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Referee Magazine: “Play It Safe Or Risk Civil Liability Suit”

On November 2, 2012 by Schnader

Providing a safe playing environment is paramount for all associated with amateur athletics and professional sports. Sports officials also must understand the legal reality: Failure to enforce safety rules can result in head, neck or other injuries to players leading to possible civil liability for the official.

Every state’s civil law includes a duty to act with reasonable and ordinary care and skill. For instance, in California, Cal. Civ. Code §1714, sets forth the basic duty that one is responsible for injuries to another resulting from one’s failure to exercise ordinary care or skill. Relevant standards of care are found in industry regulation (American Society for Testing and Materials, American National Standards Institute, etc.); crash standards for automobiles; FDA hygiene and sanitation standards, EPA clean water standards, etc.  In sport, proper play standards are rules. 

For safety reasons we prohibit some equipment like inch-long, steel-tipped cleats in football. With regard to safe conduct we prohibit: “targeting” in football; illegal moves or holds in wrestling; back boarding in hockey and high elbows in basketball. Officials’ failure to “make the call” in each of those examples has resulted in officials being sued and paying settlements or judgments. NASO liability insurance affords an official legal representation in that event.

There can be no fault of the officials for an injury occurring when safety rules have been rigorously enforced. But where there is improper, repeated, un-penalized play in violation of the safety rules resulting in injury, it may be later determined in court that the official failing to make the call(s) “failed to exercise ordinary care or skill” and was “negligent.” The court may also determine the failure to make the call was a “substantial factor” sufficient to support a finding of liability for the injury. 

In many states, such as California, the standard to prove “negligence” is a flexible “substantial factor/cause” test. Was the wrongful conduct a substantial contributing factor? When repeat fouls are not called, what’s to stop the injured player from claiming the official’s failure legally “contributed” to the player’s injury? 

Suppose a flank official misses an illegal block below the waist three plays in a row. The coach complains: “He’s killing my ‘backer!” On the third crackback block the linebacker’s knee is severely injured; he never plays effectively again.  A jury will no doubt hear evidence that “safety is job number 1” and then be asked: “Was the official’s failure to stop repeated illegal injurious conduct a “substantial factor”?” (Note: 16 states have some form of liability limitation for negligence claims against officials but even those shields do not preclude legal claims of grossly negligent or recklessness conduct.)

If you fail to enforce safety rules, you may even be liable to the player committing the infraction, such as a safety repeatedly “spearing” receivers over the middle with no calls and then injuring his own neck. The rules are there to prevent injury to all participants; it is simple to claim: “If the unsafe conduct had been stopped, the injury would not have occurred.”

Enforce the rules. They are the community/association/league standards by which you, an official, will be judged. Not just for promotion to the next level of the sport but more importantly, in case of injury, for a determination of whether you properly discharged your duty or were negligent and possibly liable for the injury.

Scott Tate is a lawyer and officiates high school football in the Oakland/East Bay (Calif.) area and junior college football throughout California. This material is for informational purposes only and is not legal advice.

Copyright Referee Magazine, November 2012. Republished with permission.

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