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)

Uber Problems: Are Passengers Insured For Car Accidents?

This week, The San Francisco Chronicle, Forbes, and The Washington Post all reported on the confusion over insurance coverage over accidents involving popular app-based services such as UberX, Lyft and Sidecar. Insurance coverage has been a major issue for the ride sharing companies following a high profile accident in San Francisco where a small child was fatally injured by an Uber driver. Similarly this month, a Lyft passenger was fatally injured outside of Sacramento, CA.

Questions have arisen as to what extent a car accident is covered by the driver's policy v. the ride-sharing service? Does a driver or ride-sharing service cover accidents when en route to a pickup? Will a passenger be covered for accidents where the ride-sharing driver is at fault?

According to news reports, Uber has a $1 Million dollar policy, but an accident may not be covered until the driver is matched with a paying customer. This reported policy has drawn criticism following the San Francisco fatality where the Uber driver was not transporting a customer at the time of the collision.

In a traditional auto-accident, the at fault driver will be responsible for damages through his or her insurance policy. If he or she does not have coverage or has inadequate coverage, the party not at fault's uninsured (UM) or underinsured (UIM) coverage usually will apply. Ensuring potential victims of auto accidents are covered when using app-based ride sharing programs is vital to the safety of the urban areas where these services operate.

When Fitbit Data Is Called As A Witness In Your Injury Case

Last week, The Atlantic and Forbes, both reported on first use of Fitbit (or wearable technology’s) use in the courtroom. According to the articles, the personal injury suit involves an injured personal trainer who is using Fitbit to support her testimony about her reduced levels of activity following an injury. Her Fitbit data is analyzed by Vivametrica and measured against activity data from the general population. Although the case is occurring in Canada, it signals the increasing interest from both personal injury lawyers and insurance defense lawyers on the use of this data.

One can imagine the scenario where an individual has used the Fitbit months before a major injury and thus continued to use it following the accident. The data, if collected accurately, may illustrate the change in activity levels. This evidence could prove helpful to a jury in evaluating the impact an injury has on a plaintiff, one of the most difficult areas of a case to prove.

While this is reportedly the first use of Fitbit data in the courtroom, the use of data from social fitness sites has been used before. In 2012, the performance tracking site Strava came under scrutiny following a fatal collision between a cyclist using Strava and 71-year old Sutchi Huia crossing the street with his wife in New York City. Strava also came under attack in a personal injury suit brought by the estate of the cyclist fatally injured while attempting to set a new record on the performance tracking site. The use of performance tracking data from wearable devices will be seen more frequently as consumer demand and improvement in tracking technology occurs.

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.

5 Things You Didn’t Know About the “Hot Coffee” Case

1) 79-year-old Liebeck was hospitalized for 8 days, suffered third-degree burns to her pelvic region, followed by two years of medical treatment.

2) Liebeck sought to settle with McDonald’s for $20,000.

3) The trial judge reduced the award to $640,000, and the parties settled for a confidential amount.

4) McDonald’s admitted at trial that its coffee was “not fit for consumption” immediately after sold at 180 to 190 degrees Farenheit.

5) Coffee served at 180-190 degrees Farenheit will cause third-degree burns in 2-3 seconds

A 2011 documentary titled “Hot Coffee” explored the plaintiff perspective and misinformation about the case.

First Uber, Now Lyft: Insurance Issues

San Francisco News outlets reported yesterday of Lyft-operated vehicle who allegedly struck a pedestrian in the Nob Hill neighborhood.  The pedestrian was later taken to a hospital for a leg injury and is not believed to have suffered life-threatening injuries.

The accident comes just two weeks after a fatal car accident in San Francisco involving an Uber driver.  Ride-sharing companies such as Uber, Lyft, and Sidecar have gained increasing attention in recent weeks for public safety and adequacy of insurance coverage for accident victims.

Uber Woes…Not Just Legal

The New York Times reports this week of the recent challenges facing ride-share operator Uber. In the last few months, Uber has drawn critics from celebrities such as Salman Rushdie and Jessica Seinfeld for exorbitant pricing during peak times. New Year’s Eve 2013 also marked the tragedy of a fatal car accident with an alleged Uber-contracted driver, killing a 6-year-old girl. Uber is also being sued by its own drivers over tips drivers reportedly never received.

The article appearing in the New York Times Technology section highlights the many problems a tech startup can face in transitioning an industry-disrupting idea into reality.