Last Thursday, I arrived in Paris to experience my first ever Olympic games and watch the best athletes in the world compete in their sport. After a day out, we sat at a sidewalk cafe, and I received sad news from the USA: Lazar Dukic, a top CrossFit athlete from Serbia, passed away while competing in a swimming event at the CrossFit Games. I was shocked and saddened for my fellow CrossFit athlete and his family. I say “fellow” not because I knew Lazar Dukic but because in CrossFit, no matter what level you participate in, you are part of the family. I started CrossFit in 2019 after having done long distance running, cycling and triathlons. I wanted to gain strength and be more functional, and CrossFit did that for me. I also met some great, positive, and healthy people along the way, which made me stick with it. I, like many CrossFit athletes, was looking forward to the games. When I saw photographs of the CrossFit athletes preparing for event one, I noticed they were wearing running shoes and swim tights and had their goggles and caps on. I thought, are they running THEN swimming? This was not something I had seen in any sporting event, let alone a CrossFit event. A part of me thought this seemed risky. Only a few hours later, I learned of Lazar Dukic’s tragic accident. Then, the lawyer in me kicked in, and I wondered if this was preventable. Can someone be held responsible? These are all the things a good trial lawyer starts to think about.
Sadly, this is not the first time an athlete has drowned during a swimming event. I participated in the Olympic Distance of Philadelphia Insurance Triathlon in 2016. The day before we were set to swim, Christian Valentino passed away during the swim portion of the sprint triathlon held a day earlier. When we arrived that morning, his body had not yet been recovered, but the race would go on. We would run instead of swim. I remember the mood that day was somber. It was hard to celebrate an accomplishment while one family was grieving. I can only imagine how hard it was for the CrossFit athletes to continue competing over the weekend.
CrossFit is a branded fitness regimen that involves constantly varied functional movements performed at high intensity. It is promoted as both a physical exercise philosophy and a competitive fitness sport, incorporating elements from high-intensity interval training (HIIT), Olympic weightlifting, plyometrics, powerlifting, gymnastics, kettlebell lifting, calisthenics, strongman, and other exercises. See https://www.crossfit.com/.
The CrossFit games are styled as a venue for determining the “Fittest on Earth,” where competitors should be “ready for anything.” See https://games.crossfit.com/. CrossFit is notorious for pushing its athletes using workouts that require “as many reps as possible” or AMRAP. Many are critical of the sport due to the increase in injuries that have resulted from it.
Many people will ask if his family can file a lawsuit on his behalf. The answer to that question will depend on the type of waiver and release that he signed and the circumstances surrounding the event. This is where hiring an experienced trial attorney is crucial.
I can only assume that all athletes in the CrossFit games signed a release and waiver, including a waiver of liability should anyone experience an injury or death as the result of competition. In most cases, when someone registers for an athletic event, be it a marathon, triathlon, or Spartan Race, they must sign a waiver and pay a fee in order to be able to take part in the event. People also sign releases and liability waivers whenever they apply for gym memberships. Anytime you purchase a ticket to a sporting event, it acts as a waiver and release. Back in the day when we had physical tickets, if you read the small print on the back, you would find the release language. Chances are, 90% of people do not read these waivers or realize what they are releasing. And yes, these waivers are valid and enforceable. However, this is not a license for gym owners and event organizers to be reckless. The Pennsylvania Supreme Court has observed that pre-injury exculpatory clauses releasing a party from ordinary negligence generally are not against public policy. It has also held that pre-injury exculpatory releases immunizing parties from liability for their reckless or grossly negligent conduct firmly violate public policy — and are therefore not enforceable — because such releases would jeopardize the health, safety, and welfare of the people by removing any incentive for parties to adhere to minimal standards of safe conduct. See Degliomini v. ESM Prods., 666 Pa. 559, 563 (Pa. 2021).
The family of Christian Valentino brought a lawsuit to recover damages after his death in 2016. The case, Valentino v. Philadelphia Triathlon, LLC, 150 A.3d 483, 2016 Pa. Super. 248 (Pa. Super. Ct. 2016) the Court found that a decedent can contract away his own right to sue for negligence and the rights of his descendants to sue for negligence in a Wrongful Death Action.
The Supreme Court affirmed the Valentino Plaintiffs’ right to sue for reckless, careless conduct and punitive damages. Still, ultimately, the Court held that Plaintiffs had not submitted sufficient evidence of this reckless and outrageous conduct. In particular, the Court found that Plaintiff’s expert report “did not identify specific actions or omissions that rose to the level of reckless disregard. Reckless disregard requires a different state of mind and a substantially greater knowledge of impending risks than ordinary negligence, not simply a higher degree of carelessness, a distinction the expert failed to appreciate.” Valentino v. Philadelphia Triathlon, LLC, 150 A.3d 483, 500 (Pa. Super. Ct. 2016).
Thus, what we learned from Valentino is that if a waiver was signed, then it’s important to establish a record of recklessness on the part of the defendant.
Studies have shown that when athletes are engaged in a mass swimming event, it causes an increase in heart rate. Combine this with swimming in a crowd of people, and in the case of Lazar Dukic, after running 3.5 miles, even the fittest on earth will struggle. Remaining calm and composed under those conditions is nearly impossible for an advanced-level swimmer, let alone a novice. Thus, precautions must be put in place to monitor athletes.
I reviewed the videos of Mr. Dukic’s tragic drowning. There were two people on paddleboards within Mr. Dukic’s eyesight. We do not know what qualifications these individuals had to serve as lifeguards. Were they trained lifeguards or simply volunteers? Do they have experience as a lifeguard in open water or just a pool? Do they have experience monitoring a mass swim event? Lifeguards, especially those who regularly monitor beaches or lakes, are expertly trained to recognize when someone is struggling in water that is not clear, like a pool. How these two individuals did not see Mr. Dukic struggling makes me question their qualifications. Also, How many “lifeguards” were there, and where were they positioned for the swim event? Were the swimmers sent in waves or heats? What was the size of each heat? Knowing there would be a number of swimmers entering the water at once after a taxing run and that these athletes were not regular swimmers, I would expect the organizers to have double the amount of water support than a normal Triathlon, where people train regularly for a swim. Also, the fewer people in the water at one time, the easier it is to monitor. I would want to see the race plans for water safety to know the answers to all of these questions.
Finally, witnesses are a critical part of any investigation in a personal injury case. The earlier one can identify and question witnesses while the events are fresh in their mind, the better. The event organizers and their insurance companies will do so immediately, so any plaintiff should be able to do so as well to avoid testimony fading or changing later on.
After a tragedy, the family of a loved one is often left with questions of “What’s next?” The sooner an experienced trial attorney is retained, the sooner he or she can begin this critical investigation.
My thoughts and prayers go out to Lazar Dukic and his family for this tragic loss. No family should have to lose a loved one, especially if it was preventable. While a lawsuit can never make a family whole, it can uncover reckless mistakes that future event organizers can make sure they heed and potentially save the lives of future competitors.
Francesca A. Iacovangelo is a member of OpenBox Athletics CrossFit gym in Philadelphia, PA and has over 20 years of experience representing injured persons in personal injury matters. She can be reached at [email protected].
