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:

* * *

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.

* * *

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.