How Tough is Tough Mudder’s Death Waiver?

Extreme obstacle courses such as Tough Mudder, Spartan, and Warrior Dash have garnered increased attention following several high-profile participant injuries. In 2013, a New Jersey Man almost lost his leg when falling on a sharp piece of metal requiring emergency surgery and in France, hundreds of runners reported diarrhea like symptoms following a mud run event.  Yet, many of these obstacle runs require participants to sign a liability waiver barring an injured person from ever holding the obstacle course organizer responsible. But can this really be true?  Can a person waive liability from injuries from “smoke and open flames, barbed wire, and electric shocks” resulting in “broken bones”, “loss of consciousness”, or “neurological disorders?”

In Washington, contracts releasing liability for negligence are valid unless a public interest is involved.[1] The Courts use six factors in evaluating whether these agreements violate public policy:

  1. The agreement concerns an endeavor of a type generally thought suitable for public regulation;
  2. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public;
  3. Such party holds itself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards;
  4. Because of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks the services;
  5. In exercising a superior bargaining power, the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence; and
  6. The person or property of members of the public seeking such services must be placed under the control of the furnisher of the services, subject to the risk of carelessness on the part of the furnisher, its employees or agents.[2]

So what does this all mean to Tough Mudder or similar obstacle course participants here in Washington? While the so called “Death Waiver” is untested among Washington appellate courts, the case of legal Johnson v. Spokane to Sandpoint, LLC may provide insight. In Johnson, the plaintiff registered for a 185-mile running relay race between Spokane, Washington and Sandpoint, Idaho.

When registering for the event, Ms. Johnson signed and agreed to waive and release Spokane to Sandpoint … from any and all claims or liability of any kind arising out of my participation in this event, even though that liability may arise out negligence or carelessness on the part of persons on this waiver. While running the race a witness reported that Ms. Johnson crossed the northbound lanes of highway 2 before colliding with an oncoming driver incurring severe injuries. In applying these facts to the six factor test, the court ultimately ruled in part that the “preinjury release precluded Ms. Johnson from claiming an ordinary negligence duty by Spokane to Sandpoint, LLC and that facts did support a higher gross negligence standard.[3]

While Johnson may be cited as supporting waivers such as required by Tough Mudder and other extreme events, it will be for the courts in the future to decide whether the 6-factor test should be modified in the age of extreme races.

[1] Hewitt v. Miller, 11 Wash.App. 72, 521 P.2d 244 (1974).

[2] Wagenblast v. Odessa Sch. Dist. 105–157–166J, 110 Wash.2d 845, 851–55, 758 P.2d 968 (1988)(citing Tunkl v. Regents of Univ. of Cal., 60 Cal.2d 92, 32 Cal.Rptr. 33, 383 P.2d 441, 446 (1963)).

[3] Gross negligence has been defined as “the failure to exercise slight care.”. Boyce v. West, 71 Wash.App. 657, 665, 862 P.2d 592 (1993)

Head Injuries Change How We Watch Sports

Several weeks ago, former Formula One Champion Michael Schumacher was moved from a hospital in Lausanne, Switzerland to the family’s home on Lake Geneva. Schumacher spent nearly the past 250 days in the hospital following a tragic ski accident. His injury occurring while wearing a helmet has garnered increased attention and debate as to head injuries and the safety of helmets.

In December of last year, The New York Times reported about the debate among experts regarding the nearly 70 percent of all snow-sports participants wearing helmets — nearly triple the number from 2003 — and why a correlated reduction in snow-sports-related injuries have not occurred. This is according to The National Ski Areas Association and a recent 2012 study from Western Michigan University.[1]

Some have hypothesized that helmets have given athletes a false sense of personal limits and created a sort of moral hazard. While others have blamed the increase in photography and video capturing devices for snow-sports, such as the use of GoPro for pushing the envelope.

But it is not just extreme sports that have received attention from onlookers regarding brain injuries. Just over a month ago, Michigan quarterback Shane Morris was sent back in the game having just absorbed an extraordinary tackle and possible head injury. Michigan fans were outraged and later called for U of M Athletic Director Dave Brandon to resign.

These recent stories are also coming at a time of growing discussion about the safety of the NFL as well. The NFL’s former players and family of players are now “opting-out in large numbers” from a class action settlement where players are or may be diagnosed with various cognitive diseases such as Alzheimer’s disease or moderate dementia.

For an excellent documentary about sports-related head injuries and the incredible toll they can have on a person and a family, see The Crash Reel: The Ride of a Lifetime.

[1] See Also Skiing and Snowboarding-related Head Injuries in the United States: A retrospective Analysis from 2004-2010, Sebastian, Wills et al. published in the 2012 Annual Scientific Conference.