Tort Reform and the Politics of Assumption of Risk at Notre Dame

Readers here are doubtlessly familiar with the tragic death of Declan Sullivan. Unfortunately, Declan’s death was not, in the big sense, unusual: every day, people die in the course of jobs they suspect to be dangerous. The intense media focus on Declan’s case, however, gives us a unique opportunity to explore the serious — and usually unknown to the public — issue of when an employer bears responsibility for the apparent risks of the job.

Back in the Gilded Age, the doctrine of “assumption of risk” routinely precluded employees (really, anyone) from suing the major corporations which caused their injuries. If you, as a plaintiff, had any hint that you could be in danger, then you “assumed the risk” of that danger, and so were wholly precluded from any legal relief. It did not matter if your injury was caused entirely by someone else’s negligence or recklessness, and it did not matter if you could only keep your job, and therefore feed yourself and your family, by facing the risk. If a court had any reason to suspect you were aware or should have been aware of the danger, then it would deny you relief.

That’s certainly the case with Declan Sullivan; he undoubtedly appreciated the risk of his situation, and even tweeted about it.

Back in the Gilded Age, that would have been enough: Declan’s death would have been deemed, as a legal matter, entirely his own fault. If the Federalist Society and “tort reformers” had their way, that would still be the law today. Defense lawyers routinely claim it still is the law.

Before we consider the law, consider the realities described by other college football videographers:

At the time I was there, the video department functioned at the bottom end of the coaching tree. The video coordinator took orders from the video liaison for the coaches, normally a Grad Assist or Assist Coach. There was pressure to deliver “good” quality practice scouting video passed down from the liaison to the video department. Keep in mind these are 24-25 year olds passing down orders to 18-21 year olds. As with any organization, there are lots of layers in college athletics and the video department is typically at the bottom of the food chain. Coach was never directly tied to the decision on weather or not it was safe to be up in the lifts.

In the face of agitated young men who, through the miracle of hierarchy, have come to believe the benefits of videotaping college football practice from a good angle outweigh the risks of killing a student, most of them don’t have a real choice about going up or not, since someone stands ready to claim it’s safe and threaten to fire them if they don’t go up:

The coaches decided to hold practice with lightning on the horizon, and when I protested about going up on the lift — because, really, who wouldn’t want to spend two hours on a 50-foot-high metal conductor in the middle of a lightning storm? — I was told in no uncertain terms that I had to go up, but that I would be fine because somebody was tracking the lightning strikes in the area, and if a serious danger presented itself, I’d be allowed to come down.

The law, thankfully, has come to understand that reality, and has come to understand that an employee isn’t in the best position to objectively evaluate the situation when trying to keep his or her job in the face of an employer asserting that the job is entirely safe. Here’s, for example, the Indiana Court of Appeals, back in 1978:

Failure to recognize a danger or risk may constitute unreasonable conduct and, therefore, contributory negligence, but it should never be considered a voluntary incurrence of a known risk. … It is our conclusion [ ] that the integrity of each doctrine is better preserved when such situations are treated as unreasonable conduct in failing to recognize an obvious risk or danger, therefore constituting contributory negligence.

Kroger Co. v. Haun, 379 NE 2d 1004 (Ct. App. 2nd. 1978)(citing W. Prosser, Handbook of the Law of Torts 424 (4th Ed. 1971)); accord Beckett v. Clinton Prairie School Corp., 504 NE 2d 552 (Ind. 1987)(“Ever since Judge Sullivan’s comprehensive and thorough opinion comparing and distinguishing the defenses of contributory negligence and incurred risk in Kroger Co. v. Haun, there has been general agreement that incurred risk demands a subjective analysis focusing upon the actor’s actual knowledge and voluntary acceptance of the risk.”)

Consider the description given by Prosser and Keeton, cited by Kroger Co.:

It is not true that in any case where the plaintiff voluntarily encounters a known danger he necessarily consents to any future negligence of the defendant. A pedestrian who walks across the street in the middle of the block, through a stream of traffic traveling at excessive speed, cannot by any stretch of the imagination be found to consent that the drivers shall not use care to watch for him and avoid running him down. On the contrary, he is insisting that they shall. This is contributory negligence pure and simple; it is not assumption of risk.

Prosser and Keeton, § 68, p. 485.

There’s a big difference between assumption of risk, which bars recovery, and comparative negligence, which reduces recovery by the percentage of responsibility attributable to the plaintiff. Thus, a jury will decide the extent to which Declan Sullivan was responsible for what happened, as compared to the extent to which Notre Dame was responsible for sending him up there. Michael McCann explains a bit more in his Sports Illustrated interview posted at Sports Law Blog.

I raise all of this today in particular for a specific reason: large corporations have been trying for years to use the political process to reverse these laws and return us to the laws of the Gilded Age.

If you think Notre Dame should not be held responsible in any way for Declan Sullivan’s death, then, by all means, go to the polls tomorrow and vote for a “tort reformer.” That’s what “tort reformers” are trying to do: “reform” the laws back to the way they were a century ago, when big institutions could freely risk the lives and limbs of others without consequence.

If you think that a jury should decide the extent to which Notre Dame should be responsible for Declan Sullivan’s death, then vote for someone committed to civil justice.

[Update December 2012: two years later, the New York Times followed up with the family, which did not file suit. From their article:

The question [Declan’s father] is asked often is whether he forgave the university and the principals involved. The answer is yes with a caveat.

“I resist that because to forgive means you’ve assigned blame,” he said. “And not to say this could not have been prevented, but I don’t feel anybody knowingly acted recklessly and caused the accident. Or that anybody in the football program said, ‘We are willing to risk lives for the sake of Notre Dame football.’

An interesting perspective, indicating he feels Notre Dame could have prevented it, but that he didn’t want to pursue a lawsuit in the absence of recklessness.]

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  • The tort reformers have done a wonderful job framing the issue by calling their efforts “tort reform.” Most people with any sense understand that policies and institutions need some level of reform – few activities by human beings, especially collections of human beings, are as fair and efficient as they should be.
    But, as your point ably points out, the tort reformers want to roll back the hands of time to an era of “personal responsibility.” That is, they want us to return to a time, a time not that long ago, when the plaintiffs of the world had personal responsibility for their actions but the defendants of the world did not.
    It has worked surprisingly well – billions of dollars in advertising and lobbying expenses over 35 years can achieve miracles.
    Why don’t people catch on? Because ordinary folk are too damn busy with life to worry about something that they know will not happen to them. You see, the Future Wrongful Death Victims of America is the biggest special interest group – 310 million strong – but nobody knows that they have the membership card in their wallet. The FWDVA has no lobbyist, no PAC, and no executive director.
    Only when people accept the fact that each of us are FWDVA members will they work to protect access to the court system.