20170621-bc-heat-3

Local attorney Benjamin R. Greene died following a 5K run in 107-degree heat Tuesday evening at Hart Park.

Some run because they want to stay in shape. Others compete because they have something to prove.

But many people participate in 5Ks, 10Ks and half-marathons because of one simple fact: They love to run.

When Bakersfield attorney Benjamin Greene collapsed and died last week after participating in a 5K event at Hart Park in evening temperatures hovering around 107 degrees, the tragedy immediately raised questions about why the race was run during what may turn out to be the worst heat wave of 2017.

Many Facebook posters and online story commenters agreed that civil liability — an ever-present concern in this litigious age — was a question worth asking about in this instance, although few actually advocated for it.

The Bakersfield Track Club’s “Summer Series” — a string of six 5K events stretching over the season — has been held for more than three decades, in heat, in dust, in dry and in muggy conditions.

But the club appeared to recognize that last Tuesday’s oppressive heat merited extra attention for the walkers, runners and joggers.

“Normally, only three aid stations are set up during the summer races,” the club said last week in a statement.

“Because of the heat, five aid stations were set up ... to provide the 180 runners with extra water, ice and Gatorade. Misting stations were also set up at the beginning and end of the course to assist the runners.”

Matt Clark, an attorney with the law offices of Chain Cohn Stiles, said he did not know Greene well, although as attorneys, the two had crossed paths on occasion.

It’s too early, Clark said, to come to any hard and fast conclusions about the circumstances behind the tragedy.

And uppermost in his mind, he said, is the heart-breaking loss to Greene’s family.

Legally speaking, Clark said, he would start exploring two major areas in investigating the question of civil liability: the waiver ostensibly signed by each 5K participant, and a legal doctrine known as “assumption of risk.”

“Was there a waiver?” Clark asked. “Was it signed for that event, that date? Did it have all the right language?”

According to the track club’s website, the waiver reads as follows:

In consideration of this entry acceptance, I hereby for myself, my heirs, executors, and administrators, waive all of my rights for damages I may have against the County of Kern, the Bakersfield Track Club, the race sponsors, or any individual associated with the above and for all injuries sustained by me in this event. I attest and verify that I am physically fit and have sufficiently trained for this race.”

Daniel Rodriguez, another Bakersfield attorney who specializes in civil cases, said if gross negligence can be proved, even a well-written waiver can become ineffective.

“Legally speaking, “Rodriguez said, “a claim for gross negligence cannot be waived. So, the question would be whether there is enough evidence to prove gross negligence to a jury.”

Still not easy.

“It’s very, very rare you find a circumstance of gross negligence,” Clark said.

Rodriguez agreed, describing it as “a pretty tough row to hoe, legally speaking.”

The “assumption of risk” doctrine was established from the foundational case, Knight vs. Jewett. It involved a woman who joined to play in a co-ed flag football game.

As one point she fell, someone stepped on her hand and seriously injured it, and she sued.

The court found that the game of football is one in which players can fall down and be stepped on. These are risks inherent to the sport, the court found. In such cases, the participants are making an assumption of risk.

“The question is, can you get over this assumption of risk?” Clark said.

There are risks inherent to running long distances. Turned ankles, blown knees, torn hamstrings — and worse.

And everyone who ran the race knew it was going to be brutally hot. The weather could not have been a surprise to any participant.

However, on the other side of the ledger, Rodriguez said, there apparently was no portable defibrillator, no ambulance on scene on one of the hottest days of the year at a time of day when summertime air quality is often less than pristine.

Neither attorney was making a judgment. They were merely raising questions — on both sides of the ledger — that would be asked should they need to be.

“Did the BTC make the sport more dangerous than those risks naturally associated with it?” Clark asked.

It’s a question he didn’t try to answer.

“This will sound very lawyerly,” he said. “But I can see both sides.”

Steven Mayer can be reached at 661-395-7353. Follow him on Facebook and on Twitter: @semayerTBC.

(9) comments

amtfor attorneys

ALSO I FEEL SORRY FOR ALL THE PEOPLE THAT HIRED HIM AND WERE STILL IN THE PROCESS OF GOING TO COURT WHERES THAT MONEY THINK THE FAMILY GIVES IT BACK THINK AGAIN, I GOT LUCKY AND SUED HIM BEFORE HE DIED AND WON THE OTHERS HAVE TO PAY ANOTHER ATTORNEY TO TAKE OVER THE FAMILY SHOULD GIVE EVERYONE BACK THE MONEY BEN TOOK FROM THEM AND DIDNT FINISH THE JOB

amtfor attorneys

WHEN I SAW HIM I TOLD FRIENDS HE LOOKS LIKE HES GONNA HAVE A HEART ATTACK AND THAT WAS 30DAYS BEFI=ORE ,ALSO IN HIS OWN FACEBOOK HE TOLS EVERYONE HE WAS RUNNING THAT DAY AND KNEW HOW HOT IT WAS GONNA BE, ALSO AS I SUSPECTED MEDICAL REPORT SAYS THE USE OF METH DIDNT HELP DRUGS IS A WINNER OVERTIME U DONT WIN USING DRUGS AND THEY SAY FAMILY WANTS TO SUE SUE BEN HE MADE THE DESION

Ed

Stirring the pot Steve? Or just looking for attention ? Dumb headline with today's litigious society sneeze and pass gas and someone will sue...

BillJames

A terrible tragedy indeed. This situation was a perfect storm of several factors that most likely lead to his demise. I know for a fact Ben was dealing with job, marital and health issues. He definitely was aware of the risk as he commented on social media prior to the race. Prayers to his family and children.

amtfor attorneys

also he was doing other things I won't mention lets see what his medical docs found in his system don't tell me family is looking to sue really?

Tam Daras

An autopsy will give answers as to the cause of death. Until then, speculation involving attorneys and uniformed readers is meaningless.

Nevermind

The event should have been postponed, and an ambulance in attendance. Having said that, nobody forced Mr. Green to keep running when he started to feel bad. Its tragic, but there was no Olympic Gold medal up for grabs, you have to regulate yourself, and even then, bad things happen. Condolences to the family.

amtfor attorneys

he either went to Tialand or was gonna go either way if something would of happened there would they sue to family wants money they now have to work and join us losers out here sorry no way he took my money and I felf ripped off he didn't care thats attorneys like used car sales men

CTurk3

While i feel sorry for his family, he was a grown man. No one forced him to run in the race, where is his responsibility? That is what is wrong with society today, always looking for someone to blame for one's own decisions. That is what California, as well as the rest of the country is becoming, "it's not my fault, you owe me, I'm a victim, you have more than me and that's not fair"!

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