Zoricic Family Sets Deadline for Investigation

At a News Conference held on March 6, 2013, the family of the late Nik Zoricic and their lawyer, Tim Danson, expressed their anger over the results of the Swiss Police Investigation. Tim Danson and the Zoricic family have set a deadline of June 15, 2013 for FIS and Alpine Canada to agree to an independent and transparent investigation into the Canadian World-Cup skicross racer’s death.

Video of the News Conference:

Tim Danson’s official statement can be found below:

One year ago this Sunday, March 10th, 2012, Nik Zoricic needlessly lost his life representing Canada at the World Cup Ski-Cross Race in Grindelwald, Switzerland. Race organizers and officials, more interested in protecting the Alpine/Ski-Cross establishment rather than determining the truth and putting skiers’ safety first, falsely and unfairly characterized Nik’s death as a “freak” accident, effectively blaming him for his own death.

Last April we held a news conference here in Toronto. We reviewed, frame by frame the last seconds of Nik’s life. We demonstrated conclusively, that Nik’s death was the result of the gross negligence of race organizers and officials.

At their April 25, 2012 news conference, Nik’s family called for an independent and transparent investigation into Nick’s death which would be undertaken by experts knowledgeable in ski safety. To facilitate this necessary investigation, the Zoricics agreed that in exchange they would take all legal options off the table – no lawsuits – no litigation – no liability. The Zoricics do not want money – they just want the truth. Is that too much to ask for?

If this independent and transparent investigation was agreed to, the Zoricics also agreed to execute, in advance, a legally binding full and final release absolving all parties concerned of any and all liability, confirming the Zoricic’s good faith and commitment to respect and abide by the outcome of that investigation.

Notwithstanding that we believed this to be an exceptionally reasonable and responsible offer – one that was in the best interest of the sport, the athletes and Nik, neither FIS nor Alpine Canada have agreed to this investigation or suggested an alternative. That leaves us with only two options: capitulation or litigation – capitulation is not an option – capitulation will not be Nik’s legacy.

Recently we obtained an English translation of the Swiss Police Investigation Report into the circumstances surrounding Nik’s death, which was written in German. This investigation was not the investigation we called for. It was neither independent nor transparent. Nor was it undertaken by experts knowledgeable in Alpine/Ski-Cross safety. All of our attempts to speak with the police were rejected. We were not consulted. We were not part of the process. The opinions and perspectives of the victims were not relevant to that investigation. This we find disappointing and unacceptable.

This aside, this Swiss Police Report is either the most incompetent police investigation I have ever seen in over 32 years of practice, or it was intended to protect powerful interests in Switzerland, and consequently an investigation that whitewashes the negligence and distorts the truth by placing the blame on Nik. Either way, it is an insult to Nik Zoricic. That is an outcome that we will not accept. This will not be Nik’s legacy. There is much more to Nik’s life than his tragic death. We will not allow anyone to sanitize the negligence by placing the blame on Nik for his own death. Nik is not expendable on the alter of political expediency. We are committed to exposing the truth and holding those responsible accountable for their actions. Only with the truth can the necessary institutional, attitudinal and systemic changes be made so that such tragedies will not occur in the future.

It is our understanding that the police report is in the hands of a Swiss prosecutor who will decide whether to lay criminal charges. The police report ends this way: “This is a tragic case of a sporting accident with a fatal outcome. In light of the conducted investigations, causation by a third party can be excluded.” Notwithstanding the fact that the final jump steered all the racers to the right, the police report concluded that Nik himself veered to the right, resulting in his death. Such a conclusion is shameful. It seriously distorts the truth. It absolves those who are truly responsible and places the blame on the victim.

Regardless, what happened in Grindelwald, Switzerland on March 10, 2012 was not criminal. The people responsible are not criminals – they were just incompetent and negligent.

We have delivered a letter to the Swiss prosecutor today, urging him to terminate the criminal investigation immediately and/or conclude that there was no breach of any criminal laws. This investigation is not helpful. Nor should it take a year or more to conclude such an investigation.

We must shut the door on all possible obstacles that stand in the way of the investigation we seek. We must create a positive atmosphere where everyone can feel comfortable coming forward to facilitate an open, honest and independent investigation to secure the truth without concern about legal liability.

Why is it so hard to do the right thing?

We renew, for the last time, our plea to FIS and Alpine Canada, to undertake an independent and transparent investigation on the same conditions we announced last April. This offer will remain open for acceptance until June 15, 2013. If we continue to be ignored, or our offer is rejected, we will consider this an act of bad faith and we will commence a lawsuit on June 16, 2013. This lawsuit will include a significant punitive damages claim. Any award of money granted by the Court will be given to the Nik Zoricic Foundation, a not for profit, charitable foundation committed to (i) promoting and funding safety in Alpine and Ski-Cross racing and Free Style competitions, including training for these events and providing expert advice and monitoring to ensure safety in course design; (ii) promoting safety education so both race/competition organizers and racers alike can identify safety issues; and (iii) identifying athletic excellence in Canadian skiers, and providing these athletes with financial support.

We also call upon Prime Minister Stephen Harper and the Parliament of Canada, through Sports Canada, to assist the Zoricic family in reaching their modest objective. Nik Zoricic proudly represented Canada on the national and international ski stage. He represented the best of Canadian values – to be the best you can be. Nik was committed to athletic excellence, hard work, discipline and unparalleled determination – to push the outer limits of physical and mental endurance – to win for Canada.

Through Sports Canada, Canada athletes are funded by all Canadians – to represent athletic excellence and Canadian values around the world – to act as role models for our children and younger athletes. Our athletes make us proud to be Canadian.

Nik Zoricic upheld his end of bargain – he represented Canada with pride, honour and distinction. Canadian athletes must know that in return Canada has their back. Nik Zoricic’s senseless death and the absence of any accountability, should offend all Canadians. There is no room for indifference or complacency. A young man competing for Canada, died senselessly. It is not right that as a nation we have high expectations for our athletes and then turn our backs on them when it comes to their personal safety. Last April we reached out to Sports Canada officials, but we were met with silence. So we now appeal directly to the Prime Minister and the Parliament of Canada for help. Surely, this is a matter in which Sports Canada has a responsibility to take a leadership role. There is a very important principle here – we expect a lot from our athletes. They make incredible sacrifices to represent Canada and make Canadians proud. In return, we must make sure that Canadians have their backs. The investigation we seek does not have to be lengthy or expensive. FIS and Alpine Canada can either choose to be part of the process – part of the solution – or they can continue to bury their heads in the snow. Placing the blame on Nik for their negligence, insults, demeans and marginalizes all athletes. This is not an acceptable outcome. This is not the Canadian way of doing things. If our suggestions are not acceptable, then, as stated, we will commence legal proceedings on June 16, 2013. We are bending over backwards to avoid such an outcome, but the resolve of the Zoricic family to honour and protect their son’s memory should not be underestimated.

Critique of Swiss Police Report

1. The race and the last seconds of Nik’s life was televised. By any objective criteria, a frame by frame analysis of the last seconds of Nik’s life confirms that the final jump and finish area were a death trap, with no margin for error. The result of missing the finish line by 3 feet ought to have been disqualification – not death. Yet the police placed the entire blame on Nik Zoricic.

2. The course design for the final jump and finish line was so defective, that by any objective criteria it should have been obvious to all that the topography of the hill was such that the race should never have been held at this location. Instead, race organizers tried to put a square peg into a round hole rather than abandon the location altogether. Nik paid the price for this selfish and negligent decision with his life.

3. The final jump steered the racers to the right. Everyone watching the race live and/or on video replay saw how the lead racer, Chris Delbosco of Canada, who hit the final jump perfectly – dead center, landed on the skier’s right outside blue boundary line.

The 2nd racer, Jonas Devovassoux of France, who was to Chris Delbosco’s immediate right, who also hit the final jump properly, landed outside the skier’s right outside blue boundary line, but at the last second was able to veer inbounds.

Nik Zoricic, the 3rd racer, was to Jonas Devovassoux’s immediate right, and like Jonas, landed to the right of the outside blue boundary line, but shockingly, race organizers failed to groom the hill up to the safety fences. Nik, who landed perfectly, landed in crud, causing him to fall to his death at the finish line.

To be clear, it was the course design that forced all three skiers to the right, one landing on the outside boundary line and the other two landing outside the outside boundary line, yet the police report inexplicably blamed Nik.

4. Nik Zoricic, like the other racers, properly negotiated the final jump by skiing between the left and right ski gates that marked the jump. A properly designed course must take into account all possible trajectories of racers who ski between the gates marking the jump. This was not done.

Pictures do not lie. Look at the photographs we have brought today, as well as the video replay of the race. You can see for yourself. As the racers come over the final jump, the left outside blue boundary line is not lined up with the left outside boundary of the jump, but rather is lined up well past the outside boundary of the jump. Likewise, the right outside blue boundary line is not lined up with the right outside boundary of the jump, but rather is lined up with the middle of the jump. This isn’t rocket science. The orientation of the final jump and the course design was totally out of alignment, with no margin for error, but the police report is silent on these indisputable facts.

These are elite, highly experienced, world class skiers. How is it possible for all three elite racers to end up so far to the right? How does an elite athlete like Nik Zoricic negotiate the final jump properly, skiing between the two final gates marking the jump, travel through the air in perfect form and completely under control, make a perfect landing and end up dead? The answer lies in the gross negligence of the race organizers and officials.

5. The video of the last seconds of Nik’s life shows that he landed in crud. How can crud exist on any Alpine/Ski-Cross course, let alone at the finish line within the natural trajectory of the final jump, where the racers are travelling up to 100 km an hour? Everything else aside, had the elementary and basic step of grooming the finish area of the course up to the safety fences been done, as was the case for the rest of the course (and is the case in every Alpine/Ski-Cross race course), Nik would be alive today. The police report was silent on this egregious act of negligence.

6. The race organizers used the wrong safety fences. The police investigators never interviewed the manufacturer of the fences or attempted to understand the difference between “A” fencing or “B” fencing. Having failed to undertake such an elementary step, there was no analysis with respect to what fencing should have been used for this race course given the terrain configuration and the layout of the surrounding structures.

7. The police interviewed race organizers and officials who had a direct interest in exonerating their conduct without challenge, critical analysis or testing the answers against the opinions of independent experts. The police accepted at face value, the erroneous answers provided by interested parties.

For example, the pile of snow that Nik hit at the finish line which likely caused his death, which contained the time-keeping and finish camera equipment, was like a concrete wall. Its obviously dangerous location was of little concern to police investigators. The safety fencing was on the wrong side of the mound, not situated in front of the snow bank where it would have protected the skiers from hitting it. Race organizers said that they had no choice because there was a barn on the left side of the finish line area and this was the only place for it, without anyone asking the obvious question – if the topography of the hill only allowed for a dangerous finish line, why choose this location? Clearly, skiers’ safety was not a priority and in fact, skiers’ safety was expendable.

8. Only 2 of 90 skiers were interviewed by the police. Only 10 people in total were interviewed by the police. 7 of the 10 were interviewed on March 10, 2012, the very day of the accident when everyone was in shock and extremely upset. Of the remaining 3, 2 were interviewed the next day, March 11, 2012 and the other on March 14, 2012. There was no follow-up; no cross checking; answers were accepted at face value with no independent expert corroboration. Effectively relying entirely on those responsible for Nick’s death by reason of their negligence to dictate the outcome of the police investigation is nothing short of breathtaking. It was like leaving the fox in charge of the hen house.

9. No questions were directed at FIS technical delegates concerning the nature of their training; what knowledge and expertise they had with respect to understanding the inter-relationship between speed, physics, trajectory, height, depth, spacing and other related matters, including the use and installation of different fencing.

10. Neither the jury report nor the homologation report was provided and we have a question whether a homologation report even exists, both of which are necessary to understanding how officials signed off on the safety of this course.

11. If what was provided to us was complete, then no rules or regulations were provided addressing safety issues so the police could undertake a proper evaluation. There certainly was no analysis of the rules and regulations governing Alpine Skiing to determine how, if at all, they were different from the rules and regulations governing Ski-Cross on critical issues of safety, and if different, why were they different, and if they were not different, were they followed.

12. The police had no concern about the fact that there was no space between the finish line posts and the outside safety fence, leaving zero margin for error.

13. The police interview of French racer Jonas Devovassoux was one short paragraph, but Devovassoux says he gave an in depth statement to the authorities, which included the fact that he had complained about the safety of the course.

14. Nik’s teammate Dave Duncan said he had a bad feeling about the course, but Duncan, like many others, was not interviewed.

15. The investigators neither had the knowledge nor expertise to carry out effective and informed interviews.

written by

Mr. Timothy S.B. Danson is an experienced trial and appellate lawyer. He is a member of the Law Society of Upper Canada, the International Bar Association, the Canadian and Ontario Bar Associations, The Advocates Society, The Toronto Lawyers’ Association and the Criminal Lawyer’s Association.

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