Indiana adopts the higher standard of care between participants in sporting events in this Triathlon case
Posted: December 10, 2012 Filed under: Case Analysis, Cycling, Indiana, Release / Waivers, Triathlon | Tags: Co-participant, Cycling, Duty of care, Indiana, Standard of Care, Summary judgment, Triathlon, USA Triathlon Leave a comment »Mark, v. Moser, 46 N.E.2d 410; 2001 Ind. App. LEXIS 671
This decision examines the different legal decisions involving lawsuits between participants in Indiana and other states.
The plaintiff and the defendant were racing in a triathlon. Both agreed to abide by the rules of USA Triathlon, and both signed releases. While in the bicycle portion
of the race, the defendant cut in front of the plaintiff causing a collision. The defendant was disqualified for violating the USA Triathlon rule concerning endangerment.
No cyclist shall endanger himself or another participant. Any cyclist who intentionally presents a danger to any participant or who, in the judgment of the Head Referee, appears to present a danger to any participants shall be disqualified.
The referee stated the defendant’s conduct was not intentional, “rather, he was disqualified for violating the rule “because, by moving over, an accident occurred.” As you can seem the rule, and its interpretation are subject wide interpretation and would lead to more arguments (lawsuits) after that.
The plaintiff sued the defendant for negligence and for acting intentionally, recklessly and willfully causing her injuries. The defendant filed a motion for summary judgment on both claims. The trial court granted the motion on the negligence claim and denied the motion on the second claim, the international acts.
In some jurisdictions, you can appeal motions for summary judgment that do not finish the case in its entirety. Here the plaintiff appealed the decision. Whether or not you can appeal the decision is dependent on the state rules of civil and appellate procedure.
Summary of the case
The Indian appellate court did a thorough analysis of the legal issues after determining this was an issue of first impression in Indiana. An issue of first impression is one where the court has not ruled on this particular legal issue before.
The issue was what was the standard of care owed by co-participants in a sporting event. The standard for a school sporting event was negligence. The court stated that the standard was negligence, low, because of the duty the school personnel had to exercise reasonable care over the students.
The court then looked at other decisions for the duty between co-participants. The court found three states, Arizona, Nevada and Wisconsin where the duty was negligence. The court found California, Connecticut, Illinois, Kentucky, Louisiana, Massachusetts, Michigan, Missouri, Nebraska, New Jersey, New Mexico, New York, Ohio, and Texas had adopted a “reckless or intentional conduct” or a “willful and wanton or intentional misconduct” standard of care. This is a much higher standard of care than the negligence standard.
The court found the higher standard of care was established because participants assume the risk of the activity, to stop mass litigation that would arise every time a foul occurs, and not to limit the sport because of the fear of liability.
The Indiana court determined that participants in sports activities:
…assume the inherent and foreseeable dangers of the activity and cannot recover for injury unless it can be established that the other participant either intentionally caused injury or engaged in conduct so reckless as to be totally outside the range of ordinary activity involved in the sport.
The court granted the summary judgment as to the first count, the negligence claim and sent the second claim back to the lower court to determine if the plaintiff could prove that the action of the defendant was intentional, reckless and willful when he rode his bike. The court sent it back with this statement.
…the trial court must determine whether Kyle’s [defendant] action was an inherent or reasonably foreseeable part of the sport, such that Rebecca [plaintiff] assumed the risk of injury as a matter of law. In our view, it is reasonably foreseeable that a competitor in a cycling race may attempt to cut in front of co-participants in an effort to advance position. Thus, if Rebecca is unable to develop the facts beyond those presented at this juncture, we would conclude that Kyle’s action was an inherent risk in the event that Rebecca assumed as a matter of law, thereby precluding recovery.
That is a very specific statement as to how the lower court must examine the facts in the case.
The appellate court also made another statement that is very important in this day and age.
As is generally the case, the release form that Rebecca signed does not relieve Kyle from liability as co-participants are not listed among the specific entities or individuals released from liability ac-cording to the plain language of the document.
The court looked at the release to determine if the release stopped the suit even though that was not argued by the parties.
So Now What?
It’s OK to play touch football, softball and have fun in Indiana.
At the same time, the court pointed out the fact that if the release had included the term co-participants in the release, the lawsuit might have started because the defendant would have been protected.
Here just one additional word in the release might have stopped a lawsuit.
What do you think? Leave a comment.
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Camp not liable for soccer injury because camp adequately supervised the game
Posted: July 16, 2012 Filed under: Case Analysis, New York, Sports, Summer Camp | Tags: #Soccer, Defendant, Forseeable, Harris, Infant, New York, NY, Standard of Care, Summary judgment, summer camp, Supervision Leave a comment »Harris v Five Point Mission–Camp Olmstedt, 73 A.D.3d 1127; 901 N.Y.S.2d 678; 2010 N.Y. App. Div. LEXIS 4526; 2010 NY Slip Op 4547
Both defendants and plaintiff’s need to understand the standard of care, the limit of liability the defendant will be held accountable too.
In this case from New York, a 13-year-old, called an infant by the court, sued a summer camp for an injury to his leg. While attempting to kick the ball, he and another camper collided and the other camper fell on the plaintiff’s leg. The plaintiff sued the camp for the injury. The defendant filed a motion for summary judgment, which was denied. The defendant appealed the motion and the appellate court overturned the lower court and dismissed the case.
An infant from a legal perspective is not a baby. An infant is anyone under the age of 18, not an adult.
The sole issue was the standard of care, the level of supervision the camp owed to the plaintiff. The court held the standard of care a camp or school owed was not an insurer of the safety of the camper but only liable for foreseeable injuries. Even then those foreseeable injuries must be caused by an absence of adequate supervision.
Schools or camps are not insurers of the safety of their students or campers, as they “cannot reasonably be expected to continuously supervise and control all of their movements and activities” Rather, schools and camps owe a duty to supervise their charges and will only be held liable for foreseeable injuries proximately caused by the absence of adequate supervision.
The lack of adequate supervision must relate to the injury. A failure to supervise, which created the foreseeable injury must be the cause of the accident. Additionally, that accident must be one that can be supervised. If the accident occurs in such a manner that supervision could not intervene, then there can be no liability.
Moreover, even if an issue of fact exists as to negligent supervision, liability does not lie absent a showing that such negligence proximately caused the injuries sustained “Where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the … defendant is warranted”
There was also an issue that the expert witness did not discuss all the issues necessary to prove the camp was liable for the injury. The expert report stated the camp should have provided shin guards, and that shin guards were required. However, the expert did not state that the type of game being played by the plaintiff, an informal summer camp game was held to the same rules as high school games.
So
The plaintiff’s complaint did not seem to contemplate the level of supervision required from a camp. Like schools, camps are not required to keep kids safe. They are required to do the following.
· Keep kids safe from foreseeable risks
· Adequately supervise kids.
The first is the hardest. Kids can get hurt any and always. Consequently, foreseeable is very hard. However, the easiest way to see foreseeable and for the plaintiff to prove foreseeable is if the accident had occurred previously at your camp or any camp. If you keep track of injuries and accidents, you better do something about each and every one of the reports. A report is proof of foreseeability of a risk.
That is a great reason to attend your trade association meeting or conference. You can learn from other members of your industry or your insurance carrier of the accidents they have had. If you have a similar program, you have been given a gift, you have identified foreseeable before a plaintiff has.
What do you think? Leave a comment.
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This is how a standard in the industry changes
Posted: December 18, 2008 Filed under: Boy Scouts of America (BSA), First Aid, Standards | Tags: AED, Automated external defibrillator, automatic extenal defibrullator, Boy Scouts of America, first aid, RecreationLaw Facebook, Standard of Care, Youth Camp Leave a comment »It moves up because the best get better.
Many people believe that the standards of an industry change three basic ways.
#985 Airport not in Japan (Photo credit: Nemo's great uncle)
1.) The entire industry gets better.
2.) The bottom, or worst part of the industry gets better; or
3.) Written standards are created that makes the industry get better.
All three are incorrect. (The third belief serves the opposite effect and usually promotes lawsuits.)
Standards change when the best get better and move the standard in the industry upward. It was recently reported that the Boy Scouts of America purchased AED’s for all of its offices and camps. That is an example of the standard changing for camps. It may not affect the youth the camps are designed and run for, however it will affect the adults at the camp.
Has this changed the standard of care for adults and visitors at camps?
In this case we have the largest promoter of camping in the US with 4 million members and more than 300 offices and close to 400 camps putting AED’s in their camps. This is a major move on the part of the industry. A significant, as measured by numbers or percentages of the industry now has AED’s at their camps.
If other youth camps, either based on this, or on their own start installing AED’s as their camps the standard in the industry is shifting towards or requiring having AED’s in camps.
The standard changed.
What do you think? Leave a comment.
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Staying Current
Posted: February 10, 2008 Filed under: Conferences, Outdoor Retailer Trade Show, Standards | Tags: Business, Colorado, Conference, Law, Lawsuit, Legal Information, Personal Flotation Device, Reasonable person, Services, Standard, Standard of Care, Tradeshow, West Virginia 2 Comments »Legal Reasons Why You Should be at your Industry Conference
You also do not want to miss out on all the fun!
People attend conferences for numerous reasons. To see old friends, meet new friends or to save money. The money you can save by buying equipment at a conference will usually pay for the trip. However, many people miss a very and important reason for attending their industry conference. Attending could keep you from being sued. This is a hidden, but very important benefit of attending a conference that most people do not appreciate until they are sitting on the witness stand in a courtroom.
There are several defenses you can use in running your outdoor recreation business. Releases and Assumption of the Risk are the two biggest and the ones most frequently use. Both to some extent revolve around the question whether you met the “reasonable standard for the industry.” Reasonable is defined as what a reasonable person would do in the same situation. Standard is the level of safety or knowledge and practice of safety required Industry is the paddling business industry. The definition combines to create a safety requirement that is the absolute minimum that a reasonable person running an outdoor recreation business would do. Standards are not goals; however, falling below the standard will almost always guaranty a losing lawsuit or at least increasing the cost of winning one.
Standards are floating. It is not always the same for a state, region or the nation. The standard will also change based on the water level, the type of river you are on, the equipment you are using and in several cases the types of guests to whom you are marketing. A recreation business in a rural area with a slow mellow stream that market’s to local people may have a different standard then when on a stream with small rapids near a large city and marketing to the masses. As such, you need to meet other people who are applying the same standard in the industry that you are using. You may also need to converse with people who are applying higher standards. History shows that companies move up to meet the standards for better operations or operations with higher standards.
Standards are not made, written down or created in courtrooms. They are constantly changing and they can only be found in the eyes and actions of everyone else in the industry. In trials, expert witnesses are brought in to tell the jury what the standard of care in a particular situation should have been. These expert opinions are based on the knowledge of the accident and a broad knowledge of the industry. You need to maintain your knowledge level of the industry at the same level as the experts. You are required to know the standard of the industry and your standards when running any business.
“Why does attending a conference change the way I do business?” Because the only way you can find out about a change in the standards is by meeting and greeting other people in the industry. If you have not attended a conference in several years, you may not know that the majority of states now require Personal Flotation Devices‘ for children. Even though your state may not require them, the standard has changed. You may not be required by law to provide a PFD, however, the standard is that one will be required and as such you have dropped below what the reasonable person would do in your situation.
Without attending a conference and seeing what everyone else is doing, you will not stay current in the industry. As such, you are wearing a target on your back that says sue me. Only personal injury attorneys can see that target. But see it they will when someone is hurt at your business.
There are other reasons for attending the conference. Unless you have hired an attorney to stay current on the issues or a lobbyist, you may have missed a change in the law. Many laws are passed each year that do not make the news. Old laws may also change. A great example of that is how courts have interpreted laws in West Virginia and Colorado recently. Unless you attend a conference, you may not know how new or interpreted laws have changed over the past year. What was a defense to the horseback riding industry in Colorado is now a welcome mat for lawsuits.
New ways to promote safety show up at conferences. New ideas that one business develops in their program can be a great way to keep your guests safe. New equipment is debuted, with the plusses and minuses at conferences.
New ideas also change the legal environment. A new product by a manufacture showing at the Conference can quickly change the standard for an industry. A new design of boat, Personal Flotation Device or trailer may suddenly make your system a risky liability issue.
These changes will not only affect whether a guest can sue you for injuries but also whether your own employees can sue you. Lifting canoes to the top level of a trailer may cause worker’s compensation injuries. A new design that promotes employee health and welfare could save thousands in worker’s compensation benefits.
The final legal reason for attending a conference is the overall education you receive. Judges and juries look at witnesses and examine their credibility. People who are honest are the witnesses’ juries believe. Honesty is not just how you are on the stand when you are testifying, but how you ran your business. An honest and upstanding member of the business community is going to continually want to improve his business. Being a member of your professional organization and attending the yearly conferences shows a jury that you care enough about your business and your clients to spend the extra time and money to run your business the best way possible. If you are willing to show an interest in your clients by receiving the most up to date education, you must not be as bad as you are being portrayed by the opposing attorney.
Some insurance companies give discounts on premium for attending a conference. They know that the company that attends a conference is concerned about staying current with the industry and keeping their operation as top notch as possible. Companies that attend conferences and get the most possible from a conference are less likely to have accidents that cost insurance company’s money.
Go to this year’s Conference and increase your chances of not going to court!
