Event organizers owe participants a duty of care to protect them from harm during participation, even as participants are expected to assume risks inherent to that participation. That said, organizers must foresee factors that could influence event safety and ensure that all participants are aware of those factors in advance. Failure to do so can result in liability, as evidenced in Blanchette v. COMPETITOR GROUP, INC., No. D073971 (Cal. Ct. App. Nov. 20, 2019).
Craig Blanchette is a highly accomplished wheelchair racer with a career spanning decades and hundreds of races. He holds more than 20 world records, as well as a bronze medal in the 1,500-meter wheelchair race at the 1988 Summer Olympics in Seoul, South Korea.
Blanchette was invited to compete in the 2014 San Diego Rock 'n' Roll Marathon as an elite racer, meaning he was racing as a professional. He was one of five wheelchair racers in a field of approximately 25,000 traditional racers. During the race, Blanchette was injured as he attempted a 90-degree left-hand turn. He could not complete the turn, went through the orange traffic cones that marked the course boundary, and crashed into a car stopped at a traffic light in a lane outside the course. He suffered personal injuries, including broken bones, which required multiple surgeries.
Since the accident at the marathon, Blanchette has been unable to compete as an elite athlete in long-distance wheelchair races.
In June 2016, Blanchette filed a lawsuit against race organizer Competitor Group Inc., among others, asserting that CG was grossly negligent and increased the risk inherent in wheelchair racing on city streets.
A seven-day jury trial took place in January 2018, and the jury returned a verdict in Blanchette's favor, finding that CG was grossly negligent and that Blanchette could not have assumed the risk of the injury he suffered. The jury further found that Blanchette suffered damages in the amount of $4 million, but was 20 percent contributorily negligent. As such, the court entered judgment for Blanchette in the amount of $3.2 million. CG appealed and lost.
Having never competed in a San Diego Rock 'n' Roll Marathon, Blanchette arrived in the city two days before the race to prepare. Blanchette reviewed the basic course map, studied "the virtual tour" video at least 15 times, went to the prerace exposition, and attended the all-competitor meeting, which "included a general safety check, the distribution of additional copies of the basic course map, and the further opportunity to view the virtual tour video," according to court documents.
The basic course map that Blanchette received prior to the race was on one piece of paper and covered the general areas of San Diego included in the marathon. The virtual tour of the marathon was "a video of the entire racecourse, from start to finish, recorded from a car that traveled the streets of the course during normal daytime traffic conditions."
Per Blanchette, the virtual tour video of the racecourse was particularly important, since "wheelchair racers rely on the 'racing line' they choose to maximize speed to gain an advantage during competition." Specifically, Blanchette had studied the intersection where his accident occurred and the racing line he would take as he turned left from B Street onto 11th Avenue.
Because wheelchair racers travel at speeds much higher than traditional runners, Blanchette and his direct competitors began the marathon before the traditional runners. Blanchette's accident occurred approximately 3.9 miles from the start of the race. At the speed he was traveling, Blanchette "was unable to negotiate the left turn from B Street onto 11th Avenue. Instead of completing the left turn and continuing south on 11th Avenue, at about 45 degrees, Plaintiff went off the course to the west and crashed into a car stopped at a traffic light in the western-most lane of 11th Avenue."
Approximately one hour before the race, CG "closed the Marathon streets downtown and set up traffic cones, 15 feet apart, which directed the Marathon racers to make the left turn from the three lanes of B Street to the three eastern lanes of 11th Avenue, thereby eliminating the west lane of 11th Avenue to wheelchair racers and making it available for vehicles traveling north to the freeway."
Blanchette claimed that although he studied the basic course map and the virtual tour video, and attended the prerace exposition and the all-competitor meeting, he didn't know and had no reason to suspect that the fourth lane would be closed to wheelchair racers and open to vehicular traffic. Given his speed in excess of 20 miles per hour, Blanchette had only two seconds from the time he first learned that the west lane of 11th Avenue was unavailable as an exit lane until he crossed the boundary and crashed.
At trial, Blanchette stated that during his 30 years of racing, he had "never seen a lane elimination like that." Another of the elite wheelchair racers who competed at the marathon testified that — based on his considerable experience — he would not expect motor vehicle traffic like the wheelchair racers encountered on 11th Avenue. Expert witness testimony also asserted that "changing a racecourse that a wheelchair racer is expecting an hour before the race is not only misleading but would make the race inherently more dangerous."
Directions, spotters, a concierge
Defendant CG presented evidence at trial that there were additional prerace materials available to Blanchette. Specifically, CG claims to have made available "a one-page document titled 'Turn by Turn Directions' that listed each of the marathon's more than 40 turns and specified for each whether the entire street ('whole road') or a portion of the street (e.g., 'southbound lanes,' 'east side of road,' etc.) was part of the racecourse."
These turn-by-turn directions were only available on CG's website and at an information booth at the prerace exposition. Per the trial documents, there was no evidence that CG told Blanchette about these directions, or that Blanchette knew about the turn-by-turn directions. Blanchette testified that — prior to seeing the turn-by-turn directions at the trial — he was not aware they existed.
Additionally, CG presented evidence that "it had provided the elite wheelchair racers with 'a 24-hour concierge' who was able to answer questions they had, including information about or a tour of the racecourse." However, a wheelchair racer would have to contact the concierge and request these services, and there was no evidence that Blanchette was aware of either the concierge or the services that CG said the concierge could provide.
Lastly, CG presented evidence that it "provided bicycle-riding 'spotters' on the racecourse who were responsible for providing visual cues to alert the elite racers — both those running and those wheeling — of course conditions." However, CG did not attest that any spotters were at or near the location of Blanchette's accident at any time.
Of significance at trial was the assertion that CG knew that the west lane of 11th Avenue would be closed to competitors and open to vehicle traffic well in advance of the race, given the course was the same that had been used in prior years. Further, evidence showed that CG had prepared and provided "an internal working document" that contained sufficient detail to show the traffic cones and elimination of the west lane on 11th Avenue. CG provided this document to the course setup teams, the traffic control setup teams, the bands, the aid stations, the medical people and "those that needed that level of detail." However, this document was not specifically provided to the elite wheelchair racers.
On appeal of the jury verdict, CG argued that substantial evidence did not support the jury's finding of gross negligence. By definition, ordinary negligence "consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm." In contrast, gross negligence is an extreme departure from the ordinary standard of conduct.
In California, courts do not specifically recognize gross negligence claims. Rather, the distinction between ordinary and gross negligence is that harsher legal consequences should flow when negligence is aggravated instead of merely ordinary.
Upon review of the jury trial evidence in a light most favorable to Blanchette, the appeals court did find substantial evidence to support a jury finding that CG's behavior was an extreme departure from the ordinary standard of conduct, and thus properly deemed gross negligence. Specifically, the court found that CG provided a basic course map and a virtual tour video to the marathon racers that represented to Blanchette that all lanes on 11th Avenue would be open to the racers, "including specifically the west lane, which [Blanchette] reasonably considered and planned to use as the exit lane for his turn from B Street to 11th Avenue." However, CG knew that "traffic cones would be used both to direct wheelchair racers to make the left turn from B Street to 11th Avenue and to eliminate the west lane of 11th Avenue to wheelchair racers."
Although CG prepared an internal document with this information regarding lane closure and provided it to race operators and others responsible for race logistics, CG did not provide it to the wheelchair racers. The lane closure blocked Blanchette from using the exit lane he had planned based on the basic course map and virtual tour video — the only documents CG specifically provided.
The appeals court also considered assumption of risk, a limited-duty doctrine developed to avoid altering the nature of certain activities or inhibiting vigorous participation.
Assumption of risk is a long-held legal standard. In certain activities, plaintiffs assume the risk of harm that comes with the activity when choosing to participate. In this case, if assumption of risk applies to a recreational activity like the marathon, an event sponsor such as CG would owe the "participants only the duty not to act so as to increase the risk of injury over that inherent in the activity."
Because the court found that CG failed to specifically notify wheelchair racers of the known lane closure on 11th Avenue, and instead represented that all lanes would be open in the most widely distributed prerace materials, these failures unreasonably increased the risks to Blanchette over and above those inherent in marathon wheelchair racing. As such, the court affirmed the jury's finding that Blanchette did not assume the risks of his injury.
This case is an example of two clearly established legal principles that were abandoned by race organizers. First, a reasonable duty of care exists to protect participants from harm. Second, participants cannot assume risks that increase their risk of injury above risks inherent to the activity. CG had a clear responsibility to all racers, including the wheelchair racers, to provide an accurate description of the marathon course. CG knew of the lane closure and made this information available on the event website. However, this information was not consistent with the information it chose to distribute more widely.
Moreover, event organizers must use care to specifically consider all participants and the information that each category of participant may need to compete safely. While the lane closure likely had little impact on the vast majority of marathon participants — specifically those running at speeds that would allow them to navigate the change from four lanes to three — that was not the case for the minority number of participants who were significantly impacted by the change. Event organizers must understand that their legal responsibilities apply to the event as a whole, including all participants, not just the majority.
This article originally appeared in the May 2020 issue of Athletic Business with the title "Marathon course change leads to racer's injury." Athletic Business is a free magazine for professionals in the athletic, fitness and recreation industry. Click here to subscribe.