Civil action a possibility in wake of luger's death at Vancouver Games

Will the death of 21-year-old Georgian luger Nodar Kumaritashvili during a training run for the XXI Olympic Winter Games lead to a civil action?

Kumaritashvili's parents have not expressed a desire to assign blame for their son's death, which occurred when he was thrown off his luge at nearly 90 miles per hour, hurtled out of the course and slammed into an unprotected steel support pole. The accident occurred at the Whistler Sliding Centre, which has been used for luge competition since 2008 -- including during a World Cup event in February 2009 -- and which has become noteworthy, if not notorious, for its speed. Several lugers and bobsledders, in fact, have been injured on the track, before Kumaritashvili's accident. The track has also been altered several times, purportedly in response to safety concerns.

If Kumaritashvili's parents come to believe that their son's death was attributable to the negligence of others, they could bring a wrongful death action on his behalf. They could also seek recovery for emotional suffering caused by their son's passing.

The list of potential defendants is long and would include the International Olympic Committee (IOC); the Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games (VANOC); the World Luge Federation; Stantec Architecture Limited, which designed the track; and companies employed to construct the track. Essentially, any party that played a role in the design, construction or maintenance of the Whistler track, or in the sanctioning of Kumaritashvili's use of the track, could, in theory, be considered "responsible." Because the accident occurred on Canadian soil, any claim would most likely be heard by a Canadian court (though any paperwork signed by Kumaritashvili with the IOC and other bodies may have contained language directing that civil claims be heard by another country's courts). Litigating a claim would almost certainly require expert testimony on sliding tracks, as well as testimony from defendants, Kumaritashvili's coaches and fellow lugers.

Whether the Whistler track is unreasonably dangerous would serve as a key issue in any litigation. There are reasons to believe that the track, which has been described as the world's fastest, exposes athletes to dangerous speeds. The speed of a track is primarily a function of its length, slope and curvature -- all of which are carefully contemplated in designing the track. The Whistler track is both long and steep relative to sliding tracks used during other Olympic Games. Its design is based on mathematical models devised by noted German engineer Udo Gurgel, whose models were also used for tracks in the 1998 Nagano, 2002 Salt Lake City and 2006 Turin Games. Reportedly, the original design of the Whistler track called for top speeds of approximately 85 miles per hour, but those speeds have been repeatedly eclipsed, including by Kumaritashvili on his fatal run.

There are a number of possible explanations for a discrepancy between the projected and actual speeds of a track, including faulty design but also inaccurate construction or improper maintenance. There are less blameworthy reasons as well, such as unexpected enhancements in the quality of luges and other equipment. Given that the Whistler track has been used for two years, has been modified more than once, and has been extensively evaluated by the IOC and VANOC, its speed and related safety worries were of no mystery to Games organizers.

Just five days after Kumaritashvili's death, an injury to another Olympic athlete elicited another complaint about safety. Slovenian cross-country skier Petra Majdic, a medal favorite, broke four ribs and suffered a collapsed lung after falling off the course and tumbling into a creek bed during training for the women's individual sprint event. She went on to win a bronze medal later that day. The Slovenian team filed a protest, claiming that the track was unreasonably dangerous. On Saturday the International Ski Federation announced in a statement that "in the opinion of the [competition] jury, the corner in which the accident occurred skied well and did not present unusual risks." The Slovenian team is reportedly considering filing a negligence lawsuit, which in terms of legal elements would resemble a suit brought by Kumaritashvili's parents.

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.

Kumaritashvili's own behavior on the track would also be examined. If his actions caused the accident, he would be deemed responsible for his death. At least one expert has already made such a conclusion. Canada luge coach Wolfgang Staudinger said, "It was not a track issue, it was a driving error, 100 percent."

Also, the fast speed of the Whistler track would not necessitate liability for injuries. Given that sliding tracks vary by design, it can be expected that some will be more dangerous than others. The very nature of luge might also work in the defendants' favor. Accidents and injuries are bound to occur in a sport in which humans are propelled at extremely high speeds in sleds and in which even a slight error can cause a terrible outcome. From an economics perspective, if liability were attached to luge injuries and fatalities, the sport might no longer be economically viable.

A private settlement between Kumaritashvili's parents and any potentially responsible parties is more likely than litigation. A settlement would entail a contract commanding that Kumaritashvili's parents receive compensation in exchange for agreeing to not sue. After all, does the IOC really want to be pitted in court against the grieving family of an Olympic athlete?