IS YOUR FACILITY SAFE?

Scott Bills, CSFMSports Field Solutions, LLC

2016 Green ExpoTurf and Landscape Conference

Atlantic City, NJDecember 7, 2016

IS YOUR FACILITY SAFE?

This presentation will help all attendees learnabout the ‘The Theory of Liability’ and'Standard of Care,‘ as they relate to theresponsibility of administrators, facilitymanagers, groundskeepers, athletic directorsand coaches to provide safe and playableathletic facilities.

Theory of Liability

FOUR FACTORS THAT MAKE UP A COMPLETE THEORY OF LIABILITY

Dangerous Condition – A dangerous condition must exist

Causation – dangerous condition caused the incident

Notice – defendant knew of or created the dangerous condition.

Standard of Care – What would a reasonable person do?

Theory of Liability• Dangerous Condition - a dangerous (or

improper) condition must exist (if someone trips and falls on a sidewalk and is injured, but there are no cracks or unevenness or anything that makes it irregular or dangerous, there is no liability.)

Theory of Liability

Causation - the dangerous (or improper)condition must have caused the incident (andinjuries or damages). Maybe the sidewalk wascracked and uneven in one spot, but the injuredparty tripped and fell somewhere else/nearby,then there is no liability.

Theory of Liability

Notice - must be established that the defendant(s)either knew or should have known, withtypical/proper/reasonable attentiveness (consistentwith the actions of a reasonable man and/or thenormal standard of care) of the dangerous(orimproper) condition. Alternatively, if thedefendant(s) created the dangerous/impropercondition, this covers or is considered notice.

Theory of Liability

Standard of Care - it must be shown that the defendant(s) violated the typical/normal standard of care.

Often the expert, who should have relevant knowledge and/or experience, establishes the standard of care (of/for the defendant(s)) and then opines on whether or not it was violated.

Standard of Care

Definition- the watchfulness, attention, caution and prudence that a reasonable person in the circumstances would exercise. If a person's actions do not meet this standard of care, then his/her acts fail to meet the duty of care which all people (supposedly) have toward others. Failure to meet the standard is negligence, and any damages resulting there from may be claimed in a lawsuit by the injured party. The problem is that the "standard" is often a subjective issue upon which reasonable people can differ

Standard - an accepted or approved example of something against which others are judged or measured

Care – attention and management implying responsibility for safety

Duty of Care

An obligation that a sensible person would use in the circumstances when acting towards others and the public. If the actions of a person are not made with watchfulness, attention, caution, and prudence, their actions are considered negligent. Consequently, the resulting damages may be claimed as negligence in a lawsuit.

Duty of CareCYA?

Negligence• Conduct that falls below the standards of behavior

established by law for the protection of others against unreasonable risk of harm. A person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances.

• In order to establish negligence as a Cause of Action under the law of TORTS, a plaintiff must prove that the defendant had a duty to the plaintiff, the defendant breached that duty by failing to conform to the required standard of conduct, the defendant's negligent conduct was the cause of the harm to the plaintiff, and the plaintiff was, in fact, harmed or damaged.

Negligence

What separates a ‘Common Accident’ from an

‘Act of Negligence’ is the ‘Standard of Care.’

By neglecting the proper standard of care for a given situation, an individual may be found liable for any resulting injuries.

PLEASE SUMMARIZE

You can be found ‘Negligent’ if:

A ‘Dangerous Condition’ existed, ‘Caused’the incident, you had ‘Notice’ and your actions or inactions violated the ‘Standard of Care.’

Reasonable Person• The so-called ‘reasonable person’ in the law of negligence

focuses on how a typical person, with ordinary prudence, would act in certain circumstances.

• The test as to whether a person has acted as a ‘reasonable person’ is an objective one, and so it does not take into account the specific abilities of a defendant. Thus, even a person who has low intelligence or is chronically careless is held to the same standard as a more careful person or a person of higher intelligence.

• A jury generally decides whether a defendant has acted as a reasonable person would have acted. In making this decision, the jury generally considers the defendant's conduct in light of what the defendant actually knows, has experienced, or has perceived.

Proof of Negligence

• In a negligence suit, the plaintiff has the burden of proving that the defendant did not act as a reasonable person would have acted under the circumstances. The court will instruct the jury as to the standard of conduct required of the defendant.

• For example, a defendant sued for negligent driving is judged according to how a reasonable person would have driven in the same circumstances. (Fog/Eyeglasses – Fog/Forgot Eyeglasses)

• A plaintiff has a variety of means of proving that a defendant did not act as a reasonable person would have acted. The plaintiff can show that the defendant violated a statute designed to protect against the type of injury that occurred to the plaintiff or a plaintiff might introduce expert witnesses to provide evidence of a customary practice.

Don’t Get Sued

Basic Industry Expectations(Risk Management)

• Establish standard operating procedures.• Inspect the premise regularly and keep maintenance records customary

for the site or sport. • Repair defects immediately or prevent exposure to users, participants or

spectators until the premise is made safe.• Keep users, participants or spectators safe during the use of the premises

by having a plan for reasonable supervision and security.• Use reasonable employee recruiting, selection, hiring and training

practices.• Have a written emergency and medical plan• Practice the plan

Risk Management

‘Risk Management’ is the process of identifying and minimizing elements that could cause injury or harm to users, participants or spectators.

1. IDENTIFICATION – Regular Inspections2. EVALUATION – Prioritize based on severity and frequency3. TREATMENT

-Stop the activity-Reduce the risk (Fence Padding)-Transfer liability through contract (Hold Harmless Clauses)-Assume the risk is worth the liability exposure (Ski Resorts)

4. IMPLEMENTATION – Once a treatment is implemented, re-evaluate to ensure it was the correct treatment option.

Standards

• OSHA – Occupational Safety and Hazard Administration

• ADA – Americans with Disabilities Act

• ASTM – American Society for Testing and Materials

• ANSI – American National Standards Institute

• AAHPERD’s Council on Facilities and Equipment

• ACSM’s Health/Fitness Standards & Guidelines

• STMA and State Chapters

• Synthetic Turf Council

• Affiliated Athletic Associations (NCAA, ASA, Little League)

CASE STUDIESDefendant Cases

• Private Sports Facility – Plaintiff claimed a poorly maintained indoor synthetic surface caused him to break his foot which lead to eventual amputation.

• Public Park – Plaintiff claimed a loose seam on a synthetic soccer field caused her to break her ankle.

• Private Sports Facility – Plaintiff claimed the lack of room surrounding a lined football field caused him to run through a plate glass door causing multiple lacerations to his arms and face.

• Private Golf Course – Plaintiff claimed that brush left near a cart path caused an injury that lead to infection.

Defendant Case Study #1

Plaintiff breaks ankle while playing Flag Football at an indoor sports facility

Claims “the defendant was negligent, careless and reckless in causing, permitting and allowing the floor to become and remain uneven, bulging, raised, buckling, worn, poorly installed, defective and dangerous,” “and as a result caused the Plaintiff to be injured.”

XXXXXXX SPORTS LLC Field Space license Agreement

Reference is made to the facilities located at XXXXXXXX Sports, LLC grants a license to ( "Licensee") of a

portion of the Property (the Field Spaces designated in Exhibit A) under the following terms.

1. The Licensee may use the Field Spaces only on the dates and during the times designated In Exhibit A.

All members of the Licensee must vacate the Field Spaces five minutes before the end of the licensed

period.

2. The Licensee may use licensed Field Spaces for ,_ and no other purpose.

3. Only those individuals whose names and addresses are attached to this agreement or provided to·

XXXXXXX Sports, LLC prior to such individuals entering the Property, will be permitted on the Property

("Permitted Individuals"). At any time, XXXXXXX Sports, LLC may terminate this license and/or

withdraw its permission to allow any or all of the Permitted Individuals to use the Property.

If X X X X X X X S p o r t s , L L C , in its sole discretion,determines that any Permitted Individual is

acting in an improper or unsportsmanlike manner. Any restrictions on the use of the Property pursuant

to the terms of this license shall also apply to each Permitted Individual,and the Licensee shall be

responsible for any violation of any of the restrictions by any of the Permitted Individuals.

4. This license and any rights granted hereunder to the Licensee and/or any Permitted Individuals Is

non-assignable by the Licensee and/or any Permitted Individuals.

5. The Leader named in Exhibit A is responsible for full payment of all fees under this agreement. It is

the sole responsibility of the Leader to renew or extend this license. Licensed times will not be reserved

without a new written license agreement signed by XXXXXXX Sports, LLC and the required deposit.

6. Prior to entering the Property, the Licensee shall deliver to XXXXXXX Sports, LLC a certificate of

insurance, naming XXXXXXX Sport LLC as a named insured, with liability coverage for any one event of no

less than One Million ($1,000,000.00) Dollars per person and Two Million ($2,000,000.00) Dollars

aggregate with respect to the use of the Property by the Licensee and all Permitted Individuals. The

premium for the Insurance policy evidenced by the certificate shall be prepaid for the entire period of the

license,and shall provide for a minimum written 10-day notice to XXXXXXX Sports, LLC prior to any

cancellation of the policy and/or amendment of coverage.

7. The Licensee acknowledges that it has inspected the Property and the Field Spaces, that XXXXXXX

Sports, LLC has made no representations about the Property or the Field Spaces, and that the Licensee

licenses the Field Spaces as is.

8. The Licensee, to the fullest extent allowed by law, shall hold harmless and indemnify

XXXXXXX Sports, LLC for any liability,claims and/or damages,including any attorneys fees,

resulting from the use of the Property pursuant to this license and/or by the Licensee, the

Permitted Individuals, and/or any others who are guests, invitees, trespassers or otherwise as a

result of this license and/or the actions and/or failure to act by the Licensees and/or the

Permitted Individuals. XXXXXXX Sports, LLC shall not be not responsible for lost or damaged

property of the Licensee,the Permitted Individuals, and/or any guest or invitees.

Defendant Case Study #2

Plaintiff is injured while playing football on a synthetic field.

“Claims the field had an open seam that caused the Plaintiff to trip and the defendant, a municipality, was negligent in not properly maintaining the field.”

CASE STUDIESPlaintiff Cases

• Broken shoulder from fall on a tennis court

• Broken ankle on a little league field

• Broken ankle on a softball field

• Broken leg on a synthetic baseball field

• Separated shoulder from a fall on a tennis court

• Dislocated wrist/broken hand on a tennis court.

• MRSA on a synthetic football field

• Broken eye socket at a batting cage

• Permanent eye damage in a batting cage

Plaintiff Case Study #1

Broken Shoulder at a Public Tennis Court

During his testimony, Mr. -------, Public Works Director of ------------Borough, stated he was fully aware that dangerous

conditions existed. In April of 2010, he directed public works employees to repair cracks within the tennis court surface with a

Blacktop Crackseal purchased from Lowe’s. Mr. ------- also testified he would rely on the borough’s insurance adjuster’s inspection (but he had none of the insurance adjuster’s inspection reports), physical inspections by public works employees at least two times per year and his ‘drive by’ inspection of the tennis courts to assess whether

dangerous conditions existed. Mr. ------- also testified that no records were kept about when any repair work, including crack repair or sealing, took place. Mr. ------- also testified that the public works

employees were not trained for nor had any specific experience in maintaining or repairing tennis courts.

Plaintiff Case Study #2Broken Ankle on a Public Little League Field

• On Friday, June 26, 2015, the Plaintiff, age 12, was playing baseball at the ------ Park field. While sliding towards home plate his foot made contact with a solid rubber mat which was installed by the Town of ------------- in the right hand batter’s box. As a result of the contact with the rubber mat, the Plaintiff fractured his right ankle.

• Based on a personal interview with the Plaintiff, he stated that while attempting to score from third base during the fifth inning of the game, he ran towards home plate and began to slide on his left side, with his right foot and leg extended. As he made contact with the ground, his foot came into contact with the edge of the mat facing towards the third base line. The Plaintiff stated his momentum caused his foot to become caught on the edge of the mat, lift the mat and then come to a stop beneath the mat. As he was unable to reach home plate, the Plaintiff states the catcher then tagged him out.

Plaintiff Case Study #3

Broken Ankle on a Public Synthetic Softball Field

At approximately 4:15pm on Monday, March 30, 2015, the Plaintiff was injured while playing softball in a high school softball game. The

Plaintiff was running towards home plate and slid into the base. The Plaintiff’s foot got caught in the turf and she continued to slide. The umpire called the coach to the plate and he discovered her foot

was turned the wrong way.

Plaintiff Case #3

FINDINGS“During my inspection I observed the field to be a softball field with painted baselines at the southwest corner of an all synthetic carpet style nylon soccer field. The field surface material was uniform in all areas except the right hand batter’s box. This surface which measured approximately 3’ wide x 5’ deep and consisted of a taller fiber sewn onto a rubber backing. The section appeared to be a repair and replacement of the original surface. This piece was significantly different than the original carpeting in length of fibers, texture and thickness. The rubber backing thickness was ½” and the fibers were 1½” high compared to the ½” height of the surrounding surface. The replacement piece was not attached, connected or otherwise anchored to the surrounding synthetic carpeting or substrate and protruded ¼”- ½” above the surrounding surface.”

Plaintiff Case Study #4

Plaintiff breaks his left leg while sliding into second base on a synthetic baseball field

Guess Who?

Asking For Trouble?

Asking for Trouble?

Asking For Trouble?

How High Can We Go? 12 Inches and Counting

Why not damage the field to dump infield mix we don’t need!

Asking For Trouble?

Asking For Trouble?

When I was a kid we didn’t even have benches!

Why are some areas of my field so hard?

Asking for Trouble?

Asking for Trouble?

Not sure why everyone is complaining we have field tarps?

Asking for Trouble?

Mmmm, I wonder if the warranty is still good?

Asking for Trouble?

Inspector? It’s not under there!

Asking for Trouble?

Asking for Trouble?

Pesticides have nothing on us! Go ahead, we’ll call PETA!

Just When You Think You Saw Everything!

REMEMBER!!!

You can be subject to a lawsuit for negligence if a ‘Dangerous Condition’ exists, is the ‘Cause’ of an injury, you had ‘Notice’ and violated the

‘Standard of Care.’

Inspect your facility as if you will be a participant, parent or spectator.

THANK YOU!

Q & A