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Saturday, November 06, 2010

Ind. Law - "Notre Dame's legal (and moral) issues"

Updating this ILB entry from Nov. 1st, which was headed "Forbes: 'Sullivan's Death Could Cost Notre Dame $30 Million'", it looks like ESPN agrees with the ILB reader, rather than with the Forbes analysis.

Here is a long "Courtside Seat" column by Lester Munson of ESPN.com. Some quotes:

Courtside Seat has a heart. You know that, right? We take no joy in addressing the sad situation in South Bend, Ind. But the legal issues facing the university right now are significant, and there is no point in avoiding them. So the view from this week's 'Seat' is of liability, of workers' compensation and of death benefits ... Today, we start with … The value of a young life

No one is ready to talk about it, but Notre Dame must soon answer a difficult question: What is the university willing to do for the family of Declan Sullivan, the 20-year-old football videographer who fell to his death while taping practice in 50 mph winds last week? * * *

The Indiana laws that apply to this tragedy might not be helpful to the Sullivan family, if it wishes to seek redress for Declan's death. Notre Dame paid him for his work; so as an employee who was killed while on the job, his family is limited to what is available under Indiana workers' compensation law. And it isn't much.

As a worker who had no dependents, Sullivan is limited to a payment of a $7,500 death benefit, according to Brad Varner, a workers' compensation specialist in Mishawaka, a town located adjacent to South Bend. If Notre Dame decides to adopt a highly technical and legalistic approach to the tragedy, it could easily try to limit any settlement to the $7,500 death benefit.

Notre Dame officials are not discussing the matter as they await the results of investigations by a state safety agency and insurance adjusters.

Is there any way for the Sullivan family to move beyond the limits of workers' compensation into a more equitable claim for damages, if they so desire?

The answer is a qualified 'yes.' There are some legal options; but all of them are difficult, if not impossible, to pursue successfully. They include: (A) a products liability claim against the manufacturer of the scissor lift that Sullivan rode to his death; (B) a claim against the company that leased the lift to the university; and (C) a claim against anyone who repaired or serviced the device. But according to Kenneth J. Allen, a highly successful trial lawyer in Valparaiso, these claims are not likely to succeed.

"Indiana law is not favorable to consumers and protects big companies and insurance companies," Allen said.

Looming over any attempt to go beyond the workers' compensation death benefit is an Indiana safety regulation that provides, "Work from scaffolds is prohibited during storms and high winds unless a competent person has determined that it is safe for employees to be on the scaffold and those employees are protected by a personal fall arrest system or wind screens."

[More] Here is a lengthy story by Margaret Fosmoe from today's South Bend Tribune. Some quotes:
SOUTH BEND — The University of Notre Dame's president sent an e-mail letter Friday saying that the university is responsible for student Declan Sullivan's death because they failed to protect him.

“Declan Sullivan was entrusted to our care, and we failed to keep him safe. We at Notre Dame — and ultimately I, as President — are responsible,” the Rev. John I. Jenkins wrote in the e-mail sent to the campus community. * * * [ILB: The text of the letter is available as a sidebar to the SBT story.]

Notre Dame has faced a storm of criticism in the days since Sullivan's death — from sports columnists, bloggers, and some alumni, students and fans — questioning who made the decision to have videographers on lifts taping the football practice on a day in which a high-wind warning had been issued.

The mood on campus has been somber since the death of Sullivan, 20, a junior from Long Grove, Ill.

In a news conference after last Saturday's loss to Tulsa, Kelly took responsibility for deciding to hold practice outdoors that day, despite the brisk winds. No one has said who made the decision to have videographers go up on lifts.

Shortly before his death, Sullivan posted on Twitter: “Gusts of wind up to 60 mph. Well today will be fun at work. I guess I've lived long enough … This is terrifying.”

South Bend was under a wind advisory that day, with gusts reaching 51 mph, according to the National Weather Service. * * *

“I wonder whether anybody from the university or OSHA will delve into what role the pervasive football culture at Notre Dame played in putting Sullivan high atop that scissor lift,” Chicago Tribune sports columnist David Haugh wrote Friday. * * *

The university's risk management and safety department website states the department is responsible for arranging training for all authorized users of scissor lifts and other aerial lifts on campus. The document is dated January 2007.

The site includes a waiver and indemnification agreement users apparently are required to sign before operating a lift. The waiver states the signer has knowingly and voluntarily accepted certain risks inherent in operating such equipment, including the possibility of injury or death.

Posted by Marcia Oddi on November 6, 2010 09:35 AM
Posted to Indiana Law