In case you haven’t been reading the news: The Rio Olympics are a mess. Dangerously so. On last week’s episode of “All Things Legal” on 105.5, Craig Ashton raised the question of risk assumption, as it pertained to the Olympics…
If you know something is potentially dangerous and you do it anyway, do you automatically assume all liability?
Participants in water-based events at next year’s Olympics in Rio de Janeiro are facing potential health crises, of all things. South Korean windsurfer Wonwoo Cho was taken to the hospital last week, one of four athletes to have “officially” fallen ill at the sailing test event at Guanabara Bay. His symptoms included headaches, vomiting, dizziness, dehydration. After 24 hours in the hospital, he reported that he was at 50 to 60 percent strength.
The cause is widely believed to be the significant pollution present in the bay. Raw sewage is dumped into the bay, and 3rd party testing has shown extremely high levels of bacteria and viruses that are hazardous to people.
Craig and the other hosts discussed the potential liability issues if this had occurred in the US, where there is the concept of “assumption of risk.” In some senses, participants in next year’s Olympics don’t have a choice, given the stature of the Olympics—there’s a strong compulsion to participate, despite the conditions. Participants can’t request a change of venue or otherwise act to mitigate the risks.
Because of this, Craig suggested that assumption of risk would likely not apply, due to negligence on the part of the event organizers. Thus participants would have cause for legal action, due to event organizers “not acting reasonably.” This would likely get the attention of those with financial investment in the Games, due to the risk of losing money. As a result, Craig said, “things tend to get better.”
Ashton drew a comparison with car safety standards, and why they have improved so much in recent years. He had previously represented a client who had worn an old-style lap belt, which caused him to be paralyzed in an accident—the force was concentrated across his waist, causing his spine to be severed. The manufacturer had to pay out millions. Due to this financial incentive, those belts were phased out in favor of safer shoulder-restraint type seatbelts. Similarly, you don’t see gas tanks behind the rear axle in vehicles anymore due to explosion risk. As Ashton put it: “When there are consequences to your actions, things tend to get safer.”
Unfortunately, Brazil’s laws regarding assumption of risk don’t line up with the U.S.’s.
However, Brazil likely lacks a similar system. Something like this couldn’t happen in the United States. The pollution issues were known of even before Olympic bidding began. Brazil’s agreement with the IOC was that they would have water purification systems in place to protect the safety of participants in water-based events. 14 months out, no such systems are in place.
The hosts suggest that much of the fault for the situation falls on the shoulders of the IOC. While Brazil obviously has a large incentive for having the event go on, the IOC did not follow up on any of the agreements or recommendations that had been made with Brazil.
A contrary, semi-serious argument was raised by Edward Schade, in that, if the Brazilian organizers had stated that they had properly sanitized everything, but hadn’t, then assumption of the risk wouldn’t apply to the participants, as Craig Ashton had said. However, because they were truthful about the conditions, then the participants were on the hook for the risks they faced in taking part in the Olympics. They know they’re going into a “cesspool,” and while it’s an extremely difficult choice, they have a choice. Additionally, many participants have lived and trained in similarly contaminated conditions, and thus physically-vulnerable participants could be considered partly to blame for their own lack of immunity, and could act on their own behalf by stocking up on antibiotics and antivirals.
Craig Ashton counter-argued that rowers go to rowing events to “row water,” not to row in sewage. Schade argued that despite that, Olympic participants have a wealth of knowledge about the unsafe conditions—direct from officials, in the news, etc. Thus, you knowingly assume the risk by going in the water, and you can choose to not go out.
Ashton countered again that the risk of exposure to sewage is not inherent in the sport, but rather in the subpar conditions, and that assumption of the risk only applies to issues normally inherent to the activity in question. Schade argued that someone shouldn’t be able to voluntarily go into an unsafe situation, and then afterward complain, “Hey, you got me sick.” The participant knew there was a risk ahead of time, and the participant’s duty is to himself, first and foremost.
Ashton conceded that Schade may have a point, and thus raised the alternative approach of claiming a breach of contract. A participant agrees to go through all the training necessary to take part in the Olympics and comply with all rules, in exchange for Brazil providing a venue that is safe. The debate on this count was inconclusive.
Regardless of the speculation, one thing is certain: the legal fallout from the Olympics will be interesting to watch.