Sports Law in a Nutshell by Walter Champion Jr

Author:Walter Champion, Jr.
Language: eng
Format: epub
ISBN: 9781634605809
Publisher: West Academic
Published: 2017-03-17T04:00:00+00:00

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CHAPTER 13

TORT DEFENSES

A.GENERALLY

There are many defenses that the stadium owner or team owner or school district can use in their attempts to avoid liability. The preeminent defenses are assumption of risk, contributory negligence and comparative negligence.

B.ASSUMPTION OF RISK

Assumption of risk can be defined as a voluntary assumption, expressed or implied, of a known and appreciated risk. A participant or a spectator who assumes the risk created by the conduct of another cannot recover when harm in fact occurs.

In sports or recreational activities, the plaintiff will assume the ordinary risks of the game; however, he does not assume the risk of injury from a violation of a duty owed him by the promoter or stadium operator and thus is not precluded from recovery for injury that results from their negligence. This duty will include reasonable care in the construction, maintenance and management of the facility and reasonable care with regards to the character of the exhibition and the customary conduct of invited patrons. But the operator is not an insurer of the safety of the plaintiff. For recovery for injuries sustained in a sports facility, the participant or spectator must prove both that specific acts or omissions constituted a breach of 300

defendant’s duty of care and that the breach was the proximate cause of the injury.

Professional baseball park operators are required to provide seats protected by screens for as large a number of patrons as may reasonably be expected to call for such seats on an ordinary day of attendance. A breach of this duty may constitute negligence which would make the operator liable to injured spectators. It is generally held that a spectator who has knowledge of the game and takes an unprotected seat will assume the risk of injuries from thrown or batted balls and thus cannot recover for those injuries when they occur.

Assumption of risk was once an impenetrable and monolithic defense. This, however, has markedly changed in recent years. Recovery is now allowed for injuries which result from safety violations. Nabozny v. Barnhill, 31 Ill.App.3d 212, 334 N.E.2d 258 (1975). Plaintiff can also recover for the intentional misconduct of another participant. Bourque v. Duplechin, 331 So.2d 40 (La.App. 3 Cir.1976). Participants also might recover when the injury was caused by the negligent acts of third persons, usually coaches or referees. Nabozny and Bourque both involved participants, as opposed to spectators. Voluntary participants usually are viewed to assume all risks that are incident to the contest which are also obvious and foreseeable.

Spectators assume the risk of hazards incident to the game. Spectators assume the risks that are a matter of common knowledge. Courts have allowed recovery where the risk of the sport was not 301

considered common knowledge. Spectators will assume only the ordinary and inherent risks of attending sports activities. For example, a swinging gate at a baseball game and a baseball flying into an interior corridor are not ordinary risks and thus will not preclude recovery.

Spectators will also not assume the risk of unreasonable conduct by participants, e.

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