The genesis of this post dates back to the Spring, when I signed up and ran my first mud run. Despite it being only a 5k course, and part of the proceeds going to a charity, I could not get a single soul to join me. I ran as a lone wolf. I had two aims during this run: don’t die and don’t get hurt. I (rather thankfully) achieved both of these goals and had a blast in the process and immediately signed up for other mud runs. Somehow my enthusiasm after the first run must have been so contagious that it led to some of my Law Library colleagues signing up with me for a 12 mile “endurance challenge,” the Tough Mudder. Advertised as “probably the toughest event on the planet” it has been described as “Iron Man meets Burning Man.” The clincher that made me sign up? The course is designed by members of the British Special Forces. Enough said. It has also helped to raise over $3.5 million for the Wounded Warrior program.

In all my convincing of people to sign up for this event, Andrew pointed out that to join we needed to sign a “death waiver.” His protestations that he was waiving rights to any claims relating to what could possibly be his untimely death made me wonder, is the waiver even legal? I sign documents seemingly on a continual basis that waive my ability to sue organizations if I am severely injured and/or die, and I don’t consider that I (generally) am involved in particularly risky activities. I can understand why these waivers are drafted, particularly for the Tough Mudder where there is a legitimate risk of injury. (Andrew, yes I did downplay this when I was convincing you to join the team. Sorry. But aren’t you glad to know it appears you don’t have an underlying heart condition?)

In England, these types of waivers are not legal. The Unfair Contract Terms Act 1977 expressly prohibits the exclusion of liability in tort for negligence that results in personal injury or death. The Act specifically provides:

A person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence.

I wish it were that simple over here. These waivers are used with such frequency at different events in the U.S. that there are already a fair number of blogs that discuss waiving liability and a couple in particular that detail the “death waiver” provided by the Tough Mudder organization (which, by the way even makes spectators sign a version of the death waiver).

In the U.S. the validity of the waivers varies from state to state. The waivers act in a twofold capacity – firstly by forming a contract between the participant and organization, and secondly by showing that the participant has assumed the risk that the activity poses.

The contractual element involved is an exculpatory clause, which aims to relieve the organization from any liability for injuries or death to participants that occurs during the course of the event and that arises from the ordinary negligence of the organizer.

The second aspect uses tort law, under which the simple signing of the waiver shows that the participant expressly assumes the risk involved in the activity they are participating in. However, it is only ordinary negligence that is disclaimed, not gross negligence – where the actions of a person are so reckless that a reasonable person would see that there was a risk of harm from them.

The status of the Tough Mudder death waiver remains, at the moment, thankfully untested. Other mud run events have had tragic incidents, although I have not seen any legal action emerging from them. There was a scary moment on our course over the weekend when one of the water obstacles was closed and divers were at the ready as it was thought a participant had drowned. Thankfully it turned out to be a false alarm.

Upon joining the team, my colleagues all showed their virtues. Andrew rapidly discovered a variety of apps to help with training, David pushed through in his leadership role encouraging meetings and mutual support, and Kurt… well, it’s a little known fact, but Kurt is made of steel. He helped to push everyone’s training to the max. I do have to take a moment to quote my favorite training method of a member of the team:

I’ve been training by looking at pictures, and watching you tube videos of other people doing it.

I’m proud to say that our team successfully completed the Tough Mudder with only slight badges of honor (scrapes and bruises on our knees and elbows). We missed a big storm that passed through, and managed to (miraculously) avoid some terrible traffic that sadly caused a significant amount of mudders to miss running in the event.

So, after waiving death and surviving, what are we all doing after this? David continues to run and swim, Andrew signed up for a 10K, Kurt continues to be made of steel, and I am signed up for a zombie mud run. I am also trying to convince the team to waive death once more and sign up for two Tough Mudders next year.