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Monday, February 22, 2010

New SI.com Column on Legal Implications of the Olympic Luger's Death

I have an SI.com column on the legal implications on the tragic death of Nodar Kumaritashvili. Here's an excerpt:

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A related issue to the dangerousness of conditions is the type of legal duty owed by the parties to Olympic athletes. According to page 15 of the Olympic Charter, which furnishes the core set of guidelines for the Olympic Games, one of the IOC's roles is "to encourage and support measures protecting the health of athletes." Similarly, according to its own statutes, the International Luge Federation, which regulates luge competitions and works with the IOC, also adheres to the Olympic Charter. Parties involved in the design, construction and maintenance of the Whistler Track would also be expected to provide lugers with reasonable safety.

There are, however, a number of factors that would work against recovery for Kumaritashvili's parents. For one, Kumaritashvili, like other Olympic athletes, had to sign a waiver with the IOC to participate in the Games. The form states: "I acknowledge and agree that: a. I participate in the XXI Olympic Winter Games in Vancouver at my own risk and that I will take all reasonable measures to protect myself from the risks of participation." While waivers are powerful pieces of evidence and bar many forms of civil actions, they are not necessarily complete defenses. The precise wording of the waiver matters considerably; though the Olympic athlete clearly assents to assuming risk as a general matter, certain types risks may not be assumable. Along those lines, even when waivers expressly bar legal claims, they normally do not bar claims based on egregious or unforeseeable behavior. In addition, the IOC's waiver protections may not extend to a torts claim, such as one sounding in wrongful death or negligence, brought against VANOC or other parties.

Even without a waiver, assumption of risk would also be relevant. The fast conditions of the Whistler track were known to Kumaritashvili (and to other lugers) prior to his fatal run. Kumaritashvili, in fact, reportedly told his father that he was concerned about the track's safety. If Kumaritashvili appreciated the actual risk, his choice to nonetheless participate would suggest that he voluntary accepted the risk. Of course, one might wonder how much "choice" he really had: Declining to participate on safety grounds would likely have come with a reputational cost and embarrassment.

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Hope you have a chance to check out the rest of the column. Also, Geoff Rapp and Ryan Rodenberg made some good comments to the Wall Street Journal on this topic.

-- Posted by Michael McCann @ 2/22/2010 10:19:00 PM -- Comments (4) -- Post a Comment

4 Comments:

Michael - I spent some time thinking about this yesterday and reading some newspaper articles. Certainly Canada, as a former Commonwealth country, has assumption of risk jurisprudence. Most United States jurisdiction have adopted a form of comparative negligence although it is, in my mind, more on the damages side than a true variation of the civilian form. We could consider here whether or not this situation is primary or secondary assumption of risk as explained in Knight v. Jewett. Although the waiver might preclude any discussion of assumption of risk or contributory negligence (because of the stated driver error here), I wonder if we would consider a different legal analysis if this incident happened in France, for instance.

Ed Edmonds -- 2/24/2010 3:54 PM

Well done on the article! I think you capture the civil side of things in a way that I haven't seen anywhere else. Also congrats on getting it published on SI.com, that's no small deal.

Bama Legal -- 2/24/2010 4:02 PM

Thanks for these comments.

Ed, I agree, it would be really interesting if the claims were heard under a civil law system as in France (or in Germany or the Netherlands etc). I've had J.D. students in my torts class from France and they told me that, conceptually, torts is the most distinctive course of the first year curriculum. Actually, for the same reason, it might be interesting if the dispute arose in Louisiana, even if it blends in common law components.

Bama Legal, thank you for the kind words.

Michael McCann -- 2/25/2010 6:16 PM

Thanks for the response, Michael. When I was at Loyola New Orleans, we had distinct civil law and common law courses and a dual track. I remember a number of faculty meetings where we discussed the distinctive nature of different courses (e.g., Obligations and Contracts). I often heard my colleagues advance property as the most conceptually different, but I agree that aspects of duty-risk analysis in civil law torts is conceptually different from the common law approach. That is one of the reasons that I think an analysis of foul ball or hockey puck injuries to fans should concentrate on an analysis of what duty is owed to a plaintiff as opposed to their assumption of risk. The duty owed is to offer protection around the area around home plate or near the goals in hockey.

The Louisiana system is truly a hybrid because procedure is largely based on our common law concepts. I know that certain of my colleagues felt that this had a substantial impact on the civil law heritage in Louisiana. I personally grew to think that forced heirship was a superior conceptual framework to our common law system, but I lived in Louisiana when that system was altered by the legislature. That is one reason that I think it is interesting that a majority of states have adopted a comparative negligence scheme but still cannot let go of contributory negligence and assumption of risk, particularly primary assumption of risk.

Ed Edmonds -- 2/25/2010 10:18 PM