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Reed Wainwright

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Title: Slide 1 Author: marchibald Last modified by: Doug Berninger Created Date: 10/30/2013 5:21:43 PM Document presentation format: On-screen Show (4:3) – PowerPoint PPT presentation

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Title: Reed Wainwright


1
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2
Dont Lose it All Before Game Day!
  • Reed Wainwright

3
Recurring Allegations
  • Some form of negligence, carelessness or
    recklessness is usually the recurring allegation
    associated with legal liability

4
Legal Liability
  • Careless
  • The fact, condition, or instance of a persons
    either not having done what he or she ought to
    have done, or having done what he or she ought
    not to have done. Blacks Law Dictionary, 7th
    Edition, Bryan Garner, Editor in Chief, West
    Publishing Company, 1999, p. 204.
  • Negligence
  • The failure to exercise the standard of care that
    a reasonably prudent person would have exercised
    in a similar situation. Blacks Law Dictionary,
    7th Edition, Bryan Garner, Editor in Chief, West
    Publishing Company, 1999, p. 1056.
  • Reckless
  • Characterized by the creation of a substantial
    and unjustifiable risk of harm to others and by a
    conscious (and sometimes deliberate) disregard
    for or indifference to that risk heedless rash.
    Blacks Law Dictionary, 7th Edition, Bryan
    Garner, Editor in Chief, West Publishing Company,
    1999, p. 1276

5
Allegations!
  • DOES NOT MEAN THE CONTENT IS TRUE!
  • It is only ALLEGED!

6
USC Spotting Case
USC Spotting Case (Case No. BC453551, Superior
Court of State of California County of Los
Angeles, Central District, The Douglas La Group
Antablin Bruce, Carl E. Douglas, Esq.).
  • Alleged incident date September 28, 2009
  • Lawsuit filed on January 24, 2011
  • Defendants USC (private institution) and
    assistant strength coach
  • Allegations of negligence, recklessness, and
    carelessness
  • Reputable and competent strength and conditioning
    coaches
  • Player was relying on assistant strength and
    conditioning coachs previously represented
    abilities and competence
  • The bar was dropped, hit and/or fell onto
    players neck by reason of, and result of, the
    negligent, reckless, and careless acts and
    omissions of each of the Defendants.
  • Was not enough that defense argued that players
    assume inherent risks
  • Notice of Settlement filed On or about January
    17, 2012

7
Public Institutions
  • Public institutions - Texas
  • Sovereign immunity definition (1) A governments
    immunity from being sued in its own courts
    without its consent. Congress has waived most of
    the federal governments sovereign immunity. See
    Federal Tort Claims Act. (2) A states immunity
    from being sued in federal court by the states
    own citizens. Blacks Law Dictionary, 7th
    Edition, Bryan Garner, Editor in Chief, West
    Publishing Company, 1999, p. 753Sec 104.002 No
    indemnification if willful or wrongful act or an
    act of gross negligence
  • Texas Civil Practice and Remedies Code
    Sec. 101.021.  GOVERNMENTAL LIABILITY. Personal
    injury and death so caused by a condition or use
    of tangible personal or real property if the
    governmental unit would, were it a private
    person, be liable to the claimant according to
    Texas law
  • Texas Civil Practice and Remedies Code
    Sec. 104.002.  STATE LIABILITY CONDUCT COVERED.
    (a) the state is liable for indemnification
    under this chapter only if the damages are based
    on an act or omission by the person in the course
    and scope of the person's office, employment, or
    contractual performance for or service on behalf
    of the agency, institution, or department and if
    (1)  the damages arise out of a cause of action
    for negligence, except a willful or wrongful act
    or an act of gross negligence
  • Texas Civil Practices and Remedies Code Sec.
    41.001 (11). Gross negligence means an act or
    omission (A) which when viewed objectively from
    the standpoint of the actor at the time of its
    occurrence involves an extreme degree of risk,
    considering the probability and magnitude of the
    potential harm to others and (B) of which the
    actor has actual, subjective awareness of the
    risk involved, but nevertheless proceeds with
    conscious indifference to the rights, safety, or
    welfare of others

8
Private Institutions and Athletic Associations
  • Private institutions
  • Sovereign immunity will not apply
  • Athletic Associations
  • Sovereign immunity will not apply
  • If an association of public institution, case law
    has reasoned that sovereign immunity does not
    apply

9
Wrongful Death
Wrongful Death plaintiff must establish the
defendants wrongful act caused the defendants
death (Christus St. Mary Hosp. v. OBanion 227 SW
3d 868)
A defendant can be held liable for the decedents
death if the death was caused by the defendants
(or its agents or servants) wrongful act,
neglect, carelessness, unskillfulness, or default
(Texas Civil Practices and Remedies Code Section
71.002(b))
  • High school cases
  • Florida High School Case Allegations
  • A year earlier player had been hospitalized for
    heat stroke
  • Took too long to call 911 and
  • Did not immediately get player into a cooling tub
    at the first sign of trouble
  • Georgia High School Case Allegations
  • Took too long to call 911 and
  • Passed out the night before, but was still
    expected to show up for training the next day
  • Collegiate University of Southern Mississippi
    Case - Eric Sorey (1987)
  • 849 F.2d.960 42 USC Sec. 1983 Civil Action for
    Deprivation of Rights, State Tort and Contract
    Law

10
Wrongful Death
  • Florida State University Devaughn Darling
  • Alleged incident date February 26, 2001
  • Lawsuit filed On or about October 2, 2002
  • Allegations
  • During conditioning drills
  • Cause of death was apparent cardiac arrhythmia
    and
  • Medical Examiner stated that sickle cell trait
    may have contributed to players death
  • Settlement Date On or about June 28, 2004, but
    still unresolved
  • University of Missouri Aaron ONeal
  • Alleged incident date July 12, 2005
  • Allegation Failure to follow Emergency Action
    Plan
  • Settlement date On or about March 12, 2009

11
Premises Liability
  • A landowners or landholders Tort Liability for
    conditions or activities on the premises. Blacks
    Law Dictionary, 7th Edition, Bryan Garner, Editor
    in Chief, West Publishing Company, 1999, p. 1199.
  • Exposure to liability includes, but is not
    limited to
  • Equipment purchase
  • Equipment maintenance
  • Equipment cleaning
  • Access

12
Products Liability
  • A manufacturers or sellers Tort Liability for
    any damages or injuries suffered by a buyer,
    user, or bystander as a result of a defective
    product. Blacks Law Dictionary, 7th Edition,
    Bryan Garner, Editor in Chief, West Publishing
    Company, 1999, p. 1225.
  • Bat Case (NewJersey.com)
  • Youth was nearly killed while pitching in a
    Little League game in 2006 when he was 12 years
    old. A batted ball struck him in the chest,
    causing his heart to stop beating and depriving
    his brain of oxygen for 15 to 20 minutes.
    Intensive physical therapy has enabled him to
    regain some speech.
  • His parents sued in 2008, claiming a bat
    manufacturer a national sports retailer and a
    state Little League entity were responsible for
    their sons brain damage
  • The parents sued for emotional pain and
    suffering, punitive, and other damages under
    product liability and consumer fraud laws

13
Equality
  • Student athletes. Title IX of the Educational
    Amendments of 1972 A federal statute generally
    prohibiting sex discrimination and harassment by
    educational facilities that receive federal
    funds. Blacks Law Dictionary, 7th Edition,
    Bryan Garner, Editor in Chief, West Publishing
    Company, 1999, p.1494.
  • Employment
  • Qualified
  • Equal opportunity Title VII of the Civil Rights
    Act of 1964a deferral law that prohibits
    employment discrimination and harassment on the
    basis of race, sex, pregnancy, religion, and
    national origin, as well as prohibiting
    retaliation against an employee who opposes
    illegal harassment or discrimination in the
    workplace. Blacks Law Dictionary, 7th Edition,
    Bryan Garner, Editor in Chief, West Publishing
    Company, 1999, p. 1494.
  • Disparate impact The adverse effect of a
    facially neutral practice that nonetheless
    discriminates against person because of their
    race, sex, national origin, age, or disability
    and that is not justified by business necessity.
    Discriminatory intent is irrelevant in a
    disparate impact claim. Blacks Law Dictionary,
    7th Edition, Bryan Garner, Editor in Chief, West
    Publishing Company, 1999, p. 483. The Unpaid
    Intern
  • Bona fide occupational qualification

14
Warning Label!
  • Verbal/Announcements/Bulletin Board/Website
  • Prevention of heatstroke
  • Dehydration
  • Resource Exchange Center (REC www.drugfreesport.c
    om/rec)
  • Concussion
  • Rhabdomyoloysis
  • Sickle cell
  • See NCAA Publications

15
Annual Policies and Procedures Manual (not an
exhaustive list)
  • Emergency action plan
  • Lightening safety plan
  • Catastrophic incident guidelines
  • Privacy
  • Scheduled meetings with strength staff and
    training staff
  • Equipment upkeep and cleaning guidelines (OSHA)
  • Student-athlete mental health consideration plan
  • Access to facilities
  • Workout progressions for student athletes after
    concussions and rhabdomyoloysis, heat-related
    problems and dehydration
  • Supervision
  • Drug testing policy and guidelines
  • Strength and conditioning programs/athletic
    performance training (detailed as possible) and
  • Pre-participation
  • Competitive
  • Offseason mid-day T.V. game alert!
  • Get approval from general counsel or other
    retained attorney
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