You and your buddies decide that you want to dive through mud, tackle obstacle courses, and sling yourselves through electric fences at a “Tough Mudder” race, “Warrior Dash”, or “Spartan Race.” Before doing so however, you’re asked to sign a “waiver of liability”. (Here is one from Tough Mudder in Minnesota). If, during the race you get hurt, can you still sue?
Simple common sense dictates that participants seeking “extreme” and dangerous activities should not be able to sue for injuries. These participants voluntarily decided to do something dangerous. Why should it be anyone else’s fault if they get hurt? To condense the issue to one question: who should bear the responsibility for injuries sustained during Tough Mudders, Warrior Dashes, and Spartan Races?
In Connecticut, liability waivers are not enforceable if they violate public policy. Courts look at several things in determining whether a waiver violates public policy. A few of these factors are:(1) the societal expectation that family-oriented services will be reasonably safe; (2) the logic of relieving the party with greater expertise and information concerning the dangers associated with the captivity from proper maintenance of the activity; and (3) the fact that the release at issue was a standard adhesion contract, lacking equal bargaining power between the parties, and offered to the [client] on a ‘take it or leave it’ basis.” Reardon v. Windswept Farm, LLC, 280 Conn. 153, 160-61, 905 A.2d 1156 (2006); Hanks v. Powder Ridge Rest. Corp., 276 Conn. 314, 885 A.2d 734 (2005). As part of this analysis, Courts also look at the “volume of public participation”, and whether the activity provider invites “the public generally to [engage in sporting activity] at their facility, regardless of . . . ability.” Hanks, 276 Conn. at 332, n. 9.
There’s one wrinkle to this. A Connecticut court will not apply the “public policy” test for risks that are “inherent” to the activity. See Hanks, 278 Conn. 226, n. 12. A risk inherent to the activity is something that the participant expects or something that he or she is aware of. For example, risks inherent to football are concussions or sprained ankles. A risk inherent to baseball is being hit by a pitch.
When Can a Participant Sue?
With this backdrop in mind, whether a participant can sue will likely depend on: (1) the manner in which the injury occurs, and (2) the popularity of the race. To help illustrate the point, I’ll describe the scenarios of two participants, Jake and Katie.
Jake is a former college athlete. He’s done several of these races before and is looking for a personal best. During the race, as he tries to climb over a large wall, he grabs an exposed nail and cuts his right hand. Can Jake sue?
This is Katie’s first adventure race. She has never been very athletic, and was encouraged to participate on the advice of her friends. During the race, she tries to jump over a fire pit. She misjudges the distance and burns the bottom of her feet. Can Katie sue?
Jake will likely be able to sue; Katie, probably not.
In Jake’s case, a Court may find that his liability waiver violates public policy because his injury was not “inherent” to the race. Simply speaking, Jake (and every other participant) would not expect there to be an exposed nail sticking out of the top of a large wall. Thus, what a Court would basically say is that “public policy” may allow Jake to sue for an injury that he did not expect to incur.
In Katie’s case, a Court will likely enforce the liability waiver and find that she can’t sue. This is because her injury, although unfortunate, was likely “inherent” to the activity. These races present participants with fire pits, electrical wires, ice baths, and mud pits. The dangers associated with traversing through these obstacles are most likely expected by the average participant.
To take this point a bit further, I think Katie’s case may be impacted by the popularity of these types of races.
What does popularity have to do with it?
The more “niche” an activity is, the more it is associated with experienced participants who know what they’re doing. But now that Tough Mudders, Warrior Dashes, et al. have significantly increased in popularity, the enforceability of their liability waivers may be impacted.
Tough Mudders, Warrior Dashes, et al. invite anyone to participate. If you pay the entry fee and show up on race day, you can climb over walls, run through mud, and jump into ice baths. Thus, regardless of ability, anyone can do these races. And with these races increasing in popularity, it necessarily causes more inexperienced, out-of-shape participants to do them. These added factors can mitigate in favor of voiding the liability waivers associated with these races.
Overall however, popularity of the activity can be an important factor in an analysis like this. The more people who engage in an activity, the more likely a Connecticut Court is void a liability waiver. That is, because as an entity who offers these activities to a wide section of the population, common sense would dictate that these providers not be encouraged to offer these services negligently.
That’s not to say that a Court wouldn’t have sympathy for someone injured in a “niche” sport or activity; but that public policy considerations may not apply as forcefully where there is a significantly smaller subset of the population involved.
What does this mean for those who participate in Tough Mudders, Warrior Dashes, Spartan Races, et al.?
It means that you don’t necessarily “waive goodbye” to all of your rights when you engage in activity that is more extreme” or “dangerous. It means that, even if you get injured after you’ve signed a liability waiver, you still might be able to sue. That, a Connecticut Court may find that a liability waiver may be against “public policy” if it doesn’t allow a participant to sue for risks that aren’t inherent to the activity.
Moreover, a Court may also find that, as these races become more mainstream, the enforceability of their waivers might be limited in order to protect the less-experienced, general public. In any event however, the answer isn’t as clear-cut as you may imagine.
Mr. Gunneson is an attorney at Williams, Walsh, & O’Connor, LLC where he practices primarily in insurance defense matters with a special emphasis on municipal liability issues. He also counsels and litigates in a variety of other areas including insurance coverage law, personal injury, workers’ compensation, medical malpractice, product liability, and employment law.