Tag Archives: Negligence

Playing Catch-Up

April 15, 2011

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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.”
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Zip-lines and the Law

April 13, 2011

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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.

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.

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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World Sports Law Report’s: Tackling Doping in Sport 2011 (in association with UK Anti-Doping & Squire Sanders Hammonds, 16-17 March, London [DAY 2]

March 25, 2011

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If there are any errors or inaccuracies these are from me rather than from the speakers. The official WSLR review of the event can be found here: http://e-comlaw.com/sportslawblog/template_permalink.asp?id=386

Day 2  (http://www.tacklingdopinginsport.com/)

  1. Anti-Doping at the Olympic Games. Richard Budgett (London 2012). The first lecture discussed the planned anti-doping provision at London 2012. Just listening to the statistics in particular outlined the sheer logistical task ahead, indeed London plans to undertake the most number of blood and urine doping tests yet (6,200 tests total split as 5,000 at the Olympics, 1,200 at the Paralympics), reaching an expected peak of 400 on one day! (To put this into perspective, UKAD only conduct 7,500 annual tests!). For the first time at the Olympics, Blood and Urine will also be collected in the same room hopefully speeding up the process. One problem that was however raised in light of David Howman’s speech the day before was that all the Doping Control Officer’s (DCO) will be volunteers and the potential for this to lead to bribery?
  2. Anti-Doping at the Commonwealth Games. David Grevemberg (Glasgow 2014). This lecture presented an overview of the planned anti-doping provision at Glasgow 2014. What was noticeable was the stark contrast between the statistics for the two events: Glasgow will have 17 sports, 25 disciplines, 250 medal events, 71 Nations and territories and 11 days of competition, indeed the costs of the Olympic stadium alone would fund Glasgow’s entire budget. One issue that hasn’t yet been decided though was whether the DCOs were coming from London, foreign jurisdictions or from training Scottish medical staff and providing an anti-doping legacy after the Games.
  3. Keynote Speech – Legacy for Anti-Doping. Hugh Robertson MP (UK Minister for Sport and the Olympics). The Keynote Speech has been widely reported by the media (http://www.guardian.co.uk/sport/feedarticle/9550585; http://www.reuters.com/article/2011/03/17/us-olympics-london-doping-idUSTRE72G43Z20110317) however it is still worth highlighting a number of points the Minister made. The first point to note is that he felt that sport was facing twin threats from doping (possibly from more individual sports) and from corruption (possibly from more team-based sports). Combating these two threats was vital if sport was to retain its integrity. One throwaway comment that perhaps jars with the current England FA coverage is that he viewed all Olympic sports stars as role models [whether this is enforceable though is another matter!]. The Minister praised UKAD and encouraged its close relationship with law enforcement, interestingly though he suggested that they should focus not just on target athletes but on stemming the entire flow of drugs at the source. He also seemed amenable to pass legislation on this issue if it was needed in the future, and in echoes of David Howman’s speech called for a strengthening and harmonisation of clearer doping rules across Europe.
  4. Using intelligence to combat doping in the run up to the Olympic Games. Nicole Sapstead (UK Anti-Doping). This lecture developed the theme from both David Howman and Travis Tygart’s earlier presentations. Somewhat provocatively, the talk opened with the statistic that there were 498 days until London 2012, but 0 days to combat cheats and their entourage! An interesting rhetorical question was whether UKAD had failed if they detected a BALCO-esque scandal just before / during the Games, or whether this in fact represented a success? What was interesting from this presentation was how UKAD collates information, trends and intelligence into a central database in order to analyse doping patterns. Nicole also outlined how UKAD used both a tactical (directly focused) and strategic (wider education) approach to combating drug cheats. She also highlighted the success of the recent anti-doping reporting hotline (run through the independent Crimestoppers): 0800 032 2332 where callers can anonymously pass on information to authorities 24/7 (http://www.ukad.org.uk/news/report-doping-in-sport)
  5. Background to and experience of the [Biological Passport] programme. Michael Ashenden (SIAB Research). This lecture explained how doping cases no longer involved positive tests, but also now involved ‘non-analytical positives’ where other evidence / interviews / suspicions could be considered indicators of guilt. One such area is Biological passports. The passport relies on two cornerstones, the initial software filtering which highlights deviances from the norm, and the subsequent review of this data by a series of experts to rule out pathological or other non-doping factors. The presentation concluded with an exhortation to discover even more markers within the blood to test for in order to block any potential loopholes.
  6. Advancements in the use of biological markers in anti-doping control. Paul Scott (Scott Analytics). This lecture could best be described as a critical analysis of the current biological passport scheme and how it could be improved in the future. Some of the suggestions raised privacy / freedom issues, such as the ability to test at any time of day or night, but this must be balanced against the fact that athletes are not currently tested between 11pm-6am and if they declared their whereabouts for later the following day, it was possible to flush certain substances from their body. Tightening the window for analysis of samples would have financial and complexity implications, but effectively sport needs to decide whether it wanted to prohibit doping or to trade-off lower costs with less reliability. A greater use of “non-starts” rather than full doping violations was also suggested.
  7. Procedural issues in anti-doping proceedings. Antonio Rigozzi (Levy Kaufmann-Kohler). This lecture compared and contrasted the admissibility of evidence under Swiss law and the WADA Code, in particular whether the WADA Code could be supplemented by IBA Rules on evidence (www.ibanet.org). Some doubts still exist over the admissibility of polygraph tests, however there is a suggestion that CAS has applied the criminal rather than civil test and therefore its decision in this area is open to challenge.
  8. Potential civil liabilities arising from doping control. Stephen Sampson (Squire Sanders Hammonds). This lecture explored whether athletes could bring civil claims against an Anti-Doping Organisation (ADO) and/or Governing Body for irregularities or problems with the doping control process. A number of case studies were discussed, as was the position in the event of a material departure from WADA rules, however it was also noted that such an action was very unlikely to succeed, particularly if the ADO / NGB had acted fairly, proportionately and justly in accordance with the rules. Interestingly while the WADA Code has been used as a ‘shield’ to protect athletes from abuse, this proposition envisages it being used as a ‘sword’ to attack for a breach.
  9. Contaminated meat: A threat to athletes subject to doping control. Mike Morgan (Squire Sanders Hammonds). This lecture discussed whether clenbuterol from contaminated meat was behind a string of recent doping results, and if so what could be done about it. Arguably the problem lay both within the agricultural sector in particular countries (Taiwan, China, South Korea and Mexico in particular) [but clenbuterol was not at levels harmful to the health of the general population], and also inconsistencies in the legal treatment of the athletes contaminated by the drug. One interesting argument from the questions was whether meat could be treated along similar lines to supplements? Taken to its logical conclusion, this would suggest that under strict liability, an athlete could be to blame if they didn’t convert to veganism?
  10. The risks – recent experiences of a NADO. Aurora Andruska (ASADA). This session was a multimedia presentation on the recent Australian experience with the supplement Methylhexaneamine.  The presentation also analysed the media reporting of the issue and the subsequent repercussions for the four athletes that tested positive for the substance.
  11. Reducing the risk. David Hall (Informed Sport – HFL), Jeni Pearce (English Institute of Sport, England Cricket), Graham Arthur (UKAD). This final section was less a lecture and more a question and answer session on supplements. Two interesting things came out of this session in particular, the first is that there were two main areas where contamination occurred: Using contaminated raw ingredients; and where third party manufacturers had cross-contaminated the product with a prohibited substance. It was also useful to hear about the current EIS policy on supplements, where athletes can receive specialised nutritional advice, guidance and support for supplement use on condition of signing up to an agreed code of conduct. Importantly, the EIS did emphasise though that this programme was one of risk management and that athletes remained liable for what substances entered their bodies; indeed, it was impossible to test every sample although the EIS could minimise this risk by only using approved suppliers and by keeping a record of what supplement batch was taken in order to trace any contamination.
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No Race to Save Face: Lindsey Vonn’s Concussion

February 17, 2011

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The US Skiing and Snowboard Association’s win-at-all-costs approach and laissez-faire efforts at diagnosing brain injuries are dangerous to both skiing and its athletes.

Lindsey Vonn won the silver medal in the downhill at the world ski championships in Garmisch-Partenkirchen in spite of her clearly being concussed (click article here). That the US Ski Team would misdiagnose her condition and allow her to ski at speeds up to 90 mph on a course renowned for its spectacular crashes is careless and potentially negligent.

It brings to mind Vince Lombardi’s infamous quote, “Winning isn’t everything, it’s the  ….”  Uhhh, how does that go again?

Postscript – Somehow between Ms. Vonn sustaining a concussion in a fall on February 2 training run and miraculously recovering from her brain injury in time to win the silver medal at the world championships on February 13, she relapsed and has withdrawn from subsequent world championship races (click article here). I wonder if media criticism (click article here), Ms. Vonn’s confession (‘I definitely am injured’), or anger from some corners of the ski racing community (click article here – Canadian alpine skier Kelly VanderBeek asked ‘Who are Lindsey’s handler and who in their right mind would clear her to race?’) affected the decision to withdraw. Regardless of the motivation of the US Ski Team’s change of heart, it is proper that Ms. Vonn not race until she is recovered and we wish her well on the road to a speedy recovery.

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US zip-line lawsuit

February 7, 2011

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A lawsuit was recently filed in United States District Court (District of Utah – Central Division) by the estate of a man who died whilst zip-lining. The complaint alleges that on 11 August 2008 at the Rockin’ R Ranch in Piute County Utah, Daniel A. Hoagland, MD 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.

The lawsuit is seeking general damages, special damages including loss of financial support and lost wages, punitive and exemplary damages, plus other costs.

The lawsuit alleges negligence or, in the alternative, gross negligence which the complaint describes as conduct which is willful, intentional or reckless causing Dr. 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. US 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 whilst climbing then the eventuation of that risk is something to which the plaintiff accepted.

That Dr. Hoagland was not wearing a harness – while distressing – is not necessarily material to the case. It is probable that he was informed of this hazard and that, as a man of science, he understood the law of gravity and the risks herein.

Zip line using stick and no harness - photo is NOT from Rockin' R Ranch

Where it becomes potentially troublesome for the defendant is in the state of the equipment. Contrary to the claim, the defendant is under no duty to operate a ‘safe’ zip-line. Under the circumstances, it is unreasonable to assign a duty to make a contraption such as this infallible. Risks can be minimized or mitigated but never eliminated. To remove the risk of falling from a height whilst zip-lining or climbing, the only plausible option would be to not get off the ground. At issue then is what are reasonable risk management practices in the circumstances of operating a commercial zip-line operation.

Recall that the strap broke immediately after Dr. Hoagland weighted it. This might suggest that it was of insufficient integrity or quality to hold his weight. He would have consented to the ordinary risks inherent to zip-lining but have not consented to zip-line on defective or deficient materials or engineering.

It is possible, however, if the waiver was properly prepared and presented that it could bar recovery for a mechanical failure which was not reasonably foreseeable or detectable. Hypothetically, if the strap followed manufacturer’s specifications relating to its use, had not exceeded the manufacturer’s recommended shelf-life, and the alleged materials defect was not detected by the defendants in routine inspection, then its structural failure could not have been reasonably foreseeable.

It is unlikely that a waiver would cover a strap in the condition alleged by the complainant. If it can be shown that the strap was defective or deficient and that it was plain to see to anyone who directed their attention to it then it becomes a different story altogether. This is the second prong to the claim. Gross negligence would not be covered by the waiver.

The crux of this case will therefore be what is a reasonable zip-line and what are reasonable equipment inspection and maintenance practices.

Stay tuned.

Read the statement of claim here – Zip-line Statement of Claim – Hoagland v Rockin’ R Ranch.

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US football player sues university over weightlifting incident

February 1, 2011

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Former University of Southern California tailback Stafon Johnson filed a lawsuit last week against his alma mater alleging negligence and recklessness on behalf of former assistant strength and conditioning coach Jamie Yanchar and the university in relation to a weightlifting incident one-and-a-half years ago.

Johnson was injured during mandatory team weightlifting workouts on 28 September 2009. It was initially reported (read article here) that Johnson lost control of a bar while bench-pressing 275 pounds causing the bar to drop and land on his neck and throat. He underwent multiple surgeries for the injuries stemming from the incident. Johnson was sidelined for the remainder of the 2009 season, was passed over in the 2010 NFL draft but signed as an undrafted free agent by the Tennessee Titans.

Johnson now claims that he didn’t lose his grip and drop the bar on himself. The suit claims Yanchar hit the bar with his own body before Johnson had a grip on it with both hands thereby causing it to fall across his throat. The lawsuit further alleges that Yanchar was negligently and carelessly inattentive to properly placing the bar into Johnson’s hands and making sure that Johnson was ready for the bar to be placed into his hands.

It further alleges that Yanchar failed to use the care, skill and attention ordinarily exercised in like cases by competent, reputable and reasonable members of their profession practicing in the same or a similar locality under similar circumstances, and to use reasonable diligence and care in the exercise of skill, in an effort to supervise the practice and to safely and properly spot Johnson while he was bench pressing 275 pounds. The bar was dropped, hit, and/or fell – the statement alleges – onto Johnson’s neck as a result of the Yanchar’s negligent, reckless and careless acts and omissions.

USC issued a statement saying that it ‘firmly believes it was not at fault in Stafon Johnson’s unfortunate weightlifting accident. We are sorry that Stafon was injured.’

At the time of the incident Johnson was in his senior year at USC and was the starting tailback and the leading rusher on the football team.

It is interesting that Johnson’s suit is seeking damages for lost earnings and loss of future earnings.

As Johnson missed most of his senior year following the incident, he was not drafted. Players who are drafted sign bigger contracts than those who are not.

In a preseason game with the Tennessee Titans, Johnson suffered an ankle injury and subsequently missed the entire season.

Being undrafted as a consequence of his laryngeal fracture no doubt compromised the size of his contract. Missing his rookie season with the Titans also devaluated Johnson’s future worth to the team.

The court will be challenged, not only to find USC at fault for Johnson’s injury, but to calculate the difference in what he could have earned as a drafted player versus a walk-on and to determine the difference in future income as a result of the weightlifting incident even though Johnson sustained a season ending injury which too will have the effect of diminishing his income generating potential.

None of the allegations have been proven.

Here’s a pdf of the complaint for damages – Johnson v USC and Yanchar

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Fore-warned is….. irrevelant: Anand v. Kapoor, 222, New York State Court of Appeals (Albany)

January 31, 2011

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Read the Case transcripts here: http://www.newyorkinjurycasesblog.com/uploads/file/Court%20of%20Appeals%202010.pdf (2010) and http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03110.htm (2009 Appellate)

This case concerned an amateur golf game on Oct 19 2002 between three friends: Dr Anand, Dr Kapoor and Balram Verma in Suffolk County. Each player had hit two shots and separated to retrieve their respective golf balls. (While Dr Anand’s landed on the Fairway, Kapoor’s landed 20ft or so behind it in the rough).

On finding his ball, Dr Kapoor, unaware of where the other golfers were, decided not to wait and took his next shot. Unfortunately he shanked it 50 degrees and struck the claimant in the eye, causing retinal detachment and a permanent loss of vision. The claim focuses on whether the failure to warn the other players (by shouting “fore”) amounted to negligence. For a discussion on why some commentators think the claim should have been made in recklessness, see: http://overlawyered.com/2009/05/new-york-court-says-golfers-arent-required-to-yell-fore/comment-page-1/#comment-47831 and http://www.newyorkinjurycasesblog.com/2009/05/articles/eye-and-vision-injuries/newest-ruling-in-golf-course-cases-plaintiff-hit-in-eye-by-errant-shot-loses-vision-and-case/

The Supreme Court, Appellate Division Second Department, and now the New York State Court of Appeals dismissed the complaint and granted summary judgment on two grounds:

  • Anand was not in the foreseeable “zone of danger”.  Effectively, the Court held that while there was an obligation to yell “fore” if the other person was in such a “zone”, this was not the case here as the claimant was at least 50 degrees and 20ft away from Kapoor. A misdirected shot of such poor quality could not therefore be foreseen so no warning was needed. (The Judge obviously hasn’t seen me play!)
  •  Even if he was in a “zone of danger”, the Court held that Anand assumed the risk of injury by playing golf. Indeed, even though Kapoor did not call out “fore” or any other warning, this did not amount to intentional or reckless conduct or unreasonably increase the inherent risks of golf.

Interestingly, CBS reported (http://www.cbs12.com/articles/anand-4730174-kapoor-golfer.html) that Anand’s counsel unsuccessfully argued that the zone of danger differed with the skill of the player (reminiscent of Condon v. Basi – different duties of care for different leagues anyone?)

What nobody so far seems to have picked up is the difference between UK and US Golf. In the UK case of Pearson v. Lightning (1998) 95(20) LSG 33, which concerned a similar eye-injury from a mis-hit ball out of the rough, the defendant was held liable for his decision to play the shot at that particular time given the presence of other players ahead of him. Lord Justice Simon Brown in giving the leading opinion for the Court of Appeal stated that the risk of a mis-hit was a real risk for every golfer and this risk was increased by the lie of the ball in the rough.

Recklessness was also addressed by the claimant’s expert witness who stated: “I find it difficult to understand how players of handicaps as high as sixteen and above undertake shots over trees with players within one hundred yards of where they are hitting from. In my opinion, it is absolutely reckless and inconsiderate and a complete breach of the etiquette observed by sensible players.”

While the rules of golf might be the same the world over, it would seem that “zoning laws” have different interpretations depending on where the case is brought.

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Moore Winter Sports accidents

October 25, 2010

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Emma Moore v. Hotelplan (T/a Inghams Travel) & Mr Adriano Tantera [2010] EWHC 276 (Ch)

This case concerns an accident while undertaking winter sports, more particularly an organised evening snowmobile (‘skidoo’) ride at the Italian ski resort of Passo Tonale in January 2007. The claimant was a 37yr old personal trainer on a group skiing holiday organised by the defendant operator (Inghams). The company subsequently joined a third party (Mr Tantera) to the action as he provided the skidoos and instructed the party as to their use.

The action arose when the claimant lost control of the skidoo as the group was descending down the mountain. The claimant collided at speed with a parked car at the foot of the slope causing spinal injury and paralysis at T5 (mid-chest).

The action was for:

  • breach of contract,
  • breach of tortuous / delictual duties owed under Articles 2050 and/or 2043 of the Italian Civil Code
  • Negligence

The case was made more complicated by the fact that the defendant denied responsibility for the activity and blamed the third party entirely, to the extent that it claimed any actions of the Ingham representative on site were merely as an agent for Mr Tantera.

The Court at [7] identified five key questions:

  1. What were the contractual arrangements for the skidoo trip?
  2. What instructions were given to the claimant as to the control of the skidoo, and in particular was she instructed in the use of the engine cut out, the cut off button?
  3. What was the cause of the claimant’s loss of control of the skidoo?
  4. Would the operation of the cut-off button have prevented the accident?
  5. Was there contributory negligence on the part of the claimant?

Taking each in turn,

Although the holiday was booked by another member on behalf of the group four months previously and purported to exclude liability for any subsequent third party excursions, the Court held at [28] that Mr Tantera operated this excursion on behalf of Inghams through a contract signed in 2002, and viewed the party as Ingham customers [16]. The Court also relied on the fact that the Skidoo’s were advertised in an Inghams’ welcome pack [11], the party paid Inghams for the trip [12], received a receipt on headed Inghams notepaper [12], were not told that the onsite representative (Ms Hodges) was acting for a third party [13], had to exclusively book the excursion through Ms Hodges [24] and had to sign disclaimers (that were subsequently not relied on as they were for a different vehicle) on behalf of Inghams [14]. Given these findings, the contract for the supply of the skidoo excursion was also impliedly subject to the original liability clause meaning that Inghams was liable for any injuries and consequent losses “caused by the lack of reasonable care and skill” on the part of Mr Tantera [29].

Having established potential liability, the next question was to establish whether the defendants through Mr Tantera had breached their duty to the group in failing to give clear operating instructions for the Skidoos. The Court heard a number of mechanical arguments relating to the Skidoos (Polaris 550 Fun Sport Edge 136 Touring snowmobiles), but essentially this section can be summarised as a factual discussion of the safety briefing. The Court heard that all members of the group chose to wear helmets, despite the fact that this was non-compulsory [33], and that several members of the group were complete novices. The party also stated unanimously that the safety briefing took 30 seconds each [34-39], and that no-one was shown what or where the cut-off switch was. This contradicted Mr Tantero’s evidence that he spent 2-3 minutes with each person and that his usual practice was to give such an instruction [41]. The most damning bit of evidence though came from Ms Hodges who described Mr Tantera’s briefing in her witness statement as:

“When he briefs each driver he first asks (in English) if it is their first time on a skidoo, then he switches on the engine himself, they are not allowed to do this. He then tests the accelerator, which is on the right, and says “this is the throttle-accelerator; it is an automatic clutch, no gears”. He then shows them the brake on the left-hand side and says “this is the brake”. Stay in line, five to six metres separation, no overtaking, no slalom.” [40]

 Unsurprisingly the Court preferred the evidence of the party and held that Mr Tantero had not shown the group the cut-off switch, thereby breaching his duty to the claimant.

 The Judge held that the accident occurred when the Skidoo was going too fast on the downhill return leg of the journey, 45mins into an otherwise uneventful trip. Although the Court heard from two expert witnesses, it preferred the defendant expert’s view that an examination of the skidoo after the accident had shown no defects with the mechanical operation of the vehicle, suggesting driver error was to blame for the accident. In particular the Judge held that the claimant most probably drove too close to the skidoo in front of her, swerving to avoid it and in her panic hitting the accelerator rather than the brake [65].

The causation question of whether an application of the cut-off switch could have prevented the accident was comparatively straightforward and the Court held at [74] that it would have done.

The only question remaining was whether the claimant was contributory negligent. At [80], the Court found that there were two errors the claimant made that materially contributed to the accident, the first was driving too close to the skidoo in front, the second was in applying the throttle rather than the brake (although the Court was careful to suggest that she should not be judged too harshly for her confusion in the ‘heat of the moment’). The Court however rejected the argument that the claimant should have noticed and applied the cut-off switch.

In summary, the Court suggested that “the Claimant created the emergency, but as a consequence of the negligence on the part of Mr Tantera in failing to instruct her as to the use of the cut-off button in an emergency, she did not have the means of dealing with it in a manner that would have avoided the accident”, although Mr Justice Owen did award 30% contributory negligence.

There are two other interesting elements to the case that are worthy of consideration, the first is a scathing judgment on the quality of the evidence from one of the defendants experts’ (a Mr Christopher Exall). At [75], the Court suggested that there were: “a number of gravely disquieting features of his evidence, culminating in the assertion in his third report, made under an expert’s declaration of truth, that he had had discussions with a Mr Michael McDowell of Polaris UK, an assertion that, as he was forced to concede in cross-examination, was subsequently untrue. I do not propose to set out the other actions on his part which on any view were indefensible for a witness under an obligation to the court to give impartial and objective evidence. But there can be no doubt that he took on the role of an advocate for the defendant. He did not give impartial evidence, and was wholly discredited as a witness. I could not place any reliance on any part of his evidence.”   Ouch!

The other comment interesting part of the judgment relates to insurance. At [17], the Court quoted from the Defendant Reps Manual Winter 06/07 which contained the following paragraph under the heading ‘Snow-mobiling’: “You will find that snow mobiling and ski-doo’s are offered in many of our ski resorts but the normal holiday insurance cover does not include any liability cover for damage, injury or death caused to third parties. The liability cover held by the operator and included in the price or offered as an extra, is unlikely to be anywhere near adequate in the event of an accident causing serious injury or death to a third party…..”

I don’t know about you, but while the Court did not comment on this paragraph, I think it is worth pausing a few minutes to reflect on it. Essentially isn’t Inghams saying they know that not only is their insurance cover excluded by the holiday contract, but that the operator’s own insurance cover is inadequate, even if purchased as an add-on extra! In fact it makes me so worried, that on my next skiing holiday, it would be perhaps be better if I Skidon’t and we stick to the planks of wood (or fibreglass!).

Youtube clip of a skidoo jump:

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Angling for the liability of Route Notes in Rallying

October 24, 2010

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Munro v. Sturrock (T/a Scotmaps) [2010] CSOH 16

This case concerns a rally accident during the “The Little the Jewellers Speyside Stages 2004” rally in Scotland. The pursuer (claimant) was an experienced racer and double Scottish Champion. On the day in question, he was driving a Subaru Impreza, while his co-driver Heather Connon (now MacKenzie) navigated. The claim results from a crash that occurred on the 7th junction during the 6th of the 9 rally stages, just outside Clashindarroch, when the car ran wide at the bend and onto the offside banking, damaging the car and allegedly causing psychiatric injuries to Munro.

Munro later brought a case alleging that the description of the corner in question in the route notes had been negligently compiled  and it was this failure that caused the accident.

The Court heard plenty of evidence regarding the status of route notes, in particular their inherent subjectivity and the fact that one driver made these notes for 120 other drivers of differing ability [39]. Indeed, the reliance placed on these notes can be demonstrated by the fact that the organisers of the Speyside rally had prohibited reconnaissance runs by competitors under pain of disqualification. Instead for £100, the defendants provided route notes and an accompanying DVD “describing the road and bends accurately, including any hazards that are known at the time” [2]. This description consisted of an abbreviated angle (40 degrees=4), a direction (eg L or R) and any additional information relevant to the correct line to take around the corner (eg “In” [take a tight line], or “Cut” [the corner]).

The Court later heard at [13] that route notes had three main purposes:

  1. To reduce the advantage gained by cheats using other notes
  2. To reduce the advantage of those with local knowledge
  3. To make the rally safer, by providing drivers with a shorthand description of what the road was doing

The main thrust of the pursuer’s argument was that the corner should not have been designated as 4Lin, but rather as 7, as it had been previously described in 2001. Had the corner been described differently, the pursuer states that he would have approached it much slower than the 70mph and fifth gear in which he attempted it.

Initially his case seemed to be supported by a “smoking gun” email written in haste by Andrew Kelly (who helped check the route notes):

“On the basis of your information it would appear that Bill [Sturrock] has made a massive error in his route notes. As you know I’m the one that checks notes with him on the day and therefore, if this is correct, I must accept some degree of responsibility… I have no idea how I could have got this corner wrong as even in the Volvo I would have thought I would have noticed such a difference. I feel really bad about this and I am extremely disappointed in my own ability as a so-called rally driver.” [34]

At trial however, Mr Kelly couldn’t have navigated faster away from this email though and he was supported by the expert witnesses who, in the main, suggested that mathematical measurements proved the corner was 30-40 degrees. The judge (Lord Uist) agreed and seemed particularly unsympathetic to the fact that previous route notes may have contained different descriptions as this was not the accident being discussed at the trial [44]. Unfortunately for us, this conclusion also meant that the route notes were accurate and therefore the case could be disposed of without any discussion of how the standard of care test would have been applied. This is a a shame as a liability discussion would have been very interesting given that the Court would have needed to balance the obvious reliance placed on the notes by the drivers and navigators, with the subjective and scientifically unsupported nature of the instructions.

Youtube Clip of another WRC rally accident which captures the inherent risks involved in racing:

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When is a coach liable for the injuries of their athlete?

October 17, 2010

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Davenport v. Farrow [2010] EWHC 550 (QB)

Read the full case here (http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2010/550.html&query=davenport&method=boolean)

The case concerns a claim by Richard Davenport (24yr old GB track athlete) against his former coach David Farrow (a top-level UK Athletics L4 coach). Davenport claimed damages for personal injury, consequential loss and damage caused by Farrow’s:

  • Negligence
  • and/ or breach of contract
  • and/ or breach of statutory duty

The personal injuries alleged were stress fractures of the spine (bilateral spondyloses at L5) which prevented him from training or competing from 2005-2007. Essentially the claim turned on when these fractures occurred – during an intensive training camp as alleged by the claimant, in which case, issues arose as to what if any steps should have been taken to investigate and/or manage them; or prior to 2001 as alleged by the defendant in which case, no duty would arise and the claim would fail.

Although both parties called expert medical witnesses in support of their case, it was impossible to state with any certainty when the injury occurred and the nature of the evidence was that both conclusions could be supported by the symptoms described.

The Court however concluded that it was more than likely that the stress fractures occurred at an earlier stage than Oct/Nov 2004, as Davenport had claimed. Mr Justice Owen gave the following reasons in support of this finding:

  • The claimant could not describe with any clarity when the symptoms came on, despite detailed and accurate records being kept of his high-performance training [58]
  • The level and intensity of the training camp in 2004 was not markedly different from the previous year’s training and was considered to be an acceptable practice for an athlete of Davenport’s ability and aspiration [60]. This was important as Farrow was a volunteer coach and designed and managed the training regime.
  • During 2004, Davenport was treated for a number of leg injuries, in South Africa, the UK and at competitions and despite referrals to a number of independent medical professionals, no complaint was made about any back injury [60-65]
  • While the claimant suggested that Davenport thought that the claimant lacked motivation, had an attitude problem and was lazy [32], and as such did not take his complaints seriously, an independent witness gave evidence that the claimant’s parents shared Farrow’s view [66].
  • If an athlete had been suffering from acute spondyloyses in Oct / Nov 2004, he would not have been able to have continued to have trained at the level and intensity that he was running at [67]

Given these conclusions, the claim failed.

 Arguably though, the most interesting part of the judgment was in an area not explored in any real depth by the Court, namely the role of a High Performance coach and the dynamics of that coach-athlete relationship. On 11th January 2004, Davenport and Farrow formalised their coaching relationship by a written contract [7]:

4. THE COACH/MANAGER’S OBLIGATIONS

4.1 The Coach/Manager shall provide coaching and advice to the Athlete (retaining the right to coach other Athletes). Such coaching is to include advice on fitness, health, diet and training schedules, strength and track training schedules, mobility work, injury prevention and rehabilitation, race tactics and strategy, advice on a programme of events to participate in, to accompany the Athlete to events and make himself available to the Athlete at all reasonable time and upon reasonable notice for the purposes of consultation and advice pertaining to the Athlete’s career, both competitive and commercial.

5. PERFORMANCE, FITNESS AND INJURIES

5.1 The Athlete undertakes that other than pursuant to his/her obligations under this Agreement he/she shall not during the term of this Agreement participate in any professional or other sporting activity or practice that may endanger his/her fitness or ability to compete without the prior permission of the Coach/Manager.

5.2 The Athlete undertakes that he/she shall at all times during the Term compete to the very best of his/her ability and he/she shall make all reasonable endeavours to maintain his/her form and health so as to be available for regular competition.

6. THE ATHLETE’S OBLIGATIONS 

6.1 The Athlete will, during the Term but subject to the Athlete’s obligations in his/her education:

(a) make himself/herself available for all competitions and for training and for other duties … as and when required by the Coach/Manager … unless prevented from doing so by his/her obligations under any agreement relating to his/her participation in an international team or by illness, injury or accident or other cause which the Coach/Manager agrees so prevents him.”

What was left unanswered was whether the fact that there was a written contract increased a coach’s obligations towards their athlete? Or was it simply a good practice management of everyone’s expectations?

Farrow also deterred his athletes from playing other sports because of the potential injury risks these activities represented [5] and at: http://www.telegraph.co.uk/sport/4775917/Schools-Sport-Contact-games-taking-toll-on-athletes-says-coach.html. Did he have a point? Or should athletes only specialise much later in their careers? Indeed can athletes gain additional skills and experience from taking part in unrelated activities?

The final area of contention related to the degree of control a coach should have over an athlete. Although a number of other athletes also gave evidence though to suggest that they did not agree that Davenport was unduly domineering or imposed unreasonable demands given the level of commitment to their sport that was expected of them, in the Court case [27], it was suggested by the claimant and another former Farrow Protégé (Emily Pidgeon) that Davenport was:

“a forceful and controlling personality who demanded a high level of control over the young athletes whom he coached. He gave evidence that the defendant wanted a say in all aspects of his life. The defendant would telephone on an almost daily basis, and would question his mother about what she was feeding him, wanting to control his diet. As he grew older the defendant would check on what he was doing outside training, wanting to know if he had gone out, and whether he had got back at a reasonable time. The claimant’s evidence was supported by that given by his mother who said that as the years went by, the nature of her contact with the defendant changed from brief discussions to detailed inquisitions into the claimant’s routine outside training. Although she found it surprising, she accepted that that was how professional coaches operated.”

So what control should a coach exert over an athlete? And how would this relationship affect liability?

POSTSCRIPT

Richard Davenport has now re-recorded his personal best at an athletics meet in the summer: http://www.thisisgloucestershire.co.uk/news/Davenport-races-fantastic-PB/article-2361854-detail/article.html

In 2007, David Farrow was stripped of his UKA coaching licence for five years following an alleged abuse of trust with a senior athlete he was coaching: http://www.telegraph.co.uk/sport/othersports/athletics/2309581/Coach-guilty-of-abuse.html

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