Test 1 Flashcards
What is law?
“A body of rules of action or conduct prescribed by controlling authority, and having binding legal force”
Law is _______, _________, constantly ________ and evolving
abstract, living, constantly changing, and evolving
Law provides _________, accountability, _________justice, ______
predictability, accountability, justice, protection
Law v. Justice
justice is interpreted differently by people
influenced by education, social class, upbringing
4 Types of Law
- common law
- constitutional law
- statutory
(statutory&constitutional: voting systems change both of these)
-administrative
Statutory Law
- originating from and passed by legislative bodies,
- only valid for the area governed by that entity
- used by all forms of gov. (zoning, advertising, taxes etc.)
Constitutional Law
- laws in US constitution,
- each state also has constitution
Common Law
-cases have been resolved by various courts
sets precedent
Prededent
creates boundaries which future cases must be decided
- once precedent has been decided in higher court, all future lower courts in that jurisdiction must rely on the prior decision
Administrative Law
laws that are developed, adopted, and enforced by gov. responsible for managing specific gov. agencies
(NLRB, OSHA)
Statutory law are enacted by:
- introducing bill
- moving from House to Senate
- Compromise
- Governor
Court System
-Federal
-State
-Administrative
(authority, procedures, and disputes are diff in each court system)
State Court
-jurisdiction to hear a case if it involves event that occurred w/in state
(breach of contract, personal injury, real estate transaction)
Federal Court
- citizens of diff states
- questions involving constitution or federal law
Administrative Courts
- created by congress or state legislation
- both create and enforce their own rules
Criminal Courts
- based on type of cases they hear
- only resolve criminal matters where ppl bring charges against individuals who violate law (misdemeanor or felony)
- represented by public prosecutor
Civil Court
resolve cases between
- individuals
- corps
- businesses
- orgs
- gov units involving noncriminal matters
criminal law
free society from harmful conduct
- prevent injury to health, safety, morals
- beyond reasonable doubt
Civil law
goal is to compensate the wronged party
- “Preponderance of the evidence”
Plaintiff
brought suit
Defendant
party being sued or tried
statute of limitations
suit must be filed within certain time period
Complaint
describes key facts of the situation
Discovery
used as a means to find out what is known about the incident or damages
Deposition
answering questions under oath related to case
Motion for summary judgement
brought when a party concludes the facts are in their favor and they should win w.out going to trial
(used when there are no disputable facts)
Torts
- unintentional (did not mean to injure individual, but injury occurred)
- intentional (one intends to injure another, willful and wonton)
Negligence
unintentional tort that injures an individual in person, property, or reputation (primarily state law)
-most lawsuits in rec is based in negligence liabilty
Negligence in the form of:
- omission: something one should have done, but did not
- commission: something that one did do, but should not
4 elements of negligence
- duty
- the act (breach of duty)
- proximate cause
- damage or harm
- all must be present to be held liable for injury
Duty
relationship between program and participant
- gives rise to an obligation to protect individual from unreasonable risk
- society based
3 origins of Duty
- relationship inherent: relationship is obvious
- voluntary assumption: relationship established by voluntary action when no inherent relationship existed (rescue, volunteer coach)
- statutory/statutes: relationship set forth by statutes (employment, first aid situations)
Only protect when a risk is __________
foreseeable
Nature of duty to protect determined by 3 categories:
- invitee
- licensee
- trespasser
Breach of Duty
occurs when act is not accord with that required by professional standards
2 types of risk under breach of duty
- inherent- risk a part of activity (if risk was eliminated it would alter sport)
- negligent behavior- conduct is not in accord w/ standard of care professional should subject participant to
2 types of negligence
- ordinary: failed to act w/ reasonable care and lack of ordinary diligence
- gross: heightened degree of carelessness, act done w/ utter unconcern for safety of others
Gross Negligence
-waivers nor immunity laws protect from liability
Gross v. Ordinary Negligence
- no ONE definition
- no foolproof set of criteria to distinguish the two
- open to interpretation
4 elements to determine gross negligence
- intentional failure to perform duty but conscious intent to harm
- aware that conduct will create risk
- knowledge of acts that should have given appreciation of the extent of the risk of harm
- creation of extreme risk as measured by probability of risk of harm
Do rec cases usually reach gross negligence?
No
Standard of Care
requires professional
is situation-determined (depends on activity, participants, environment
-established by statute, ordinance, regulation
ex: red cross first aid
If no published standards of care are provided:
practices of the profession are the norm
Provider must be aware of ____ and ____ participants need to safely participate in activity
skills, abilities
Provider must be aware of ______ of participants and understand how to work with them in activity
character
- experience or novice
- disabled, emotionally distressed
Proximate cause negligent
conduct must be the substantial factual cause of injury
-act did not meet standard of care (does not mean defendant is liable)
compensable injuries
- economic loss
- physical pain and suffering
- emotional stress
- physical impairment
- more important: the amount of injuries and who should pay
3 parties liable
- employee
- administrative
- corporate
both employees and supervisory personnel are liable for their own negligence
True
Employer/corporate is liable for injury caused by negligent act of the employee (if they are acting in the scope of their authority)
True
Immunity
sovereign/governmental: protects public corporate entity but not its employees (varies by state)
Liable: administrative personnel
individually liable for own negligent conduct, not liable for negligent subordinates
5 categories of administrative duties
- to employ competent personnel and fire those unfit
- provide proper supervision and have supervisory plan
- direct program properly
- establish safe rules/regulations to comply with policy requirements
- remedy dangerous conditions/defective equipment or warn users of dangers
Doctrine of respondeat superior/vicarious liability
employee negligence is imputed to corporate entity if they were acting w/in scope of their responsibility and if act was not gross
if employees commit ordinary negligence while engaged in furtherance of employer’s enterprise both parties are liable
True
ultra vires acts
acts beyond scope of responsibility and authority of employee
(this relieves corporate entity of liability via respondeat superior)
**exception: when corp knew about it
4 contracts that limit corporate liability
- leasing facilities (premise or activity related?)
- independent contractors (referees, yoga instructor)
- indemnification (one party agrees to restore loss to another on occurrence of anticipated loss)
- waivers
inherent risk
integral part of the activity (football, skiing)
NO negligence =
NO liabilty
primary assumption of risk
voluntary participants assume risk of activity (NOT risk of negligence)
3 elements needed to use primary assumption of risk defense:
- risk must be inherent in the sport
- voluntary consent of participant
- participant must know, understand, and appreciate risks
secondary assumption of risk
(contributory negligence)
voluntary choice of participant to encounter risk created by service provider
When secondary assumption of risk will occur
- participant voluntarily participates when there is a substantial risk that the defendant will act in a negligent manner (skiing with someone that goes out-of-bounds)
- Service provider has already been negligent and the participant takes part anyway (playing on a poorly maintained field)
- Participant fails to follow rules or heed warnings
sovereign & government immunity
judicial doctrines that prevent one from filing suit against the government
- public agencies can be sued only if they give consent
- does NOT protect wanton and willful or reckless behavior
waivers
participant agrees to relinquish right to pursue legal action against service provider in the event that negligence of the provider results in an injury to the participant.
informed consent
contract used to protect the provider from liability for the informed risks of a treatment to which the signer is subjected.
agreement to participate
document the informs recreation participants of:
- nature of activity
- risks to be encountered
- behavior expected
- more info than a waiver
facility lease agreements
activity or premise related
equipment rental agreement
Agreements-protect the renter from liability for a negligence related injury by the user.
Independent Contract for Service
agreement between corporate entity and an individual that performs a service.
immunity
category of defense against liabilty
6 types of immunity
- sovereign
- charitable
- recreational user
- sport volunteers
- good Samaritan acts
- statutory assumption of risk
limitations to sovereign/gov immunity
- it applies only to gov entities
- does not extend to officers, agents,employees of governing entity
Tort Claims Acts
1946, intent of waiving sovereign/gov immunity
-
Charitable Immunity
relieves or immunizes charitable orgs from liability for tort
-has been repealed or limited in most states
Recreational user immunity
provide protection for the private property-owner against lawsuits by parties injured while on the landowner’s property for recreational purposes.
(private landowners,land is under developed and in rural in nature, landowner cannot charge a fee to use property
volunteer immunity
- encourage people to volunteer for nonprofits
- immune from ordinary negligence
- volunteer protection act 1997
good samaritan statutes
provide immunity for those who voluntarily and gratuitously come to the aid of injured persons
6 categories of statutory assumption of risk
- equine liability statutes
- ski statutes
- skating statutes (roller skating, skateboard etc)
- statutes pertaining to other activities
- general rec and sport statutes
- hazardous rec activity statutes
emergency care
Provision of medical assistance to an injured person in an urgent, immediate, or unexpected circumstance.
most court jurisdictions have held that there is a duty to prepare for emergency care ______ emergencies occur
BEFORE
4 elements of emergency care
- emergency planning
- appropriate personnel/injury assessment
- adequate equipment/certifications
- implementation of emergency procedures
how to develop and Emergency Response Plan (ERP)
review each foreseeable emergency seperately then develop a plan
3 roles of emergency care personnel
- charge person: assumes responsibility and has training
- call person: calls and meets emergency personnel
- control person: responsible for keeping people away from the scene
AED
automated external defibrillator
-portable, electronic device that non-medical personnel use to treat persons in cardiac arrest
2 primary issues with AEDs
- which facilities are required by law to have one?
- is immunity granted to those using and AED in an emergency?
all states DO provide some immunity for non-medical personnel using AEDs
True
issues with youth sports and emergency care
volunteers make it hard to identify those with certificates
**still must be a plan for emergencies
campus rec centers don’t need to have ERP for every activity
False
3 elements of emergency care to minimize legal liability
- plan for emergency care situations
- provide a risk assessment of the activity
- ensure there is adequate and qualified personnel available in the delivery of these services
__% of negligence cases involving programmatic situations allege lack of supervision or improper supervision
80%
nonnegligent supervision
participants should receive proper instruction and preparation including basic rules and procedures, suggestions for proper performance, and identification of risks
3 sources of duty to supervise
-duty inherent in the situation
-voluntary assumption of duty
- duty mandated by law
-
Duty to supervise: Inherent in the situation
relationships that require the defendant organization to exercise reasonable care for the protection of participants under its supervision
duty to provide transporation
- must be safe regardless of mode of travel
- duty begins at point of departure and continues until participants have been returned
4 ways to provide transportation
- independent contractor (common: airline business and private: limo)
- organization’s vehicle
- employee vehicle
- non-employee vehicle
Duty to supervise: No Duty
- use of undeveloped land
-playgrounds
-school grounds after hours
-public beaches
-nature trail
Only liable if agency VOLUNTARILY assumes duty
Duty to supervise rises from 3 sources
- duty inherent in situation
- voluntary assumption of duty
- duty mandated by law
nonnegligent supervison
supervisors taking action to prevent reasonably foreseeable injuries to participants
when supervisors leave __________ alone they may be liable for ___________ supervision
participants, negligent
types of supervison should be determined based on ______, _____, experience, ______, and physical condition of participants and the activity involved
age, skill, experience, judgment, and physical condition
general supervision
overseeing individuals/groups involved in an activity and does not require constant, unremitting scrutiny of the activity or facility
specific supervision
constant and continuous, more appropriate for small groups or individuals receiving instruction, involved in high-risk activities, or using areas that have the potential for serious injury.
transitional supervision
changes from specific to general depending on:
- Participants need for instruction
- Ability to perform certain activities
- Use of equipment
- Involvement with others
- Use of the facility
when is specific supervision required?
when a situation is dangerous
supervisors need to identify dangerous activities and intervene
qualifications of supervisors
regular, full-time employees w/ appropriate qualifications and undergo staff development to improve skill and knowledge
How many supervisors should be around
depends on activity
6 primary duties of supervision
- Effective Planning
- Proper Instruction
- Warning of Risks
- Providing a Safe -Environment
- Evaluating the Physical & Mental Condition of Participants
most important element of proper supervision
-Should prepare for all foreseeable dangers or risks
-should address the: who, what, where, when, how of both facilities and supervisory plans.
-Liability issues:
Failure to prepare a plan, deviating from a plan, creating a hazardous plan
plans should be:
- in writing
- be specific
- be evaluated regularly
Supervisors have a duty to warn of all inherent risks associated with the activity.
True
Dangerous activities mandate a higher degree of supervision than others.
True
least _______ exists with the use of an independent contractor for transportation
liability
Greatest transportation liability with use of ______ vehicles
private
2 types of independent transportation contractors
common carrier - business of transporting (airline)
private carrier- only hires out to deliver goods in particular cases
agencies can be held liable if the organization is negligent in its selection of an independent contractor
TRUE
when hiring independent contractor
- verify liability insurance
- proof of insurance on vehicle
- age of equipment, company safety record
organization-owned vehicles
- most common means of transporting
- responsibility for safe transportation
- duty to provide safe vehicles/qualified drivers
Both driver and organization can be held liable for the negligence of the driver
TRUE
state law controls schools rights to transport students to activities other than classes
TRUE
Privately owned vehicles
owned by both employee/non-employees -parents -volunteers -participants (liability is retained by org.)
when is a principal-agent relationship established?
when an employee uses their car as part of employment
org can be liable through vicarious liability
Principal-agent relationship is created with nonemployee vehicles
TRUE
2 other transportation issues
state codes: volunteer coaches
Worker’s comp: applicable if hurt in accident
_____________ of travel and hospitality make law unique and more complex
interconnectivity
duty to a guest
- guest is an invitee
- is owed clean/safe accommodations
overbooking: contract law
hotel reservation is a contract that binds the hotel to providing accommodations
-hotels that overbook can incur liability
is there a limit for liability of guest property loss?
yes, hotels liable for loss only up to a maximum amount (often $1,000)
statutes hotels must follow
- Hotel must provide a safe available for guest property
- The hotel must post notices communicating the availability of safes.
- The hotel must communicate to guests that their liability for lost or stolen property is limited.
- The hotel must communicate the maximum recovery amount allowed.
Hotel is liable under common law for the full amount of the lost or stolen property if the statues are not followed.
true
bailment
Delivery of goods by one to another with the expectation the property will be returned in the same condition it was received. (valet)
hotel guests have the right to possession of the room without disruption from staff
true
if illegal activity is discovered in a room by a hotel employee who is legally in the guest’s room-hotel does not have to notify the police
false
internet sales
impact jurisdiction of legal claims
forum non conveniens
courts decline jurisdiction if it would be more convenient to bring forth case in another forum
Forum selection clause
agreement between agency and tourist that litigation must be brought forth in court where the agency is headquartered
tariff
contract between airline and passenger
warsaw convention
limits liability for personal injury by airlines operating international flights
agency law
governed by a combo of contract law and tort law
Principal-agent relationship
created when both parties agree that the agent has the authority to represent the principal and can enter into contracts on the principal’s behalf
- Travel Agents
- Tour Operators
administrative laws greatly impact ________ industry
hospitality
