Tough mudder – adventure tourism taken to its extreme

In two recent articles [Travel Law: Big Business and Risky Shore Excursions (ETN January 22, 2014) and Travel Law: Segways: A Nice tourist ride or dangerous instrumentality? (ETN, May 21, 2014)] we discussed travel accidents that occur during cruise shore excursions and while participating in Segway tours. In this article we shall examine Adventure tours including the risks involved, the duties of Adventure tour operators to do due diligence in selecting safe and insured ground operators and the liability theories that injured travelers may use in seeking appropriate compensation. Lastly, we will take a look at extreme sports as a tourist attraction with special attention given to Tough Mudder.

Adventure Tours: Goodbye Swim Up Bar

Adventure tours [see Cox, Go For It, Conde Nast Traveler (Feb. 2011)(“Growing ranks of travelers are abandoning their spot at the swim-up bar in search of more adrenaline-charged pursuits, from hand gliding over the Rio to rafting Costa Rica’s rapids”)] include a broad spectrum of activities [and, naturally, a broad spectrum of injuries and lawsuits] such as camping [Blakey v. Camp Undessonk (camper falls off cliff)], white water rafting [Moki Mac River Expeditions v. Drugg (13 year old boy died on river rafting trip in Arizona)], jet boating [Brozyna v. Niagara Gorge Jetboating, Ltd. (passenger injured in jetboat plying the rapids of the Niagara River)], stand-up paddle boarding [Plumb, Stand-Up Paddle Boarding in the Virgin Islands, www.nytimes.com (12/4/2011)], hiking [Munn v. Hotchkiss School (while hiking in China during student tour plaintiff bitten by tick and contracts encephalitis; jury verdict of $41.75 million); Connolly v. Samuelson (walking accident during African safari); Lavine v. General Mills, Inc. (slip and fall on slippery rocks in Fiji Islands)], cliff jumping [Hodges v. Premiere International Corp., 50 ATLA Law Reporter 164 (2006)(mediated settlement)], snorkeling [Mayer v. Cornell University (tourist drowns during snorkeling expedition in Costa Rica)], ziplining [Focht v. Sol Meklia, S.A. (hotel guest falls from zipline in Puerto Valarta, Mexico); Smolnikar v. Royal Caribbean Cruises, Ltd. (shore excursion zipline accident where plaintiff “collided at a high speed with a tree and suffered a herniated disk in her neck”)], military style training [Kiesnoski, Tour of Duty, Travel Weekly (Aug. 15, 2011) (“Israeli company LionOps is hoping adventurous vacationers will sign up for military-style training”)], biking [Pau v. Yosemite Park and Curry Co. (bike rider killer); Pfeifer v. Musiker Student Tours, Inc. (student tourist injured riding bike awarded $150,000 damages)]; off-road and mountain biking [Nishi v. Mount Snow Ltd. (mountain biking accident)], hunting [Brunner v. Hampson (cooking stove explodes in hunter’s cabin)], tubing [Isbell v. Carnival Corp. (shore excursion passenger bitten by snake while tubing in river)], traverse ropes course [Timmer v. Shaniaur Adventures], on safari [Shea v. Global Travel Marketing, Inc. (“The child, age eleven, was killed while on safari with his mother in Botswana. He was sleeping alone in a tent at a campsite when he was dragged from his tent and mauled by hyenas”)], bird-watching [Mayer v. Cornell University (tourist drowns while on bird watching tour of Costa Rica)], backpacking [Calouri v. County of Suffolk (injury during backpacking course)], mountain climbing [Paulissen v. United States Life Insurance Co.(while climbing the Himalayas mountains, climber dies of high-altitude pulmonary edema)], canoeing [Glenview Park District v. Melhaus (canoeist drowns during flood)] and spelunking [Coughlin v. T.M.H. International (spelunker dies in Kentucky cave)].

Risks And Disclaimers

Many companies offer “soft” and “hard” domestic and international adventure tours [The Rough and Tumble of Adventure Travel, Consumer Reports Travel Letter (March 1999)(“Soft adventures involve moderately strenuous activities such as camping, easy day hikes and casual horseback excursions…Hard adventures include more daring and physically demanding activities such as arctic ice climbing, mountain trekking and whitewater rafting…Some trips may require that you share a tent with several other travelers, use pit toilets and survive basic camp chow”)].

It may be the element of danger that motivates some travelers to participate in Adventure tours seeking ambiguity and risk instead of safety and certainty. Under these circumstances it may be argued that adventure travelers should be willing to sign disclaimers and waivers absolving the tour operator or outfitter from any and all liability. Certainly those courts which have reviewed such disclaimers [Travel Law § 5.04[10] [b]] seem more inclined to enforce them, reasoning that the injured traveler assumed, or perhaps, desired, the very risk assumed. Notwithstanding this analysis, however, Adventure tour operators as a matter of public policy should be required to deliver relatively safe travel services under controlled situations regardless of the dangers, whether real or perceived.

Due Diligence In Investigating

There are several recent cases involving tourists injured during cruise shore excursions which have imposed a duty upon cruise lines to do due diligence and investigate the shore excursion ground operators they recommend for their safety records and insurance coverage [see Smolnikar v. Royal Caribbean Cruises, Ltd (“Though cruise ship owners…cannot be vicariously liable for the negligence of an independent contractor, it is well established that they may be liable for negligently hiring or retaining a contractor”); McLaren v. Celebrity Cruises, Inc. (claims of negligent selection may be appropriate where plaintiff established a “pattern of outwardly apparent misbehavior” on the part of an independent contractor)].

Negligent Selection/Retention

As noted in Heyden v. Celebrity Cruises, Inc. “‘In a negligent selection claim, liability is premised upon the inadequate pre-selection investigation into the contractor’s background’ whereas ‘in a negligent retention claim, liability is founded upon a showing that, during the course of the contractor’s employment, the principal was aware or should have been aware of problems evidencing the unfitness of the contractor and failed to investigate or terminate the contractor’…Here, the plaintiff is pleading both negligent selection and negligent retention”. Noting that the plaintiff sufficiently alleged a duty to investigate because the operation of a Segway “is an inherently dangerous activity that carries with it a risk of serious bodily harm and death” the Court also found that plaintiff sufficiently alleged that the Segway operator was “not properly trained or experienced; that there was inadequate supervision of passengers; that there was inadequate warnings given to passengers of fixed obstacles on the boardwalk; that tour operators gave only a two-minute orientation on how to operate the Segways; and the boardwalk was not a safe area for the operation of Segways”.

Extreme Adventures

An example of Adventure tours taken to their extreme is Tough Mudder “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” [Etter, Extreme Sports are more popular than ever, prompting questions about legal liability (www.abajournal.com (June 1, 2014)(“Extreme Sports”) and other extreme sports companies [see 7 Adventures Which Ended In Court (June 1, 2014) (travel accidents while participating in heli-skiing, spelunking, scuba diving, snowmobiling, sea kayaking and hot air ballooning) www.abajournal.com/gallery/adventure_law/1060].

Extreme Accidents

As noted in Extreme Sports, supra, “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 was a pool of chocolate-brown, muddy water below-he plunged in along with the throngs of racers. But unlike 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”.

Pushing The Outer Edge Of The Law

Extreme sports, voluntarily participated in by travelers seeking serious thrills, raises questions about the duties and safety obligations of companies such as Tough Mudder, Spartan Race and Warrior Dash and the enforceability of liability disclaimers when “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 the event, upping the ante for thrill seekers. Tough Mudder famously displays signs that read ‘Remember, you signed a death waiver’ along 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” [Extreme Sports, supra].

Tough Mudder Waiver

“And Tough Mudder’s waiver doesn’t mince words. Here’s an excerpt” ‘The Tough Mudder event…is meant to be an extreme test of toughness, strength, stamina, camaraderie and mental grit that takes 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 activities include runs, military-style obstacles, going through pipes, traversing cargo nets, climbing walls, encountering electric voltage, swimming in cold water, throwing or carrying heavy objects and traversing muddy areas…

Catastrophic injuries are rare; however, we feel that our participants should be aware of the possibility. These injures can include permanent disabilities, spinal injuries and paralysis, stroke, heart attack and even death” [Extreme Sports, supra].

Conclusion

Extreme sports “is becoming big business. With more than 1.5 million participants nationwide, each often paying upwards of $100 to run a race” [Extreme Sports, supra]. Whether and to what extent Extreme Sports should be considered a safe and appropriate form of Adventure tourism and whether “death waivers” are or should be enforceable as a matter of public policy remains to be seen.

The author, Justice Dickerson, has been writing about travel law for 38 years including his annually-updated law books, Travel Law, Law Journal Press (2014), and Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2014), and over 300 legal articles many of which are available at www.nycourts.gov/courts/9jd/taxcertatd.shtml .

This article may not be reproduced without the permission of Thomas A. Dickerson.