Overview of Negligence
Estlablishing a Negligence Claim
Defenses
Risk/Release Information
Statement from General Counsel
Overview of Negligence
It is important to understand what things a court of law will look for in order to establish liability on the part of an individual or organization. With this general knowledge, student group leaders can create a framework by which they can attempt to proactively plan their events as well as problem solve as the need arises. Generally, there are two theories of liability in which students and their organizations will be held liable by a court of law: TORT and CONTRACT.
Tort is a civil wrong in which someone either intentionally or negligently causes harm to another person and that person seeks compensation for his or her injuries. The most frequently used theory is negligence. Negligence occurs when someone has a duty to another and breaches that duty, and the person to whom the duty is owed actually suffers an injury as a result of the breach.
For example, you walk into a grocery store to shop. Store employees know that customers like you come in to shop so it is their responsibility to make sure the aisles are safe. As you go around a corner to get to another aisle, you slip and fall on a brown banana peel and you break your ankle. The store is liable for your injuries because it breached its duty to provide safe aisles for you to walk down so that you could shop. The banana peel is foreseeable (meaning predictable) to reasonable store employees because it was brown, indicating that the peel had been there for a while, and because it was an item sold in the store, something that could fall out of a display case or out of another shopper's cart. So if the store employees had periodically walked around the store, they would have noticed the banana peel and cleaned it up. Since they did not, you were harmed and now the store and its employees must pay. That is how negligence generally works. Now, it is time for a more in-depth look at some of the areas in establishing a negligence claim, how the big money is obtained, and what defenses are used to avoid liability.
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Establishing a Negligence Claim
The most important part in establishing a negligence claim is that a person has a duty to another person. The general rule is that one person does not owe a duty to another person. Turning back to our example, if you are walking down the street and you slip on a brown banana peel, you cannot sue the person who just walked by you in the other direction, indicating she just passed the banana peel but did not warn you about it. The fact is that she does not owe you a duty so she does not have to say a word to you about the banana peel. Again, the general rule is that people do not ordinarily owe a duty to another person.
One way the court establishes duty is also the whole reason we have risk management today. That method is to use a cost benefit analysis to determine individual and group liability. In looking to determine whether someone will be held negligent, courts will often look at a person's burden of choosing an alternative ("B") and weighing that burden against the chance of a risk materializing ("P") and the size of the consequence if that risk happens ("L"). This is called "BPL Analysis." Using a simple greater than/less than approach, if the B is greater than the P and L, then the court will find that no duty existed between an individual or group and the victim. On the other hand, if the B is less than the P and L, the court will find that a duty existed between an individual or group and the victim. An example should help clarify this concept.
For example, if the court determines that the burden on a student group is minimal to provide training for participants involved in its gymnastics marathon and that the risk of injury is likely and could be severe, the court will most likely find that the group was negligent in its duty to train participants and thus will be responsible for injuries to participants that occur during the group's event. The court will analyze the costs involved to determine if it is easier for the group to spend a little time and money training participants in proper gymnastics techniques than the risk of injury and the severity of the injuries that are possible stemming from gymnastics. At times, the issue of liability is really relegated to an issue of time and planning (preparation) versus the likelihood of risk and the severity of the risk-the net result being money.
Beyond the general methods for establishing duty, there are specific ways also. Here are three examples (Please note that there are a lot more ways to establish duty beyond these three):
First, the easiest way is to violate a state statute like serving alcohol to a minor or hazing someone in your organization. Since Texas state law is set up to protect minors and those in inferior positions, you are responsible for making sure that you and your group follow the law. If members of your organization break these laws and you know or should know about it, or if you were also a part of it, then you and the group will be held liable for whatever harm the individual suffered as a result of the alcohol or hazing.
Second, like the grocery store, you could be liable if you invite people to your own house, allow people to use your equipment, or use your car to transport people. Your liability comes when something happens to them while visiting your house, using your equipment, or riding in your car If the harm they suffer is due to something you intentionally did or something you knew or should have known could have hurt your guests like a wet floor, a loose step, or driving with bad brakes, then you are liable.
Third, if you take it upon yourself to create a duty to someone else, then you are responsible for any harm that comes to them that you could have anticipated happening as a result of your action or inaction. For example, you are a leader in your group and you tell a new member to get something from the store for you. You give this directive knowing the person has been up for the past eighteen (18) hours helping your organization in a community service project. While driving back from the store, he falls asleep at the wheel and is injured. These facts set you and your organization up for potential liability. As a leader, you owe members a duty of care when you actively create a dangerous condition. You must exercise reasonable care to avoid injury to others. In other words, if you know someone in your organization has labored for long hours that would make a person tired yet you send him out driving in the dark, then you may be potentially responsible for the harm that comes to him and others.
Beyond establishing duty, what caused the victim's injury becomes very important in establishing a negligence claim. Direct causation (the injury was in a direct and unbroken chain of events which caused the injury) and proximate causation (reasonably being able to anticipate/ foresee the harm occurring) are also issues to prove once you have established duty. Finally, the victim must show that he or she was, in fact, harmed by your negligence. The mere apprehension of harm or anticipation of harm is generally not enough to show injury. This, in a nutshell is negligence. There is more to it than this abbreviated version but you get the idea.
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Defense to Liability
To keep tort claims in check, the legal system has also created some safeguards for itself and the accused in these cases. One method is to deny recovery to a victim who is comparatively negligent meaning that he was also negligent and that negligence helped cause his injuries as well. If his contribution to the negligence pot was fifty percent (50%) or greater, then he will not recover in the State of Texas for his injuries. Under this concept of "proportionate responsibility" also comes "assumption of the risk." In the State of Texas, there is no separate defense of assumption of the risk. Assumption of the risk is only used as a method of helping to show the victim's proportionate responsibility to the accident.
So, turning back to our grocery store example, the store employees could claim that you were also negligent because you did not see the banana peel when it was clearly in your plain view. Perhaps the store found witnesses to testify that you were drunk while you were shopping or were racing your cart around the store recklessly. All of those things can go to show that you too were negligent and that your negligence helped cause your injuries. If the store can show that you were at least equally responsible for the accident that caused your injuries, then you recover nothing. The court does not like to reward careless or dangerous people who help cause their own injury.
Another method of defense is when an "Act of God" or an unavoidable accident occurs. For example, two participants in a canoeing outing drowned as the result of an unexpected storm. The organizers of the event did everything they could to make the event safe for participants but, ultimately, a storm killed two participants when their canoe capsized and they both drowned. The organizers of the event used the "Act of God" defense to rebut the argument that they were negligent. The court agreed finding that the storm caused the participants' deaths and not the organizers planning and supervision of the activity. The storm was out of the control of the organizers.
This is truly a watered down version of tort liability. You now have some of the general concepts that courts use in the State of Texas to arrive at assessing liability in a given case. Hopefully, you will think about these principles and keep them in mind when you are involved in planning your group's activities or exercising judgment in day-to-day functions.
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Risk/Release Information
It is important that participants are warned of the dangers inherent in an activity and that they sign a document stating they understand this danger and assume the responsibility for themselves. This form is a legal document and should be presented as such. It is a good idea to have everyone sign such a form at the time they join or pay dues and then again before any event that carries with it some risk. This may seem like a lot of paperwork but, in reality, it may become important in the long run.
In addition to signing the form, you should go over with participants the possible dangers they may encounter while engaging in the activity. Try to be as comprehensive as possible based on what the normal dangers are associated with the activity. Through this activity, participants are now aware of what is involved in the activity and then can choose to assume the responsibility of engaging in the activity for themselves.
Here are steps you can take when working with assumption of risk forms:
- Have at the top of the document in noticeable print the heading "Assumption of the Risk Form," or something similar.
- Make sure there are blanks so that the organization's name, the participant's name, and the name and type of event can be filled in.
- In the actual text of the form, you should include language that participation in this sort of activity has certain risks related to it.
- There should also be blank spaces following this text for known risks related to the activity to be done.
- After these blanks, you should have text which makes the participant "hold harmless and indemnify the Sponsor" (this shows that the participant has read the risks involved and holds the organizer not liable in case something happens to the participant).
- It is also a good idea to have something in the text of the form about the participant giving consent for medical treatment in case of injury. That way, you already have the person's consent in case of unconsciousness, etc.
- Most important, make sure you have blank lines at the bottom so the participant can sign and date the form acknowledging the fact they read and understand what they just signed.
The one thing to keep in mind in the State of Texas is that these waivers, by themselves, do not insulate an event organizer from liability. In Texas, the court will use the assumption of the risk as a way to compare who was most negligent. Being a comparative negligence state (in Texas, it is called "proportionate level of responsibility"), the court will weigh into its consideration the fact the victim signed the assumption of the risk form to determine the percentage of fault by each party involved in the injury or accident. The good part about Texas' law is that if your club is dealing with a business and something happened to one of your member's participating in an event under the control of that business (skydiving for example), that person might be able to have his or her injuries paid for by the company. Just because he or she signed a waiver form does not mean the company is off the hook especially when it was negligent and the injury was not caused by the inherent danger of the activity itself. A waiver does not always mean absolute immunity from liability.
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Statement from General Counsel
In this memorandum, the General Counsel will address the various issues relevant to the analysis of whether, and to what extent, liability on the part of advisors to student organizations may exist.
General Counsel Memo regarding potential liability (pdf)
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