Liability, Equipment Issues to Consider During Summer Months

As summer approaches, it is a good time to reflect on best practices as it relates to tort liability and high school athletes and coaches. A quick primer on how tort liability works. For there to be liability on a school’s part for an injury, four elements must exist. The first is a duty. The most common are a basic duty of care, duty to warn, and duty to properly train and supervise.

For a duty to exist, there must be a relationship between the student and the school. This “special relationship” exists now as a matter of law, and it is difficult to argue that it does not exist. Whether it is a camp sponsored by the school, a camp put on by one of your coaches, or a space where you rent out your facilities to a third-party that is run by one of your coaches or employees, there is a good chance that liability will attach.

Since the duty is easily established, we move onto the second element: Was there a breach of that duty? This is often more complex, as a clear breach is not always evident, and foreseeability is a critical element.

If a breach is established, then the real question is: Was the breach of the duty the cause of the injury? There are situations where comparative fault and immunity come to play, but instead this focus is on the areas of exposure and risk.

Some of the most common areas of exposure include premises liability, equipment and gear defects, coaching negligence, training and conditioning, negligence, and issues surrounding travel, competitions and activities. Less common over the summer and preseason, but still important are issues surrounding hazing, bullying, Title IX.

Regarding premises liability, schools are expected to maintain facilities, address known risks, inspect risk-prone areas, and remedy any hazards promptly. Fields, courts and pools present a variety of risks of which school leaders are expected to be aware. Even more important is when someone points out a deficiency to any school official or when a deficiency has already caused an injury.

For example, if a sprinkler head does not retract, and it has caused an athlete to trip in a prior event, schools are obligated to fix it or to put up appropriate notifications to reduce the likelihood of the injury occurring again. Areas of concern also include gyms with no air-conditioning, insufficiently ventilated weight rooms, or any other area where an injury may occur.

It is critical that athletic directors/school administration walk and inspect all of their facilities, both competitive and practice, before anybody uses them. This is especially important over the summer where there can be less supervision by administrators as coaches engage in summer practices and training.

Regarding equipment defects, summer can be a transition time with both equipment and gear. Some of the issues include protective gear and training equipment. Often, summer is when school leaders start looking to repair or replace equipment, but athletes are still practicing and playing with it. This is particularly risky and creates an area of exposure that is easily avoided.

The quick fix is to not use the equipment. The secondary option is to give everyone notice of a way to use the equipment safely until it is fully repaired or it is fully functional. If there is a workaround, everyone needs to be aware that the workaround is in place, and they do not have to use the equipment until it is fully functional. It is critical that all athletes understand that they will not be punished or otherwise retaliated against for not using the equipment that is not up to par.

In terms of coaching and training responsibilities, summer is ripe with risk and the dangers that come with heat, inconsistent training and lack of supervision. The number of lawsuits that have come from injuries related to heat, exhaustion, heart, failure, and general injury related to overtraining has grown significantly over the past five years. This is not a result of the athletes being less conditioned. Instead, the cases seem to center around a lack of available trainers and medical staff, and/or a lack of coaches, understanding when athletes are being pushed too far.

While sports physicals give coaches a baseline of the athletes’ general health, it is critical that coaches listen to their athletes and pay attention to any warning signs. Having a professional trainer or other medical professional on site for all voluntary or non-voluntary practices will dramatically reduce the liability attached to any injuries that occur during summer practices.

The myth that a coach running their own program over the summer where with their own athletes that they coach and train during the year for their “private program” releases the school or the school district from any liability is exactly that – a myth. Whether or not the coaches currently employed or appear to be employed by the district will not be the issue when an athlete is catastrophically injured or passes away. While the school may escape some liability, it will be difficult to separate the incident from the school, the athletics program or the district in the public’s eye.

All that to say, if your coach or coaches are running their own program over the summer, it is worth taking a look at their liability insurance, their use of the school or district’s name, or how attached they are to the school and the utilization of school communication resources to promote their own program. These are just some of the things that will attach them to the district.

That said, the value of these programs should not be discounted or eliminated. These programs are so valuable for the connection they provide to athletes and the school, the conditioning they provide over the summer, the extra opportunities they provide for coaches and trainers, and the overall ethos that they bring to athletic programs. You certainly don’t want to even entertain eliminating them, but they need to be organized in the best possible way.

Lastly, if your summer programs involve travel, competition or club-like elements, be aware that all the other elements present during the year exist here as well. Waivers for trips and parental involvement are critical here. The transportation risks, the hazing and bullying risks, the risks of injury, etc. are as real – if not more – over the summer as they are during the year because there tends to be less supervision over the summer.

Of course, the opportunities afforded to both genders under Title IX for school-sponsored programs (or those that at least appear to be school sponsored) will be under scrutiny much as they would be during the school year. And while there has been a recent uptick in schools wondering if the Office of Civil Rights in the Department of Education will care about summer programs, rest assured, the federal courts may.

Again, these programs are often critical to the success of schools, student-athletes and our school athletic programs. However, they have to be conducted in the safest possible way.

W. Scott Lewis, J.D., is a managing partner with TNG Consulting, chair of the National Association for Behavioral Intervention and Threat Assessment (NABITA) Advisory Board, and co-founder and advisory board member of the Association of Title IX Administrators (ATIXA). He also consults with and trains numerous sports organizations and governing bodies at all levels from high schools to Olympic-level athletes, trainers, coaches and staff, including working with the NCAA, NJCAA and the National Interscholastic Athletic Administrators Association (NIAAA). He is the legal counsel representative on the High School Today Publications Committee.