By Leonard K. Lucenko, PhD, BCFE, ASSE, LLC*
American society has witnessed an explosion in the numbers of children and adults engaged -in recreation, sport and fitness activities. As a result, there has been an increase in injuries, liability claims and litigation. There is every indication that sport and recreation litigation will continue to rise because of the litigation mentality in America and the desire for redress for all types of injuries, including serious as well as catastrophic injuries.
Sport and recreation litigation has produced some heated debates about the propriety of behaviors on the part of management and staff, including coaches. Although the increase in litigation has been viewed by some as a negative development, many positive results have been attained. Sport and recreation managers and staff, as well as participants, have become more conscious of safety and the need to promote safe participation. This awareness has contributed to improved teaching and coaching techniques, as well as an awareness of safety in the recreation and sport environment. Rule writing bodies such as the National Federation and the NCAA have changed sport specific rules to reduce or eliminate hazardous conditions or practices which have led to injuries and then to litigation. Safer playing facilities and surfaces have been designed and constructed. This includes local community school and recreational fields which have incorporated safety principles to prevent injuries. Many professional teams have constructed stadia which include risk management and safely features for the players as well as spectators. Additionally, some manufacturers have developed safer game, facility and player equipment. All of the above contributed to the development of legal guidelines as well as standards, which promote safety.
My experience in consultation as a safety expert and risk manager has shown that many attorneys, when litigating sport and recreation matters, have not addressed some key elements of recreation and sport which are important to the proper conclusion of the case. Due to the spe-cialized and wide ranging nature of recreation cases, it has been my experience that certain attorneys neglect to converge on the key actors who need to be interviewed or deposed. Additionally, there has been a problem in focusing on the relevant and important documents which should be requested in discovery. There has been a void in the forensic investigation of the important technical issues related to the circumstances of the injury. Such issues, if addressed properly, -would have provided many facts necessary for the successful litigation of the issues.
Recreation and sport professionals in safety and risk management are able to keep abreast of the ever changing developments in sport and recreation. It is, therefore, important to prepare the case by retaining a professional, experienced and qualified expert. This consulting or litigating expert will assist the attorney in the effective development of discovery documents and in the determination as to -who should be deposed. Attorneys should retain the assistance of the recreation expert in evaluating theories of negligence or defenses. The expert can assist in the preparation of discovery documents, interrogatories and questions for the deposition. This process will focus on the important technical information. This process should be accomplished in an environment of education, clarification and discovery.
An experienced professional recreation and sport risk manager, who has been retained, can effectively assists the attorney during the period of discovery. Such an individual will be able to assist the retaining attorney by providing technical suggestions and recommendations in all areas of discovery.
INFORMATION AND FACTS TO BE GENERATED DURING DISCOVERY
The following are some of the important steps which must be undertaken in sport and recreation litigation discovery process:
CIRCUMSTANCES OF THE INJURY
The accident report filed by the coach, recreation supervisor and the police should be requested. A thorough description of the circumstances by the injured individual together with witness statements. These documents provide the appropriate information about the circumstances of the accident. Included in the information should be the date of occurrence, time and location of the injury, witnesses, equipment, facility, instruction and supervision. This information focuses on the severity of the injury and other relevant facts, which include the action of the injured and the supervisor at the time of the injury and the preceding moments. The condition of the equipment and facilities used at the time of the occurrence should be addressed. If weather was a factor, it should be noted and an analysis made.
The teaching or activity environment should undergo analysis regarding the leadership, supervision and instruction provided to the participants, including the injured party. This written record is important in determining who was coaching, teaching or supervising the participants as well as the location and positioning of the individual at the time of the injuries. Recently, a jury decided that a day care center was negligent when a 4 year old boy died as a result of swallowing a push pin during a rest period. Lugene Johnson for the Estate of Myles Johnson v. Lane Robbins School and Camp, (1990). In this case the estate asserted that the school and the staff were negligent by not supervising the children as they prepared for their rest period. In deciding in favor of the parents and the estate, the jury considered the fact that the supervisors were not vigilant in keeping the floor clean of the push pin which was swallowed by the infant child, and caused his demise. Another key factor in this case was the lack of timely emergency medical care during the child=s period of distress.
It is important, when requesting discovery documents, that the attorney obtain statements of the face to face staff, as well as the individual in charge and any witnesses present who may have seen the accident and injury. This discovery will be invaluable in determining negligence or a lack thereof.
MANAGEMENT AND INSTRUCTIONAL POLICIES AND DOCUMENTS
It is extremely important for the attorney to obtain copies of management and instructional policies and procedures. These materials and documents are the foundation of the educational and recreational environment. They are the blueprints for all activities which are in effect. These specialized documents which include courses of study, teaching manuals, curriculum guides, unit plans, and lesson plans drive the day to day activities of the entity. They also indicate how each aspect of the process is managed. This is important evidence regarding the propriety of actions in light of policies, procedures and standards. These documents show the progression and scope of the techniques or skills to be addressed. They should also provide the proper progression and sequence pertaining to activities or drills in fitness, technique, and tactics in preparation for potential competitive activities. Safety should be a major consideration in any instructional order.
In Battaglia v Recro Leisure, (1991), the plaintiff, a young camper at a day camp who lacked experience in football, was tackled unexpectedly in a touch football game when he did not have the ball and was severely injured. The staff was composed of uncertified high school and college students who were not supervised in the activity. The staff did not have any records or lesson plans regarding the proper instructions which should have been provided to the children. The plaintiff alleged that the defendants were negligent in their failure to provide proper instruction in the rules and techniques of touch football as well as utilizing unqualified teaching and coaching staff. The management of the camp should have, by way of in-service training and lesson plans, provided direction for the proper organization, instruction and supervision of the children. The specific touch football activities should have been taught progressively with emphasis on tagging rather than tackling. There should have been specific requirements for group spacing, individual and group movements, as well as blocking, tagging and other rules and regulations. There was also a complete lack of concern for safety awareness and techniques to be incorporated into the activity. There was no attempt at the identification and correction of potential hazards. There was no inclusion of feedback, solidification or modification as teaching and coaching strategies.
ATHLETIC AND RECREATIONAL POLICIES AND PROCEDURES
General student body and athlete handbooks, team rules, regulations and playbooks, teaching and coaching instructional manuals, fitness and technique training charts, depth charts, workout checklists, and the like are in compliance with practices in the profession as well as recognized standards. Many of these policies and procedures include pertinent and specific methods which must be implemented when coaching, teaching or supervising activities. In litigation, it is often determined that the staff member did not adhere to the necessary safety and risk management requirements and this neglect was the proximate cause -of the injury. In Moss V. Atlantic City Board of Education, (1984), a twelve year old male student suffered a severe head injury when he col-lided with an unpadded wall while participating in a basketball game which was being conducted in his physical education class. The injured student claimed that the teacher of the class was negligent because she did not follow the directions of the board of education -in the design and organizational patterns for conducting the class. The game was organized in such a way that it did not provide the required minimum clearance between the end line and the concrete wall. The infant plaintiff was instructed to play on a facility in violation of the rules of the school itself. The jury returned a verdict for the plaintiff because the school district breached its duty to the infant, by not complying with the written rules.
STAFF CREDENTIALS: Instructional and/or Supervisory
It is important to discover the professional credentials, background and experience of management and staff engaged in teaching or supervising the recreational or sport activities prior to and at the time of the injury. Request a copy of the job description and duties of the supervising manager as well as the staff conducting the activity at the time of the accident. It may be that the person conducting the activity did not have the proper certification or experience to instruct or supervise the activity and area where the injury occurred. In the course of my consultation as a sport and recreation risk management expert, I was surprised to learn that many individuals who teach, coach, or supervise activities and programs in sport and recreation do not attend conferences, symposia and the like, and as a result, are not aware of the latest methodology in teaching or coaching techniques, safety standards, or new developments in rules, regu-lations or guidelines.
The request for and a thorough review and evaluation of the credentials of the staff will provide a great deal of valuable information during the discovery and litigation process. -An analysis of the higher education course work, diplomas and degrees, as well as the length of service in teaching, coaching or managing recreational and sport activities will provide a picture of strengths and weaknesses of the individuals in question. Additionally, their attendance at professional conferences and symposia will also reveal whether they engage in continuing education to stay current in light of changes in rules, regulations and safety and risk management techniques. It will also reveal if they were in leadership roles in professional organizations.
A written instructional and supervisory plan for the entity or insti-tution should be requested during the discovery period. These documents developed by management usually describe the duties and responsibilities of staff responsible for areas and activi-ties. They also include specific information and requirements regarding the actions of the staff during their supervision and control of the participants. -In Illiano v. Hamilton Board of Education (1993), a high school student was killed because he was completely unsupervised during a portion of the school day. He was able to leave the school premises and go to a fast food establishment during lunch period. The supervisory policies were ineffective and inadequate in preventing students from leaving school premises during the day. On the day of the incident, there were no lunch room aides or teachers present to make certain that children would not leave the premises and attempt to cross heavily trafficked streets.
In litigating these types of cases, the attorney and expert should obtain copies of any formal observation reports of teachers or coach-es involved in the incident. These required periodic evaluations conducted by administrators or supervisors will often identify both strengths and weaknesses in the teaching process. You may be able to show that there was a pattern of poor teaching technique or a disregard for safety standards on the part of the individual who was supervising the activity at the time of the incident.
ACTIVITY ATTENDANCE AND PERTINENT RECORDS
It is important to procure attendance and other pertinent records, which may include class roll books, spot or squad seating cards or charts, team rosters and practice and game attendance records. These documents are invaluable in re-creating the circumstances of the injury. Game videos and score books are also important if available. They contribute to an understanding of the total environment and the sequence of events leading up to the accident. In Phillips v. Riddell Manufacturing Company, el al, the plaintiff was a two way player who was a quarterback and a linebacker. He had spent more than 70% of his practice time as a quarterback and very limited time as a linebacker. He lacked the technique, timing and strength preparation for the linebacker position. On the first play of a pre-season scrimmage he lowered his head and made contact with the runner=s thigh in an attempt to tackle the runner. The resulting contact was a cervical injury which caused quadriplegia. The plaintiff testified that he was not taught not to use his head as a first point of contact in a tackle. He also testified that he lacked the confidence and the skill to execute the tackle of the runner. The scrimmage video showed that he was indecisive and tentative during the play.
Videos and other coaching records are legal documents which substantiate the actions and presence of the individual during practices, lectures and scrimmages or games, who was injured.
WITNESS STATEMENTS AND INSPECTIONS
In all cases the attorney should arrange for the expert to interview any eye witnesses who were present and are able to provide information. This should be completed as soon as possible while the circumstances are still fresh in their minds. The expert should conduct an inspection of the injury site and take photographs of the environment. The inspection and photographs will be important during deposition and trial testimony. This also should be undertaken soon after the event as equipment and facility changes may destroy the necessary evidence.
EQUIPMENT AND FACILITIES: Inspection, Maintenance, Purchase, Installation, Assembly
Facilities and equipment have caused a large number of injuries which have led to recreation and sport litigation. Injuries in sport and recreational activities can be caused by the improper design, construction and maintenance of facilities and equipment. Proper assembly and installation is crucial to the safe performance of the equipment, which should always be assembled and installed according to the manufacturer's instructions. Therefore, attorneys and experts need to obtain, review and evaluate the records pertaining to the equipment used by the injured athlete at the time of the accident to determine if the equipment was properly assembled and installed.
Proper and timely inspection and maintenance prevent hazardous conditions and prevent injuries. It is always important to obtain a copy of the manufacturer's main-tenance protocol and inspection schedules. A supervisor or a member of the management team should check that there is strict compliance with these procedures. Home made and re-configured equipment should be avoided because of a lack of professional evaluation and testing for safety.
Investigate if the recreation or sport entity has developed and established policies and procedures designed to reduce or prevent accidents which can be caused by defective equipment and facilities-. Each facility should have a comprehensive check list for preventive maintenance. The expert and the attorney should secure copies of the annual, quarterly, monthly and daily maintenance program. Facility owners and managers should conduct these regular inspections and repairs. The inspections should be performed either to meet the manu-facturers required or recommended maintenance instructions or standards developed and mandated by the industry. All maintenance inspections and repairs should be carefully and meticulously documented and retained in the office of the chief custodian or the supervisor of buildings and grounds.
Inspect the equipment to make sure that it complied with standards required -for the activity. For example, when individuals engage in advanced gymnastic stunts, appropriate safety mats must be used. Also, make sure that the equipment was used only for its intended purposes. In Janelle Finelli v. Madison YMCA, (1993), the plaintiff was engaged in a dismount from a vault onto landing mats. An inspection revealed that although the mats were appropriate at one time, they had outlived their useful life and were no longer able to provide the proper cushioning for the landing. As the plaintiff landed on the mats, she was caused to fracture her leg. Photographs of the mats supported the position that the mats should have been replaced prior to the injury.
The facility management should have an appropriate relationship with the vendor of the equipment and should request an annual inspection to make certain that it is safe and can provide the intended protection. This applies to climbing ropes, bleachers, gymnastic mats and equipment. All equipment that shows deterioration should be replaced or discarded. It should not be handed down to underclassmen or younger users.
In addition, obtain a copy of the purchase order and the invoice. Find out who was responsible for validat-ing and approving the equipment for use after it was erected and placed into use. For example, frequently, playground equipment is purchased and installed by parents and volunteers without these groups ever having the equipment thoroughly inspected by qualified personnel before its first use. Also, try to examine the equipment which was used by the injured at the time of the incident. This will enable you to identify the condition of the equipment and its history of main-tenance. For example, helmets worn in football, baseball, lacrosse and softball must be approved by the National Operating Committee on Standards for Athletic Equipment (NOC-SAE), which is the governing body responsible for the establishment of standards for athletic equipment. Furthermore, make sure that the injured was wearing protective gear as specified by the rules of the sport. In Kennedy v. St. Mary=s High School, (1990), a catcher on the boys baseball team did not wear a mask while catching batting practice and was struck in the face with the ball. The plaintiff claimed that he was never instructed by the coach to wear a face mask, even though this equipment was available at the practice. The Federation rules require catchers to wear a helmet and face mask while warming up or catching a pitcher on or off the field. The plaintiffs claim that the failure by the coaching staff to provide and require the wearing of the mask was in violation of the standards of the game.
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WARNINGS, LABELS AND OTHER SAFETY RULES AND REGULATIONS
It is important for the attorney to request all handouts, labels, and materials which address the precautions that need to be taken. All types of warnings are designed to serve as an ongoing reminder that care needs to be taken while playing in recreational and sport activities. These warnings also include informed consent which is usually required prior to participation. Do these documents provide information about the hazards and risks of the activity environment, the obligations of the players or participants in implementing avoidance strategies? Are there any specific safety rules and regulations which should be addressed?
Many of these warnings are developed and provided by facility owners and manufacturers of athletic equip-ment as well as protective equipment. All helmets include the NOCSAE stamp to indicate that they have been tested for safety. Soccer goal posts, weight room machinery, and gymnastics mats have labels or stickers attached to them to indicate hazardous conditions or unsafe use. Other equipment and/or facilities include labels, printed charts, vinyl decals, plastic placards, professionally designed and printed safety slogans and others. These warning -signs and symbols must be placed or attached on or around the equipment and adjacent.
It is important to conduct an investigation into the use of warnings and cautions because -many schools, recreation departments and fitness centers fail to comply with the safety recommendations of manufacturers and distributors by neglecting to place these warning and caution signs and labels in the appropriate places. In Batton v. Prudential Fitness Center (1991), the plaintiff testified that he was using a bench to press a barbell when the bench cracked and caused the weight to fall onto the lifter causing severe injuries. The defendant countered that the defective bench was sold to him by the distributor of Universal Fitness who did not provide the warning labels which should have been attached to the bench. Testimony clearly showed that the distributor and manufacturer did not provide the available signage to the end user.
It has been clearly established that the mere application or posting of certain signs are not, in themselves, sufficient to provide adequate warning. The attorney and the expert should determine whether the management and staff provided ongoing written and verbal warnings dur-ing all recreational and sport activity periods. Additionally, it is important to obtain copies of warning labels, forms, and handouts which were distributed to all participants, including the plaintiff.
GAME RULES AND STANDARD PROCEDURES
The expert and attorney should obtain the appropriate rule books to determine if the activity was conducted according to the rules of the game. They should search and analyze the rules in light of the behavior of the coaches, players, spectators, and game officials to determine if the specific game action which caused the injury was in accordance with the accepted standards of the game. Game activities and programs must adhere to the written rules and interpretations approved by national and international governing bodies. It may be necessary to demonstrate that the staff and participants deliberately failed to adhere to the game and activity rules. In Morland v. Elmira College (1991), the plaintiff was injured, in an intercollegiate soccer game, by a deliberate sliding tackle after the play. The game video showed that after the ball was played, the opposing midfielder continued to run and deliberately executed a sliding tackle into the plaintiff=s leg causing a severe fracture. The NCAA soccer rules prohibit sliding tackles in situations where the ball is not contacted first. In this case the ball was nowhere in the vicinity of the players.
Following a thorough review of the rule books, it is also important to determine if documents such as league and recreation department adaptations of national standards have been applied properly. These adaptations may include the modification of a basketball court to suit space requirements or the mandated requirement to slide into second and third bases, as well as home plate, in an adult softball game, in order to prevent collision injuries.
PRE-PARTICIPATION MEDICAL EXAMINATION RECORDS
The attorney needs to obtain evidence that the student athlete underwent a pre-participation examination prior to starting practice sessions. These medical examinations of students as a requirement for taking part in physical educa-tion and interscholastic athletic activities are the standard of practice for the all school programs. The examination provides important information regarding the medical condition of the indi-vidual prior to the injury. It assists the physician to determine the general health, physical fitness and any specific abnormalities or conditions which may indicate that the student athlete should not be permitted to engage in recreational or sport activities-. The examination also has the potential for detecting a preexisting condition which may limit the amount and type of activity.
No athlete should ever be permitted to step onto the field and engage in any physical activities until the athlete has been examined by a physician and has been cleared for the activity. No coach should ever exert any coercive action to intimidate or threaten a student into engaging in physical activities. Although each state association is clear in its= requirement, a review of the case ARobin Shepperson, as personal representative for the estate of Levi Shepperson, Deceased v. Crook County School District #1 and Carl Mirich, (1995) A showed that the coach engaged in intimidating tactics to coerce a student to practice prior to a medical examination. Trial testimony revealed that although the examination was required, the coach failed to comply with the regulation and told -the student to engage in strenuous physical fitness activities with the football team without a pre-participation physical examination. The student died as a result of this action by the coach. The litigating attorney should investigate to determine if the student=s medical history includes any disqualifying conditions for sports participation.
The New Jersey Interscholastic Athletic Association, (Ref 1), as well as all other state athletic associations, require that students participating in interscholastic athletic programs have to engage in a determined minimum calendar days of fitness and technical practice prior -to any official or unofficial scrimmage or game competition. As an example, the football practices may begin on September 1, but the first game may not be played before Friday before the Fourth Saturday of September. This rule is to prevent some coaches in engaging in all out game competition prior to the completion of physical fitness preparation of the players. An attorney representing the plaintiff or the defendant in sport and recreation injury cases, should always request the attendance records of the team=s practices and games. The discovery may reveal that the injured student athlete may not have participated in the required minimum practice sessions prior to -the injury.
PARENTAL PERMISSION FORMS FOR PARTICIPATION
In addition to obtaining confirmation of a pre-participation examination, the attorney should also obtain a copy of the parental permission form. A parental approval or consent form is usually part of the pre-participation package and is required before students can participate in school sponsored athletic activities. This form should inform the parent of the nature of the program. It should effectively tell the parent the specific injuries which the child could sustain. Check to see if the document includes information regarding the potential for injury, including catastrophic injury which may occur in the activity. Attorneys should also obtain sample permission forms from other schools and agencies and compare the wording and content. Also, make sure that the parental approval form has been dated and signed. In the Shepperson matter, discussed above, the plaintiff=s parents did not sign the consent form prior to the pre-participation examination, because they understood and grasped the extent and the nature of the risk of the activity. Although they withheld the permission, the coach disregarded all school and regulatory agency rules.
MISMATCHING IN RECREATIONAL AND SPORT ACTIVITIES
Coaches, teachers and supervisors have a responsibility to know and consider the experience, skill, and ability levels of participants in matching them for safe practices and competition. This can be accomplished by an evaluation of their technical level, experience in the sport or activity, strength, speed, agility, age, weight and other components. The physical and mental and emotional readiness of the participants must also be considered for an accurate determination if practices and games can be managed safely. Gender is usually not considered in mismatches, although in many cases athletic administrators and coaches consider coed competitive wrestling to be a mismatch. Many other educators, coaches and recreators have stated that mixed gender wrestling should be prohibited due to the natural mismatch.
Mismatching occurs in recreational activities, physical education classes, athletic practices and competitions. In many instances, recreation programs and physical education classes are mixed in such a way that ninth grade students are scheduled in the same class as students in the twelfth grade. This three year difference in age, strength, speed, experience is unacceptable. Administrators should consider the potential injury and safety problems in the planning and organization of the physical education programs. There is no other subject in the curriculum where such great differences are not addressed. Mismatches can have dangerous and catastrophic results in a variety of activity settings. Mismatches in collision and contact sports are more likely to produce serious injuries including quadriplegia. There are examples of such injuries in football, soccer as well as co-educational or gender mixed wrestling. In King v. Richmond Board of Education, (1991), the teacher/coach of the wrestling team engaged in a live wrestling practice with a member of his team. The coach was highly experienced, had been a member of a college wresting team and was about 70 pound heavier than the novice student. In a wrestling move which involved a half nelson, the coach placed his weight and strength on the student so as to cause an injury to his cervical spine. Following the injury, the boy required surgery and was unable to engage in any recreational activities.
A review of all of the factual discovery materials will reveal the vital statistics of the participants as well as all other components of a potential mismatch.
THE DEVELOPED, PUBLISHED AND REHEARSED EMERGENCY ACTION PLAN
Emergency action plans provide specifically required information regarding the steps to be taken -in the event of an accident, including a catastrophic one where a life may be in danger. Perhaps the best examples of emergency action plans can be found in the administrative code dealing with bathing codes of the states. The attorney and expert should obtain a copy of the -emergency action plan delineating the steps to be taken if an accident occurs. Emergency action plans must be rehearsed on a full-scale basis -by management and staff. The attorney and expert should request all materials which provide documentation regarding in-service training for staff. This includes content, duration of the training, testing, attendance, instructor and instructor=s qualifications. It is possible that the responses will indicate that the facility or school does not require ongoing in-service training and continuing education programs dealing with state of the art knowledge and practice in first aid, and CPR. In reviewing these documents it is important for the attorney and the expert to make certain that the plan is in concert with established standards and guidelines. It must be determined that the management and staff in charge have been properly trained and certified in first aid, CPR and emergency medical care.
Several cases have been reported where the coaching staff was not prepared and certified in CPR and first aid. In these cases the delay in implementing an emergency plan and the inability of the coaches to perform CPR led to the death of several athletes. There was a total lack of immediate and proper emergency care. No one was available to provide the emergency care in accordance with accepted first aid standards.
As a result of these tragedies, many schools, colleges and youth sport organizations have commenced requiring that coaches be certified in first aid and CPR.
CONCLUSIONS
The increased public participation in sports and recreational activities has produced an increased level of tort litigation. This increase in litigation has focused concern on safety and improvement in safety standards. These developments have contributed to the public's awareness of the need to protect participants from injuries.
The thrust of this paper has been to address some of the issues in sport and recreation injuries and to alert attorneys on both sides of the issue. Attorneys should be aware of the value of a recreation expert. This expert can be invaluable for consultation, discovery assistance, report preparation, deposition and trial testimony.
The paper has also attempted to present a capsule of the steps to be taken in case management to bring the case to a successful resolution. As is well known, each case must stand on its own merits, and requires an in-depth analysis as to which of the discovery documents discussed in the paper will be of assistance. These discovery approaches will be useful in cases dealing with a multitude of issues and injuries in the sport and recreation fields.
ABOUT Leonard K. Lucenko |
