TL;DR: Yes, quite possibly they could.
A couple of years ago Nike sponsored a competition in which runners who got supporters to log the most miles on the Nike+ app would win a “dream run.” The location of the dream run was also a contest, and the winner was Iceland. One of the lucky (or not so lucky) winners was experienced runner and coach Kate Martini Freeman of Los Angeles. During the second run of the trip, which apparently got off to a late, after-dark start due to travel delays, Freeman “dislocated her ankle and broke her tibia and fibula — requiring multiple surgeries.”
Hold on. How does any of that make Nike responsible? Freeman didn’t have to go on the trip.
I’m getting there. Just bear with me.
Fine. But you lawyers always do this.
We do. Sorry. Freeman’s lawsuit (here) also claims that Nike forbid participants “from using any equipment or gear that was not affiliated with and/or approved by defendant Nike.” The complaint also alleges that “Nike chose the routes and locations as well as the necessary running and safety equipment for the event.” Thus, according to the lawsuit, Nike was negligent “[i]n requiring participants to run a mountain trail in the snow and ice at night when it was unsafe to do so” and “[i]n requiring runners to only utilize equipment provided and approved by Nike.”
So Nike took what’s ordinarily an activity with some risk and made it more dangerous than it had to be?
That’s not a bad assessment.
Thank you. But that doesn’t change the fact that this runner could have decided not to participate or could have just used her own gear or could have just been more careful, right?
She probably could have done all of those things, yes. But they wouldn’t necessarily change the outcome of her case.
What? Why not?
Because in Oregon, where the lawsuit is filed , the courts have adopted an approach to negligence known as “comparative negligence” or “comparative fault.” Dust off one of those old Torts textbooks at your friendly, local law school library and you might find the old English chestnut of Butterfield v. Forrester from 1809, which (perhaps) gave birth to what is now known as “contributory negligence.” That doctrine was prevalent over the last couple of centuries and barred an injured person from recovering damages for his injuries if he contributed to the injury through his own negligence (no matter how slightly). Most courts, however, have moved away from that line of thinking toward an approach more like Oregon’s, i.e., an injured person can recover damages from another person up to the extent of that other person’s responsibility of his injuries (usually expressed as a percentage). Oregon’s legislature went so far as to abolish contributory negligence and the related doctrines of last clear chance and implied assumption of the risk.
All right. But even if that’s how these cases work, how does that make Nike responsible? They didn’t make Iceland and they didn’t make the weather.
True, Nike didn’t directly create the natural conditions that made the run risky. So in that respect, this isn’t a textbook premises liability case such as a retail store that doesn’t put out a “Wet Floor” sign or refuses to salt the ice on its sidewalks. In Oregon, however, the courts recognize a “duty to warn” in negligence cases. In 1988, the Supreme Court of Oregon wrote the following:
A defendant may be liable if the defendant can reasonably foresee that there is an unreasonable risk of harm, a reasonable person in the defendant’s position would warn of the risk, the defendant has a reasonable chance to warn of the risk, the defendant does not warn of the risk, and the plaintiff is injured as a result of the failure to warn.
That case involved a guest at a resort who died as a result of his attempting to save some children who were in danger of drowning in the surf (the state of Oregon was also sued because it had jurisdiction over the beach). Ultimately, the Court held that the suit should be dismissed because the complaint did not allege that the resort “knew or should have known of the dangerous condition of the ocean surf.” With that rule in mind, the case against Nike seems like it will boil down to the questions of whether Nike should have seen that there was an unreasonable risk of harm in the way they chose to conduct the dream run, whether Nike had a reasonable chance to warn of the risks, and whether no such warnings were actually given.
Running is not an inherently dangerous activity (says the runner). It certainly can become a dangerous activity without proper training or when a person runs under conditions that make the activity dangerous. I wouldn’t be surprised to find out that Freeman’s case will focus on the question: “Just how dangerous were the conditions in Iceland?” Every so often I get out and start a run only to encounter a torrential downpour before I can make it back. Weather can be unpredictable, but did Nike, nevertheless, have a reasonable chance to warn Freeman and the other participants that the trails were dangerous? Furthermore, did Nike create some of the dangerous conditions by requiring participants to wear only Nike gear. That’s a really hard question to answer. Put all of that together and–
Hold on! Surely Freeman must have signed some kind of release. Nike has better and more expensive lawyers than you, I’m sure.
Yes, I have no doubt that they do. But they’re not going to explain this for you, so you’re stuck with me.
Freeman very well may have signed a release, but that might not matter, given a recent ruling by the Supreme Court of Oregon involving recreation providers. As pointed out by Jim Moss of Recreation Law, the Court held that a release in a ski area ticket was void because it was unconscionable. According to Moss “By stating that any provider was subject to the public policy exception to releases, the court effectively found that anyone injured by a recreation provider could have their releases voided.” If Nike can be put in the same broad category as the Mt. Bachelor Ski Resort any release they might have had the dream run participants sign might not do them any good.
The bottom line is this: although there’s no surefire way to predict the outcome of this case, it’s not as far-fetched as you might think to believe that what looks like a not-so-out-of-the-ordinary slip and fall case that happened thousands of miles away really could leave Nike holding the medical bill.