9/29/2015

Pushing the Limits

Waivers of liability and claims in extreme obstacle course races.

By Christopher Fusco , Jesse Lubin

Imagine running a 12-mile race, maybe with some friends. Now picture that 12-mile race intertwined with various extreme obstacles with names like “ring of fire,” “deadman’s drop,” “Hercules’ hoist,” and “electroshock therapy.” These are just some of the names of various obstacles to be found in extreme obstacle course events like the Tough Mudder, the Warrior Dash, and the Spartan Race.

According to Nick Heil of outsideonline.com, “Obstacle races combine mud and trail runs with boot-camp obstructions and even mind games, all designed to result in mental and physical collapse.” A case study entitled, “The Legal Implications of Obstacle Racing and Suggested Risk Management Strategies,” noted that the word “extreme” is now quite appropriate as “these events are designed to push participants beyond their traditional limits and possibly beyond their perceived limits.”

As described on its website, the Tough Mudder race is a “team-oriented 10-12 mile obstacle course designed to test physical strength and mental grit. Tough Mudder puts camaraderie over finisher rankings and is not a timed race but a team challenge that allows participants to experience exhilarating, yet safe, world-class obstacles they won’t find anywhere else.”

To support the extreme conduct, its website reveals the extreme “Mudder Pledge,” which includes the following:

  • I understand that Tough Mudder is not a race but a challenge.
  • I put teamwork and camaraderie before my course time.
  • I help my fellow mudders complete the course.
  • I overcome all fears.
  • I do not whine—kids whine.

Many of us cannot begin to fathom why anyone would want to enter a potentially dangerous obstacle course race, let alone a race including obstacles with the aforementioned names. However, something in these races entices hundreds of thousands of people (and growing) to enter annually and risk injury. For instance, in 2010, more than 120,000 people reportedly participated in the Warrior Dash. By 2013, that number climbed to more than 600,000.

While the majority of the people entering these extreme races finish (relatively) unscathed, there is always the chance for serious injury and even death. For example, on April 20, 2013, Avishek Sengupta, who has been described as a healthy and physically fit 28-year-old man, drowned while attempting to successfully complete “Walk the Plank,” an obstacle that involved jumping off a 15-foot high structure into a pit of water. According to the Baltimore Sun, this was the first death reported at a Tough Mudder race. In turn, Sengupta’s mother filed a wrongful death lawsuit against Tough Mudder LLC, which is currently pending in West Virginia, the state in which the death occurred. Obviously, extreme races may touch off extreme litigation.

As expected, to limit their liability, sponsors require all competitors to execute waivers of liability prior to entering these races. These waivers can vary, however. For example, the Tough Mudder takes the liability waiver to the “extreme” by attempting to waive the company’s liability for death.

Are these waivers that are executed by participants in extreme obstacle courses sufficient to bar all claims of negligence against the race sponsors? While these waivers are designed to protect the sponsors and, therefore, minimize the probability of large insurance settlements, they appear only to do so in matters of ordinary negligence and will not necessarily protect sponsors from any gross negligence on their part. However, the challenge faced by most race sponsors is to adequately insulate themselves from claims of gross negligence. This legal insulation will only be found when commonsense mistakes are prevented and when participants are disallowed from engaging in ultrahazardous conduct.

Waiver of Liability Language

By way of some background, Tough Mudder’s waiver and course rules generally contain an assumption of risk, waiver of liability, and an indemnity agreement designed to protect the sponsor from the liability inherent in these types of races.

The assumption-of-risk portion is designed to ensure that the participant (or their guardian, if the racer is a minor) acknowledges that they understand there is an “inherent risk…that cannot be eliminated completely (without changing the challenging nature of the Tough Mudder event) regardless of the care and precautions taken by Tough Mudder Inc.…” The clause proceeds to name several of the potential risks, which includes, “inadequate or negligent first aid and/or emergency measures.” Further, the assumption-of-risk language provides that the participants “further understand and acknowledge that any of these risks and others, not specifically named, may cause injury or injuries that may be categorized as minor, serious, or catastrophic.”

The waiver of liability indicates from the start that it is for “ordinary negligence” only and states, “I…hereby forever waive, release, covenant not to sue, and discharge Tough Mudder Inc. and the other released parties from any and all claims resulting from the INHERENT RISKS of the Tough Mudder event or the ORDINARY NEGLIGENCE of Tough Mudder Inc.…that I…may have arising out of my…participation in the Tough Mudder event….This agreement applies to 1) personal injury (including death) from incidents or illnesses arising from the Tough Mudder event participation…and 2) any and all claims resulting from damage to, loss of, or theft of property.”

Lastly, the Tough Mudder waiver includes an indemnification agreement, which states, “I hereby agree to hold harmless, defend, and indemnify Tough Mudder Inc....from and against: 1) any and all claims made by me…arising from injury or loss due to my…participation in the Tough Mudder event….”

Cases Analyzing Liability Waivers

Since these extreme races are somewhat new, the cases brought by injured participants (or their representatives) are still pending in their respective courts. In 2013, the U.S. District Court for the Eastern District of Michigan upheld a race sponsor’s waiver of liability concerning issues of ordinary negligence only, with other causes of action still pending. The action arose out of Sa v. Red Frog Events LLC, which involved a tragic event in which the plaintiff, James Sa, was paralyzed from the chest down after he dove headfirst into a mud pit in a Warrior Dash race held in Mt. Morris, Mich.

The plaintiff filed a three-count complaint in which he alleged negligence, gross negligence, and willful and wanton misconduct. The defendant sponsor moved to dismiss plaintiff’s complaint on the grounds that the plaintiff waived his negligence claim and that the claims of gross negligence and willful and wanton misconduct failed to state a claim upon which relief could be granted.

In Sa, the record revealed that it was common for participants to dive head first into the mud pit and that it was even encouraged by the race emcee. Pursuant to the report on sportwaiver.com, the emcee actually was stationed near the mud pit with a microphone and loudspeaker, and continually encouraged participants to dive into the mud pit. Additionally, there were no signs on the racecourse warning participants not to dive into the mud pit.

Prior to entering the race, the plaintiff and all other participants executed a waiver and release of claims, which, although did not specifically mention the word “negligence,” included language similar to the Tough Mudder waiver previously discussed (albeit without the death waiver). It even specifically stated, “participants understand that the Warrior Dash presents extreme obstacles including, but not limited to: fire, mud pits with barbed wire, cargo climbs, junk cars, and steep hills,” and that participants “agree not to dive into or enter the mud pit headfirst.” Additionally, the waiver sets forth that participants assume all risks associated with competing.

Following the majority, the court ruled that the waiver was sufficient to protect the sponsor from claims of ordinary negligence and dismissed the plaintiff’s claim. However, as a very cautionary warning, the court also held that the plaintiff sufficiently pleaded causes of action based on gross negligence and willful and wanton misconduct, allowing the plaintiff to move forward on those matters, which still are being adjudicated.

Because the extreme racing industry still is relatively young, there have not yet been many extreme obstacle course race cases in which courts have been asked to rule on the validity of waivers of liability. However, there have been many cases that involve liability waivers in other sports. These cases overwhelmingly—except in cases such as the previously mentioned West Virginia case—uphold waivers of liability as it concerns ordinary negligence. However, these waivers do not protect race sponsors from gross negligence.

 The decision in Banfield v. Louis, a Florida case that involved a triathlon and not an extreme obstacle course race, is indicative of the way most courts now rule on issues concerning waivers of liability and extreme racing. In Banfield, plaintiff Susan Banfield entered the 1985 Bud Light U.S. Triathlon Series and signed an entry form, which contained the following waiver language:

“In consideration for the acceptance of my entry, I, for my heirs, executors, and administrators, release and forever discharge the U.S. Triathlon Series (USTS), CAT Sports Inc., Anheuser-Busch, the Quaker Oats Company, the city, county, state, or district where the event is held and all sponsors, producers, their agents, representatives, successors, and assigns of all liabilities, claims, actions, damages, costs, or expenses that I may have against them arising out of or in any way connected with my participation in this event, including travel to or from this event, and including injuries that may be suffered by me before, during, or after the event. I understand that this waiver includes any claims based on negligence, action, or inaction of any of the above parties.”

Banfield subsequently was injured seriously during the race when she was struck by an automobile during the bicycling portion of the triathlon. She argued that the race sponsors breached their duty to her in failing to maintain a safe bicycle route and failing to properly control traffic around the course. Defendant sponsors contended that there was no genuine issue of material fact, as the plaintiff executed a waiver of any negligence claims against the sponsors. The court ultimately held that the waiver executed by the plaintiff was valid and did not violate public policy. The plaintiff had not sufficiently showed that there was a “great prejudice as to the dominant public interest.”

In Gregorie v. Alpine Meadows Ski Corp., the plaintiffs’ daughter, Jessica Gregorie, was killed when she slid off a mountain in a snowboarding accident. Plaintiffs’ causes of action sounded in premises liability and negligence.

Prior to entering the mountain, Jessica Gregorie executed a waiver that provided, in part: “I agree to be bound by the following conditions of issuance, which includes but are not limited to:…I will always observe and obey posted signs. I will keep out of all areas marked ‘closed area’ and ‘closed area – avalanche danger.’ If I ski or snowboard beyond the ski area boundary, I agree to assume all risks inherent in backcountry skiing and snowboarding….” Further, the waiver included the following language, “I agree to expressly assume any and all risk of injury or death, which might be associated with my participation in the sport of skiing and snowboarding and use of the facilities of Alpine Meadows….I agree never to sue and to release from liability Alpine Meadows Ski Corporation….”

The court in this case held that the waiver was not contrary to public policy, and, therefore, the assumption of risk was effective for the defendants to defeat the plaintiffs’ claims of negligence.

As can be seen from these decisions, courts almost uniformly have upheld waivers of liability as it concerns causes of action based in ordinary negligence. In the matter of Avishek Sengupta, his family has brought claims sounding in strict liability, negligence, gross negligence, reckless, and/or intentional acts and omissions in the advertisement, promotion, design, construction, hosting, staffing, supervision, and operation of the Tough Mudder event. While the court may dismiss any cause of action based in ordinary negligence, as a result of the executed waiver, it remains to be seen what will happen as it concerns the other causes of action, specifically those of gross negligence and intentional conduct.

While the majority of courts may uphold a waiver of liability as it relates to a sponsor’s ordinary negligence, the sponsors and/or others working at the races must be cautious not to exceed simple negligence. As in Sa, if race personnel encourage deadly behavior, then the liability that may attach can be more than extreme. With this legal landscape in mind, insurance carriers must perform due diligence to ensure that the sponsors of the events do everything within their power to ensure that the participants in these events are reasonably safe under these “extreme” and somewhat unreasonable circumstances.  



Christopher Fusco is the managing partner of CLM Member Firm Callahan & Fusco LLC. His blog, Sports in the Courts, can be found at www.sportsinthecourtsblog.com. He may also be reached at cfusco@callahanfusco.com.

Jesse Lubin is an associate at CLM Member Firm Callahan & Fusco LLC. He can be reached at jlubin@callahanfusco.com.

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