Foster Quiz 1

Money, Prevalence of lawyers, it is now more socially acceptable, increased consumerism, more active population, which leads to more injuries

• 1.educate
• 2.change attitudes
• 3.change systems
• 4.cap monetary rewards
• 5.Have plaintiff pick up court costs of both parties if they lose the case.

A system of principles that tells us how to behave

• 1. case law (common law)
• 2. Constitutions and statutes (also called statuary or code law)
• 3. Administrative Law
• 4. executive branch

A decision has been made

common law

statuary or code law

laws, rules and regulations developed, adopted, and enforced by government unions

executive orders

written law

written and common law

• 1.Legislative
• 2.Executive
• 3.Judicial

makes laws

Enforces the law

interprets law

governmental immunity

“can’t sue the government” without consent

gave public the right to sue the government

Criminal and Civil

• a.Offenses against society
• b.State acts on behalf of the people
• c.Decisions must be unanimous “beyond reasonable doubt”

• a.Rules that govern non-criminal affairs
• b.Injured party takes initiative
• c.Decisions are majority rule based on the “preponderance of the evidence”

• ·General or compensatory – pain, suffering, or humiliation
• ·Special – financial loss (medical)
• ·Punitive or exemplary – malice or viciousness
• ·Normal – injury suffered is considered slight
• but the responsibility of the party must be recognized
• ·Attorney fees (some cases, the only thing they will reward)

• ·Public college athletic department
• ·Public recreation department

Interrogatories and Depositions

written questions are sent to the opposite side and must be answered under oath.

verbal statements recorded under oath.

• · What happened based on the evidence that is presented
• ·Decide whether the plaintiff was damaged by the defendant(s) act.
• ·Decide the monetary reward
• · Judge, Decides whether a legal duty was owed and other questions of law and applies rules and procedures

often a panel of three or more judges. (usually an odd number)

procedural process of the case and misapplication of law

• 1.affirm
• 2.reverse
• 3.Remand
• 4.Can adjust monetary rewards
• 5.Dismiss (with prejudice)

agrees with lower court

reverse the decision of the lower court

send back to lower court for retrial.

It can be taken to a higher court (except when dismissed with prejudice)

Amount of time an individual has to file a lawsuit after an incident occurred

180 days (6 months) to file

2-3 years

can be tolling. Until they are 18 and then MAYBE 2-3 years after

• 1.safety rules – failure to create or follow
• 2.supervision – inadequate or non-existent
• 3.equipment – non-existent, doesn’t fit or is improperly maintained
• 4.Medical Care – Not available or improperly administered
• 5.Unsafe, improper, or poorly designed facilities

A reasonability between two parties which is recognized by the courts.

A civil wrong; non-criminal

• 1.used to compensate a person sustaining injuries or damages
• 2.places the compensation on those who ought to bear it
• 3.acts as a deterrent

negligence

unintentional failure to person one’s duty up the standards expected of a prudent professional under similar circumstances

• 1.Avoid games and events (last thing a sport manager wants to do)
• 2.Reduce
• 3.Transfer
• 4.Retain

Prevention and reduction of accidents through careful design, implementation, and enforcement of a series of planned steps.

Everyone, but one person in charge is needed.

• 1. Get approval to develop the plan
• 2.Make sure those above you will support use and implementation ( May cost extra $$$, but may save in the long run in decreased lawsuits, medical payments, and possible insurance fees)
• 3.Document the plan and everything related like File copies with supervisor(s) and maintain accurate maintenance and inspection records and use accident records to predict foresee ability.

which provides for the compensation to employees who suffer injury in the course of their employment. (different in every state) – This is transferring risk!

injures an individual in person, property, or reputation.

• 1.Duty – obligatory conduct owed
• 2.Breach of duty – failure to provide a standard of care which a reasonable prudent person would provide under similar circumstances
• 3.Injury occurred
• 4.Proximate cause – did the breach cause the injury

• Act of commission
• Act of omission
• Malfeasance

responding incorrectly; also called misfeasance (mistreating an injury)

failure to do something or respond to a legal duty. Also called nonfeasance

doing something not allowed to do so by law (malpractice)

• Ordinary
• Gross
• Willful, wanton, or reckless

failure to exercise such care as the great majority would ordinarily exercise under the same or similar circumstance. (also called simple or general)

very great negligence

conduct is so “gross” as to have something of a criminal character or be deemed equivalent to an evil intent. (hazing, bulling)

• Reasonable person
• Special relationships
• Professional standard

applies to society in general

people and agencies (school, and parents, sport orgs) –duty to render essential emergency medical assistance.

a duty to perform at the level expected of a person with the training, knowledge, and skill of a member of the profession

Ministerial and Discretionary

clearly defined; a little room for interpretation. A person performs in a prescribed manner without regard to or the exercise of his/her own judgment.

performs on the basis of judgment or choice

This is NOT a defense. This is a way of explaining how much risk can be assumed

• oUnder age 7 – assumes no risk
• oAge 7-13 – can assume some risk
• oAges 14-21 – can assume some (most) risk, but not all
• oAdults – assume most risk but not in situations when risk is not understood. (most being 99%)

(act of nature, to get away fromreligious fight) – caused by nature (struck by lightning)

can be used whenan employee (defendant) is acting on behalf of the employer and a tort isincurred; the employer must accept the responsibility. ( you are taking ids at the gym and your bosssays let him in, and they get hurt)

• Act of God
• Respondeat (latin) Superior
• Waivers/releases
• Sovereign immunity/other immunity statutes
• Recreational land use statutes
• Failure of proof or no negligence
• Statute of limitations
• Notice of claim
• Any contract, facility lease
• Equipment rental agreements
• Any applicable law – (ie, Volunteer Protection
• Act)

when suing some governmental bodies, plaintiff must first file a notice of claim. If they don’t, case can be thrown out until this is done.

when suing some governmental bodies, plaintiff must first file a notice of claim. If they don’t, case can be thrown out until this is done.

• General
• Specific
• transitional

• Adequate staffing
• Responding to emergencies
• Checking facility – maintain safe environment
• Warning patrons of hazards
• Controlling patron behavior

• Clients involved do not appreciate the risks of the activity (life guard, people don’t understand risk of swimming).
• Clients cannot access their own physical or skill level
• Clients cannot understand and follow safety rules and procedures

• The employee bears the cost of insurance in return for some immunity from lawsuits by employees for negligence.
• The worker receives compensation for lost income and medical expenses (1/2-2/3 of salary)
• Workers must file a claim to receive money; show injury was on the job.
• Cannot receive money for pain and suffering
• If the employee files a lawsuit, they generally forfeit right to money from workman’s comp.
• Can cover volunteers – prevent lawsuits

• Voluntary assumption of interpersonal relationships. (No duty owed unless a relationship is created and Good Samaritan laws and Worsening the condition)
• Any form of written law, business invitation, or judicial decision – if from a law – statutory
• Inherent in the situation

acting beyond the scope of duty

• Primary assumption of risk
• Secondary assumption of risk
• comparative negligence

plaintiff usually cannot recover for an injury if they: Had knowledge of dangerous elements , Understood the nature and extent of danger, and Subjected oneself to the danger

• Did something to contribute to their injury (book decided to play on a poor field ie, rain, field is wet)
• Some states do not separate primary and secondary

• Physical layout of facility
• Facility condition (environment and floors)
• Client: Age and maturity, physical condition, and skill level
• Differences in activity – specific risks

Duty

• pure comparative rule
• 50% rule
• 49% rule
• slight gross

uses absolute percentages when trying to figure out who contributed how much to an injury

an equally negligent plaintiff is permitted to recover. (pay 50% of what the court awards

an equally negligent plaintiff doesn’t get anything.

whatever the court decides. “was your negligence slightly gross” there is no clear cut amount.

requires adherence to the specific standard of care applicable based on the situation