Overview of Liability

Student organization leaders and advisors should understand how a court of law may establish liability on the part of an individual or organization. With this general knowledge, student group leaders can create a framework in which they  proactively manage their risks and effectively resolve problem situations. There are two main theories of liability under which students and their organizations may be held liable: tort law and contract law. The Liability section of the Student Organization Manual provides a brief summary of negligence and information about waiver/release forms for student organizations, and the Contracts section of this site provides in-depth information about safe and successful contracts. If you are considering purchasing insurance for your organization or for a specific event, please contact Cynthia Olvera on the Risk Management team at (979) 458-4371.

A "tort" is a civil wrong in which someone either intentionally or negligently causes harm to another person and that person seeks compensation for his/her injuries. The most common tort is "negligence," which occurs when someone breaches a duty that he/she has to another person, and the person to whom the duty is owed suffers an injury or damages as a result of the breach.

Establishing a Negligence Claim

There are many considerations in establishing a negligence claim, but first and foremost, it must be clarified whether or not one person has a duty to another. People do not owe duties to every other person without a specific relationship connecting them. (For instance, if you are walking down the street and you slip on a banana peel, you cannot sue the person who just walked by you in the other direction because he/she did not warn you about the peel.) However, if there is a relationship between two people or parties that indicates a duty to the other, negligence may be established for any foreseeable injuries. (For instance, if you slip on a banana peel in a grocery store and break your ankle, the store may be liable for your injury because it breached its duty to provide safe aisles for you to shop.)

Some other methods or situations in which a duty may be established include:

• Cost Benefit Analysis: 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." If the B is greater than the sum of P and L, then no duty existed between an individual or group and the victim. If the B is less than the sum of P and L, a duty existed between an individual or group and the victim. For example, if the court determines that the burden on a student organization is minimal to provide training for participants involved in its sporting event, and that the risk of injury is likely and could be severe, the group may be found negligent if it fails to train participants and someone gets injured at the event. (Remember that it is less expensive to proactively plan for the safety of your members and participants than to deal with the aftermath of risks being realized!)
• Violation of a State Statute: Texas state law seeks to protect minors and those in "inferior" positions, such as student organization members subject to their organization's leaders. Therefore, student organizations can be held liable for violations of state statutes that result in injuries. Some examples of violations that cause foreseeable injury include serving alcohol to a minor or hazing members of the organization.
• Facilities Risks: Individuals or groups can be held liable for injuries that occur when others are invited to use the person or group's facility, equipment, transportation, etc. If the harm suffered by the victim is due to an intentional action or inaction, a negligence claim may be established. Examples might include a student organization member slipping on a wet floor in the group's house or injured in a car accident on an organizational road trip in which someone knew that the car had bad brakes.
• Directives that establish Duty: Individuals sometimes create a duty to others, making them therefore responsible for any harm that comes to the other(s) that could have been anticipated. Therefore, it is imperative for student organization leaders and advisors to intentionally avoid dangerous conditions and situations, exercising reasonable care to avoid injury to others.

Beyond establishing duty, the cause of the victim's injury becomes very important in establishing a negligence claim. Causation can be direct, meaning that the injury was in a direct and unbroken chain of events, or proximate, meaning that the individual or group should have reasonable been able to anticipate or foresee the harm occurring. Finally, the victim must show that he/she sustained an injury or damages because of the negligence of the other individual or group.

Defenses for Negligence

There are several defenses for the accused in negligence cases. First, the individual or group may try to disprove the establishment of the negligence claim as described above, perhaps arguing that the injury was not foreseeable or that no duty was owed to the victim. Second, causation of the injury may be questioned. One method is to demonstrate that the victim's personal negligence contributed at least 50% to his/her injuries. (Under this concept of "proportionate responsibility" also comes "assumption of the risk." In the state of Texas, there is no separate defense for assumption of risk; it is only used as a method of helping to show the victim's proportionate responsibility to the accident.) If the defendant can show that the victim was at least equally responsible for the accident that led to the injury because of his/her careless or dangerous behavior, the courts will not award damages to the plaintiff.

A third method of defense is when an "Act of God" or other unavoidable accident causes the injury. Defendants must demonstrate that the unavoidable or unforeseeable accident itself caused the injury, and not the lack of planning or supervision for the activity. Considering these defenses, doing your best to mitigate risks (preventing the injuries in the first place!) and effectively managing emergency situations with your student organization are the best ways to avoid a negligence claim.

Waiver/Release Forms

To protect your organization, it is vital that participants are warned of the dangers inherent in your activities and that they sign a document stating they understand this danger and assume the responsibility for themselves. You should comprehensively discuss the risks present in your event or regular activities with your participants, to ensure that all members are participating willingly and knowingly.

The Department of Student Activities has a standard waiver that can be adapted for your organization's use by describing your activity in the Indemnity Clause. Should you develop your own forms for any events or activities, be sure to include at least the following information: 

1. A clear and visible heading, indicating that this is an Assumption of Risk form;
2. Spaces for the organization's name, the participant's name, and the name of the specific event;
3. A detailed and specific description of the risks involved in your activity;
4. A statement that has the participant "hold harmless and indemnify the Sponsor," indicating that the participant has read the risks involved and holds the organizer not liable in case of an injury;
5. A statement that has the participant give consent for medical treatment in case of injury; and
6. A clear space for the participant to sign and date the form indicating his/her understanding and acknowledgment of the previous information.

Please note that in the state of Texas, waiver forms themselves do not ensure that an event organization is insulated from liability. Courts will use the "assumption of the risk" to determine whether or not a participant contributed negligence to his/her injury. Even if a participant has signed a waiver form, you still owe that person a duty to effectively train him/her for the activity, maintain your equipment, and supervise the activity properly to avoid potential injuries.

Liability for Student Organization Advisors 

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)