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Extreme Sports: The Allure--and Liability--of Danger

DEATH IN YOSEMITE

Two climbers fell to their deaths while climbing El Capitan in Yosemite National Park on June 2, 2018. The pair were known as elite climbers in their sport, and were engaging in a type of speed climbing called “simul-climbing,” an advanced technique that becomes inherently riskier when a third person is added, which the pair were doing with a friend and co-climber (the friend survived). On May 21, another climber fell to his death while scaling Yosemite’s Half Dome. Weather may have been a factor in that death, since it was raining and the man reportedly slipped.

THE RISE OF EXTREME SPORTS

Extreme sports, defined as nontraditional and adventure sports, have become hugely popular in the last 20 years, largely due to the X Games and the acceptance of some of the sports into the Olympics. Participation in team sports declined by 25% from 2002-2012, while participation in extreme sports increased by five times its previous rate during the same time period. Some examples of popular extreme sports are: snowboarding, skateboarding, surfing, rock climbing, mountain biking, skydiving, bungee jumping, snowmobiling, extreme skiing and whitewater rafting. Obstacle course races and Iron Man Triathlons have sprung up around the country and have been popularized at a grassroots level; there is even an Obstacle Racing Association. Races such as the Tough Mudder, Spartan Race and Warrior Dash attract huge numbers of participants and make equally huge profits for their owners and operators.

THE STATISTICS

Unfortunately, the number of injuries from these extreme sports is equally huge. There were four million reported injuries from extreme sports between 2000-2011; 11.3% of these were head and neck injuries (HNIs). The four sports with the highest incidence of injury are: skateboarding, snowboarding, skiing and motocross. The sports with the lowest rate of injury are: mountain biking, snowmobiling and surfing. Snowboarding and skiing have the highest rates of concussions, and skateboarding and motocross have the highest number of severe HNIs (cervical or skull fractures).

One of the big risks with extreme sports and the injuries associated with them is the lack of onsite medical care and/or easy access to care. Unlike team sports which are regulated and performed in defined, accessible areas and arenas, many extreme sports are done “off the grid.” These locations make on-site EMTs, ambulances, team doctors and other forms of medical care non-existent, and access to the injured and/or medical facilities complicated. Someone suffering a severe HNI must wait to be evacuated and to get to appropriate medical care, all of which can result in a more severe injury or even death.

THE WAIVER: IS IT VALID?

One thing extreme sports have in common is their reliance on waivers of liability. All sports rely on waivers to some degree; participants in sports are usually required to sign a document saying that they “assume the risk” inherent in the activity in which they are engaging. In organized sports there is danger and risk, but there is also regulation; therefore the “inherent risk” is fairly defined and a participant has a good idea of the risk he or she is assuming.

In the still-developing field of extreme sports, there are no industry standards or regulations. There is no clear definition of the “inherent risk” and participants often have no idea of the risk they are assuming. Proponents argue that this is exactly the allure of extreme sports; there is an element of the unknown, an element of surprise, and an element of danger. Critics argue that a lack of industry standards, rules and regulations make many extreme sports too dangerous. The human toll and cost to society in injuries and deaths outweighs the enjoyment of these extreme sports.

Due to the fact that athletes can only assume the risks inherent in the sport in which they are participating, determining what risks are inherent in extreme sports and what are gratuitous and unnecessary risks is crucial to a finding of whether a waiver of liability is valid or not. Furthermore, athletes cannot waive an owner or operator’s negligence or any actions that increase an athlete’s risk. Owners and operators of extreme sports have a duty of care to athletes to minimize risk as much as possible without altering the nature of the sport.

PROPOSED SOLUTIONS

The popularity of races like Tough Mudder, and the wrongful death lawsuit against its owner and operator by parents of a 28-year-old man who died while participating in it, have brought the issue of the danger of extreme sports and the validity of their waivers to the foreground. Oftentimes, lawsuits will force the necessary regulation and standards onto an industry. Other times, risk management will result from insurance carriers being unwilling to cover certain risks, and mandating change within an industry. Sometimes the market will dictate changes in an industry when demand decreases due to increasing injuries or deaths.

The following proposals are currently being considered as ways to address the liability issues with respect to waivers for extreme sports:

1. inherent risk statutes which define the inherent risk in various extreme sports

2. courts undertake assumption of risk analyses in cases where waivers of liability are asserted;

3. modification of waivers for extreme sports

CONTACT YOUR ATTORNEY

If you or someone you know has been injured while mountain biking, skateboarding, rock climbing, or any other adventure sport, contact Dave Thomas at The Thomas Law Firm for a free evaluation of your legal rights.

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