Accidents happen and good people make mistakes, but in the eyes of the law someone is always to blame.  On October 27, 2010, a student video coordinator, Declan Sullivan, tragically died while filming football practice at the Notre Dame practice field.  Earlier this week, the Indiana Occupational Health and Safety Administration (“IOSHA”) concluded its investigation of the accident and found that Notre Dame violated six (6) safety regulations and attributed a $77,500.00 fine for such violations. 

As many are aware, OSHA regulates and investigates work environments and has a multitude of requirements to insure employee safety.  One of the many things regulated by OSHA is scissor lifts like the one on which Declan Sullivan was standing prior to his death.  OSHA regulates the height at which a scissor lift may operate, the number of people standing on a scissor lift at one time, and allowed wind speeds.  In this case, it was determined that wind gusts were as high as fifty-three (53) miles per hour on the day of the accident.  The manufacturer of the scissor lift provided warnings indicating it should not be operated when wind gusts are greater than twenty-eight (28) miles per hour.  Ultimately, wind gusts were too strong for the scissor lift and it toppled over.

At present, Notre Dame has not yet responded to IOSHA’s findings and has until April 7, 2011 to accept the findings and pay the fine or contest the safety orders.  Additionally, Notre Dame is still conducting its internal investigation, which should reportedly conclude in the next four (4) to six (6) weeks.  Without substantial revision to IOSHA’s findings, it appears Notre Dame’s bargaining position with Declan Sullivan’s family is diminishing.  Courts would likely provide OSHA with substantial deference relating to the duties owed in the employee/employer relationship, which would be the standard for a negligence cause of action.  If the Sullivan family is unable to reach an out of court settlement agreement with Notre Dame, I anticipate they will file a negligence and wrongful death suit against Notre Dame and also the university president, head football coach, athletics director, and Declan Sullivan’s supervisor.  Of course, in any case of this kind, it behooves the parties to resolve the matters without having to relive the tragedy in a protracted legal battle.  Nonetheless, with the findings issued by IOSHA, the Sullivan family has an even stronger bargaining position, which simply translates into monetary gain.

Through this tragedy and other litigation relating to student-athlete deaths, it is imperative for universities to have policies and procedures necessary to handle emergency situations and train staff to operate and maneuver within these policies.  Over the course of the last several years, there have been several law suits involving football student-athletes who died during workouts (i.e., Rice University student-athlete and University of Missouri student-athlete).  From a litigation prospective, having  emergency policies and procedures and executing them accordingly can go a long way to diffuse negligence arguments.  For example, an emergency policy relating to football two-a-days would likely require a certain amount of medical or training staff on site and specific procedures to be implemented if a student-athlete is critically injured or collapses.  These implemented policies provide a strong argument that the institution would meet its legal duty to a student-athlete.  Not only do these policies help in the courtroom, but a well trained staff able to implement the policies could save a student-athletes life.

For any questions, feel free to contact Christian Dennie at cdennie@bgsfirm.com.