By Michael S. Carroll, PhD
The mother of a 28-year-old account executive for a technology firm, who was killed while participating in a popular obstacle race, has filed a wrongful death lawsuit against the race organization.
Mita Sengupta, mother of Avishek Sengupta, filed the suit in Marshall County Circuit Court in April of 2014, alleging that race organizers failed to provide sufficient safety precautions that could have saved her son’s life. The lawsuit stems from a Tough Mudder event held in West Virginia in April of 2013. Tough Mudder, perhaps the largest and most well-known obstacle/mud racing event organization in the world, is a 10-12-mile race that takes participants over, under, and through a variety of obstacles, including mud pits, rope swings, climbing walls or nets, bodies of water, and electrical wires that can deliver 10,000 volts. Race participants come from all walks of life and varying levels of fitness, and much of the appeal for participants is the social nature of the event.
Avishek Sengupta was participating in the race along with co-workers, when he encountered the Walk the Plank obstacle, consisting of a 12-foot wooden structure that participants climb followed by a jump into a muddy water-filled pit below. Along with other racers, Sengupta plunged into the water, but unlike his fellow racers, he failed to surface. According to the lawsuit, Sengupta was struck when another racer landed on top of him in the water. Approximately 15 minutes passed before a rescue diver on site pulled him out of the water, limp, lifeless, and foaming at the mouth. Despite the efforts of emergency medical personnel, Sengupta’s heartbeat was not restored until 42 minutes following his plunge into the water. He was transported to the hospital and passed away the next day.
Following mediation, Sengupta’s mother filed the wrongful death lawsuit approximately one year following the death of her son, alleging that Tough Mudder and other defendants were negligent in a number of areas. Specifically, Sengupta argued that race organizers failed to have an adequate number of safety personnel in place and those that were present at the Walk the Plank obstacle failed to supervise the area effectively. Additionally, the suit argues that those monitoring that specific obstacle exacerbated the danger to participants by allowing the obstacle to become overcrowded, a claim supported by eyewitness accounts. Due to this overcrowding, groups of participants were instructed to jump by race organizers bearing megaphones. However, the organizers failed to properly track those participants after their jump in an effort to ensure they made it out of the water safely. As a result, Avishek was struck by another racer while under water, and never made it to the surface. Witness accounts also stated that the rescue diver employed to oversee the event was not wearing the necessary equipment and was therefore unprepared to enter the water when it became clear that Sengupta failed to surface. The suit claims that the risks involved were gratuitous in nature and could have been avoided without substantially altering the nature of the obstacle itself. The suit seeks unspecified damages and attorneys’ fees. Tough Mudder has declined to comment on the situation other than to state that it has reviewed the safety procedures surrounding the event and found them satisfactory. They also point to the findings of the Berkeley County sheriff’s office, which investigated Sengupta’s death and declined to file criminal charges.
Tough Mudder, which bills itself as “Probably the Toughest Event on the Planet,” is one of a number of high-profile race organizers cashing in on the booming industry of obstacle course racing, which is an estimated $250 million industry. With over 1.3 million participants to date, and revenues in excess of $100 million, Tough Mudder represents the largest and most well-known of the obstacle racing organizers. Obstacle racing is different than participation in other forms of sport and endurance racing, as the inherent risks in obstacle racing are often intentionally increased and promoted as a way to increase excitement among participants. For many other forms of sport and recreation, there is an attempt to lower the inherent risks, but with obstacle racing the risks involved are turned into the purpose of the event. Participants must sign an extensive liability waiver; often referred to as “death waivers” because these races have heightened inherent risks. The waiver lists the inherent risks of participation in a Tough Mudder event, including serious bodily injury and death, and states that the participant assumes all risks while waiving Tough Mudder of any and all liability. The general purpose of such a waiver is to (a) relieve a service provider of liability resulting from negligence and (b) demonstrate that a participant knew, understood, and appreciated the risks of the activity and made a voluntary choice to participate despite such risks. Laws regarding the enforceability of waivers in recreation and sport settings can vary greatly state to state with some states enforcing participant-signed waivers while others consider them contrary to public policy. In West Virginia, waivers are allowed and enforced, but courts maintain strict requirements for a waiver to be upheld.
Additionally, waivers do not generally cover acts of gross negligence, meaning that if the facts stated in the case meet the gross negligence threshold, the defendants could be held liable despite the signed waiver. Negligence liability case law within the areas of of sport and recreation is certainly nothing new, but because of the relatively short history of mud/obstacle racing, a dearth of case law exists in this particular area, especially considering a lack of industry standards. Thus, it remains to be seen whether courts apply the same or different standards to these events in terms of liability and how this case may affect this growing industry moving forward.
Michael S. Carroll is an Associate Professor of Sport Management at Troy University specializing in research related to sport law and risk management in sport and recreation. He has published over 28 articles and delivered over 50 presentations at professional conferences. He lives in Orlando, FL.
