Negligence is unintentional harm to others as a result of an unsatisfactory degree of care.
It occurs when a person NEGLECTS to do something that a reasonably prudent person would do.
It also occurs when a person does something that a reasonably prudent person would NOT do.
In other words, negligence is the failure to exercise reasonable care. Risk management is
the action taken to prevent negligence and to prepare for the possibility of a negligent
In a negligence lawsuit, the person who is injured (the Plaintiff) files a legal suit claiming
the person being sued (the Defendant) acted negligently. The Courts must consider the following
All four of the following must be demonstrated for a legal claim of negligence to be successful:
Duty of Care applies only to people for whom harm can be reasonably
foreseen. The key here is reasonability. Did the defendant foresee
the incident that caused harm? This is often the clearest point of the
Standard of Care is a much more complicated issue. The courts are required
to decide two things:
This issue decides most negligence cases. The general factors on
which the court bases its decision are:
Actual Harm is the assessed value of your loss.
Damages can be calculated from the following:
After defining negligence, the courts must next decide who
is liable for the negligence. In other words, finding who
will actually take responsibility for the negligence.
In the sports and recreation field, there are four possibilities
where liability for negligence can be assigned.
However, Recreation Land Use Statutes may protect the owner or occupier.
What are Recreation Land Use Statutes?
This means that a landowner cannot be held responsible for an accident on
his property if the conditions that lead to the accident were not
foreseeable. This is not applicable if the landowner charged a fee for use
of his property.
Clearly, the best way to escape liability is not to be negligent.
After an incident, the courts decide if there are any circumstances
under which the defendant can escape being held liable. Defenses
against negligence are:
(1) Not as great as 50%
(2) Not greater than 50%
Certain steps should be taken in the event of a possible lawsuit.
First, you need to contact your superiors, inform them of what has
happened and discuss with them the steps that will be taken. Next
document the details of the incident. This documentation may prove
to be important information for your defense down the road. Lastly,
you need to deal with the media. You need to decide how you want to
handle the publicity the incident may genereate and handle the media
Contact Your Supervisor
You should immediately contact your organization’s senior officials,
who will then advise the insurers. By virtue of the terms of liability
insurance policies, the insurer is entitled to conduct the defense of
any lawsuit instigated against its insured. The insurer will also
retain lawyers on behalf of the organization and its employees.
Depending upon the factual circumstances surrounding the incident,
the organization’s insurance may or may not apply. Coaches and
administrators should always request confirmation as to whether or
not the insurers will be protecting their interests. In the event
that the organization’s insurance coverage will not be provided, you
will have to retain an attorney of your own.
Documenting the Details
It is VERY IMPORTANT to document all details of the incident.
These notes should include the safeguards taken to avoid the accident,
details of how the accident occurred, information on all witnesses,
and the treatment and emergency procedures taken after the incident.
Any logbooks kept on a regular basis will also be important.
The more information you collect, the more you will help your
attorneys. A sample of an incident report form can be found in the
Dealing with the Media
The media are a difficult group to deal with. If you are unsure
how to handle the media, it is best to wait until you can speak with
your attorney. Together you can decide whatinformation will present
to them and how you will present it. If you are making an oral
statement, thoroughly prepare what you will say before speaking to
the media. Remember, once you make a statement, you cannot take it
back or revise your wording. If you prefer, you may issue a press
release. This gives you the luxury of stating exactly what you want
to state with the correct wording, while keeping the media informed.