OT?-ND Investigation-What Does It Take To Be Let Go?

Submitted by HAIL 2 VICTORS on January 29th, 2011 at 3:47 PM

If the Declan Sullivan tragedy costs ND an estimated $30 Million as predicted by Forbes magazine can Swarbrick and Kelly survive this?


If found guilty of negligent behavior and if the degree of fault rests predominantly in the university's lap, Notre Dame could face compensatory damages in the $15M to $20M range in the aftermath of Declan Sullivan's tragic death.  And if punitive damages are also levied upon the university, the price tag associated with Mr. Sullivan's passing could increase by an additional $45M-$60M if penalized to the maximum allowable amount under Indiana law.

But just as you could conclude that it would have been reasonable for Mr. Sullivan to voluntarily seek shelter in light of his concerns, you could also argue that it would have been similarly reasonable for any one of the numerous on-site adults (e.g. coaches, administrators, facility staff) to approach Mr. Sullivan and mandate that he cease his elevated videography services due to inclimate weather for safety's sake.

The reality is that most 20-year old employees of major Division I college football programs work in awe or fear (or both) of their coaching staffs and/or student-athlete peers.  They are simply dedicated workers who show their school spirit by taking great pride in their job.  As such, they are not likely to voluntarily 'sit one out' unless approached by an adult who supposedly has a better grasp on the 'big picture' and who can play a nurturing and protective parental role when faced with adversity or unfamiliar circumstances.





January 29th, 2011 at 3:57 PM ^

is respnsible for his death.  This is a tragedy beyond anything I could ever imagine.  Brian Kelly is a good coach.  But i am not sure who gets the axe on this one.  But one thing is for sure, someone needs to be fired and/or put in jail to pay for what happened.

Big Shot

January 29th, 2011 at 4:43 PM ^

I don't understand why you think someone should potentially be put in jail. While Decan Sullivan's death was a terrible tragedy, it was not the result of malicious activity. I agree that someone should be fired and the university should pay a large amount for its negligence in this case, but I would argue that jailing someone who isn't a threat to society would be going too far in this case.


January 29th, 2011 at 11:43 PM ^

You do realize "not the result of malicious activity" is not a legal standard, right?  That people can be put in jail for things such as manslaughter, i.e., killing someone "without malice or premeditation, either express or implied?"

If I punch someone in the face, they hit their head on the ground and die, I can go to jail for kililng him even though I had no intention whatsoever to kill someone.  Also, there are thousands of people in jail who aren't (as far as we know) a "threat to society."  You don't get convicted based on what you MIGHT do in the future; you get convicted for what you DID do in the past.

I'm not saying Brian Kelly or anyone else from ND should necessarily go to jail in this specific case, as the facts haven't come out yet.  But in general, the reasoning you gave is completely not in line with the criminal justice system.


January 30th, 2011 at 12:01 AM ^

Ah, another internet lawyer telling everyone what the law is without reading the underlying post or having a good grasp of the extremely subtle differences between degrees of Murder and state to state laws.

The OP never said - he wouldn't or couldn't, he merely said, "it was not the result of malicious activity."  He then followed that up with, "I would argue........."    I would argue that both his statements are completely accurate and you have decided to insert your personal bias into some interpretation so you can show us all your knowledge of criminal law. 

Now I'm no criminal lawyer in Indiana, where I would assume any criminal charges would be filed, but your "definition" of "involuntary manslaughter" seems weak - I tried to look it up using the standard resource of every internet criminal lawyer everywhere, Wikipedia, and didn't see Indiana's particular definition.  In fact, where I live, if you punch someone in the face with intent to commit serious bodily injury, they hit their head and die, you are getting charged with Felony Murder, none of this weak manslaughter crap.

If you were taking the CA Bar Exam I'd give you a 40 -the lowest possible essay score on the CA Bar Exam and you'd fail.

Maybe next time say, "Let me explain my experience with the law....", but don't pretend to be an experienced criminal law lawyer in Indiana.  For the record, what and how the law is supposed to work in this great country has been a 200+ year and counting debate.

Big Shot

January 30th, 2011 at 7:16 AM ^

Thanks for showing off your unimpressive legal knowledge, but I understand how the law works. Now if you go back and read my post, you'll see that I'm stating my opinion on the situation. I understand that "not the result of malicious activity" is not a legal standard. I also know that being a threat to society doesn't really make a difference in a criminal case.

I simply stated that Decan Sullivan's death was not the result of malicious activity, and no one involved is a threat to society. Therefor, I would argue that putting someone in jail would be going too far in this case. That's just my opinion, and I'm guessing a lot of people would agree with me. I couldn't care less about what the law says about this case, lawyer guy.

And by the way, your "punching someone in the face" argument was awful. You're attempting to make an argument about how someone can be jailed without malice intended, and you proceed to use an example of going to jail for accidentally killing someone by punching them in the face. In your terrible example, malice was clearly intended when you decided to punch someone in the face.


January 29th, 2011 at 11:59 PM ^

caused by their negligence. And they should. Also the notion that people who aren't a "threat to society" should not be jailed ignores society's right to punish wrongdoing and hopefully create a deterrent to future wrongdoing by punishing someone. It will be interesting indeed to see if the authorities in South Bend and at ND take this seriously.


January 29th, 2011 at 3:57 PM ^

Great post.  To answer your question "What does it take to be let go?", I'm not sure of the over/under, but I'm sure 30 million is in the over.  What Swarbrick and Kelly's job really depends on isn't whether or not the University has fines levied against it, but whether or not OSHA can show that it was the responsibility of either Kelly or Swarbrick to play the role of "administrators" or "staff" who should have told him to get down.  I imagine the University will likely get fined, but spin it in a way where they can scape goat the lack of direction towards Declan on some non-coaching staff type employee.  


January 30th, 2011 at 12:14 AM ^

than some other posts I can mention - it will never see the light or day in either criminal or civil court.  Criminally it will not be prosecuted due to lack of evidence or limited resources in light of the underlying lack of culpability or the real reason that the state doesn't want to F ND.  In the civil case, there will be lengthy negotiations with the families, followed up by a last minute confidential settlement which forbids all parties from discussing the issue.

ND has lots of money and gets no public money, so no public documents.



January 29th, 2011 at 4:04 PM ^

But I can't see Kelly getting fired for any reason other than on-field results at this point.  The money will probably be covered by insurance policies and/or the big pile of dough the school is sitting on.  If the event itself had been a big deal (with respect to Kelly's culpability) they wouldn't be waiting around for the results of the lawsuit before letting him go.


January 29th, 2011 at 6:05 PM ^

Technically, assuming there is fault, a reasonable presumption at this point, Kelly, as the head coach has responsibility for the program.  Practically speaking, it is highly likely that Kelly was several layers removed from the people responsible for filming the practice.

While ND may choose to settle the case and keep things as quiet as they can, a settlement would not impact an OSHA investigation, and ND would have to deal with the consequences.

This whole thing is tragic beyond words  However, I  simply can't see implicating Kelly unless he specifically was told about the danger and said to hell with it.  So far there is nothing to lead one to that conclusion.


January 29th, 2011 at 4:51 PM ^

 It costs a LOT to provide the resources a university gives to its faculty and GSIs.

Fixed it.

The primary purpose of an American university nowadays is to conduct research.  They go through the charade of providing an education (done on the cheap, with gigantic lectures by professors who don't know any of their students' names, and marginally-qualified grad students doing supplementary teaching) to expand their customer base, find guinea pigs for research ("Get $10 for participating in an experiment!") and to take in resources that government grants don't cover.  


January 29th, 2011 at 5:20 PM ^

I don't know what classes you were taking, but this is largely dependent on what you're majoring in.

Paying tuition at Michigan gives me pretty much 24/7 unlimited access to a machine shop, vocational and technical training, unlimited printing, top of the line computing resources, libraries, etc. for around $7000 a semester. A lot of this is the result of my department providing things, but it's to be expected that the resources a department makes available to its concentrators are going to be better than those the university can afford to make available to 40,000+ kids.

It just sounds like you had a bad experience, because my 30-40 person classes definitely don't feel like the professor doesn't care about or know his students. I just hate to see someone rail against an institution that, despite some faults [i.e. no dorm meals on saturday nights] does a pretty good job of teaching people who want to learn.


January 29th, 2011 at 4:12 PM ^

I for one am sick of these posts until the investigation is finished.   I'm willing to bet that not one of you was at ND's practice that day, so this is nothing but pure speculation.

Declan Sullivan's death was a tragedy, and there is absolutely no excuse for him dying.  After the investigation is over, I'm confident that the guilty party will pay a price.  The price will not be adequate in exchange for that kid's life, but the guilty party will pay a price. 

Until then these posts almost seem to be reoccurring because it is a rival team with a coach that I think scares some of you.  It's almost as if some of you are hoping this is Brian Kelly's fault so that he'll be fired instead of just thinking about Declan's family.  I refuse to believe that Brian Kelly is some sort of robot that doesn't care.


January 29th, 2011 at 4:26 PM ^

Not so much as this has been asked well before myself...

The head football coach has final say over everything that transpires on the practice field. Everything. That’s why Ohio State’s Jim Tressel moved the Buckeyes’ practice inside on Tuesday when wind gusts made conditions unsafe.

“I don’t know if we’ll be inside or out,” Tressel told Ohio reporters 24 hours before the Notre Dame tragedy. “It looks a little nasty. I worry about our cameramen, their well-being up there 50 feet in the air.”

I am simply asking at what cost can Kelly and Swarbrick survive?  If you settle out of court in the millions can the transgression be overlooked by a University that prides itself on the principals that ND offers to the families of it's student body? 

As for the investigation that is simply the legality of the situation and does not solely answer the question as to can Kelly and Swarbrick survive this.

Why are you confident the "guilty party" will be held accountable?


January 29th, 2011 at 4:17 PM ^

First off don't read these posts then, it's that simple. Also any adult with in shouting range of that kid is some what responsible for what happened. How the thought never crossed their mind to get that kid out of there is at the very least negligence. Coach Kelly and his over rated bunch of recruits are not the reason for the way people are responding to this situation.

Mitch Cumstein

January 29th, 2011 at 4:13 PM ^

I can't see Kelly getting fired for a 30M figure.  One could easily argue that having him as a coach is worth more than that to the ND brand (given his success rate and projected success rate).  Swarbrick probably gets the ax on this one, if anyone.


January 29th, 2011 at 4:32 PM ^

Not only were both the AD & HC present

that day to witness the conditions,

" Boy, it sure is windy today ! "

On field activities were not curtailed

after the tragic accident, either.



January 29th, 2011 at 4:35 PM ^

This is not the answer most people are going to love, but when did this kind of stuff go from being accidents to "someone must be fired"?  The incident is obviously a great tragedy and could have been prevented, however I bet it has affected Kelly enough personally and emotionally that taking his job this far after the matter seems to just be rubbing salt in the wound.  

I just wonder how well the coaches are trained with this equipment and if they even know that they can blow over.  Let's learn from the incident, pay whoever needs to be paid, and move on.  I feel horrible for the Sullivan family but tragedies happen every day.

Mr Miggle

January 29th, 2011 at 9:16 PM ^

By all accounts it was an avoidable accident. Notre Dame was responsible for training their employees properly, for following OSHA work rules and for creating and following their own rules to ensure a safe environment. That they apparently did none of those things falls much more on the AD than the coach. However, unlike the president/military analogy used below, the coach was there on the field making decisions about practice. There's a lot of details we don't know but ND failed to do their job and multiple people exhibited bad judgment that led to a tragedy.




January 29th, 2011 at 4:34 PM ^

While it is a tragedy what happened at ND, I am not for immediately heaping blame on anyone just because "somebody needs to pay" for it.  I agree that legally speaking the University is negligent and should be held responsible financially, but it is a stretch to place additional responsibility or fault on members of the staff for not foreseeing a horrific accident that I doubt anyone would have predicted at the time.  Sure, in hindsight there was no reason Sullivan should have been on that tower, but at the time I doubt anyone seriously considered the possibility of a tower being pushed over even if the wind speed was sufficient in theory to cause such damage.  It was one of those horrible accidents that cost an innocent man his life, but this drive to jump on the blame wagon always troubles me and is one of the dirtier sides of my profession (law).


January 29th, 2011 at 4:51 PM ^

Bronxblue, I love your posts.  I see it a little differently as a person that couldn't get away from the legal profession fast enough.  The even dirtier side of the legal profession and the people they aim to protect is the collective inability to own up to responsibility and to devalue the victim in the process.

That's the vibe that is loud when you behave the way Kelly has in response to this. All the facts aren't in and thanks to the lawyers it will take forever for that to happen. But if the facts  are known to the actors, the actors need to own up to it.


January 29th, 2011 at 7:56 PM ^

I guess I just don't share the general pessimism about the legal profession.  I do think that the "truth" for whatever that word is worth, will come out, and while Kelly should not be absolved of blame for being negligent to a degree, trying to paint anybody in this tragedy as some nefarious actor is dubious at best and makes a mockery of the lost life at worst.  While assigning blame is certainly going to be the end result of this investigation, the fact someone died is seemingly being lost in the rush to attack that loss to someone's head.


January 29th, 2011 at 9:42 PM ^

I'll put my hand up as someone who would say there's a good chance a tower will fall over when wind speeds are over twice what the tower's warning label which is almost certainly directly on the tower says are safe.

It was a stupidly windy day. It's not like the thing malfunctioned.


January 29th, 2011 at 4:44 PM ^

If the basic facts as we know them from MSM are true, I wouldn't be able to continue coaching there if I were Kelly. I wouldn't have it in me to coach anywhere for quite some time.   When I did return it would be under the radar at a less glitzy job and I would let my actions in removing myself from the limelight speak for themselves. I would have such a distaste for any of my actions that didn't fully respect and honor the victim.

My opinion is there is a robotic feel to his behavior and an almost inevitable disrespect to the victim of his likely recklessness by him continuing to coach there. As a former attorney, I know the lawyers and risk management people are telling him what to say and how to say it. Which furthers my point that a total rejection of that situation and a removal from the spotlight would be a personally wise and upstanding course.  Anytime you have lawyers leading your situation, the humanity gets stripped.  The issues become preservation of capital through any means, no matter how virulent.  I'd say the exact same thing if the exact same circumstances were happening at Michigan.  

Only my opinion.  That coldness and loyalty only to winning is the sense of things I get as an observer.  I can't be alone on this?

Bottom line: When you are at fault and you know you are at fault, there is your soul at stake and that has to be valued more than any fleeting coaching career.

03 Blue 07

January 29th, 2011 at 8:29 PM ^

Re: "soul is at stake," I think that's going too far without knowing enough about it to make such a statement. And, really, if your soul is at sake, in Catholicism, "seek forgiveness with God" is probably the path to dealing with the "soul" part of it. As others have said, this isn't black and white, and it seems to be a situation of "negligence" and not some sort of pernicious or malicious intent or necessarily even wanton disregard. I just don't think you can make these types of hyperbolic statements in good conscience without having more information than I suspect you possess. I was, and am, furious that this happened. I live in Chicago, and on the day it happened, I couldn't believe someone would be up in a tower like that. It was incredibly stupid. But making proclamations about "soul" and value judgments goes too far at this stage, I feel like.

NOLA Wolverine

January 29th, 2011 at 5:06 PM ^

Yeah, coaches have final say on everything that goes on in the practice field. That doesn't mean everything is run by him. This is like attributing some sort of military incident back to the president, 'because he has the final say.' Some people just aren't as aware or considerate as others, the comparison in this case being Jim Tressell. In hind sight Kelly is a moron for not realizing the problem, but this was a very rare situation that he didn't have the mind to respond to. Does that make it necessarily his fault? I don't think so. There has to be someone much more involved with the filming crew that should get the ax for this. 


January 29th, 2011 at 5:39 PM ^

I don't think it was Kelly's fault, but I would like him gone. He's a good damn coach! Michigan & Notre Dame will rise as powers once again the next couple years.


January 29th, 2011 at 7:16 PM ^

I don't think it will realistically cost them more than a fraction of what "they" pay, because they should have a decent liability policy.  I'm also guessing this case settles before it ever gets to court with a confidentiality agreement.  Since ND is private, there shouldn't even be any FOIA issues.  

So, basically, this should all fade away, and Kelly will be judged by whether or not he can win football games.  And any settlement or "victory" in court won't really be fair, because it won't give a young man his life back.  

03 Blue 07

January 29th, 2011 at 8:33 PM ^

I do a lot of insurance coverage work, and it would likely be under an "all risk" or commercial general liabilty policy, and, frankly, there may be exclusions in it disclaiming coverage for this type of accident. It's impossible to say without seeing the relevant policy/ies whether they have coverage (though I'm sure they'll argue they have coverage, even if there's an exception in the policy for, say, an injury that occurs while using rented equipment in the insured's [ND's] "care, custody, and control" or something...which, if they rented the lift, would exclude coverage; I know that exception exists in policies I've litigated, but it also depends if they'd had the lift for an extended period of time, too- then they might be covered).


January 29th, 2011 at 9:40 PM ^

I don't think the number has anything to do with it, frankly. I would be shocked if the BK era ends over this unless there are some witnesses who saw BK tell the kid to stop whining and stay up there a few minutes before the tragedy occurred.

To be honest I really wonder what everyone associated with the athletic program feels. I haven't really seen anyone looking terribly crestfallen about the fact that a kid died. Certainly nothing like the emotion I saw at UConn with that corner who died or Rutgers with the paralyzed d-lineman or MSU (NTMSU) with that kid who died of cancer.

Maybe I'm letting my dislike of Notre Dame cloud my judgement but this has felt like an inconvenience from the day it happened with a lot of legally safe statements from ND.


January 30th, 2011 at 3:37 PM ^

Kelly is so full of himself that he is not going to be getting fired anytime soon. He took full blame for the death of this kid so I do give him credit for that. I still can't stand the guy because he is so full of himself, but nd loves him so much that he won't be getting fired.