantages and accommodations of any place of public accommodation by any person who owns, leases, or operates a place of public accommodation. "This is significant for because most places where people recreate are considered places of “public accommodation.”

Competing Issues ADA Compliance Negligence Lawsuits
Ethical Responsibility What we Know: Anderson v. Little League Baseball Inc., 794 F. Supp. 342, (D. Ariz. 1992) and recent unpublished decisions

Consequences “Individualized Assessment” required
Never a blanket policy Must develop safety rationale: Coaching Participation Officiating Spectators

PLAYGROUND SAFETY

STATISTICS Over 200,000 children are taken to the emergency room each year due to accidents on playgrounds 76% are on public playgrounds 147 deaths in the past 10 years Fast Food Establishments Set the stage

Playground Safety Guidelines, Standards and Recommendations
Consumer Product Safety Commission (CPSC) Handbook for Public Playground Safety American Society for Testing and Materials (ASTM) NRPA- NPSI (national playground safety institute)- CPSI (certified playground safety inspector) Audits, Experts Expert Opinion Legal Cases Statutes/Laws

Top Ten Playground Hazards
1. Improper Playground Surface 75% of all playground accidents are from falls Not Recommended: astroturf, blacktop, packed earth Recommended: Rubber Mats Loose Fill Relates to Height

Surfacing Determined by Height Depth Type

2. Protrusion and Entanglement Hazards Protrusion cuts or impales may cause strangulation No open “S” hooks 3. Inadequate Fall Zone/Equipment Spacing area under/near a piece of equipment where a child might fall

Equipment Spacing and Fall Zones
Minimum requirements: 6 feet from Single Stand Alone piece of playground equipment. Why? 9 feet between two pieces of equipment?

4. Entrapment in Openings head and shoulders General Rule: there should be no openings on playground equipment that measure between 3.5 inches and 9 inches look for openings- e.g. between rungs Why?

Clark v. Fair Oaks Recreation and Park Dist.
California case Injury: Broken Leg (entrapment) Mfg: Columbia Cascade 1991 CPSC guidelines (for head entrapment): <3.5” or >9” Actual space: 4.5”

5. Fall Prevention Issues Guide rails Handrails should be age appropriate (i.e. thickness) Ladder rungs should be evenly spaced.

6. Trip Hazards exposed concrete footings surface changes borders tree roots, stumps rocks

7. Lack of Supervision design should allow line of sight > 40% of playground injuries are related to lack of supervision

8. Age Appropriateness separate areas for pre-school age and school age children- use appropriate equipment 9. Crush Points, Shearing, Sharp Edges e.g. slides, turn about 10. Lack of Maintenance or Modification of Equipment check surfacing, wear, secure hardware

Other Hazards Lead paint Arsenic in Wood
Suspended Hazards - should be 7’ above highest surface (tree branches, wires, cables, ropes, etc.) Burn hazards (slides) southern facing?, covered? Arsenic - poisonous to kids and leaches into ground water, potential contaminant to drinking supply.

Recommended Exclusions
Trampolines Animal Figure Swings Glider Swings Multiple Occupancy Swings Rope Swings may loop or fray (create a noose or break) Exercise Rings, and Trapeze Bars swinging hazard

Inspections and Audits
Inspections and routine maintenance: frequent common problems Audit less frequent in depth

Risk Management/ Safety Assignment
Locate the “Handbook for Public Playground Safety” keyword search; or 1. Locate six hazards at the playground(s) of your choice. 2. Photograph and describe these hazards. 3. Reference these hazards by the appropriate section number and text in the Handbook. 4. Explain what needs to be done to correct this hazard. 5. Submit this information in typed form with photos included.

Aquatics Safety

Facts and Figures 99.4 million participants (1998).
3.3 million in-ground pools. Public schools operate > 25,000.

Aquatics Facts Approx. 6-7,000 drownings per year
3rd leading cause of accidental death Near drownings Diving #1 cause of sport paralysis Standard judgment: $6-9 million

Provide safe facilities and equipment
Be aware of pool occupancy standards and comply with them Comply with water quality requirements observe and fix unsafe conditions Remove diving boards if unsafe Secure facilities when not open for use attractive nuisance

RECOMMENDATIONS BASED UPON CASE LAW
Comply with statutes and ordinances Warn patrons of injury risks & dangers Formulate and enforce safety rules Read and acknowledge the applicable standards

Swim Site Administration Considerations Natural Water and Beaches Only
Post Safety Messages Install Depth Markers where Appropriate Define Swim Site Install Regulatory Buoys Monitor Water Quality Use Lifeguards Where Appropriate Post Signs When Lifeguard Not On Duty Analyze Use of Docks, Rafts, and Diving Platforms

Swim Site Design Considerations Natural Water and Beaches Only
Underwater Debris Current Velocity Undertows and Riptides Water Level Fluctuation Water Quality

Legal Liability in Recreation, Sport, and Tourism Spengler & Hronek

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