By John T. Wendt, J.D., M.A., Professor Emeritus, Ethics and Business Law, University of St. Thomas
Founded in 2009 by Will Dean and Guy Livingstone, Tough Mudder is a non-timed obstacle course with a choice of 5K (13 obstacles), 10K (20 obstacles), and 15K (30 obstacles) distances. It has been described as “more than just an obstacle course” and is “[b]uilt on a foundation of teamwork and overcoming obstacles, it’s the chance to unplug from the daily grind, experience the unexpected, and accomplish something bigger than yourself.” The organization itself says that “Tough Mudder creates unconventional life-changing experiences that challenge people to step outside their comfort zone and overcome obstacles through teamwork. Built on a foundation of camaraderie and community our series of obstacle courses and mud runs will push your physical and mental limits, all without the pressure of competition.”
Tough Mudder proposes that the number one reason why someone should try a Tough Mudder is that “We Have The Most Fun Obstacles In The World.” Three obstacles that they list include: “Arctic Enema: ‘What started as a variety of ice-based obstacles slowly morphed into Arctic Enema…At first, you just had to climb in and wade through the ice. However, as the year’s progressed those crazies in the obstacle innovation lab started to add more ways to ensure that you had to submerge your whole body as many times as possible. Now it really lives up to its name.’” A second obstacle is entitled “Cage Crawl: ‘Pulling yourself along a 48’ pit of water with 4” to breathe might not make you panic, but it will definitely make you pee at least a little bit.’” And finally, there is “Electroshock Therapy: ‘Perhaps Tough Mudder’s most controversial obstacle, this simple structure remains largely unchanged from its inception and earliest days on course. A field of wires dangling from a rectangular frame, clicking as 10,000 volts crackle through them. Over the years, mud, trenches, rows of hay and even a grandstand have been added to enhance the spectacle. A right (sic) of passage for most participants and favorite amongst spectators who enjoy watching the carnage.’”
Now, enter the 2023 Tough Mudder in Sonoma County held on August 19 and 20, where nearly two dozen people reported a bacterial infection on their skin. Participants posted pictures of rashes, puss-filled pimples or what looked like bug bites on social media as well to sending the pictures to local a television station. More than 100 participants have reported rashes with boils, fevers, diarrhea, cramps, vomiting, and muscle pain. These symptoms could be caused by cercarial dermatitis, staph infections, and aeromonas.
Dr. Karen Smith of the Sonoma County Health Services sent a note to participants saying, “We are reaching out to you through an abundance of caution to alert you that you may have been exposed to bacteria that can cause skin infections… rash, itching, fever, lethargy, and flu like symptoms. These symptoms could be indicative of a minor illness called Swimmers’ Itch, but they can also indicate a Staph infection or other more serious bacterial infection such as Aeromonas, which was identified from at least one affected race participant. These bacterial infections can develop when skin is exposed to soils and mud. If untreated, serious illness and sepsis may develop. If you are experiencing an unresolving or worsening rash, flu like symptoms, fever, lethargy (fatigue) or myalgia (nerve pain) please reach out to your medical provider or local emergency department.” Tough Mudder also reached out to participants to acknowledge that they are working with the County of Sonoma Department of Health Services and to echo Dr. Smith’s letter.
Also, in a response to a KPIX television request, Tough Mudder released the following statement: “We are aware of some reports of individuals experiencing an adverse health reaction following participation in the Tough Mudder Sonoma event this past weekend. We want to let you know, that the health and safety of the Tough Mudder community is always our top priority, and accordingly, we are actively taking all necessary steps to fully investigate the matter. If you are experiencing any medical concerns, please consider seeing your doctor. We thank you for understanding and patience as we continue to look into the matter.”
Some participants have questioned Tough Mudder’s commitment to health and safety. Participant Nicole Villagran said, “You wake up the next day and you’re like, what is all this on my arm? Like what is going on here? And it’s on both arms. That’s where I was digging and doing army crawls and it’s on the inside of my knees where I was pushing off of as well…” A 10K participant Meghan Rowe said, “It was the next morning and I started noticing I had breakouts on my stomach…I had a headache. I had chills and really bad body aches… They (Tough Mudder) knew about it last year, why couldn’t they say something…” It was also reported that emails showed that there were health problems reported after the 2022 Sonoma Tough Mudder.
An interesting sidenote is that in order to participate in a Tough Mudder event, a participant must register, pay registration fees, and sign a waiver through the Tough Mudder website and agree to their “Terms of Use.” More specifically, Tough Mudder’s website states that, “All persons entering the Tough Mudder event must have a waiver signed. All waivers are signed electronically. Sign your waiver before you arrive to save time while checking in on event day.” And under the Terms of Use a participant agrees to a choice of law provision that the exclusive jurisdiction shall be in the county and State of New York. A participant also agrees to waive a trial by jury. And by using the website a participant agrees to submit “any and all controversies, disputes or claims” to arbitration conducted by the American Arbitration Association in New York. Finally, a participant agrees to bring a claim only as an individual and not as a class action.
In 2013, Tough Mudder settled a wrongful death suit filed by the family of 28-year-old Avishek Sengupta who drowned at the Tough Mudder Mid-Atlantic event in West Virginia. The wrongful-death complaint charged Tough Mudder and others with gross negligence for conduct at a “Walk the Plank” water obstacle where participants jumped from a platform 15 feet above a man-made pool of muddy water, roughly 15 feet deep and 40 feet wide. Sengupta didn’t come up after his plunge. The complaint had alleged that overcrowding made it impossible for safety personnel to monitor the pool and that Tough Mudder had removed safety features to speed up crowd flow and decrease the wait time. It was reported that at the time Tough Mudder referred to their waiver as a “Death Waiver.”
Tough Mudders are popular. They claim that “To face your fears is not easy, it takes a level of determination, bravery, and will-power to overcome it. Whether it’s a fear of heights, confined spaces or the dark. We want to help you climb that mountain, conquer that challenge, and face that fear.” Are they fun? Are they dangerous? In the famous case, Murphy v. Steeplechase Amusement Company (1929), Benjamin Cardozo said, “The antics of the clown are not the paces of the cloistered cleric… The timorous may stay at home.”
At the 2023 Sonoma Tough Mudder, Malia Helms and five other friends completed the 10k course, then woke up the next morning with itchy, painful red bumps across her body and tested positive for Aeromonas infection. Helms said, “I’m still feeling sick from it, and my body is still recovering.” She felt frustrated that Tough Mudder didn’t warn this year’s participants of a potential risk. Her teammate Noa Umbaugh experienced similar bumps on her arms and legs but did not test positive for Aeromonas infection. Umbaugh summed up their experience, “It was just supposed to be a fun thing, and now all six of us are on antibiotics…”
