Understanding Negligence and Liability — (Part 1)

By Doyice Cotten

Health clubs, personal trainers, rafting companies, parasail companies, trampoline parks, bowling alleys, skating rinks, city recreation departments, horseback riding stables, martial arts instructors, snowmobile providers, and ski resorts:  what do these entities have in common? They are all sport or recreation providers who should be concerned with liability. Each provides a service with which injuries are not uncommon. The question often asked is “If someone gets hurt, will I (or my company) by held liable and have to pay money?” The purpose of this brief article is to help the provider answer this question for him- or herself.

When someone is injured while participating, a natural response is to look for someone to blame and the obvious party is often the provider. The injured party then files a lawsuit alleging negligence on the part of the defendant. Negligence is an unintentional tort that causes injury to a person in the form of physical injury, property loss, or reputation. Negligence may be in the form of an act of omission (something one should have done, but did not) or in the form of an act of commission (something that one did do, but should not). In any event, the allegation is that the provider, or an employee, did something that led to an injury.

Many providers do not really understand what negligence is. While there are many definitions,  Black’s Law Dictionary offers the following definitions which help one to better understand the concept:

  • Negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances; it is the doing of some act which a person of ordinary prudence would not have done under similar circumstances or failure to do what a person of ordinary prudence would have done under similar circumstances.
  • Conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.
  • The term refers only to that legal delinquency which results whenever a man fails to exhibit the care which he ought to exhibit.

There are four elements of negligence. The elements are:

1)         Duty. The service provider must owe a duty (created by a special relationship between the service provider and the participant) to protect the participant from unreasonable risk of harm. Some examples of “special relationship” are between teacher – student; coach – athlete; business – client; doctor – patient; and many more.

.2)        Breach of Duty. The service provider must breach its duty to protect the participant from unreasonable risk of harm.

3)         Damage or Injury. The participant must suffer physical damage to person or property or emotional damage.

4)         Proximate Cause.  The breach of duty must have been the proximate cause (or the immediate reason) the injury occurred.

The provider is negligent and liable only if all four of the elements are present. If all four of the elements are present, there is negligence – and subsequent liability. However, if any one of the elements is not met, there is no negligence and the service provider is not liable.

So, let’s illustrate this with a typical injury situation. Suppose a client is exercising on a stepper in a health club and the stepper turns over and breaks the leg of the client. The instructions that came with the stepper called for the club to bolt the stepper to the floor prior to its use. The injured client files suit alleging the club was negligent in failing to install the stepper properly.

Might the club be found liable?

First, does the club have a duty to the client? The club has a duty to protect the participant from unreasonable risk of harm. To do this the club is obligated to perform a number of tasks including providing a safe environment, warning of known hazards, providing qualified staff, inspecting equipment regularly, and installing and maintaining equipment. The court would likely find that the club has a duty to protect the participant from unreasonable risk of harm.

Second, did the club breach its duty? It is not unlikely that the court would find that failure to secure the stepper was careless and constituted a breach of the duty to protect the participant from unreasonable risk of harm.

Third, did the client suffer injury? The answer to this is generally apparent. In this case, the injury was a broken leg. The court would find that there was damage or injury.

Fourth, the court asks “Did the breach of duty by the club cause the injury to the client?” Had the stepper been properly secured, it could not have turned over and the injury would not have occurred. It is likely that the court would hold that negligent installation was the proximate cause of injury.

[It is worth noting that sometimes a provider has breached a duty and a client is injured, but the breach was not the direct cause of the injury. For instance, suppose a club fails to provide a supervisor in the cardio area and a client trips, falls, and is injured while walking on the treadmill. The club’s failure to supervise might have been a breach of duty, but the injury would have occurred even if a supervisor had been present. The breach would not be the proximate cause of the injury.]

If the court answers YES to all four of the questions, the provider would be found to be negligent and would be liable.

Risk Management

The sport manager needs to 1) learn what legal duties are owed to his or her clients, 2) take steps to be sure that these duties are met, and 3) keep careful records that show these duties are being met.


Note:  See next week’s article for another example that will help you to understand how to determine negligence and liability.