Playing Catch-Up

The road to hell is paved with good intentions. This expression is just as appropriate now as it was when coined by – depending on whom you believe – either Samuel Johnson (1709-1784) or Saint Bernard of Clairvaux (1091-1153).

It predictably seems that as the tsunami of essays and exams approach with the end of our respective universities’ semesters (plus sundry other projects including working on writing and conference presentations, Kris’s recovery from some unidentified pernicious parasite or amoeba thing, coaching kids’ soccer/football teams, the start of the NHL playoffs, etc.), our pseudo-journalistic responsibilities to The Canary suffers.

Whilst our intent has been to offer educational or informational commentary in response to contemporary events in sports law, I am compelled to play catch-up to clear the backlog and break the bottleneck of events which are fading from view in the rear-view mirror. Accordingly, what follows is a brief synopsis of things from the not-so-distant past.

• The US Occupational Safety and Health Administration has just fined Wolf Creek Ski Area $17000 for serious workplace violations following an investigation into the death of the area’s ski patrol director in an avalanche on 22 November 2010 (see story here). The employee was alone was not wearing a helmet as required by state and federal laws. State intervention and regulation into the affairs of adventure activities is not new. California state regulators have fined Mammoth Mountain Ski Area $50,000 for several job safety violations related to the deaths of three ski patrol members on 6 April 2006 (see story here). The Wyoming Department of Employment cited Jackson Hole Mountain Resort in 2009 for failing to protect ski patroller Kathryn Miller with a helmet when she died in a fall in Spacewalk Couloir in 2008. The resort did not require its patrollers or other ski workers to wear helmets (see story here). Not that we needed any more convincing but this is yet further proof that adventure activities are not immune from the long arm of the law.
• Women’s ski jumping was approved by the International Olympic Committee at its meeting in London on April 6 for inclusion at the 2014 Sochi Winter Olympics. Ski half-pipe, biathlon mixed relay and team events in luge and figure skating were also approved (see story here). As a footnote, Kris and I wrote a piece in 2009 in the International Sports Law Review entitled ‘Ski jumping through Olympic-sized hoops: An analysis of Sagen v Vancouver Organizing Committee (VANOC) for the 2010 Olympic & Paralympic Winter Games.
• The family of a 17 year old girl killed in a skiing accident in Ontario two years ago filed a $2 million lawsuit last month against the school board, the resort, the superintendent of education, the director of education, the supervising teacher, and employees of the resort. Elisabeth Steel Reurink had received less than one hour of instruction before being permitted to ski at Collingwood’s Blue Mountain Resort. She was skiing in the company of a teacher employed by the London District Catholic School Board at the time of the accident. The trip was part of her school’s physical education curriculum. Permission and consent forms were signed along with a waiver. The lawsuit alleges Elisabeth did not want to ski L-Hill – the run on which she was killed – but was encouraged to ski it by her teacher. The lawsuit does not identify what conditions on the hill were like or its level of difficulty; however, according to Blue Mountain’s website retrieved in March 2011, L-Hill is an intermediate or expert run. Elisabeth lost control, hit a tree and was killed instantly. She was wearing a helmet. The suit basically alleges negligent instruction and evaluation. It is noteworthy that Elisabeth was encouraged to ski L-Hill rather than ski it against her will. There is a world of difference between being coerced or under duress to do something as opposed to being politely pushed or emboldened to ski a run under the supervision of a teacher. None of the allegations have been proven.
• The Manitoba Junior Hockey League recently suspended a player for 40 games for driving an opposing player into the boards (see story here). Hockey Manitoba past president Brian Sarna was bang on when he said that players who set out to deliberately injure someone don’t belong in the game. The National Hockey League could learn a thing or two and tear a page from the MJHL’s rule book.
• Also courtesy of my home province comes this unusual lawsuit that’s the first of its kind in Manitoba. The province has filed a civil suit aimed at seizing the Winnipeg home where a soccer coach allegedly abused a preteen girl who played on his team. Under the province’s Criminal Property Forfeiture Act, people can lose their property to the government if a court rules they used it for unlawful activity. The lawsuit says the man’s home was “an instrument of unlawful activity” because on at least two occasions the man allegedly sexually touched the girl while she was there (see story here). Child abuse in sport remains a problem. A 2010 study by the University of Huddersfield found that 52% of abused children were abused in community-based organizations which include sports teams (see story here). Whilst progress has been made, significant work needs to be done. As a small but sad example, USA Swimming, released a list last year which showed 46 people – including former director of the national team Everett Uchiyama – who received lifetime bans or permanently quit the organization, most for sex-related offenses (see story here). Lawsuits are not uncommon (see here for example). In this light, any legal device which aids in the reduction of child abuse in sport ought to be welcomed.
• Between Georgian lugar Nodar Kumaritashvili’s death and allegations that the Vancouver Organizing Committee (VANOC) may have violated International Olympic Committee (IOC) ethics rules with targeted visits (see story here), the squeaky clean image of John Furlong – who led Vancouver’s winning bid and the 2010 organizing committee – is in dire jeopardy. I wonder if VANOC’s foreknowledge of the luge track’s dangerously high speeds was disclosed to Nodar’s family when they accepted $150,000. On the world stage of the Olympics, VANOC blamed Nodar for his death while conveniently absolving themselves of responsibility. If Mr. Furlong didn’t tell them about VANOC’s and the International Luge Federation’s concerns over “extremely high speeds” that presented an “unreasonable demand” on the athletes and that the main cause was in fact a track that was too fast that they knew about in advance and did nothing about, then Mr. Furlong has some explaining to do. Maybe he’ll get around to that once he’s finished spinning and explaining his questionable behavior to the IOC. It all brings to mind a Sir Walter Scott quote: “Oh what a tangled web we weave … when first we practise to deceive.”

Zip-lines and the Law

Sports Litigation Alert (Volume 8 Issue 6) just published an article I wrote entitled, ‘Family Alleges Negligence after Man Dies on Zip-line’ which is about a zip-line lawsuit launched in the United States and another zip-line case just decided in Canada. Here are a few excerpts:

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A lawsuit was recently filed in the United States District Court, District of Utah — Central Division, by the estate of a man who died while zip-lining. The complaint alleges in Hoagland et al. v. Rockin’ R Ranch & Lodge Guest Operations Inc. et al. that on Aug. 11, 2008, at the Rockin’ R Ranch in Piute County Utah, Daniel A. Hoagland, M.D., dutifully followed the instructions given him, climbed the zip-line tower, held on to the strap which connected the stick to the zip-line, sat on the stick and left the tower. The strap immediately snapped causing Dr. Hoagland to fall resulting in his death. The complaint describes the strap as narrow, weathered and worn-out.

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The lawsuit alleges negligence or, in the alternative, gross negligence, which the complaint describes as conduct that is willful, intentional or reckless, causing Hoagland’s death. The complaint lists 15 separate alleged breaches of duty. The two most salient allegations relate to failure to maintain a safe zip-line and failure to secure participants to the zip-line via a harness and lanyard.

The defense will likely rely upon the doctrine of inherent risk and that the plaintiff signed a waiver and release of liability. U.S. courts have dismissed similar claims under the doctrine of primary assumption of risk such that — for example — if falling is an inherent risk of climbing and if the plaintiff fell while climbing, then the eventuation of that risk is something to which the plaintiff accepted.

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Coincidentally, in another zip-line case, a Canadian court in Loychuk v. Cougar Mountain Adventures Ltd. (2011 BCSC 193) ruled last month that the waiver signed was binding, thus barring the plaintiff’s recovery. The defendants conceded negligence in the communication breakdown which gave rise to the high-speed collision on the zip-line between the two plaintiffs, so the only substantive issue facing the Supreme Court of British Columbia was whether the waiver of liability and assumption of risks agreement was valid.

Among other claims, the plaintiffs argued that the defendant misrepresented the terms of the waiver, that it was obtained without past consideration, and that it was unconscionable. The plaintiffs had considerable experience and exposure to waivers; one plaintiff had just finished law school and the other was an owner of a fitness business which required its clients to sign a waiver and assumption of risks agreement.

The court disagreed with the plaintiff’s claims and found that the waiver was enforceable; that there was no evidence of duress, coercion or unfair advantage; and that the plaintiffs were given notice as evidenced in the defendant’s website which discloses that guests were required to sign a waiver of liability, and that the wavier was not unconscionable.

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