Last week's spectacular fall by skateboarder Jake Brown during the X Games in Los Angeles was a scary sight. As reported, Brown scaled a 62-foot tall, 293-foot long "Mega Ramp" where he attempted two full rotations, a move no one has ever attempted. Once he completed the move, he lost control and the momentum carried him away from the ramp wall into open air, where he fell the equivalent for five stories into the wooden base.
According to the New York Times report, he landed with such force that some thought he died or was paralyzed. Fortunately, he was able to walk from the scene, but suffered a bleeding liver, two sprained wrists, a bruised lung and whiplash to his back and neck. Still, he was very fortunate.
An earlier post by Greg on t he subject of risk in a Hawaii case involving the disappearance of a kayaker, noting correctly, that the old doctrine of assumption of risk in the recreational sports industry. However, this case involves some interesting questions and although Brown is a professional athlete in a dangerous sport, I do not think that the organizers of the sports can use the assumption of risk defense to a dismissal to a trial on the liability question.
Presumably, Brown signed a waiver of liability or a release before competing in the event, which precludes a lawsuit in most states. Also known as exculpatory clauses, they may be used to establish "express" or "primary" assumption of risk, (source: lexis, by subscription only) meaning that through a contractual agreement, the competitor agrees to accept the risk of harm from the race organizer's negligent conduct and the participant is barred from recovery. It's the consent, rather than the inherent dangerousness of the activity that counts. On the other hand, many states have recognized "secondary" assumption of risk, where the participant acts unreasonably and thus contributes to the injury. This is more risk-oriented and focuses on the acts, rather than the agreement.
The law regarding the validity of exculpatory agreements varies from state to state. Some states like New York and California have eliminated or merged the concept comparative negligence), others have remained the common law exclusion from liability. But let's assume that the California courts will uphold the validity of such clauses. I don't think such a clause would result in an easy dismissal of a claim. I take "negligent conduct" used in the definition to mean negligent conduct during the race. For example, if there were uninspected areas of the competition area or the ice was not properly cleaned in a speed skating event. Here, the article notes that "in action sports, there are no widely recognized governing bodies or organization" to establish policies as to the level of safety of competitors. This differs from other sports, which, for better or worse, have established rules prohibiting certain dangerous conduct, by either the types of equipment worn or penalties for actions that exceed the rules. I know that is far from perfect, given the concussions and brain injury found by retired or current NFL or NHL players, but it gives a blueprint.
Significantly, courts have ruled that event organizers may have negligence liability if they have not executed emergency plans or requirements that participants wear standard safety equipment. This is the key -- and it could trump assumption of risk, in my view. If extreme sports organizations do not furnish such a blueprint, does it give a license for athletes to push more and more dangerous buttons in the pursuit of victory? If so, does that impose liability?
Service provider liability (such as for school athletic directors, principals, district supervisors) is different from cases against other competitors or coaches and of course different from an act of negligence during the event itself. The lack of uniform organized standards, takes the liability to another level. Call it intent or recklessness or a public policy question. It becomes fundamental to the game itself, rather than the failure of upholding standards.
It also places ESPN, the broadcaster and owner of the X games in a position as a potential defendant. The cable network has a loyal fan base and the highlight of Brown walking away from the accident gave both him and the sport publicity. Would that attract others to do more and more dangerous activities to bank on this?
Finally, here's a thought. To avoid this confusion, why not create a presumption of liability, much like the "inherent dangerousness" standard found in strict products liability to control to situations where no quality control standards exist? In other words, does the lack of any safety standards presumes liability?
Complete elimination of assumption of risk for cases involving injuries to professional athletes is a mistake. But in a sports that generates millions of dollars and is viewed by millions of fans on the most important sports network, the failure to come up with governing standards for competition could result in significant injuries and a lawsuit calling attention to this problems.
Brown was lucky he would not be a plaintiff in that kind of lawsuit.
