Conduct that harms other people or their property is generally called a tort.  It is a private wrong against a person for which the person may recover damages.  The injured party may sue the wrongdoer to recover damages to compensate him for the harm or loss caused.  The conduct that is a tort may also be a crime. A crime is a wrong arising from a violation of a public duty.  A tort is a wrong arising from the violation of a private duty.  Again, however, a crime can also constitute a tort.  For example, assault is a tort, but it is also a crime.  A person who is assaulted may bring charges against the assailant and have him prosecuted criminally and may also sue the assailant for damages under tort law.  An employee’s theft of his employer’s property that was entrusted to the employee constitutes the crime of embezzlement as well as the tort of conversion.

There are three types of torts: intentional torts; negligence; and strict liability.  An intentional tort is a civil wrong that occurs when the wrongdoer engages in intentional conduct that results in damages to another.  Striking another person in a fight is an intentional act that would be the tort of battery.  Striking a person accidentally would not be an intentional tort since there was not intent to strike the person.  This may, however, be a negligent act.  Careless conduct that results in damage to another is negligence.

Generally, liability because of a tort only arises where the defendant either intended to cause harm to the plaintiff or in situations where the defendant is negligent.  However, in some areas, liability can arise even when there is no intention to cause harm or negligence.  For example, in most states, when a contractor uses dynamite  which causes debris to be thrown onto the land of another, causing damages such as broken windows, the landowner may recover damages from the contractor even though the contractor may not have been negligent and did not intend to cause any harm.  This is called strict liability or absolute liability.  Basically, society is saying that the activity is so dangerous to the public that there must be liability.  However, society is not going so far as to outlaw the activity.

Products liability is major area of sports tort law. Participants use all different types of sports-related equipment. Products liability refers to the liability of any or all parties along the chain of manufacture of any product for damage caused by that product. This includes the manufacturer of component parts, an assembling manufacturer, the wholesaler, and the retail store owner. Product liability suits may be brought by the purchaser of the product or by someone to whom the product was loaned. Products liability claims can be based on negligence, strict liability, or breach of warranty of fitness.[1]  In a strict liability theory of liability, the degree of care exercised by the manufacturer is irrelevant. If the product is proven to be defective, the manufacturer may be held liable for the harm resulting from the defect.

Negligence

Negligence is the failure to follow the degree of care that would be followed by a reasonably prudent person in order to avoid foreseeable harm. A person can be negligent if he or she acts with less care than a reasonable person would use under similar circumstances.

Ben drove a car on a country road at 35 miles an hour. The maximum speed limit was 45 miles an hour. He struck and killed a cow that was crossing the road. The owner of the cow sued Ben for the value of the cow. Ben raised the defense that since he was not driving above the speed limit, there could be no liability for negligence. Was this defense valid? No. A person must at all times act in the manner in which a reasonable person would act under the circumstances. The fact that Ben was driving within the speed limit was only one of the circumstances to consider. The weather or the condition of the road may have made it unreasonable to drive at 35 miles an hour. Driving slower than the speed limit does not in and of itself prove that the driver was acting reasonably.  The reasonable person standard varies in accordance with the situation. Generally, when a jury is involved, what is reasonable are what members of the jury believed is reasonable.

The degree of care required of a person is that which an ordinarily prudent person would exercise under similar circumstances. This does not necessarily mean a degree of care that would have prevented the harm from occurring. This degree of care varies. For example, if one is engaged in a service involving skill (such as a medical doctor) the care must be measured in light of what an ordinarily prudent skilled person (e.g., doctor) would be. The question the jury seeks to determine is what care and skill would reasonably be expected under the circumstances involved in the case. Plaintiff must prove that: 

• The defendant owed a duty of care to the plaintiff;
• The defendant breached that duty to the plaintiff;
• The conduct of defendant was unreasonable;
• The defendant was the proximate cause of the breach of duty; and
• There is evidence of damages.

 If the plaintiff fails in proving any of these points, the plaintiff’s claim should not succeed. In order for someone to be legally responsible for damages, it is necessary to show that the wrongful act was the cause of the harm. The legal term is that the act must be the proximate cause of the harm.

The final element of negligence is damages. A plaintiff may recover monetary damages to compensate the plaintiff for economic losses such as lost wages and medical expenses. A plaintiff may also recover non-economic losses such as for pain and suffering. Punitive damages may also be appropriate. Punitive damages are designed to punish the defendant for his wrongdoing and are generally only appropriate if the plaintiff can prove gross negligence or willful misconduct.

Contributory Negligence versus Comparative Negligence

If the negligence of the plaintiff is partially responsible for his harm, his recovery from the defendant may be reduced or barred. This is called contributory or comparative negligence. In a small minority of states, the contributory negligence rule states that if the plaintiff contributes to his harm, he cannot recover from the defendant. In most states, this rule has been rejected because it has been regarded as unjust in situations where the plaintiff’s negligence was slight in comparison to the defendant’s negligence.

Comparative negligence provides that there should be a comparing of the negligence of the plaintiff and the defendant. This is the rule followed in most states. The negligence of the plaintiff would not bar recovery in these states, but would only reduce the plaintiff’s recovery to the extent that the harm was caused by plaintiff. For example, if the jury decides that the plaintiff has sustained damages of $100,000.00, but that his own negligence was one-fourth the cause of the damage, the plaintiff would only be allowed to recover $75,000.00.[2]

Assumption of risk is a defense which a defendant can raise which basically states that the plaintiff has knowingly assumed the risk of the harm that was caused. A fan hit by a basketball at a basketball game has assumed the risk of getting hit because it is a known danger that basketballs sometimes go into the stands because of a bad pass or if a player misses a pass. 

Gross Negligence

What happens when sports participants break the rules so badly that it appears the sole purpose of a player was to injure another player intentionally during a game?. This level of recklessness is difficult to prove. However, if the plaintiff is successful, the plaintiff may recover punitive damages for the outrageous conduct of the defendant in addition to the general damages (e.g., medical bills and loss of wages).

Spectator Injuries

While most sports torts involve personal injuries caused by participants against each other, a spectator to a sporting event might be injured. Some examples are foul balls, deflected hockey pucks, and flying debris (at a Nascar event). In such an event, who is responsible for the spectator’s injuries?  Does the owner of a stadium have a duty to warn or protect spectators from foul balls or other foreseeable injuries?  American courts have refused to allow recovery for injuries to spectators caused by the open and obvious rules of the game, particularly when it comes to foul balls. On the other hand, what about other sports, such as golf, hockey, and football when an activity on the field might impact the fans in the stands (e.g. fights between spectators)? Does an owner of a stadium owe a duty to spectators to prevent all foreseeable injuries, or does common sense impose some duties on the spectators themselves? Do cities and counties have to warn recreational swimmers that diving into shallow water could expose them to a risk of danger?  It is wise to post signs that warn of potential dangers but to warn of all possible dangers are clearly not possible in the sports context.  If a sign is at issue, the adequacy of the posting of the sign is usually the focus of the analysis.

In 2002, a 13-year-old girl died after she was hit in the head by a hockey puck that shot over the glass during the Columbus Blue Jackets NHL hockey game in March 2002.  She died two days after she was hit. The ticket stubs had warnings about the dangers due to flying pucks. It is unlikely that such warnings provide an absolute defense to death from flying pucks.

When large crowds gather for sporting events, there is a greater likelihood of injuries to spectators. Balancing fun, safety, and security have been an issue for organizers of events for many years. A person who operates a place of public amusement or entertainment must exercise reasonable care with regard to the construction, maintenance, and management of his buildings or structures and his premises, having regard to the character of entertainment given and the customary conduct of persons attending such entertainment. The operator must employ sufficient personnel to maintain the premises in a reasonably safe condition. He or she must use ordinary care to maintain the floors and aisles along which patrons are expected to pass in a reasonably safe condition for their use; and this principle has been applied in cases where personal injury resulted from a slippery floor, aisle, ramp or walkway, defective carpet, or the presence of an object the floor or in the aisle.

Res ipsa loquitur is a Latin term meaning the thing speaks for itself. It is a doctrine of law that one is presumed to be negligent if he/she had exclusive control of whatever caused the injury even though there is no specific evidence of an act of negligence, and the accident would not have happened without negligence. The traditional elements needed to prove negligence through the doctrine of res ipsa loquitur include: 

• The harm would not ordinarily have occurred without someone’s negligence;
• The instrumentality of the harm was under the exclusive control of the defendant at the time of the likely negligent act; and
• The plaintiff did not contribute to the harm by his own negligence.

The res ipsa loquitur doctrine has been applied in actions for injuries caused by the falling of various objects in theaters or other public places of amusement or exhibition, including: 

• The fall of an object or substance from the ceiling;
• The striking of a traveler on the public streets by a baseball which came over a fence surrounding a baseball park.
• The striking of a fisherman in the eye by his or her fishing companion while the latter was casting. 

In some cases involving defective seats or the collapse of a seat, bleachers, grandstands, a balcony, or the like, it has been held that the doctrine of res ipsa loquitur was applicable, or at least that such a happening warranted the inference that the plaintiff’s injury was caused by the negligence of the defendant. Since the doctrine of res ipsa loquitur generally is limited to those cases where it appears that the instrumentality which caused the injury was under the sole and exclusive control and management of the defendant, the courts have, as a general rule, refused to apply the doctrine where injury resulted from the pushing, crowding, or jostling of other patrons.

Wrongful Death

When somebody dies in consequences of a wrongful act a person, either by negligence or by a deliberate act, such a death is called wrongful death. This is the civil equivalent of the criminal charge of one of the forms of homicide, including murder. Should a sports participant be held liable for the death of another athlete or a spectator? Virtually all sports involve an activity and an aspect of risk that could lead to the death of a participant. It is important for architects and administrators to provide protective screening and appropriate warnings for participants and spectators related to such concerns. What about fights? What about slugging someone in the face with a hockey stick?[3]

Malpractice in Sports

Malpractice is a failure by an physician or other professional to use the care and skill that other members of their profession would use under similar circumstances. When an accountant, doctor, attorney, or some other professional contracts to perform services, there is a duty to exercise skill and care as is common within the community for persons performing similar services. Failure to fulfill that duty is malpractice. What about team physicians and trainers. What if a trainer or doctor employed by a team rather than the player recommends that the injured player participate? To whom does the medical practitioner owe a duty of care, the player or the team? Sometimes this decision is not clear cut. Malpractice is a broad category and could involve anything from an improper diagnosis to the prescription of an inappropriate medication.[4]

Sports Officials

Another area of sports torts involves the officials of games or other sports contests. Officials in sports can greatly affect the outcome of the sports contest. Professional sports such as football, basketball, and hockey have incorporated the use of the television replay to ensure that the often subjective regulation of the sports contest remains as objective as possible. Sports officials, however, are often subject to harassment, intimidation, and sometimes violent, physical or verbal abuse from fans, players, and coaches. Whether at the professional or amateur level, sports officials are often the targets of hostile emotions due to the extreme competitiveness in the sports arena. Due to numerous lawsuits against sports officials for alleged intentional misconduct, states have been forced to enact laws that protect officials and provide immunity from such lawsuits. Immunity from civil suits only applies to unintentional, negligent acts by the officials. This affords the sports official some protection against litigation.[5]

Workers Compensation

For most kinds of employment, state workers’ compensation statutes govern compensation for injuries.  The statutes provide that the injured employee is entitled to compensation for accidents occurring in the course of employment.  Every State has some form of workers’ compensation legislation.  The statutes vary widely from State to State.  When an employee is covered by a workers’ compensa­tion statute, and when the injury is job connected, the employee’s remedy is limited to what is provided in the worker’s compensation statute.

Compensation for injuries to an athlete is a prime subject for any collective bargaining agreement in professional sports that involve a players association or union When players are injured from an activity arising out of and in the course of their employment, the private agreement between the players, team, and league often avoid any necessity of filing a claim under the state’s workers compensation statute.

Since being an employee is a prerequisite to filing a claim under workers compensation, usually only professional athletes may consider filing a claim. Should student-athletes who receive athletic scholarships be entitled to compensation if they suffer a temporary or permanent injury while participating in their sport for their school, college, or university? It seems clear that the student-athlete has not yet been given the right to claim workers compensation since they are not yet recognized as employees. However, the NCAA has a Catastrophic Insurance Plan covering every student who participates in college sports, including managers, trainers, and cheerleaders. One can learn more about this plan by visiting the NCAA website (www.ncaa.org). [6]

Insurance

Since any sports activity involves a degree of risk or injury, it is generally recognized that events and participants should purchase insurance to protect against a claim of negligence arising from that activity. Sports insurance policies do not relieve an individual or event from liability from negligent behavior. However, having insurance does ensure that if a judge or jury believes that damages should be awarded for an injury arising from the activity, the insurance company stands in the shoes of the defendant and must therefore pay in accordance with terms of the insurance policy. Exceptional student-athletes and professional athletes are wise to purchase a policy that covers their own participation in the activity. Such insurance for the professional athlete may be referred to as a career-ending injury insurance and usually requires large premiums to maintain because of the potential for great financial loss, especially at the professional level.

Commercial Misappropriation

Though athletes may find that a successful suit under defamation standards is extremely difficult, an area that proves worthy of a lawsuit involves the use of the athlete’s name, image, or likeness without the athlete’s consent in order to make a profit or sale. Such non-approved use of an athlete’s persona is referred to as commercial misappropriation. Since manufacturers and other sellers of products and services commonly use an athlete in marketing in the form of an endorsement contract, athletes must be cognizant to protect from the unauthorized misuse of their image. Establishing a trademark (including an Internet domain name) for one’s name or image may be necessary for professional athletes (and certainly professional and amateur leagues and organizations) to prevent improper use of a name for profit.

Products Liability

Products liability in sports represents an area of negligence involving a sporting goods. When plaintiffs sue a manufacturer of sporting goods, the claimants allege that they suffered an injury due to the use of a product that was defective. Bats, gloves, shoes, helmets, pads and other goods used in a sport are subject to a lawsuit if there is a defect in the design or manufacturing process. This may be referred to as a manufacturing defect or design defect.

Manufacturers of goods may also be sued for failing to warn the user of potential dangers involving use of the product. Since goods are involved, the Uniform Commercial Code (UCC) is often called into play, and the user of the product alleges that there was a breach of the warranty of merchantability or a breach of the implied warranty of fitness for a particular purpose. UCC Article 2 governs the sales of goods and has been adopted in whole or in part by every state.

[1] Under the Uniform Commercial Code (UCC), which has been adopted in some form by almost all states, there are implied warranties in every sales transaction that the goods sold are fit for the ordinary purposes for which such goods are to be used.

[2] Some states combine the contributory and comparative negligence rules and refuse to allow the plaintiff to recover anything if his negligence is more than 50% of the cause of the harm.

[3] Sports Law at p. 69 by Adam Epstein, Delmar Leaning (2003)

[4] Id. at p. 76

[5] Sports Law at p. 77 by Adam Epstein, Delmar Leaning (2003)

[6] Id.

[7] Id at p. 79

[8] Id at p. 79