Legal Issues in Extreme Sport

Faculty of Law, Thompson Rivers University in Kamloops, Kamloops, BC, Canada


Law of extreme sportsExtreme sport tortsExtreme sport negligenceExtreme sport and occupiers’ liabilityExtreme sports and waiversExtreme sport and inherent risk

35.1 Introduction

Any look at sports law – lex sportiva [1] – in general and extreme sports law must acknowledge that the body of law is unlike the human body in that laws and their applications vary from country to country, whereas the human body and its response to injury is remarkably the same regardless of the nationality of the participant. This holds true regardless of the cause whether it is due to impact of the law of gravity, to suffocation in an avalanche, or to other causal factors.

It is impossible to write the final word on the law of extreme sport to a global audience. Because legal doctrines, traditions, statutes, case law, and court systems differ worldwide, it is beyond the scope of this chapter to catalogue and describe how the law treats extreme sport around the planet. It is possible, in the broadest of brush strokes, however, to generally describe the law insofar as it interacts with extreme sport.

While theorists and sociologists may debate over the definition of what constitutes an extreme sport, for the purposes of this discussion, a sport is considered extreme if there is a real risk of severe injury, and it typically occurs in an adventure or outdoor setting. Hence, climbing is an extreme sport, but extreme Frisbee is not. Contact or collision sports like football or hockey are dangerous in their own rights – and that risk has risen to the level where the US-based National Football League agreed in 2015 to pay 1 billion USD to settle a class action lawsuit involving 4000 former players who alleged brain injuries caused or contributed by playing professional football in the NFL – but ice hockey and gridiron football are not considered extreme sports.

The law intersects with extreme sports at many points. The arenas of extreme sport which are now garnering the attention of the law include labor law and agency, intellectual property law, and ambush marketing, contracts, and torts. While the goings-on of Olympic and X Games snowboarding gold medalist Shaun White and his annual $10 million salary [2] and the influence on the industry exerted by Red Bull and their Brobdingnagian-sized billion dollar marketing budget [3] are interesting in their own right, this chapter shall instead focus more on how the law is activated after an extreme sport athlete sustains an injury. The law of tort looms large on this horizon and will be subsequently focused on. Case studies looking at incidents arising from luge, ziplining, climbing, and whitewater rafting will be used to illustrate and explore legal concepts throughout the chapter.

It is sometimes argued that sport in general and extreme sport in particular is beyond the reach of the law, that the law is ill-equipped to adjudicate disputes on and off the playing field, and that it is better left to the governing bodies charged with so doing. This argument is frequently raised by lawyers defending players or leagues sued by an injured plaintiff who will say that the courts do not possess the requisite expertise to navigate the nuances of sport in determining what is or is not reasonable conduct and should instead rely upon sports’ governing bodies and leagues to mete out justice and act as judge, jury, and executioner.

To buttress that point, sport has developed a sophisticated legal system that climaxes at the Olympics with the Court of Arbitration for Sport whose rules appreciate that disputes must be decided in accordance with general principles of law and the rule of law [4]. Any sport which belongs to the Olympic movement – and regardless of how they are counted, there are a lot1 – will have a mediation or arbitration process which is based on the CAS to which its athletes are contractually obligated to follow.

Notwithstanding this wishful thinking of defendant lawyers and sport’s regulatory regime, the courts ruled long ago in R. v. Bradshaw [5] that “No rules or practice of any game whatever can make that lawful which is unlawful by the law of the land.” In short, the long arm of the law will extend not only onto the football pitch or over the boards in ice hockey but to other extreme arenas where sport is carried out when there is just cause to do so.

35.2 Mainstreaming of Extreme Sport and Its Effect on the Law

Once marginalized and played by the lunatic fringe, extreme sport has become normalized and enormously popular. The popularity and commercial success of the X Games have made the Olympics take notice to the effect that the five interlocking rings have usurped extreme sport to maintain public interest and the steady flow of sponsorship dollars. Sensing ESPN’s success with their first Winter X Games which showed that big air meant big money, the International Olympic Committee added snowboarding to the Nagano 1998 Winter Olympic Games, BMX racing to the Beijing 2008 Summer Olympic Games, and skicross to the Vancouver 2010 Winter Olympic Games. That ice climbing was included as a “cultural demonstration” sport at the Sochi 2014 Winter Olympics [6] and skicross, snowboarding and the half-pipe are now regularized in the Olympics are sure measure that extreme sports have gone mainstream.

Further, the International Olympic Committee approved big air in snowboarding and big air in freestyle skiing for the 2018 Winter Olympic Games in Pyeongchang, South Korea [7]. Big air snowboarding involves boarders flying off a highly pitched ramp similar and performing fantastical jumps with multiple flips and spins [8]. Notwithstanding that the injury risk for big air snowboarding is high [9, 10], event organizers continue to build higher and higher ramps to the extent that the 2015 X Games had Big Air athletes hurling off a 25.6-m jump [11]. These certainly aren’t the Corinthian-styled Olympics of yesteryear.

Sport climbing was short-listed for inclusion at the Tokyo 2020 Olympics but failed to make the cut [12]. NBC, official broadcaster of the Olympics, opined that “with the Olympics growing ever more ‘extreme,’ don’t be surprised to see it [sport climbing] someday [13].”

The mainstreaming of extreme sports has resulted not only in legitimizing these sports that formerly operated at the fringes but spawned an entire industry to support it and with that came the trappings associated with any successful business. The difference here though is that the services and products sold were intentionally designed to situate athletes in harm’s way. This purposeful placement of the user into the jaws of death is at odds with how the law typically views the relationship between an actor and his environment which is ordinarily grounded in trying to make it as safe as possible.

This mainstreaming has led to its commodification and commercialization which has, in turn, led to new potential sources of liability. Parties susceptible to a lawsuit in a competitive setting now include the International Federations for Olympic sports, their National Governing Bodies, event organizers, race officials, coaches, sponsors, broadcasters, referees, and officials, whereas parties vulnerable to a lawsuit in a noncompetitive environment do not include any of the aforementioned but instead could include equipment manufacturers, occupiers of the land, and athletic partners.

35.3 Negligence

To make out a claim of negligence, four elements must be shown: (1) damage or injury, (2) that there exists a duty of care between the injured person and the other party, (3) that there was a breach of the required standard of care, and (4) causation. Proximate cause and remoteness may modify a defendant’s scope of liability.

The duty of care test is best articulated in the seminal case of Donoghue v Stevenson [14]:

You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

By so framing the duty test around the neighbor principle, the parties potentially vulnerable to a lawsuit from an injured extreme sport athlete include the aforementioned national governing bodies, event organizers, race officials, coaches, sponsors, broadcasters, referees and officials, equipment manufacturers, occupiers of the land, film makers, and athletic partners.

Lord Atkin in Donoghue essentially said that mere foreseeability was not enough to establish the existence of a duty of care. A plaintiff also needs to show that they were sufficiently proximate to the defendant such that they should have been considered. Causation is the concept that links the plaintiff’s damage with the defendant; to establish causation in law requires the court to be satisfied that the plaintiff would have suffered the injury but for the negligence of the defendant.

The court in Blyth v. Birmingham Waterworks [15] held that “Negligence is the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a reasonable and prudent man would not do.” When determining whether the defendant has acted reasonably and met the required standard of care, the courts often look at three main factors: (1) probability and severity of the harm, (2) cost of risk avoidance, and (3) social utility or value of the conduct. These can be treated as qualifications or limits of reasonableness.

The paradox is that risk is the driving force behind the popularity of many extreme sports, so it becomes problematic strictly looking at the probability of injury. Further, the nature of the risks encountered and the extent to which these risks are inherent to extreme sport make it difficult if not impossible to avoid or eliminate the risks entirely. The risks of drowning while paddling big water, falling while climbing, or impacting the ground while performing big air BMX or snowboarding stunts cannot be eliminated if these extreme sports are to retain those essential elements that make them “extreme.” Some courts have looked at the social utility or value of sport and have seemingly given them a pass from the ordinary negligence standard described here.

In establishing whether or not a duty exists, courts have been vexed by the extent to which a risk must materialize before it becomes unreasonable. Mere foreseeability fails as a test because it is clearly foreseeable that injury may arise while engaging in such extreme sports as BASE jumping, wingsuit flying, or speed skiing. So something more is required. The court in Bolton v. Stone [16] said that the test is whether the risk of damage to a person was so small that a reasonable person in the position of the defendants considering the matter from the point of view of safety would have thought it right to refrain from taking steps to prevent the danger. The court also held that it is not reasonable to expect people to guard against risks that are “fantastic and farfetched.” Lord Porter said, “it is not enough that the event should be such as can reasonably be foreseen; the further result that injury is likely to follow must be also such as a reasonable man would contemplate, before he can be convicted of actionable negligence. Nor is the remote possibility of injury occurring enough; there must be sufficient probability to lead a reasonable man to anticipate it.”

Courts consider foreseeability to be a major consideration in the extent to which a duty is assigned and liability attached. In Conway v. O’Brien [17], Learned Hand J. stated that “The degree of care demanded of a person by an occasion is the resultant of three factors: the likelihood that his conduct will injure others, taken with the seriousness of the injury if it happens, and balanced against the interest which he must sacrifice to avoid the risk.” Hand later expressed these variables in an algebraic equation suggesting that the formula provides perspective on unreasonable risk: “If the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P; i.e., whether B < PL.”

Notwithstanding the above algebraic equation – which is pure in its mathematics but problematic in its application of the law to extreme sport – a defendant has breached the required standard of care when the conduct creates an unreasonable risk of harm. How is unreasonable risk of harm defined in extreme sport? Regarding negligence, it must also be shown that the breach which caused the plaintiff’s damage in law is too remote to warrant recovery. The remoteness inquiry asks whether the harm is too unrelated to the wrongful conduct to hold the defendant fairly liable [18]. Since Wagon Mound (No. 1), the principle has been that “it is the foresight of the reasonable man which alone can determine responsibility [19].” The degree of probability that would satisfy the reasonable foreseeability requirement was described in The Wagon Mound (No. 2) as a “real risk,” i.e., “one which would occur to the mind of a reasonable man in the position of the defendant … and which he would not brush aside as farfetched [19].”

The courts continue to struggle with how possible or probable a risk needs to be in order for it to be considered reasonably foreseeable and any breach to be considered unreasonable and therefore negligent. In light of the circumstances of extreme sport where the inherent risks are not only inseparable from the thing that makes these sports extreme but are the attractive force and why these athletes do it and where these risks are, for the most part, open and obvious, for there to be a finding of negligence, it would be necessary to show that the defendant event organizer materially breached the required standard of care by not sufficiently guarding against risks that are neither so small nor farfetched but lay in the realm of the reasonably – in the circumstances – probable in the arena of extreme sport.

The problem, of course, with the above analyses is that risk is exacerbated in extreme sport. Speeds are purposefully amplified, jumps are heightened, and stunts get trickier. This is not merely an exercise in reducing risk to a reasonable level because there is nothing inherently reasonable about these pursuits in the first place.

A tension arises between the raison d’être of extreme sports to push the envelope of what is possible by being unreasonable in its pursuit and the law which is essentially grounded in reasonableness. For there to be a finding of negligence, it must be shown that one party acted unreasonably toward another. This test or threshold is at the crux of the challenge with the law in finding fault in extreme or adventure sport as there is nothing inherently reasonable about it. Reasonable people do not heli-ski in avalanche terrain, duck under the ropes to enter closed areas at ski resorts, huck themselves off cliffs or huge jumps, etc.

Recall that the traditional negligence test judges a participant against the actions of a prudent and reasonable person. Participants of extreme sports are often anything but prudent, preferring to consciously, and occasionally carelessly, seek out hazardous situations, and accepting this risk as an inherent part of the activity. The law therefore has a delicate balancing act to perform between allowing individuals the autonomy to express and challenge themselves and taking a more paternalistic view and protecting participants from the consequences of their own actions [20].

Notions of negligence in extreme sport abut with principles of inherent risk and free will. In the seminal UK case of Thomlinson v. Congleton Borough Council [21] involving a young man who broke his neck while diving into a lake, the trial judge found that the danger and risk of injury from diving in the lake where it was shallow was obvious, that there was no duty to the landowner to warn against the danger, and that there were no hidden dangers. The judge noted that it is in the nature of lakes to be shallow in some spots and deep in others and that there was nothing that it made it more dangerous than any other ordinary stretch of open water in England.

The case was overturned on appeal with the court holding that the gravity of the risk, the number of people who regularly incurred it, and the attractiveness of the beaches around the lake created a duty. The majority of the Court of Appeal appeared to have proceeded on the basis that if there was a foreseeable risk of serious injury, the landowner was under a duty to do what was necessary to prevent it [22].

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Apr 27, 2017 | Posted by in SPORT MEDICINE | Comments Off on Legal Issues in Extreme Sport

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