Annotated Bibliography

UWP 23

Spring 2016

Adapted from Extreme sports are more popular than ever,

prompting questions about legal liability


By Laura Etter June 1, 2014 American Bar Association

http://www.abajournal.com/magazine/article/extreme_sports_are_more_popular_than_ever_prompting_questions/

Last year in West Virginia, 28-year-old Avishek Sengupta was running the Tough Mudder, a grueling 10-plus-mile race littered with merciless obstacles that take participants over blazing pits of fire, through dark trenches and into pools of water laced with electrical wires that deliver 10,000 volts.

When Sengupta approached the obstacle called Walk the Plank—a 12-foot-high wooden structure with a pool of chocolate-brown, muddy water below—he plunged in along with the throngs of racers. But unlike the others, he didn’t immediately come up.

Nearly 15 minutes passed before he finally surfaced in the arms of a rescue diver, foaming at the mouth, according to news reports. Sengupta died in a hospital the next day.

Figure 1. Tough Mudder events include obstacles called Fire in Your Hole, Arctic Enema and Berlin Walls. Photo by Bruce Bennett/Getty Images

Now his family has retained counsel in preparation for a lawsuit against Tough Mudder, whose spokeswoman declined to comment.

Tough Mudder (https://toughmudder.com/), calling itself “Probably the Toughest Event on the Planet,” is run by a Brooklyn-based company that is one of a growing number catering to the booming industry of obstacle course racing. As sports enthusiasts and adrenaline junkies hunt for ever-more-hardcore events to test their physical limits, it’s a pastime that has gained popularity in the past five years.

But as the sport gains traction, it is also testing the limits of the law. As in most extreme sports, obstacle course racers are required to sign liability waivers. But unlike in other sports, the inherent risks aren’t always obvious; indeed, they are often intentionally magnified to titillate participants and crowds. This pushes the new sport somewhat outside the traditional framework of negligence and assumption of risk.

“The whole point of an obstacle course race is to in fact come up with all these inherent dangers and risks,” says David Horton, acting professor at the University of California at Davis School of Law, who has written about extreme sports and risk. “That makes it very difficult to fit within our existing paradigms. We tend to think of risks as being an unfortunate byproduct of things like traditional sports, but for something like Tough Mudder the risk is the purpose of the event.”

Indeed, Tough Mudder racers often brag about having “survived” the event after signing what they like to call the “death waiver,” essentially a catchy phrase for any liability waiver that encompasses death. Obstacle course racing companies routinely tout the fact that participants could die during their event, upping the ante for thrill- seekers. Tough Mudder famously displays signs that read “Remember, you signed a death waiver” along some stretches of its courses.

But critics argue that the waivers don’t adequately disclose the full panoply of dangers, and that many of the obstacles are made unnecessarily perilous.

“Lines have to be drawn between what the participants are signing up for and what they’re actually getting,” says Sengupta’s attorney, Robert J. Gilbert of the Andover, Mass.-based firm Gilbert & Renton.

“Participants sign up for the challenge, but it’s less clear that they sign up for the dangers—particularly the undisclosed dangers or gratuitous situations.”

NOTHING NEW UNDER THE SUN

High-risk sporting events have been around for ages, with the gladiator matches of the Roman era being a fabled example. Each decade the advent of a new extreme sport raises the standard of what is perceived as risky or dangerous. It used to be in the 1970s that running a marathon was extreme; now completing a marathon is for the masses.

At the same time, there’s been a rise in so-called functional fitness—exercises that replicate actual human actions rather than simulated exercises. This has led more athletes to participate in boot-camp-like sports such as CrossFit, which involves challenges like climbing a rope or pulling a tractor tire.

Courtesy of Tough Mudder

These two trends—extreme sports and functional fitness—have collided in the obstacle course racing craze. Today there are dozens of companies that put on these endurance events, the most popular of which is the Tough Mudder, followed by the Spartan Race (http://www.spartanrace.com/) and the Warrior Dash (https://www.warriordash.com/). There are also a series of smaller races put on by local organizers around the world.

THE THRILL OF DEFEAT

While Sengupta’s death is the first for Tough Mudder, it isn’t the first death or serious injury for the industry as a whole. In recent years a man drowned while running an obstacle course race in Fort Worth, Texas; another two were paralyzed at separate events; there have been several cases involving lacerations, burns, dehydration, hypothermia and heatstroke.

A November article in the Annals of Emergency Medicine described a single weekend last year in which a Pennsylvania hospital received 38 emergency patients from a Tough Mudder event, including several who suffered electrical injuries.

“The burden on EMS during this event was unanticipated,” reads the article. “Reportedly, more than 100 advanced life support responses were activated, with many patients receiving initial treatment and then refusing transport. As observed by the diversity and severity of the illness reported, it stands to reason that events such as the Tough Mudder and endurance races like it (e.g., Warrior Dash, Spartan Race) may carry higher inherent risk factors for injury.”

This has, not surprisingly, led to a wave

of litigation. The family of the man who drowned in the Fort Worth race filed a lawsuit against the race organizer. And a man paralyzed during an obstacle course race who was unregistered and did not sign the liability disclaimer settled a $30 million lawsuit for $300,000.

Gilbert, Sengupta’s attorney, argues the risks at the
West Virginia Tough Mudder were “gratuitous” and could
have been eliminated without changing the nature of the
event. He points to the water pit under the obstacle where Sengupta’s drowning occurred. It was “made deliberately muddy,” he says. “As a result it was impossible for participants to see if there was somebody down below them before jumping in the water, and it was impossible for lifeguards to determine if somebody was still underwater who had not resurfaced. ... There’s nothing about cloudy water that’s essential to the challenge of jumping into water from that height and then swimming out. That could have eliminated the risk.”

He also argues that the plank was “deliberately crowded” in a bid to move participants quickly through the obstacle in response to social media complaints about long lines. In fact, he alleges the race eliminated pre-existing safety measures used at other events, such as putting in lane dividers on the plank that would have made the jump more orderly. Staying within the plank’s capacity, he says, would have materially improved safety without altering the inherent challenge of the obstacle.

“They had a big interest in moving people through quickly,” he says.

Figure 2A Tough Mudder competitor runs through curtains of live electrical wires in Merrimac, Wis. Photo by John Hart, AP Photo/Wisconsin State Journal.

Extreme sports are more popular than ever, prompting questions about legal liability

Tough Mudder’s website says about that particular obstacle: “Test your fear of heights with this 12-foot-high jump into a deep, muddy water pit. Don’t think too much before you leap—you’ll hold up everyone else, and the volunteers at the top of the platform don’t like to babysit Mudders. Unless you want a loud earful from them, you’d better just jump.”

This is where it gets thorny from a legal standpoint, since the essential purpose of the event is to push racers’ personal boundaries by participating in something so dangerous that it borders on sadistic—or outlandish.

“It gets really difficult to figure out what you’re talking about with these new sports,” says Horton from UC Davis. “These assumption-of-risk cases arose in the context of very well-defined sports, like football or soccer. With these new sports there’s just no baseline. What is the inherent risk of slithering through a pool with electrodes?”