When liability gets in the way

Walking 21K is a lot of things: arduous, lengthy, and to some participants it would constitute a demanding athletic event. Organizers of the recent KW Walking Classic in Waterloo, Ont., pull no punches in ensuring that people understand the risk of the half-marathon. Signing up doesn’t just mean participants get a medal, race number, t-shirt and loot bag, but it also demands that walkers understand that they are physically fit. What sorts of challenges participants will face along the way is anybody’s guess but one thing is certain, this isn’t about the occasional runner or walker who will meet an untimely demise in the thousands of races that take place across the country — it’s about liability.

Leaving aside the fact that portraying a walking race in such loaded terms might be considered extreme and even ignoring the fact that the chances of coming to harm in such an event have to be minuscule, warnings like this are the inevitable expression of a culture that believes everyone needs to be reminded that coffee is hot, cigarettes are bad for you and that sometimes people get hurt.

Just ask the kids at Toronto’s John Ross Robertson Elementary School, whose parents, in the wake of the latest teacher tantrum, have been prevented from coaching the cross-country team on school property due to liability concerns expressed by the school board. The tragedy isn’t the Board’s predictable decision. The tragedy is that the Board is correct in their assessment of the potential legal fall out. Anyone who has risked coaching, even a sport as innocuous as cross-country running, understands that they are one asthma attack, one twisted ankle and one festering blister away from a lawsuit.

Within this suffocating paradigm, prevention is key and, if that fails, settle out of court.

Canadian Mountain Holidays, pioneers in heli-skiing, doesn’t have that kind of luxury. In a high-risk sport based in the unpredictable climes of the high alpine, it’s a pursuit where skiers can die and relatives can sue. And yet, despite a handful of deaths, since, CMH has not been named in a single lawsuit since a landmark legal decision rendered in 1991 exonerating CMH of negligence in an avalanche that killed nine skiers.

Marty von Neudegg, General Counsel for CMH, explains: “We pursued the case because we felt that we had no liability in negligence and that the guest was well informed of the risks by virtue of the waiver of liability agreement he had signed. The trial judge agreed and wrote a substantial judgment fully in favour of CMH on all points.”

With the right permits, background checks and a modicum of organizational talent just about anyone can host a race or coach a team. But without expensive legal advice, airtight waivers and a healthy dose of naiveté, it’s an endeavor fraught with peril. Until large organizations find the fortitude and willingness to fight frivolous litigation, athletes of all ages and inclinations will continue to train and compete under rules and regulations made by the lowest common denominator.