Legal
May 10th, 2012
The Ball is in Your Court
By Katharine M. Nohr, JD
Nohr Sports Risk Management, LLC
Recently, Hawaii was hit by unexpected tornadoes, hail and thunder and lightning—weather events that are rare for the islands. Tornadoes are more common on the continental United States, with foreseeability resulting in better preparedness. Hopefully, your sports facility did not suffer any damage from the tornadoes that recently struck Kentucky, Indiana and Alabama. Even if your area is not accustomed to experiencing weather events such as tornadoes, consider that tornadoes have even struck Hawaii when doing your disaster planning.
Weather and Natural Disaster Risk Assessment
In assessing your organization’s weather and natural disaster risks, identify what possible weather related risks that your facility faces. Once those risks have been listed, the likelihood of such risks should be assessed. For example, your region may have frequent lightning storms, intermittent hurricanes and tornadoes, and very infrequent cold spells. Your risk management planning should focus on lightning storms, tornadoes and hurricanes, by developing detailed action plans for such events. Addressing cold spells should be a lower priority.
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March 22nd, 2012
Jen Rose
Assistant Director, Sports and Youth & Family Programs
Southeast Missouri State University
Many people involved with the operation of camps and youth programs feel an obligation to protect and support the kids who become involved in their programs, but it is important to know that for most of us it is also a legal obligation.
“Approximately 48 States, the District of Columbia, American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the Virgin Islands designate professions whose members are mandated by law to report child maltreatment” as stated in the Child Welfare Information Gateway in 2010. If your camp falls into one of the above mentioned geographical areas the counselors are most likely required, by law, to report issues. The US Department of Health & Human Services points out that although laws vary from state to state, typically a report must be made when during the course of your job you suspect a child has been abused or neglected, or you observe or have knowledge of a situation in which conditions could result in harm to the child. Mandated reporters can be held legally responsible if they ignore this obligation.
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March 22nd, 2012
The Ball is In Your Court
Katharine M. Nohr, Esq.
Nohr Sports Risk Management, LLC
Hosts of indoor spectator sports have the challenge of providing safe viewing to attendees. In a recent case decided by the Court of Appeals in Oregon, Matson v. Oregon Arena Corp., 242 Or.App. 520, 256 P.3d 161 (2011), the court affirmed a $2,125,000 award of damages to an attendee who sustained damages when she fell 40 feet from a railing in the arena. A jury had found Oregon Arena Corporation (OAC) 50 percent at fault for the injuries that the Plaintiff sustained. The accident occurred when the Plaintiff fell from a railing that enclosed the 300-level smokers’ lounge during a Portland Trail Blazers basketball game at the Rose Garden. Plaintiff alleged that OAC did not post any warning signs regarding the risk of falling, did not have a barrier that would prevent customers from falling and did not implement adequate policies or procedures requiring its employees to warn customers of the danger of sitting on the bench-like platform from which Plaintiff fell. Plaintiff also alleged that the nighttime lighting was insufficient, the bench-like platform gave an impression that it was safe for seating, and that there should have been a video security surveillance system in order to protect customers from harm. The appellate court’s published decision primarily addressed issues regarding jury instructions and did not provide details of how OAC was negligent.
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January 17th, 2012
A recent decision upholds a Waiver of Liability and Assumption of Risk Agreement
Shelley Timms, B.A., LL.B., LL.M.
Timshel Services Inc.
Alcohol Risk Management
Timshel@timshelservices.com
The British Columbia Supreme Court recently revisited the issue of the validity of Waiver of Liability and Assumption of Risk Agreements as a complete defence even when there is clear negligence.
In Loychuk v. Westgeest v. Couger Mountain Adventures Ltd et al. (decided in early 2011), two women in separate groups participated in a Zipline package. On one section of the Zipline, one of the women got stuck halfway from the start point and the second woman collided into her a high rate of speed, causing injury to both. There was no question that the Zipline guides did not communicate and the second woman should have been held back until the first was brought down.
However, both had signed a waiver of liability/assumption of risk agreement. The defence argued that that should be the end of the matter as the waiver was all encompassing, including the exclusion of liability due to the negligence of the company’s employees.
The plaintiffs argued the following:
- That the release was unenforceable because it was reasonable to know that the plaintiffs were not consenting to the terms at issue and the company failed to take steps to inform the plaintiffs of the terms; in other words there was a misrepresentation by omission;
- That the release was unconscionable;
- That the release was contrary to the Business Practices and Consumer Protection Act (British Columbia) by reason of deceptive and/or unconscionable acts by the company;
- That the release was obtained without consideration (money).
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