USA Law and Practice Contributed by: Irwin A. Kishner, Daniel A. Etna, Joel Wagman and Barry Werbin, Herrick, Feinstein LLP
valid cause of action against the organiser will depend on whether they can prove all of the following three elements: • the person was owed a duty of care by the organ - iser; • the organiser breached this duty of care; and • the injury resulted from that breach. To determine whether the event organiser breached its duty of care, a court will apply a test of “reasonable - ness”. A court may consider whether the organiser implemented risk management policies and proce - dures to minimise risks and/or maintained its facility at reasonably expected standards. How Can Liability Be Limited? Courts have repeatedly emphasised that event organ - isers are not required to guarantee the total safety of guests. The most common argument used in defend - ing negligence claims involving injuries at sporting events is the “assumption of risk” doctrine. This doc - trine can preclude recovery for injuries resulting from an activity in which the plaintiff realised the risks and nevertheless voluntarily participated in and accepted those risks. Assumption of risk can be expressed (eg, a waiver signed by the plaintiff), or it can be implied from the voluntary participation in the activity. To prevail on the assumption of risk defence in a spec - tator’s personal injury action, the defendant is required to demonstrate that the injury-causing events were known, apparent or reasonably foreseeable conse - quences of attending the game. It is not uncommon for event organisers to include disclaimer language in small print on the reverse of the ticket. Whether these disclaimers are valid is an issue of state law, and states differ as to the enforceability of these waivers. Another reason why an owner’s liability may be limited is the requirement that the owner’s negligence must be the cause of the injury. What Liability Cannot Be Excluded? While disclaimers and waivers are valid in many states, they do not necessarily protect facility owners from their own negligence. Despite the disclaimers on the reverse of ticket stubs, stadium owners still have
an obligation to act reasonably to minimise the risk of injury to spectators. Waivers are also not effective if the sports organiser is found to be grossly negligent or to have intentionally harmed the claimant. How Can Athletes Be Liable to Spectators? Athletes who engage in typical activities associated with a sport will not usually face liability for any result - ing injuries that occur during the game. However, in limited cases, an athlete may bear liability for a spec - tator’s injury where, for example, an athlete behaves aggressively or fails to act according to the rules of the game. How Are Sporting Events Kept Dafe From Violence and Disorder? Sports organisers have a duty to keep the sporting stadium/facility reasonably safe, which may include a duty to take precautions if it is foreseeable that a third party will commit a criminal or violent act causing injury to a player or spectator. There are certain steps that can be taken to reduce that risk and potential liability: • adopt and enforce internal disciplinary policies for players and coaches setting forth standards of conduct, and impose penalties for violations that are applied consistently; • review and strengthen, if necessary, policies and local laws on the serving and consumption of alco - holic beverages; • work closely with police and security to identify and deter the potential for violence and other unru - ly behaviour, and to implement a plan to discour - age and respond to spectator violence if it occurs, including a strong, visible police presence; • install video equipment in the seating area to help deter misconduct and identify spectators in the event of fan violence; • have a designated area in the stadium for visiting teams’ spectators; and • make public announcements before and during the game emphasising standards of spectator behav - iour.
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