Posted by Susan J. Levy
As the world knows by now, the 2010 Olympics began on a tragic note with the death of 21-year- old Nodar Kumaritashvili, from the Republic of Georgia. Recently, the athlete’s father was quoted in The Wall Street Journal (Feb 15, 2010, “Georgia Seeks Return of Luger’s Body”) dismissing the notion of filing a lawsuit: “What lawsuit? What kind of a person would do that?” he asked. “My son is dead and that wouldn’t bring him back.”
As a compassionate human being and avid sports fan, I was horrified by Kumaritashvili’s death, and moved by the fact that his father was grieving, not out looking for a lawyer. However, as a lawyer myself, I, unfortunately, could not help thinking about a lawsuit. And as a defense lawyer, (who knows nothing about Canadian law on immunity or evidence) I imagined the problems the Olympics would face defending a wrongful death lawsuit in my State of Georgia.
Although the Olympic Committee distastefully blamed the victim, claiming he failed to properly negotiate the curve, it also made changes to the course: (1) Officials moved the starting line 600 feet down the track in order to slow down the speed of the lugers; (2) they made changes to the ice surface to help keep the sliding athletes from being ejected from the course; and (3) officials also modified the final curve and erected a wooden wall in front of some of the steel beams. These are all changes that in defending the Olympic Committee in court, I might move to exclude as subsequent remedial repairs.
The law in the State of Georgia is clear: as a general rule, evidence of subsequent remedial repairs following an injury is not admissible at trial since the usual purpose of such evidence is to give the jury “a basis for drawing the inference that the defendant thereby impliedly admitted his realization of negligence.” Chastain v. Fuqua Indus., 156 Ga. App. 719 (1980). See also DOT v. Cannady, 270 Ga. 427 (1999); Studard v. DOT, 219 Ga. App. 643 (1995). “The reason for excluding such evidence lies in sound public policy ‘that men should be encouraged to improve, or repair, and not be deterred from it by the fear that if they do so their acts will be construed into an admission that they had been wrongdoers.’ [Cits].” Georgia Department of Transportation v. Cannady, 270 Ga. App. 427, 428 (quoting Studard, 219 Ga. App. 643, 644); Wynn v. City of Warner Robins, 279 Ga. App. 42, 49 (2006). There are, of course, several exceptions to the general rule of exclusion, but in my hypothetical trial, they would not apply.
My client, the Olympic Committee, may, however, have shot itself in the foot and thwarted any attempt to exclude the evidence of its subsequent repairs through its failure to admit that the improvements they made to the track in Vancouver were, in fact, to improve the safety of the athletes. Instead, as The New York Times reported on February 13, 2010, “[m]embers of the Olympic organizing committee and the International Luge Federation said the changes were made not because of safety concerns but rather to satisfy the emotional state of the athletes.” Consequently, with that very public statement and unwillingness to own that the changes constituted remedial repairs, the Olympic Committee would be left having to argue that the track was safe before the fatality and that none of the subsequent changes really had anything to do with improving the safety of the facility. That would be a tough row to hoe. Good thing this is only a hypothetical – at least for now.