For Liability’s Sake
Evaluate field conditions
By Scott Bills
At 4:15 p.m. on March 30, 2015, a player was injured in a high-school softball game. As she slid into home plate, her foot caught in the turf; she continued to slide but her foot was turned the wrong way.
Photo © Can Stock Photo / motionshooter
The softball field was comprised of painted baselines at the southwest corner of an all-synthetic, carpet-style nylon soccer field. The surface material was uniform in all areas except the right-hand batter’s box. This surface measured approximately 3 feet wide by 5 feet deep and consisted of a taller fiber sewn onto a rubber backing. The section appeared to be a repair and replacement of the original surface. The piece was significantly different than the original carpeting in length of fibers, texture, and thickness. The thickness of the rubber backing was ½ inch, and the fibers were 1½ inches high compared to the ½-inch height of the surrounding surface. The replacement piece was not attached, connected, or otherwise anchored to the surrounding synthetic carpeting or substrate, and protruded ¼ inch to ½ inch above the surrounding surface.
Needless to say, the school district was found liable in causing the young woman’s injury.
While this scenario is only hypothetical, cases like these are quite common. To avoid a potential lawsuit, it is important to examine the theory of liability and standard of care as they relate to the responsibility of administrators, facility managers, athletic directors, and coaches in order to provide safe and playable athletic facilities.
Theory Of Liability
Four factors comprise a complete theory of liability:
Dangerous condition. A dangerous (or improper) condition must exist (i.e., if someone trips and falls on a sidewalk and is injured, but there are no cracks or unevenness or anything that makes it irregular or dangerous, there is no liability).
Causation. The dangerous (or improper) condition must have caused the incident (and injuries or damages). Maybe the sidewalk was cracked and uneven in one spot, but the injured party tripped and fell somewhere else or nearby. If so, there is no liability.
Notice. It must be established that the defendant(s) either knew or should have known, with typical/proper/ reasonable attentiveness (consistent with the actions of a reasonable person and/or the normal standard of care) of the dangerous (or improper) condition. Alternatively, if the defendant(s) created the dangerous/ improper condition, this covers or is considered notice.
Standard of care. What would a reasonable person do? It must be shown that the defendant(s) violated the typical/normal standard of care. Often, the expert, who should have relevant knowledge and/or experience, establishes the standard of care (of/for the defendant[s]) and then opines on whether or not it was violated.
The definition of “standard of care” is the watchfulness, attention, caution, and prudence that a reasonable person in the circumstances would exercise. If a person’s actions do not meet this standard of care, then his/her acts fail to meet the duty of care that all people (supposedly) have toward others. Failure to meet the standard is negligence, and any damages resulting may be claimed in a lawsuit by the injured party. Negligence is conduct that falls below the standards of behavior established by law for the protection of others against unreasonable risk of harm.
Photo: Sports Field Solutions, LLC
The problem is that the “standard” is often a subjective issue upon which reasonable people can differ.
In order to establish negligence as a cause of action under the law of torts, a plaintiff must prove that the defendant had a duty to the plaintiff, the defendant breached that duty by failing to conform to the required standard of conduct, the defendant’s negligent conduct was the cause of the harm to the plaintiff, and the plaintiff was, in fact, harmed or damaged.
What separates a “common accident” from an “act of negligence” is the standard of care. By neglecting the proper standard of care for a given situation, an individual may be found liable for any resulting injuries. A person can be found negligent if a “dangerous condition” caused the incident, that person had “notice,” and those actions or inactions violated the standard of care.
Reasonable Person
The so-called “reasonable person” in the law of negligence focuses on how a typical person, with ordinary prudence, would act in certain circumstances. The test as to whether a person has acted as a “reasonable person” is an objective one, and so it does not take into account the specific abilities of a defendant. Thus, even a person who has low intelligence or is chronically careless is held to the same standard as a more careful person or a person of higher intelligence. A jury generally decides whether a defendant has acted as a reasonable person would have acted. In making this decision, the jury generally considers the defendant’s conduct in light of what the defendant actually knows, has experienced, or has perceived.
Proof Of Negligence
In a negligence suit, the plaintiff has the burden of proving that the defendant did not act as a reasonable person would have acted under the circumstances. The court will instruct the jury as to the standard of conduct required of the defendant.
For example, a defendant who sues for negligent driving is judged according to how a reasonable person would have driven in the same circumstances.
A plaintiff has a variety of means of proving that a defendant did not act as a reasonable person would have acted. The plaintiff can show that the defendant violated a statute designed to protect against the type of injury that occurred to the plaintiff, or a plaintiff might introduce expert witnesses to provide evidence of a customary practice.
If you don’t want to get sued, here are some basic industry expectations:
Establish standard operating procedures. Inspect the premises regularly and keep maintenance records customary for the site or sport.
Repair defects immediately or prevent exposure to users, participants, or spectators until the premises are made safe.
Keep users, participants, or spectators safe during the use of the premises by having a plan for reasonable supervision and security.
Use reasonable employee-recruiting, hiring, and training practices.
Have a written emergency and medical plan.
Practice the plan.
Use risk management to identify and minimize elements that may cause injury or harm to users, participants, or spectators. Risk-management elements include the following:
Identification with regular inspections
Evaluation by prioritizing based on severity and frequency
Treatment by stopping the activity, reducing the risk, transferring liability through contract (hold harmless clauses), and assuming the risk is worth the liability exposure
Implementation, that is, reevaluating to ensure a treatment was the correct option.
You can be subject to a lawsuit for negligence if a dangerous condition exists and is the cause of an injury, and you had notice and violated the standard of care. Inspect your facility as if you will be a participant, parent, or spectator.
Scott Bills, CSFM, is owner of Sports Field Solutions, LLC, Frenchtown, N.J. Reach him at scott@sportsfieldsolutionsllc.com.