The Tragic Death of Georgian Luger, Nodar Kumaritashvili Reminds Us of Some Important Legal Lessons

The 2010 Winter Olympic Games in Vancouver/Whistler received high praise indeed. And although these winter Olympics were one of the best, any evaluation cannot (and will not) forget the tragedy of the Games. John Furlong, VANOC chairman, in a recent talk with the Vancouver Board of Trade said, "I don't think you can talk about the Games without talking about Nodar [Kumaritashvili]. He affected the Games. He is part of the story of Vancouver 2010."[1]

Success is a great platform for learning, and there are many enduring positive lessons to take away from these Olympic Games. But tragedy can also be a powerful teacher. The devastating death of Georgian luger, Nodar Kumaritashvili, highlights a number of lessons - some new, some we know, and some we may have put away.  The sorrow and pain felt by everyone (athletes, sport people, the general public) was real and palpable.  But not far behind these feelings were questions:  What went wrong? Who was to blame? These are both legitimate and important questions (though the motives for them may vary depending on who's asking).

It is equally important to not simply compartmentalize this tragedy as a part of a high-risk, high-performance sport. There are some important lessons to be learned - both in the situation itself and in peoples' responses to the tragedy. This article will focus on one example from each perspective.

Citius, Altius, Fortius

Citius, altius, fortius (faster, higher, stronger) is the motto of the Olympic Games. It also represents the evolution in sport, whether natural or otherwise. Arguably, it was the innovative swimsuits worn by swimmers at the 2008 Beijing Olympics and the 2009 World Championships in Rome that re-wrote the record books – not the increased skill of the athletes. Hundredths of seconds have been shaved off times due to technological changes in many sports including cycling, speed skating, and alpine skiing. Force and endurance capabilities have similarly been increased by technological changes in sports such as tennis and golf, and training and dietary regimes have had a dramatic effect on strength and power.

The luge track at Whistler is an example of the impact of technology. Luge is a sport of risk. Indeed, speed is a ubiquitous part of the sport of luge. The Whistler track was designed to be both fast and difficult. Its location was chosen for its degree of drop, its tight turns, and its speed. As it turned out, the track ran even faster than it was ever designed to go. The course was designed for a maximum speed of 135 km/h. Athletes came out of corners at speeds of 154 km/h, or 19 km/h over the maximum designed speed. Nodar Kumaritashvili reportedly came out of the final curve (curve #16) at 144.81 km/h, or at least 9 km/h over the maximum designed speed.

Was Kumaritashvili to blame for the tragic crash? Some point to his lack of experience on the Whistler track and his lack of experience and skill in luging. Kumaritashvili was ranked 44th in the season-long World Cup series and had participated in five World Cup Events. He had taken 26 runs at Whistler, with six starting from the start. He had crashed four times during those six runs, and it was on his 6th practice run that he was killed. Was this a sufficient number of training runs for an athlete with his skill and experience? Was he sufficiently skilled to compete? Was 44th in the world a good enough ranking to participate on such a tricky course? How is one to judge - and who should make such a judgment?

Was the course designed, or constructed, to be too fast and too difficult? The projected speed of the course was nearly 9 km/h faster than the prevailing world record set in 2000. The course was steeper and narrower, meaning that its curves were short and tight and generated tremendous gravitational forces against the drivers. Was the course sufficiently safe given the extreme speeds? Had sufficient precautions been taken given the inherent dangers of the sport and this specific course? Were other factors involved, such as the alleged closing of the shade blinds during Kumaritashvili's run?  These are important questions and, at least to some extent, they will be answered, or at least discussed, through a number of investigations and reports that are forthcoming.

What is clear is that technology is making sport more demanding and often, more dangerous.  As my colleague, Rachel Corbett recently wrote: "Risks do not exist in a vacuum. There is an entire underlying context that must shape our thinking about what level of risk is acceptable or tolerable in a given set of circumstances."[2]  Was the risk created by the speed and degree of difficulty of the luge track appropriate for the level of competition of the Olympic Games?  Perhaps. The safety of athletes at such an elite level of competition cannot be 'guaranteed'. Athletes take on risk in their desire to excel and athletes must know and appreciate the degree of risk. Risk must be responsibly handled by event managers and others. Performance standards need to reflect the degree of difficulty of the particular event. As the degree of difficulty of the luge run was escalating, for example, was there proper consideration as to what this might mean for qualification standards? Should they have been raised?

Whether one is dealing with Olympic Games or more local competitions, the principles remain similar. Event managers, coaches, instructors and others responsible for the care and safety of athletes have a responsibility to ensure that risks are 'reasonably managed' given the level of skill and circumstances of an event. This is the foundation of the legal concepts of the 'duty of care' and 'standard of care' required to avoid negligence. The tragedy at the luge track demonstrates how complex a task it is to manage risk properly - starting with the planning and design of the course, its construction, the management of the event itself, and finally all of the administrative issues, including ensuring athletes have sufficient practice runs and a proper skill level to manage the risks.

Managing psychological risk

A second aspect of Nodar Kumaritashvili's tragedy that struck me was the reaction of athletes, and others around the athletes, to the incident. A number of athletes expressed fear and recognized the danger of the luge run. Edwin van Calker, pilot of the Dutch four-man bobsleigh withdrew from the competition, having lost confidence in his ability. According to one psychologist, "Van Calker left the 'bubble' that sports psychologists train elite athletes to train in."[4] I recall a friend saying something similar when he left the elite levels of a very fast and very dangerous sport in Canada - he said he thought, just for a nanosecond, about the danger. The fear, ever so slight, had crept in and the edge was lost. It was time to retire, he said. In Van Calker's case he was mocked by his coach, who told reporters: "I've never seen someone get to a major event and not compete because they were scared. You keep your inner feelings to yourself and do it."[5]  He said Van Calker would be ridiculed in Holland and predicted he might live to regret his decision.

Other sleds withdrew, including Australia and Switzerland's top teams (between them they had suffered three concussions and a cervical injury).[6] Some athletes were supportive (“Standing at the top, if you’re not 100 percent confident, I could see why” said Steven Holcomb, the pilot of USA-1, referring to Van Calker's the withdrawal [7]), others not (“If you don’t want to be part of it, shut up and don’t be a part of it,” a Canadian crewman said [8]).

I am sure the sport psychologists could weigh in on this. But there is a legal issue here as well - not with regard to third party comments, but with regard to the comments and actions of a coach in such circumstances. The issue arises in circumstances where an individual might be experiencing fear and a loss of confidence. It doesn't happen often at the elite levels of sport, but it can (as witnessed by this case). But it does happen frequently at less extreme levels. In the British Columbia case of Smith v. Horizon Aero Sports [9], a student in a parachuting class got 'cold feet' during her live jump exercise from an airplane. The Court found the jump master negligent in his conduct towards the frightened jumper. The Court emphasized that the jump instructor needed to verify the student's skills, needed to challenge her when she lost her nerve, not just simply to "give her an opportunity to settle herself" and, finally, needed to recognize the peer pressure that might be on her to complete the jump and let her know "that no one will think the worse of her if she declines [to jump]". In the decision, the Court described the expected duty of the instructor/coach:

He [the jump master] failed to supervise her jump by not challenging her once she became alarmed in the aircraft to ensure that she knew how to execute the jump, and that he failed to exercise his duty as a jump master to forbid her from jumping when he knew or ought to have known that her ability was seriously in question. It was the instructor's duty to probe her by close and extensive questioning to ensure that she had a thorough understanding of the elements of canopy control. He did not do that adequately. It was his duty in the aircraft, once she became alarmed, not simply to give her an opportunity to settle herself down and leave it to her to decide whether to jump, but to have challenged her then with questions to determine whether she still recalled what she must do and to ensure that she was physically and emotionally in a condition to exercise clear and quick judgment. Having gone through the training and come to the point of the jump there are probably strong peer group pressures on the student to complete the task. I find it to be part of a jump master's duties to tell an alarmed student that she does not have to jump unless she is quite ready and that no one will think the worse of her if she declines. Although the fact did not occur here, I think it relevant to go on and say that in my opinion if the student still wishes to jump but the jump master is not satisfied of her ability to do so he should prevent her in spite of her wish. (para. 19)

Dealing with risk is a complex legal issue. In sport we cannot simply rely upon a participant's "voluntary assumption of risk" or a waiver of liability for the consequences of that risk. The risk needs to be managed and the people assuming the risk need to be properly prepared to assume that risk. In the tragedy of Nodar Kumaritashvili, perhaps some of that 'management' got lost between the cracks.

===================
[1] Mickleburgh, R. From grief, Olympics grew stronger. Globe and Mail, April 17, 2010, A7.
[2] Corbett, R. Olympic Reflections. Imagine Canada Risk Management Experts' Columns. March 2010. Last viewed April 18, 2010 at http://nonprofitrisk.imaginecanada.ca/files/insuranceinfo/en/publications/rachel_corbett_mar_2010.pdf.
[4] Bramham, Daphne. Dehumanizing, and damaging our athletes. The Vancouver Sun. March 15, 2010.
[5] Ibid, page 1.
[6] Ibid.
[7] Abraham, J., Dutch Pilot Withdraws Over Safety Concerns, New York Times, Feb. 24, 2010.
[8] Ibid.
[9] 1981 CanLII 300 (BC S.C.).

Originally published: Centre for Sport and Law Newsletter (2010) Vol. 6(2)

Recent Posts

Lightening our Load

Understanding the psychology of loss...why we must do better.

Sport Law and NOVA Global Inc Strike a Partnership to Support Sport Leaders

Generative Tension

Leaders as Catalysts for Meaningful Change

Categories

Sign up to our newsletter.
Let's resolve your challenges and realize your vision
together.
crosschevron-right