By Doyice Cotten
Injury and risk may be placed into three categories. These categories are 1) inherent risks, 2) risks arising from negligent behavior of the provider, and 3) risks arising from extreme or aggravated provider behavior that goes beyond ordinary negligence. Each will be addressed below.
Inherent risks are those risks that are integral to the activity; risks that if removed would essentially alter the nature of the sport or activity. The provider of an activity generally has no duty to protect the participant from the inherent risks of the activity. Some examples of inherent risks include: a softball player pulling a hamstring while running the bases; a college football player suffering an ACL injury when tackled; a head injury when a raft strikes a rock and capsizes during a whitewater rafting expedition; a hiker in the mountains attacked by a dangerous animal; and thunder or lightning spooking one’s horse while on a trail ride. These risks are inherent to the activity and cannot be eliminated without changing the nature of the activity. In fact, if whitewater rafting were done on a stream with no rocks or rapids, it is no longer “whitewater” rafting and loses much of its excitement and appeal. Eliminate tackling and football becomes touch football – a different game.
Under the doctrine of primary assumption of risk, a participant generally assumes the inherent risks of the activity. Authorities state that there is no liability for injury that occurs due to inherent risks of which the injured participant is knowledgeable or should have been knowledgeable. It is important to note, however, the qualifying phrase “…of which the injured participant is knowledgeable or should have been knowledgeable.”
It is vital that participants understand the inherent risks to which they are exposing themselves, so in the whitewater rafting example above, it is important that the provider adequately warn the participant of the inherent risks of whitewater rafting. Otherwise, in many jurisdictions, the provider may be found liable for injury resulting from inherent risks unknown to the participant. Warnings may be through oral instructions, detailed risk information in documents such as applications, assumption of risk agreements, or liability waivers, or detailed printed risk information in brochures, handouts, and signs. Note, however, it is impossible to warn of all risks. The warning can be a general warning of the types of injuries possible.
As discussed in Part 1 of this series, negligent acts fall below the required standard of ordinary care and constitute a breach of the duty to protect one from unreasonable risk of injury. Some examples of acts that might be deemed to constitute negligence include: failure to inspect equipment prior to client use; failure to supervise youngsters at play; renting defective equipment to a client; teaching a skill incorrectly; failure to warn spectators of a known risk; failure to provide safety equipment for an activity; failure to use spotters in gymnastics; renting a hard-to-manage horse to a novice rider.
The California Supreme Court stated “[A]lthough defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.” (Knight v. Jewett, 1992, p.14) When a provider increases the risks by negligent actions, these risks are not assumed by the participant and the provider can be found liable for any resulting injuries.
Under tort law, a party who is negligent and causes injury can be made to pay damages to the victim in the form of monetary compensation. However, there are some exceptions to this. For instance, sometimes the offending party may have immunity from liability resulting from statutory law. Some examples of immunity statutes include: Recreational User Statutes (protecting owners of certain undeveloped lands); Volunteer Immunity Statutes (protecting certain volunteers in charitable, community, or educational organizations); Good Samaritan Laws – First Aid and AED (protecting volunteers who render emergency care to injured parties); and Selected Sport and Recreational Provider Statutes (protecting providers of specified activities such as ski, equine, and skating).
Other times, the provider may be protected by contract law. Often the participant has signed a contract releasing the provider from liability for injuries incurred while participating. Examples of protective agreements include: Waiver of Liability (often referred to as a release and can protect against ordinary negligence and inherent risks); Indemnity Agreement (by which the participant agrees to repay the provider for any loss incurred by the provider as a result of the participation of the signer); and Informed Consent Agreement (protecting against certain risks of which the participant has been informed).
Extreme or Aggravated Negligence
When the lack of care goes beyond ordinary negligence, it is usually described by one or more of several terms. The most commonly used terms are “gross negligence,” “reckless misconduct,” and “willful and wanton misconduct.” These are often listed in this order according to the gravity of divergence from ordinary negligence – gross negligence generally applying to the least extreme acts and willful and wanton to the most extreme.
This approach, however, can be confusing because the terminology and law differs so much from state to state. For instance, courts in some states hold that there are no degrees of negligence – simply reasonable care and negligence. Other states recognize one, two, or three of the terms “gross negligence,” “reckless misconduct,” and “willful and wanton misconduct” (or another similar term) in an attempt to distinguish between levels of aggravated negligence. So some states recognize only ordinary negligence and reckless misconduct; some ordinary negligence and willful and wanton misconduct; some ordinary negligence, gross negligence, and willful/wanton; some, all three.
In actual practice, however, the similarities and overlap among the definitions create confusion when trying to differentiate among the terms. Definitions vary, but generally contain one or more of the following: “want of even scant care;” “extreme departure from ordinary care;” “willful intent to injure;” “reckless and wanton disregard for the safety of…;” “intentionally acts while knowing harm is probable;” “the intentional failure to perform a duty;” “exhibits a reckless disregard.” So gross negligence in one state does not necessarily mean the same as gross negligence in another state.
Fortunately, in actual practice it is not important that the sport manager be able to distinguish among all these levels of negligence. It is important that the sport manager understand that 1) he or she is required to provide “ordinary care” (see Part 1 of this series) and 2) he or she fulfills his or her duty (see Part 1 of this series). In the event someone is injured due to provider negligence, the provider may be protected 1) by one of the immunity statutes listed or above or 2) by a liability waiver. However, in the event of an injury occurring as a result of extreme or aggravated negligence, there is little protection available to the provider. Most immunity statutes protect only against ordinary negligence and in almost all states, liability waivers protect only against ordinary negligence.
  An in-depth discussion of this may be found in Chapter 2.11Negligence in Cotten, D.J. and Wolohan, J.T. Law for Recreation and Sport Managers (6th ed.), Kendall Hunt: Dubuque, IA, 2013.