University of Notre Dame

It was, of course, a tragedy of monumental proportions that sentwaves of shock and grief through the university community. Sullivanwas buried in his hometown of Buffalo Grove, Ill., and now both theuniversity and the Sullivan family face a thicket of legal andmoral issues. What is the responsibility of the university for thedeath of a student-employee who was put in harm's way? Is thefamily willing to make demands on a university that it clearlyloves? (Declan's sister is a freshman at Notre Dame.) What does thelegal system provide?

The Indiana laws that applyto this tragedy might not be helpful to the Sullivan family, if itwishes to seek redress for Declan's death. Notre Dame paid him forhis work; so as an employee who was killed while on the job, hisfamily 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 apayment of a $7,500 death benefit, according to Brad Varner, aworkers' compensation specialist in Mishawaka, a town locatedadjacent to South Bend. If Notre Dame decides to adopt a highlytechnical and legalistic approach to the tragedy, it could easilytry to limit any settlement to the $7,500 death benefit.

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

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

There Are Options
The answer is aqualified "yes." There are some legal options; but all of them aredifficult, if not impossible, to pursue successfully. They includea) a products liability claim against the manufacturer of thescissor lift that Sullivan rode to his death; b) a claim againstthe company that leased the lift to the university; and c) a claimagainst anyone who repaired or serviced the device. But accordingto Kenneth J. Allen, a highly successful trial lawyer inValparaiso, these claims are not likely to succeed.

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

Looming over any attempt to go beyond the workers' compensationdeath benefit is an Indiana safety regulation that provides, "Workfrom scaffolds is prohibited during storms and high winds unless acompetent person has determined that it is safe for employees to beon the scaffold and those employees are protected by a personalfall arrest system or wind screens."

It is not yet clear whether any Notre Dame officials directedSullivan to use the lift in the high winds. But any attempt toblame anyone but Notre Dame for his death would collide with thatstate safety regulation. Only a Notre Dame official at the practicecould have "determined that it [was] safe" for him to use thelift.

What will Notre Dame do? Will it rely on the law that limits thefamily to $7,500? Let's hope not. This is an issue that should beresolved between the university and the family. Rev. John Jenkins,Notre Dame's president, has taken the first step toward areconciling settlement. In an open letterto the Notre Dame community, he took responsibility for thetragedy.

"Declan Sullivan was entrusted to our care, and we failed tokeep him safe," Jenkins wrote. "We at Notre Dame, and ultimately I,as president, are responsible."

The responsibility that Jenkins describes is not a legalresponsibility. It has nothing to do with the laws of Indiana orrules of liability or insurance coverage. His acceptance ofresponsibility is, instead, an act of grace and compassion and lovethat will allow university officials and the Sullivan family tobegin to talk and to find an equitable conclusion.

Lester Munson, a Chicago lawyer and journalist who reportson investigative and legal issues in the sports industry, is asenior writer for ESPN.com. This article was originally publishedat www.espn.com.