UNDERSTANDING LIABILITY RISKS IN SPORTS & RECREATION PROGRAMS The fear of liability for personal injuries oftentimes acts as an unfortunate disincentive for organizations and communities to provide opportunities for physical activity. As a result, agencies or individuals may be less willing to sponsor physical activity promotion programs, e.g., like bike-to-work campaigns, worksite lifestyle programs, or similar efforts. Similarly, such groups and individuals may be reluctant to open their land or facilities for recreational use or physical activity programs.
The preceived fear of liability is caused, in part, by a lack of understanding of the law. For the non-lawyer, one's perception of personal injury liability is generally a product of oftentimes sensational media reports and anecdotal information. Understandably, the "man bites dog" story tends to receive more attention and embellishment than the more commonplace "dog bites man" story. While the "man bites dog" situation may be more newsworthy, it is not a fair representation of reality or the law. Similarly, the media is more likely to report a multi-million dollar lawsuit was filed, rather than report on the myriad of similar lawsuits which are summarily dismissed by the courts.
In a recent example, the media reported the case of a woman who sued a little league ballplayer after his errant throw struck her. Applying generally accepted legal principles governing spectator liability, the trial court dismissed the case. However, in the mind of the public, the mere filing of the lawsuit tends to be equated with liability, regardless of the outcome. It's been said that, short of serious injury or death, being sued is the worst thing that can happen to an individual, regardless of the outcome. As a result, individuals and agencies carry liability insurance of various types to provide for their defense in the event of a lawsuit. Clearly, this is the most obvious solution to managing liability risks associated with physical activity programs, shift the risk to an insurance carrier.
In some instances, liability insurance coverage for various types of physical activity programs may not be readily available or the premiums may be too costly. As a result, groups and individuals may understandably equate the relative unavailability of insurance coverage with a high incidence of liability exposure for those involved with physical activity programs. The market cost of shifting a potential risk to an insurance carrier is not necessarily related to the magnitude of the liability risk itself, particularly in the area of physical activity programs. While the risk of liability in such programs is relatively low, physical activity programs may produce more injuries and potential claims by program participants than more sedentary endeavors. Accordingly, insurance coverage, or lack thereof, may reflect the carrier's claims projections, not the high risk of personal injury liability.
Moreover, the public tends to equate serious injury or death with liability, without regard to fault. Advertisements by personal injury lawyers reinforce this impression: "Have you been hurt in an accident?" If someone is injured in a physical activity, people tend to assume, erroneously, that anyone responsible for providng the program or facility must be liable. Nothing could be further from the truth. Under the law, those providing recreational opportunities and physical activity programs are NOT the insurers of safety, i.e., financially responsibile for any injury regardless of fault.
As a result, the perceived fear of liability is based upon a number of social factors which have little or nothing to do with the actual state of the law. On the contrary, a review of reported court decisions would indicate that liability is the exception, rather than the rule, in situations involving recreational injuries. Personal injury liability for negligence requires that a legal duty is owed to the injured plaintiff and the injury was caused an unreasonably dangerous condition under the control of the defendant. As applied to physical activity programs, mere sponsorship of such opportunties, without direct control over operational details, is insufficient control to impose a legal duty of reasonable care toward participants. Unreasonably dangerous, in this context, presupposes the defendant landowner or program supervisor knows of an reasonable risk of injury which would not have been apparent to the injured plaintiff through the reasonable use of his or her own senses.
The risk of injury associated with most types of physical activity programs are generally known or apparent to participants, particularly in situations involving adults. To avoid negligence liability, individuals and agencies must exercise reasonable care under the circumstances. Reasonableness, however, is a two-way street. The participant has a legal duty to act reasonably and look out for his or her own safety. If the participant fails to do so, the legal cause of any resulting injury is attributed to the participant, not the program supervisior or landowner.