September 16, 2014
Look around the world over the prior year and chances are you can locate a Tough Mudder event on nearly any weekend. Self-described as “Probably the Toughest Event on the Planet,” Tough Mudder is mud-run-cum-obstacle-course that touts not only its own toughness, but the fostering of cooperation and camaraderie among event participants. It has also become notorious for signage dotting the ten to twelve mile courses reminding participants, “Remember you signed a death waiver.”
Macabre “death waiver” name aside, the signs aren’t kidding: the assumption of risk and liability waiver (the Colorado 2014 version can be seen here), requiring a signature before participation, does indeed highlight potentially catastrophic injuries such as “organ failure, spinal injuries,…paralysis, …even death.” These types of waivers have dominated extreme sports competitions for years, but Tough Mudder, and challenges similar to it, are making assumption of risk more relevant to its non-extreme athletes.
Assumption of risk is a common doctrine in sporting events. Simple participation in such challenges may be enough to waive liability when the risk is obvious, or inherent, in a particular sport or event, under implied assumption of risk. An individual, who knows the risks and continues with the activity anyway, may be deemed to have waived any right to recovery which may “result from patently dangerous conduct.” However, participants may explicitly waive their right to recover under express assumption of risk doctrines through releases such as the one Tough Mudder requires.
This isn’t to say that Tough Mudder has no duty to participants. Duties arise under case law, requiring owners/operators of sporting events to exercise reasonable care in making challenges as “safe as they appear to be” and to avoid an increase to the risks already posed by participation in the event. Some courts also oblige coordinators to inform participants, explicitly, of the possible risks associated with partaking in the fun. Tough Mudder experienced its first death in April 2013, raising the obvious question of whether the company is complying with its duties and whether the “death waivers” are truly the best option for participants of these recreational events.
Tough Mudder events provide emergency personnel on-site and according to the company’s website they “hold safety at a premium” (Tough Mudder F.A.Q., Is Tough Mudder Dangerous?). The company recommends skipping obstacles if a participant is uncomfortable, or if a medical issue would make the obstacle particularly dangerous. See Course section of 2014 Great Northeast Information Packet (accessed September 12, 2014). However, for a challenge that encourages a certain amount of masochism from its participants—jumping over fire, plunging into icy water multiple times along the course, and submitting to electric shocks to get to the promised land of calling oneself a “Tough Mudder”—defining “safety” and avoiding increased risk on these courses appears problematic.
Currently, as with extreme sports, there is a deficit of regulation for these increasingly popular events. Liability waivers are the primary resource available to protect event coordinators when participants are injured while traversing mud-slicked courses, “waivers have largely stood the test of time in the extreme sports area…you’ll probably see pretty good traction for the waivers.”
Courts can often only rely on whether public interest speaks to protection of competitors in the sports and recreation arena, and some courts do invalidate releases when they fall into a non-sports domain. Other courts have held waivers unenforceable when they attempt to waive strict liability, apply to negligent design and maintenance of the facilities, and where the waiver language is not obvious to a paying customer at recreational establishments. These examples are considered significant to a state’s interest, and cause issue for any situation in which a waiver of liability arises.
Most frequently, courts state that public policy voids any attempt to waive gross negligence or willful and wanton conduct by event operators. The idea that inattention to duty of care principles, and potential outright action resulting in harm, is held to a higher standard for liability waivers than ordinary negligence harmonizes with a state’s legitimate interest in holding such waivers unenforceable. However, allowing for participants to assume the risk of engaging in the activity, and letting public interest speak in those limited times that operators fail in their duties to make courses safe beyond the inherent risks, allows for fluidity in the law, as events like Tough Mudder become more commonplace.
Rather than stringent, legislative standards for extreme sports and recreational events, which allow for little interpretation by courts as these types of competitions change and grow, allowing waivers to remain the primary, prophylactic method of regulation confers greater power to courts to look at the facts of those unfortunate, catastrophic events that arise, and determine if the risk was indeed something that an operator could prevent or that which was truly inherent to the activity. Tough Mudder participants are not limited to athletes or fit individuals who may be experienced with the risks inherent in the types of obstacles a Mudder presents, but neither can Tough Mudder competitors say they are not well-informed of the perils of undertaking such a venture with a waiver that lays out those hazards in the plainest English.
As the participation in Tough Mudder, and its cohort challenges, grow there may be greater need for consistency in safety protocols among the various companies offering extreme recreation challenges. However, the liability waiver remains the most well-tested option for both event coordinators and competitors needing to know the risks before they churn the mud and cross the finish line.