1. chapter
2
Tort Law and
Product Liability

2. Chapter Objectives
After reading this chapter, you will know the
following:
• The elements of negligence liability and how
it applies to sport
• The defenses to the tort of negligence and
the application to sport management
• Intentional torts and their application to
sport settings
• Product liability and its application to sport
management

3. Tort Law
• Causes of action (types of lawsuits)
– Negligence (fault)
– Intentional torts (intent or desire)
– Products liability (strict liability)
• Involves civil, not criminal, actions
• Often determined by civil juries, not judges
• Differences between torts and criminal law
– Burden of proof: Preponderance of the evidence
(torts)
– Guilt beyond a reasonable doubt (criminal law)

4. Negligence
• Involves personal injury
• Requirements:
– Duty (standard of care)
– Failure to act as a reasonable and prudent person
(breach of duty )
– Causation
– Damages
• No intent to injure required; the standard is
based on fault

5. Determinants of Standard of Care
• Case precedent
• Legislation
• Municipal rules and regulations
• Regulations and policies of administrative agencies
(e.g., Consumer Products Safety Commission
[CPSC])
• Standards drafted by professional associations
– Engineering, medical
– American Society for Testing and Materials
• Community standards
• Industry standards
• Expert testimony

6. Elements of Negligence
• Duty (standard of care)
• Breach: The act fell below the standard
• Causation
– Proximate cause: Strong enough connection
between an act and an injury
– Cause in fact: But for the wrongful act, the injury
would not have occurred
• Injury: Physical or mental and emotional

7. Gross Negligence
• A higher degree of carelessness
• Willful, wanton, or reckless conduct
• No intent to cause the injury but intent to
cause the action that resulted in the injury
– Hackbart case: Intent to strike player but no intent to
cause the injury constituted gross negligence

8. Defense: Comparative Negligence
• Apportions fault between the parties
• Types (depending on the state):
– Pure
– 50 percent rule
• All or nothing
• Percentage if P less than 50% at fault
• A partial defense, based on the percentage
of fault

9. Defense: Assumption of Risk
• To prove this defense, defendant must show
the following:
– The risk must be inherent to the sport.
– The participant must voluntarily consent to be
exposed to the risk.
– The participant must know, understand, and
appreciate the inherent risks of the activity.
• In sum: Defendant voluntarily assumed,
knew, and appreciated risk

10. Sources of Assumption of Risk
• Express assumption of risk: Oral or written
language that outlines the risks of the
activity; found in participation agreements.
• Implied assumption of risk exists when the
participant’s conduct or actions show that
he voluntarily assumed the risks by taking
part in the activity. With inherent knowledge
of the activity, the act of participation
triggers the assumption of risk.

11. Selected Types of
Intentional Torts
• Battery
• Assault
• Defamation
• False imprisonment
• Intentional infliction of emotional distress
• Invasion of the right to privacy
• Trespass to land
• Trespass to personal property
• Disparagement of property

12. Elements of Battery
• Intentional, harmful, or offensive touching
of another that is unprivileged and
unpermitted
• Plaintiff must show the following:
– Intent to contact
– Harmful or offensive touching
– Unprivileged
– Unpermitted
– Damages

13. Elements of Assault
• The threat of a battery (threat of harmful or
offensive touching)
• Plaintiff must show the following:
– Intent
– Causing apprehension of immediate battery (harmful
or offensive touching)
– With apparent ability
– Damages

14. Defamation
• Elements:
– False and defamatory statement
– Published to a third party
– Harms the reputation of the person defamed
– Causes injury and results in damages
• Libel: Written defamation
• Slander: Oral defamation
• Defamation per se; damages are presumed in
statements involving the following:
– Moral turpitude
– Loathsome disease
– Professional lack of qualification

15. Defamation: Defenses
• Truth
• Privilege
– Public figures must show actual malice (knowledge
of falsity or reckless disregard for truth) as well as
falsity and damages
– For nonpublic figures, in most states, negligence
must be shown as well as falsity and damages.

16. False Imprisonment
• Intent to confine another within a particular
area against the will of the person confined.
• Plaintiff must show the following:
– Confinement actually occurs.
– The act caused the confinement.
– The person confined is aware of their confinement or
harmed by it.

17. Infliction of
Emotional Distress
• Act that represents extreme and outrageous
conduct and results in severe emotional
distress to another person
• Must show the following:
– An intentional act
– Constituting extreme or outrageous conduct
– Causing severe emotional distress
– Damages (usually emotional, not physical)

18. Invasion of Right to Privacy
• A very broad tort
• Four areas:
1. Appropriation of one’s name/likeness
2. Intrusion
3. False light
4. Public disclosure of private facts

19. Invasion of Privacy: Appropriation
• Occurs when someone uses, without
permission and for his own benefit, the
name, likeness, or other identifying
characteristic of another person
– Often done for a commercial purpose
– Use of athletes’ names on advertisements, posters,
trading cards without permission
• Defenses:
– Consent
– First Amendment (if not for a commercial purpose)

20. Invasion of Privacy: Intrusion
• Arises when someone invades a person’s
home or searches personal belongings
without permission, if the intrusion is highly
offensive to a reasonable person
• Defense is consent

21. Invasion of Privacy: False Light
• Similar to defamation
• Thought not outright false, statements that
put plaintiff in a false light
– Photo of athlete with a woman other than his spouse
in a newspaper with a caption implying (but not
saying) they are romantically involved
– Very hard to prove
• Defense is First Amendment

22. Right of Privacy: Public Disclosure
of Private Facts
• Publication of facts that are private and
would cause embarrassment and
humiliation and would not be a legitimate
concern to the public
• With public figures, this claim is extremely
difficult to make
• Defense is First Amendment

23. Trespass to Land
• The unlawful entry on the land of another
without permission and with the intent to
enter the land
• Defenses:
– Necessity
– Privilege

24. Trespass/Conversion of
Personal Property
• Trespass: Taking the property
• Conversion: Keeping the property
• Civil law “side” of crimes related to theft
• Defense is permission

25. Disparagement of Property
• Untrue statements about product or
property result in economic loss
• Types:
– Slander of quality (e.g., jeweler is selling fake
diamonds)
– Slander of title (e.g., jeweler is selling stolen
merchandise)

26. Product Liability
• Liability for harm caused by a consumer
product
• May be based on several legal theories in
tort or contract law:
• Torts
– Negligence
– Strict liability
• Contracts: Warranties (express or implied)

27. Product Liability: Negligence
Must show the four elements discussed
earlier:
1. Standard of care
2. Breach of the standard
3. Causation
4. Damages

28. Product Liability:
Based on Strict Liability
• Liability without fault
• Exists if the following are present:
– Product was defective in design, manufacture, or
warning when sold.
– Defendant is in the business of selling such products.
– Product is unreasonably dangerous because of defect.
– Plaintiff is injured by the product.
– Defective condition is proximate cause of injury.
– Product was not substantially modified since time of
sale.

29. Defect
Central to the definition of strict product
liability
– Design makes the product unreasonably dangerous,
even if not done with fault.
– The manufacture of one or a group of products
makes them unreasonably dangerous.
– Warning must be reasonable and must deal with
foreseeable misuse.

30. Strict Liability: Defenses
• Contributory negligence
• Assumption of risk
• Foreseeable misuse

31. Product Liability: Warranties
• Buyers often rely on promises or
representations about a product made by
either the manufacturer or seller.
– Warranties are considered a basis of the bargain of
the sales contract
– Uniform Commercial Code (UCC) controls
(continued)

32. Product Liability: Warranties
(continued)
• Types of warranties:
– Warranties of title
– Express warranties: Based on representations
– Implied warranties: Based on law
• Merchantability: Goods are of ordinary purposes of which they are
used; average quality
• Fitness: Goods are fit for the particular purposes of the buyer