Tort Law’s Inapplicability to Extreme Sports: The Death of Canadian Ski Cross Racer Nik Zoricic

By Kelsey Petersen – Thompson Rivers University 2L JD Student

The National Post, in their coverage of the death of Canadian Ski Cross racer Nik Zoricic, quoted head coach, Eric Archer, as saying “the athletes are all searching for the same elusive thing: the edge of possibility.All truly elite athletes are searching for that line – they are trying to push the boundary of what humans can do.” In many extreme sports, pushing the boundaries leads to a form of risk taking that the law of negligence has yet to appreciate.Plaintiffs who are hurt while engaging in high risk activities do not fit within a doctrine that uses reasonableness as its central criterion.

Referred to NASCAR on skis, ski cross features up to six athletes racing side by side over banked corners and jumps 140 feet in length.Ski Cross began, and gained its popularity in the X-Games, and has been modified only slightly to become a World Cup and Olympic event.While the World Cup circuit features only four competitors racing at a time, as compared to six at a time in X-Games competition, the extreme nature of competition has transcended into the alpine racing circuit yet is not subject to the same regulations that traditional alpine disciplines enjoy.

Tim Danson, attorney for the Zoricic family, has called the death of Nik Zoricic the result of “gross negligence of race organizers and officials.”Although the Swiss police report found there to have been no third party causation involved in the crash, Danson is calling for the International Ski Federation (FIS) and Alpine Canada to conduct their own independent investigations to determine whether improper jump trajectory, safety measures and grooming protocols were responsible for Zoricic’s death.

While Smolden v Whitworth held that sport is not a special case with its own discrete jurisprudence, divorced from established general principles, the specific circumstances are of crucial importance in determining the applicability of tort principles.In addition to defining what is reasonable versus unreasonable risk within extreme sports, the court must evaluate the fundamental nature of the sport, and the defendant’s role and relationship to the sport, to determine whether the defendant owes a duty to protect the plaintiff from a particular risk of harm.

Athletes involved in extreme sports are often anything but careful, pushing the boundaries of risk taking to be successful in their sport; yet participating in a dangerous sport does not mean that an athlete consents to negligence which increases the risks posed by the sport itself.The defence of voluntary assumption of risk is yet another area to expose tort law’s inability to apply to extreme sports.“Traditionally, the assumption of risk defence barred a plaintiff’s claim, whether his behaviour was reasonable or unreasonable, on the ground that he voluntarily chose to encounter a known danger.” The assumption of risk doctrine is even more important in extreme sports where, by their nature, they are inherently dangerous.The risk of injury is extremely high without the defendant’s negligence increasing the likelihood of injury.While the voluntary assumption of risk defence continues to apply to dangers inherent in the sport, duty can be imposed if the defendant, through their negligence, increased the inherent risks of the sport. 

R v Jobidon held, in a criminal law context, that one cannot consent to death or grievous bodily harm. Can the principle of negligence follow with the assertion that an athlete cannot consent to death in extreme sports?  The death of Georgian luger Nodar Kumaritashvili prompted the following statement: “No sports mistake is supposed to lead to death.No sports mistake is supposed to be fatal.” While extreme sports adhere to a practice of increased risk, tort law principles must be modified to allow for the increased nature of risk in extreme sports to be preserved while maintaining the athlete’s right to impose liability on those guilty of negligence.

Alpine Canada applies the brakes to ski racing

Alpine Canada, the national governing body for alpine and ski cross racing, announced a series of measures aimed at improving safety in domestic ski racing as well as a strategy to work with FIS (the International Ski Federation) to improve conditions at the World Cup level.

The changes are in response to a rise in serious skier injuries; more than half of Canada’s national team didn’t compete throughout the 2010-11 season due to injury (read article here). Erich Mueller, a ski safety expert from the University of Salzburg and a member of the injury research team for FIS, says that 42% of World Cup skiers suffered injuries in 2009 and that 23% of those injuries resulted in athletes missing at least eight days of training and/or racing (read article here).

Kelly VanderBeek, a skier on the national team, opines that, ‘We know there are risks but we’ve gone too far.’ VanderBeek appreciates that ski racing is an inherently dangerous sport but qualifies it: ‘It doesn’t have to be this dangerous. It’s just taken a quantum leap in the severity’ of injuries sustained by skiers.

Max Gartner, President of Alpine Canada, correctly notes that, ‘In order to have a sport with a good balance between risk and reward’ it is necessary to recalibrate and rethink their approach.

Changes include (see Alpine Canada’s press release here):

• avoiding the use of injecting water into the snow thereby making the slope resemble a skating risk to make the course hard and fast
• setting courses in Canada with a focus on reducing speed
• lobbying FIS for different ski suit materials to be used at the elite/World Cup level to create more drag and slow down ski racers
• recommending mouth guards and back braces be used at all levels (their cost can be prohibitively expensive so they aren’t yet mandated)

It is noteworthy that in a sport where the need for speed is essential for winning, the national governing body for alpine and ski cross racing has recognized that the best courses and gear needn’t be the fastest. Alpine Canada has appreciated that the technologically-inspired means of making skiers go faster has disrupted the balance between risk and reward and have accordingly and properly taken measures to slow things down.