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Cover All the Bases –
Youth Sports Risk Management
Presented to:
NJRPA Conference
Presented by: Jon Cross, Esquire Marshall Dennehey Warner Coleman & Goggin 2000 Market Street, Suite 2300Philadelphia, PA 19103 P: (215) 575‐2750  E: [email protected] March 2015 www.marshalldennehey.com
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This brochure was prepared by Marshall Dennehey Warner Coleman & Goggin to provide information of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney‐client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2015 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, contact [email protected]. i
How Do Coaches and Teams Prevent
Lawsuits?
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Stop kids from playing sports? (NO!) Buy insurance and forget about it? (YES to insurance, NO to forget about it) Rely only on the assumption of the risk and hold harmless agreements? (Not entirely) Understand and emphasize to your staff safety risk management? (YES!) 1
Negligence Considerations
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Elements of Negligence Certain elements need to be present within a given situation for negligence to occur:  Duty of care  Breach of duty  Causation  Injury/Damages “No‐duty Rule” The “no‐duty rule” provides that a defendant owes no duty of care to warn, protect, or insure against risks that are common, frequent, expected, and inherent in an activity “Assumption of the Risk” A related defense is “assumption of the risk,” which is an absolute defense in some states and is used in others to diminish the defendant’s duty where the injured child was aware of, appreciated the nature of, and voluntarily assumed all of the risks associated with the activity Unique Conditions Assumption of the risk will not apply when the defendant created a unique condition that went over and above the usual dangers inherent in the sport Negligence Claims The most common causes of coach and administrator liability are:  Active negligence – doing something that accidentally causes injury to someone else  Passive negligence – not doing something that accidentally results in injury to someone else Active Negligence Examples  Teaching player to tackle improperly with head down and player gets injured  Instructing base runner to collide with the catcher  Telling a player to do 100 sprints in 103 degree and player suffers a stroke  A coach wrestling with a student and he suffers a fracture Passive Negligence – Failure to…  Supervise  Provide proper instruction  Warn of the risks of the sport  Explain the rules  Match players based on size, age, and experience 2
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Require use of safety equipment Inspect the facility Provide a suitable facility Notice a concussion and remove the player Require a post‐injury evaluation Enforce return‐to‐play protocols Keep safe from dangerous conditions (heat, foul balls, lightning, and celebrations) General Supervisor must be…  Within the activity area  Overseeing the activity  Immediately accessible  Knowledgeable of those who have received appropriate instruction and screening Specific Supervisor must be…  At the specific activity location observing/instructing  Present at high‐risk activities  Remain until player can understand and adhere to the safety measures that have been taught  Also able to adhere to general supervision duties Supervision Tips  Be where your kids are  Proper Placement – see all players  One Plus All Position  Even the best supervision cannot prevent all incidents  Minors can act impulsively, without appreciating the potential dangers of their actions Failure to Supervise Claims  Rock climbing girl scout (Phila., PA – settled 2015 – $2.8 million)  “Tag” at day camp (Mont., PA 2001 – settled)  “Red Rover” at school (San Diego, CA – settled 2013 – $15,000 and banned red rover game) Athletic Supervision Checklist (Check statements where you can answer “yes”):  Are you acting as a reasonable person would under similar circumstances?  Do you have a current physical examination form on file for each participant stating the participant is physically able to participate in the given activity?  Do you have a current parent permission form on file?  Are you an active supervisor who is attentive to the activities around you?  Do you have rules posted pertaining to the use of the facility?  Are emergency care guidelines and emergency phone numbers posted?  Do you have a basic understanding of the skills needed to safely participate? 3
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Do you know and understand the basic safety guidelines for the given activity? Have you announced warnings about possible risks of the sport? Do you know current emergency first‐aid procedures and what the emergency care guidelines are in the event of serious injury? Do you keep written practice plans and the instructions given? Do you have records when equipment purchased, repaired and reconditioned? Do you submit all requests for repair in writing and keep them on file? Do you complete written accident reports that are submitted to the proper administrator when an accident does occur? Age and Experience Are Factors Viteritti v. Baseball Haven, LLC (New York 2013):  13‐year‐old baseball player injured himself sliding  Motion to Dismiss granted  Experienced baseball player  Played baseball for several years  Understood sliding is an inherent part of baseball  Assumed the risk he may be injured sliding See also Cerado v. City Education Department NY – 15‐year‐old softball sliding lawsuit Taylor v. Massapequa Little League (New York 1999):  7‐year‐old baseball player injured himself sliding  Motion to Dismiss denied  Child never previously slid into a base  Never was taught the proper way to slide by anyone  Coach directed him to slide  Too young to be aware of, appreciate, or voluntarily assume the risks of injury Failure to Provide Instruction about Safe Techniques Donnovan Hill v. Pop Warner (2011):  13‐year‐old football player sustained a catastrophic spinal cord injury  Lawsuit alleges he was taught an unsafe “head‐first” technique  Coaches observed this repeatedly in practices, games, and on video without correcting or reprimanding it  League failed to require safety certifications  Result: All 1,300 Pop Warner associations require Heads Up certification to learn about proper tackling Duty to Warn of Risks of the Sport  Coaches and leagues should warn of the potential of injury  Discuss risks of improper tackling, sliding, or hard fouls  Players need to understand and appreciate the risk (age and experience factors)  Informed Consent document 4
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NFL concussion lawsuit – risk of concussions and long‐term effects allegedly not disclosed Failure to Explain the Rules  Illinois baseball lawsuit – player hit by a bat while teammate was swinging in a non‐
protected and non‐dedicated area for hitters  Fungo lawsuit – a youth baseball team multiple fungo hitters, one coach hit ball, which struck the third baseman in the head, and he suffered brain damage  Pittsburgh football lawsuit – during indoor practice, player pushed out of bounds near sidelines and fell head first into the wall  Lacrosse lawsuit Medford, NJ (2014) – player “left his feet” and hit opponent with stick right across the midsection Call It a Mismatch?  Lawsuits arise due to a “mismatch” of players  Occurs in games, practices, and tryouts  Risk Management standard – is the situation reasonable? Duty to Avoid a Mismatch Factors that must be considered:  Age  Experience level  Size of the individual  Strength and stamina  Maturity  Type of sport  Motivation/mental toughness  Skill of individual  Higher sense of scrutiny early in the season Mismatch Lawsuit Hunt v. Department of Education (NY):  Football player, a 140 pound senior, was struck in the head by a player he was attempting to tackle  Became paralyzed due to the hit  Alleged mismatching of smaller, younger, less skillful, and/or less experienced participants  Settlement – $8 million (2010) Safety Equipment – Duty to…  Ensure players are wearing the proper safety equipment  Helmets (inspect, get reconditioned, fit)  Batting helmet (wear during practice too)  Catcher’s gear (wear mask at all times) 5
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Soccer shin guards Mouth guard Athletic cup Eye goggles Know up‐to‐date standards for equipment and recalls Facility Inspection – Inspect for…  Dangerous surfaces (holes, lips, ruts, rocks)  Fencing (holes, lose wires, open caps, bowed areas)  Bleacher safety (railings and enclosure of open areas)  Safe location of team benches and spectators Facility Inspection – Soccer Goals  92 serious injuries between 1989‐2000 due to soccer goals  Goals should have appropriate warning labels  Goals should be anchored  Example: lawsuit of boy grabbing crossbar/”Tarzan” “Good Facilities Can Go Bad”  Gym/fields divided to allow multiple games – buffer zone  Rainy day at the gym – indoor mat  Wrestling in cafeteria – glass windows  Multiple contests in same area (baseball, track, tennis) –danger of foul balls, javelin, or discus throw Accidents Do Happen  Coaches cannot prevent every injury  Things happen in a split second 6
Concussion Risk Management and
Prevention
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How Many Concussions Occur Each Year in Youth Sports?  1.6 – 3.8 MILLION Source: Center For Disease Control Failure to Identify Concussion and Remove Athlete  Illinois High School State Wrestling Championship 7
Dehydration & Heat Stroke
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Tips: 
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Provide easy access to water Allow for more breaks Consider each player’s medical issues Do not hold practice when the heat index is too high Do not make players workout in full uniforms Do not practice too long Do not use uncommon and dangerous workout routines Know your high school athletic associations’ restrictions 8
Sickle-Cell Liability
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Sickle‐cell trait is a genetic disorder 8 college football players, who were carriers, have died during conditioning workouts since 2000 If a coach knows a player carries the sickle‐cell trait, he will be held to a higher standard 9
Spectator Lawsuits
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Pro Baseball Smith v. Philadelphia Phillies and Florida Marlins (2000):  Flying baseball bat hits spectator  Defense winning arguments:  No Duty Rule – Assumption of Risk  Defendant had knowledge that knew or should have known bat slip  Accident only – no breach of a duty  Contract – Game Ticket Youth Baseball DiBrigida v. Lehigh Valley Baseball Academy (Pa. Superior Court December 31, 2013):  Errant throw over 1B, struck plaintiff in the face  Court held academy not liable  Common knowledge that balls enter the spectator area, and fans must exercise care to protect themselves Lloyd v. Migliaccio (Manchester, NJ 2012):  Woman sued the Little League  Catcher overthrew the pitcher in an enclosed bullpen  Ball hit plaintiff in the face  In fall 2013, depositions began Tips to Avoid Spectator Injuries  Understand the surroundings of your event  Be aware of risks for spectators  Inspect the fencing and bleachers  Be proactive to place reasonable barriers  Move people to anticipated safer areas 10
Risk Management – Celebrations and
Lightning
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Celebrations  Do not let people on the playing area  Security surround goal posts or entire field  Collapsible goal posts  Use of public address system  Establish team rules regarding appropriate celebrations Lightning  Approximately 70 people are killed per year in the U.S.  10% of lightning strike victims die  70% suffer serious long‐term effects Lightning Risk Management  The presence of thunder and lightning means danger  Outdoor athletic events should be postponed when lightning is within 6‐10 miles (depends on your state association rules)  Get athletes off the field at the first hint of lightning  Wait 30 minutes after the last thunder or flash of lightning prior to resuming play Lightning Lawsuit – Golf Maussner vs. Atlantic City Country Club (New Jersey 1997):  Golfer struck by lightning  Club should have signs notifying of safety precautions utilized  Or post a sign “play at your own risk”  Siren or horn system must be loud enough and meaning must be understood  Motion to dismiss denied because there was a factual question as to whether the golf course’s safety precautions met industry standards Lightning Lawsuit – Baseball Thomas v. Board of Education West/East Orange (NJ 1999):  Sophomore struck by lightning while playing HS baseball  Thomas remains in a vegetative state  $2.6 million settlement Lightning Fatality – Soccer Game  Northern Valley Regional HS, New Jersey ‐ Viktor Ovsyankin died during his grandson’s soccer game (September 7, 2012): 11
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Standing near two trees that sustained lightning hits 9 students were treated for “tingling sensations” School did not have onsite lightning detection or prediction equipment Best Places To Go When There Is Lightning  Enclosed and grounded building  Automobile  Approved lightning shelter Avoid When There Is Lightning  The outdoors  Open areas  Water  Metal bleachers  Metal fences  Minimize contact with the ground  Avoid being the tallest object in the area  Tall trees  Overhead wires and power lines  Elevated ground  Golf carts  Mowers  Rain shelters (dugouts, tents) Lightning Detection Technology  “Weather Bug” Alerting System (sounds and strobe light)  Cell phone apps, such as Storm Tracker or the Weather Bug, can detect distance of lightning 12
Other Defenses
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New Jersey Tort Claims Act For liability of a public entity for an injury caused by a defective condition on the property, plaintiff must prove:  A defective condition on the premises  Actual or constructive knowledge and  The public entity acted in an arbitrary, capricious, or outrageous manner Tort Claims Act (New Jersey ‐ N.J.S.A 59:1‐1 to 59:12‐3) Charitable Immunity Act Pomeroy v. Little League of Collingswood (NJ 1976):  Little league is a non‐profit group  Organized for educational purposes – to assist children in “developing the qualities of citizenship, discipline, teamwork, and physical well‐being espousing the virtues of character, courage, and loyalty” (see mission statement)  Injured person was a player – beneficiary of the league  All elements of Act met, league immune from liability Charitable Immunity Act (New Jersey ‐ N.J.S.A 2A:53A.5) Exculpatory Agreements Indemnity/Hold Harmless
Release Agreement
Assumption of the Risk
Waiver of Liability
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Legal Considerations – Exculpatory Agreement  Exculpatory Agreements not favored by the law  Must not contravene any policy  Must relate to activity not essential to personal well‐being  Choice to participate or not  Key clauses must be conspicuous on the face of the document (bold, change font, size of font, ALL CAPS)  Under 18, children cannot enter into a contract  Parent can assume the risks associated with participation  Parent responsible to pay for medical care of child until age18  Parent cannot waive the rights of the child  Child maintains a claim for pain and suffering and post 18‐year‐old’s future medical expenses and lost wages 14
Risk Management
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Post‐Injury Risk Management Tips  Help the injured player – priority over everything  Maintain control – keep others away  Keep the player still, comfortable, and reassured  Provide first aid  If serious injury, contact emergency assistance  Review the area to determine how the accident occurred  Act of the player?  Equipment problem?  Field condition?  Identify witnesses  Determine if there are photographs or video of the incident Accident Report Includes:  Description of the incident  Name, age, and experience of those involved  Weather and playing conditions  First aid measures  Identify the emergency personnel  Name, address, and phone numbers of all witnesses, players, parents, coaches’ from other team, and umpires  What did witnesses say  Diagram of the incident or area  State who is in possession of videos or photos  Acknowledge report went to supervisor  Only the facts, not your opinions Post‐Injury Tips:  Follow up with the player – parent  Require return‐to‐play protocols  Obtain and maintain medical clearance  Do not speak to media  Hold incident report as long as reasonable – consider the statute of limitations 15
Good Advice
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Avoid the “It will never happen to me!” attitude It can happen to YOU! Being aware of safety concerns when planning your events, practices, warm‐ups, games, or future field locations Demonstrate common sense Preach safety to coaches, players, and parents Play hard, play smart, play together, and…play safe! 16
About Your Presenter
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Jonathon E. Cross Associate Marshall Dennehey Warner Coleman & Goggin 2000 Market Street, Suite 2300 Philadelphia, PA 19103 (215) 575‐2750 (215) 575‐0856 ‐ Fax [email protected] As a former athlete and coach, Jon brings his unique experience to sports and recreation liability claims. He represents and defends sports and recreation owners, coaches and instructors, youth athletic organizations, golf clubs, professional athletes as well as athletic departments in school districts, colleges and universities. Jon is also experienced in defending clients in matters involving premises liability, automobile liability, product liability, insurance bad faith and trade secrets. The greater portion of Jon’s practice is providing legal counsel to professionals, including attorneys, accountants, insurance brokers, real estate brokers and financial advisors, in a wide range of matters including legal malpractice, accounting malpractice, wrongful use of civil process, abuse of process, negligence and breach of contract claims. Outside of his law practice, Jon serves on the Executive Board of the Richie Ashburn Foundation, which raises funds to provide over 19 free baseball camps and clinics yearly to children throughout the Philadelphia and suburban area. Furthermore, Jon works with the Foundation to raise funds to support blind and visually impaired children to play “beep” baseball. Formerly, Jon was the head baseball coach at the William Penn Charter School in Philadelphia, PA. Further, he coached for four seasons Division‐I level at the University of Pennsylvania. Prior to coaching at Penn, he coached for nine years at Germantown Academy. As a coach, he has organized and instructed at local and national baseball camps and clinics, and he owned his own winter and summer baseball camps. In addition, for eight years Jon was a member of the Board of Trustees at Germantown Academy and served as the chair of the sports/athletic committee. 17
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