USA Law and Practice Contributed by: Irwin A. Kishner, Daniel A. Etna, Joel Wagman and Barry Werbin, Herrick, Feinstein LLP
How Can Liability Be Limited? Courts have repeatedly emphasised that event organisers are not required to guarantee the total safety of guests. The most common argument used in defending negligence claims involving injuries at sporting events is the “assumption of risk” doctrine. This doctrine can preclude recovery for injuries result - ing from an activity in which the plaintiff realised the risks, and nevertheless voluntarily participat - ed in and accepted those risks. Assumption of risk can be express (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 spectator’s personal injury action, the defend - ant is required to demonstrate that the injury- causing events were known, apparent, or rea - sonably foreseeable consequences 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. MLB and its clubs have largely avoided finan - cial responsibility for foul ball accidents, since every MLB ticket contains a disclaimer that fans enter at their own risk. US courts have gener - ally upheld the “Baseball Rule” , which provides that a baseball facility has met its duty of care to spectators by providing seating that is protected from projectiles that leave the field of play. Another reason why an owner’s liability may be limited is the requirement that the owner’s neg - ligence 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, sta - dium owners still have an obligation to act rea - sonably to minimise the risk of injury to specta - tors. 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 associ - ated with a sport will not usually face liability for any resulting injuries that occur during the game. However, in limited cases, an athlete may bear liability for a spectator’s injury where, for exam - ple, an athlete behaves aggressively or fails to act according to the rules of the game. How Are Sporting Events Kept Safe From Violence and Disorder? Sports organisers have a duty to keep the sport - ing stadium/facility reasonably safe, which may include a duty to take precautions if it is foresee - able that a third party will commit a criminal or violent act causing injury to a player or specta - tor. There are certain steps that can be taken to reduce that risk and potential liability: • adopt and enforce internal disciplinary poli - cies for players and coaches setting forth standards of conduct and impose penalties for violations which are applied consistently; • review and strengthen, if necessary, policies and local laws on the serving and consump - tion of alcoholic beverages; • work closely with police and security to iden - tify and deter the potential for violence and other unruly behaviour, and to implement a plan to discourage and respond to spectator
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