This is related to the post on waivers, but a stand-alone topic itself so I started a new post:
Related to the liability debate is the question of what OUR responsibilities are as athletes. It’s the morning of IM Utah, you are on the beach. conditions are, at best, very difficult for swimming. You have a fundamental choice: Assess the risks on your own and elect to either compete or not start -OR- Relinquish and defer this decision to race management and trust that if they say “go” they beleive it is reasonably safe to race. Now, here’s the problem: If it is not safe to race and the race management was in error (negligent or not) who pays the price? You. You drown, you are injured, you incur some type of loss. You or your survivors may receive some compensation for the loss, but this does not negate the loss or make it go away. You still suffered it. No court or out of court settlement will negate it. This being the case, doesn’t it make sense that we are each ultimately responsible for the ramifications of our decisions? Since we ultimately have to pay the price, we carry the burden of assessing the risks. Risk and loss are not transferable. I am still alive despite some close calls in the military and in sport. It is because I have said, several times, “This is too dangerous, I choose not to participate” and walked away. Other times I have sustained injuries becasue I did not do that and chose to take the risk. I paid with a broken back, knee surgery, concussions, broken bones, etc. No one can compensate me for the ramifications of those losses. What about this is so complex? Am I just too simple or radical a thinker? There should be no waivers: You race, you risk. Comments?
generally speaking i am with you, tom. consider the “helix” debate from IMMOO last year. the race had you ride down a parking ramp for a few stories on a curving helix nearly two lanes wide. it was driven on everyday by all manner of vehicle - and was ridable with no brakes pedalling in the big ring in the pouring rain. others were calling some of the roads “dangerous” even tho they were regularly traveled by lumbering milk trucks on the ice at O-dark-thirty every wisconsin winter morning!! people were in an uproar on the net, calling out the RD and readying their negligence-based language before even seeing these things. ridiculous. but guess who wins in court, should push come to shove??
Agreed, 100%. I ended up with a body temp of about 93-94 degrees in the back of an ambulance last year after going out in a absolute deluge nor’easter that I had no business racing in. Frankly, the race probably should’ve been called off - the conditions were that bad. But, people wanted to race, a good majority did in fact race, and I should’ve been smart enough to listen to my gut, put the bike back in the car and head for Dunkin Dounts. I put on the wetsuit and get into the water and from there on out it’s my problem. End of story. Everybody wants “freedom” (in the apolitical sense) but no one seems to want to be held acountable for what they do with it. If you want the freedom to beat your head against a wall, and you do so and hurt yourself (quite likely) you can’t sue the wall’s owner for failing to post a sign that says “Warning: Beating head against wall may result in injury or death.” It’s like (see what you started Tom) people who kill someone (in any form) while under the influence of drugs or alcohol and then their lawyer says:" Well, he was under the influence at the time." Well, if YOU chose to take the substance, then YOU are accountable for anything that occurs while under the influence of that substance. No? Seems simple to me.
People are interested in participating in risk sports, such as Ironman, but are not willing to accept the risks or the ramifications. The risks cannot be pasturized. They cannot be transfered. A RD cannot remove them. Everyone wants to say they went skydiving. Everyone wants to be an adventure racer. Everyone wants to do Ironman. Guess what, those events have an element of risk. These risks are often extraordinary (i.e., they are outside many people’s ordinary daily experiences). That’s NOT the RD’s problem. It IS the problem of the participants, literally. In 1996 11 people died climbing Everest. They were taking an enormous risk on a dangerous climb. They paid for the climb, they learned to climb, they walked up the mountain themselves. It was not done under duress. They exercised free will and paid the price for the extraordinary risk. Same thing with us? You want to be a triathlete? Ironman. Good, those are admirable goals, and they come with certain responsibilities. One of them is the responsibilty to make safe decisions or suffer the cost of your poor decisions.
Tom, I am in the risk tranfer business, insurance. I’ve seen it all in my 40 years. We had a long thread about Utah and a lot of polls on forums and magazines and the consensus was that the athlete should assume the liability. (My opinion was the RD should have called the race but when he didn’t, the risk was assumed). That being said, no matter how much you, as an individual, assumes, those who are dependent on us have not made that assumption. Of the 2000 athletes in a triathlon, how many do you think are going through tough times at home with a spouse who is looking for an out and, whoops, there it is with a pot of gold at the end of the rainbow.
That Everest climb is a prime example. The lawsuits are still going on. From what I heard, even the guy who wrote the book about it and the publisher were sued. Several sailors (or their survivors) who got caught in a storm sued the national weather service last year for getting the forecast wrong. As long as the easiest way to get rich in this country is to sue someone for allowing you to be stupid we will have to deal with it.
You make a number of good points. I agree that ULTIMATELY it is the racer’s responsibility. I don’t want a completely sanitized experience when I race.
However, you cannot discount the responsibility of a promoter to provide a modicum of safety. Honestly, at Pineman in 1999, the RD created a situation in which the most basic safety concerns were ignored (trust me, I was there). It’s the RDs responsibility to ensure that water-safety personnel have paddles (rather than canoes with trash can lids), the ability to communicate with shore (at least a whistle), buoys which can be seen for at least 50 yards, roads with signs to notify drivers that “something unusual” is occurring, and adequate nutrition to support the athletes (unless previously stated that athletes provide their own food/water). Too often, we allow those who seek to make a profit (albeit very small) escape responsibility by simply saying, “the athletes need to take responsibility.” Yes, I do take responsibility…to be prepared for the course as it’s presented in the briefings.
When I attend an M-dot race, I have different expectations than when I attend a sparse Ultramarathon/Trail Run (or than my expectation for when I run Marathon des Sables in 2004;-). I adjust my expectations based upon RD promises.
BTW, I am an RD at 6 bike races each season (I’ve accumulated nearly 50 days of RD experience) so I understand this from both sides of the aisle.
Bob is right and makes an interesting point: The system we have in place for litigating liability is not functioning. It does not function because it is fundamentally flawed: It facilitates the transfer of liability, NOT responsibilty. How would risk sports differ if the law mandated sanctions against people who suffered the consequences of bad decision making? How to affect this? two ways: Through the bureaucracy in place (like building the pyramids) or take individual responsibilty for actions. Have you incured a loss? Take responsibility for it. Better yet, assess risks realistically and make informed decisions. Remember, people die in “extreme” sports. They die just as dead as if they were killed by an atom bomb. And no court or settlement in the world can bring them back. As great and powerful as our CULTURE and SOCIETY is it cannot remove risk. That is an INDIVIDUAL (not cultural or societal)capability and should remain as such.
I did not race Utah but a friend did and I have to say that my thoughts on risk and responsibility have changed as a result. I probably would have raced that morning believing if they start us it must be “ok.” After reading the debates over the summer I would like to think from here on out I’ll be making independent decisions regarding the days when safety becomes an issue. Frankly, its the economics of the whole thing that makes it tough for me. Having acknowledged that I thinks its a bit easier now to include and to accept a dns in the risk profile of an event that sizeable chunks of cash/time/energy have been committed.
I totally agree that many people seem to have forgotten what the word responsibility means. But I don’t think “you race, you risk” is all that easy.
Example (Somewhat extreme). I put on a 1/2 Ironman. At mile 35 I send you down a curving steep downhill that ends up crossing a busy street that I neglected to place any traffic control on. Hidden massive risk you had no way to be aware of. Most people would agree I should incurr some type of cost/punishment, even if it does not totally compensate your family for your loss.
IMHO, the problem is not the litegation per se, but the fact it is so over used / abused. How you solve that is beyond me.
…yes, but, taking RESPONSIBILITY means also taking responsibility when you do something wrong (negligent) that hurts someone else. If you run your car off the road and over my bush don’t you owe the new bush!? Why do I have to take RESPONSIBILTY for that? That is YOUR responsibility. Doe sthis make sense?
My point exactly: Because the race director started the event you made the assumption it was safe. It was not. They made an error. At what point does responsibility for your own safety begin? As soon as you have the judgement to assess risk and the ability to act on the judgement, for most people beginning between the ages of 6 and 13. Willfully taking a risk means willfully accepting the ramifications of ANY outcome. That’s why they call it risk: There is an opportunity for gain (IM finisher’s medal) and the opportunity for lose (death/injury).
I wrestled with the same scenerios in my mind after IMUtah. I was not there, but I wondered what I would have done in that circumstance, had I been there. Like you I was very competitive when I was racing. The thrill of the competition and my own opersonal performance where always big drivers for me. There can be all kinds of other bad/crazy stuff going on, but I would be focussed on my own performance. That being said, had I been in the water at IMU, and knowing the level of profesionalism and care that Graham Fraser and his crew put into organizing races, I would have put my trust in the hands of the people running the race.
Now, if something unfortunate did happen to me personally, I am not sure how I would react. That’s hard to say.
This is an interesting counter point. My argument is that these two situations may be different. My concept of a racer’s responsibility looks like this: RD to athletes: “I am hosting a race, it may be dangerous- do you choose to compete knowing I may have made logistical errors that may result directly in your death?” Athlete: “I choose to compete/not compete because I fully accept responsibilty for my own actions, including the action of entering an event where your actions/inactions may endanger my life. Those are the risks. I accept them and their potential ramifications.”
Or those who, due entirely to the irresponsibile actions of others, have become morbidly obese after eating fast food burgers, fries and shakes nearly EVERY DAY OF THEIR LIVES?
I think I have read every post in this thread and, until now, have resisted the urge to comment. In the interest of full disclosure, I am an attorney and on the plaintiff’s side at that. That said, I am fully in favor of personal responsibility, as is our legal system and the tenets that govern it. The rule of “assumption of the risk” is alive and well, despite what one might think reading this thread. However, one can only be deemed to assume risks that one did or should have known about when one undertook the act in question. Thus, the notion that “willfully taking a risk means willfully accepting the ramifications of ANY outcome” is not legally sound nor should it be. If I enter a race, I obviously accept and assume a number of risks that are associated with the act of racing. (The waiver does not make this so, it is merely convenient evidence of this). However, why does it make sense to say I assume the risk of the negligent, gross negligent, or illegal conduct of others? A waiver is a mechanism that will shift the risk of other’s negligent conduct to me, but beyond that, why shouldn’t I be able to recover from someone for injurious conduct that I could not forsee at the outset and that the offender could have easily prevented? In the end, it all should come down to reasonable conduct. By taking my money, the RD agrees, in part, to use reasonable care to ensure that the race goes as a reasonable triathlete expects it will. In return, I agree to accept those risks that a reasonable triathlete can anticipate. Some risks will fall outside of this reasonable range, and the waiver will shift many of them to me. I guess I don’t see why this system is so objectionable.
BTW, why isn’t anyone customizing their subject headings anymore? Every post just say "Re: " Am I viewing the forum incorrectly? One thing I liked about the old forum was that posters usually gave a clue about what they were talking about in the subject line. Is this no longer fashionable?
Hi Garth, and thank you for your opinion as an attorney. It lends substantial credibility and an informed perspective to this discussion.
Garth does, however,IMHO, illustrate another defective piece of liability legislation: It is impossible to know all of the risks. In fact that is a contradiction in terms. The very nature of risk is that there are a virtually infinite number of events that may or may develop. Attemptimg to qualify which is an “acceptable” or “unacceptable” is invalid. Risk, again, by its very nature, is unpredictable. Attempting to diffeentiate between “acceptable” and “unacceptable” risk leaves the gulf of ambiguity through which a billion (trillion?) dollar legal industry leads a symbiotic existence. If we tightened up our definition of who is responsible for what and eliminate the ambiguous nature of litiginous vernacular our industry could save billions. OK, I’m off my soap box, for now…
illustrate another defective piece of liability legislation: It is impossible to know all of the risks. In fact that is a contradiction in terms. The very nature of risk is that there are a virtually infinite number of events that may or may develop. off my soap box, for now…
Tom,
Garth actually made very good points. I also I think I did to under this post and under my “waiver” post - did you read it?
Quite frankly I think maybe you have either had a very bad personal adverse experience, or, like others, have been subject to too much propoganda by the media, polititians, and insurance companies.
Your above statement just simply isn’t the way it works in the law. Maybe that’s why we have to go to so much school to confuse everybody :-). Nobody is ever responsible an “infinite” number of risks. Only risks that were caused by negligence and were foreseeable by an ordinary person. Unfortunately all the public ever sees are the “glamor” stories. I can tell you that in real life it is pretty darn tough to prove the various elements under the law, and even tougher to convince most juries.
Most negligence law isn’t based on “liability legislation,” rather most of it is based on centuries of common law. The same basic principles in my above bad example of running off the road and hitting my bush apply the you, me, and race directors. It’s not an infinite unforseeable events filled with risks.
I’m a defense attorney. I’ve devoted my professional life to arguing (with limited success) in favor of personal responsibility and many of the things y’all are talking about but you guys are taking it too far. If I get shot walking down the street, did I assume the risk because I know there are a lot of psyhos roaming the streets of LA? If I go into a hospital to get my right leg amputated and the doctor cuts off the left one, did I assume the risk because I know doctors sometimes make mistakes?
If you really want to change the system you perceive to be flawed, write your congressman or better yet, when you get called for jury duty, show up and serve instead of angling to get out of it like most people with a modicum of education or common sense do. We defense attorneys do ok when we have a statute on our side or a decent jury. It’s when the plaintiff’s bar is the only group who can get laws passed and anyone with anything going on upstairs avoids jury duty that things go wrong.
One last thing, litigation is almost never a pot of gold for anyone (not even lawyers). People sometimes get a lot of money in it, sometimes a lot more than they deserve, but every last one of them got put through the wringer. The smiles you see on litigant’s faces when the jury comes back with a favorable decision are smiles of relief that the whole thing is over and the vast majority of them would give it all back in a minute to go back in time and avoid the whole thing.
I’d better stop, I’m starting to sound like a plaintiffs’ lawyer.
I do mostly plaintiffs work; but, I almost (:-)) completely agree with all your points. When you play hockey you expect to be checked, hit with a puck, maybe even iget in a fight; but, you don’t expect the scoreboard to fall down on top of you, the zamboni to come out and hit you during a period of play, or to be intentionally sledgehammered over the head with a stick…all things that have nothing to do with the victims personal responsibility, but, if proved, deal with the personal responsibility of the at fault party.
