Last year more than two million Americans paid for the opportunity to torture themselves in 10-mile endurance race courses features a revolving menu of hurdles with names like the Arctic Enema, Dong Dangler, and Electroshock Therapy. The latter requires participants to run through mud and ice cold water while dodging wires that purportedly deliver 10,000 volts of electricity. Talk about first world problems.
With so many certifiably insane people willing to spend money on extreme obstacle courses such as Tough Mudder, Spartan Race, Hell Run, and Warrior Dash it logically follows that a large number of them are ending up in Emergency Rooms and plaintiff’s lawyers offices.
According to a case series prepared by practitioners at Allentown’s Lehigh Valley Hospital and published in the Annals of Emergency Medicine, an estimated 3,000 obstacle course race participants will suffer injuries requiring hospitalization, while more than 6,000 will require treatment from on-scene paramedics.
Yet what is most troubling about this study is that these obstacle courses are not producing the typical running injuries such as sprains, dehydration, and ligament tears. Rather, a sizable proportion of the wounded suffered open fractures requiring surgery and electrical injuries that ranged from seizure-induced paralysis and cardiac inflammation to burns and lacerations. Unfortunately, some racers have even died on the course.
“The unique part is this type of injury pattern from an obstacle course — meaning the electrical injuries — had never been documented in the literature before, and that’s what made us decide to write the article,” said Lehigh Valley Hospital’s director of emergency medicine research Dr. Marna Rayl Greenberg, one of the study authors.
The American College of Emergency Physicians has not yet made an official policy statement regarding the safety of extreme obstacle course events. But Greenberg and other study authors recommend adrenaline junkies avoid electrical obstacles until further medical evaluations and safety assessments are undertaken.
While medical experts continue to study the impact of extreme obstacle racing, you better believe that some of those injured knuckleheads are going to pursue lawsuits despite signing lengthy and relatively air-tight liability waivers.
The Legal Blitz obtained a copy of the 2013 Tough Mudder LLC Assumption of Risk, Waiver of Liability, and Indemnity Agreement (full text below) used for a recent race in Pittsburgh. After breaking out the magnifying glass, I must admit that this insurance defense lawyer was quite impressed with the breadth of this liability waiver.
As Tough Mudder LLC describes, the event is “meant to be an extreme test of toughness, strength, stamina, camaraderie, and mental grit that takes place in one place in one day. . . Venues are part of the challenge and usually involve hostile environments that might include extreme heat or cold, snow, fire, mud, extreme changes in elevation, and water.” Some of the injuries listed as inherent risks include scrapes, nausea, broken bones, torn ligaments, concussions, paralysis, stroke, and death.
However, not only is the race participant waiving liability, but he or she does so on behalf of spouses, children, parents, guardians, heirs, next of kins, and any other representatives.
This mandatory form specifically includes a waiver of liability and covenant not to sue for ordinary negligence as well as a binding arbitration clause if any legal action is ever pursued. Notably, the form also requires participants to certify that they have health insurance (score one for Obamacare).
Although this form and the ones used by Tough Mudder competitors appears to cover all bases, there is no way for a racer to waive liability for gross negligence or recklessness by race organizers.
Although variations of degrees of negligence differ by jurisdiction, one of the most widely accepted modern expressions of gross negligence suggests that it consists of two components: “(1) the view from the objective standpoint of the actor and (2) the actual, subjective awareness of the risk involved and indifference to the welfare of others.” 2012 Mich. St. L. Rev. 103, 129. In other words, gross negligence is a lack of care that demonstrates reckless disregard for the safety or lives of others, which is so great it appears to be a conscious violation of other people’s rights to safety.
Accordingly, if a race organizer consciously sets the voltage of an obstacle to unsafe levels, or purposefully positions a hurdle knowing that it could lead to injury, then a waiver of liability form would not hold up in court in such egregious instances.
However, any injury that a racer suffers as a natural and inherent risk of jumping into an ice cold mud pit charged with electricity is accepted (and paid for) based on the language of this waiver form.
Therefore, it should be clear to anyone willing to sign up for one these extreme obstacle course races that a trip to the ER should not automatically lead to a phone call to Saul.