About a year ago at the Mid Atlantic Tough Mudder event, Avishek Sengupta drowned while attempting to participate in the “Walk the Plank” obstacle. Outside Magazine has a writeup here. The Tough Mudder events are more obstacle course events than races, but they ostensibly involve at least a small amount of running and they also seem to be popular among some runners who are looking for a change of pace. The legality of the various parts of Tough Mudder’s participant waiver has been discussed elsewhere.
Being the civil procedure nerd that I am, I noticed something else that’s interesting to me. Some versions of the waiver have a choice of law and forum selection clause that provides that in the event a dispute cannot be resolved through mediation or arbitration, any lawsuit must be filed in Delaware and that the laws of Delaware will apply (see the waiver for the 2014 Las Vegas event here). The Sengupta wrongful death case, however, was filed in West Virginia. I can think of several possible explanations for that.
First, and simplest, it might be the case that the participant waiver signed by Sengupta contained the more generic choice of law and forum selection clause I noticed in one of the other waivers which merely designates the state where the event was held as the proper forum and the source of substantive law to be applied. If I could find the waiver itself that would clear things up, but (perhaps somewhat understandably) the waivers aren’t exactly easy to find; the waiver for each event appears to be posted about a week before the event itself. If I had to take a guess, I think this is the most likely scenario. All the scenarios in which the waiver specifies a Delaware forum and Delaware law are less likely even if they’re more interesting to analyze.
Assuming the waiver had the Delaware clause, the second possibility is that the plaintiff’s lawyers missed it. Having litigated a number of forum selection clause issues myself, I can’t rule this out as a possibility. In general, people aren’t very careful when they read contracts and other legal documents and lawyers aren’t immune to that tendency. It certainly wouldn’t be the first time in legal history that a lawyer has made a bone-headed mistake and sued in the wrong court.
The next possibility is that the plaintiff’s lawyers are fully aware of the forum selection clause, but they filed in West Virginia anyway because they believe the clause is unenforceable. If that’s the case, I wouldn’t be surprised to see Tough Mudder hit back and try to get the case out of West Virginia. Tough Mudder was formed in Delaware (at least as far as I can tell) and it wouldn’t be unusual for a corporation to choose the relative stability and predictability of Delaware law. It looks to me like the Supreme Court of Appeals of West Virginia relatively recently adopted a test regarding the enforceability of forum selection clauses from a case decided by the federal Second Circuit. In short, a clause is presumptively enforceable if it is communicated to the parties, is written in mandatory language (as opposed to permissive language, i.e., shall vs. may), and applies to the parties and claims involved in the dispute (the Caperton case even went so far as to note that a forum selection clause could apply to parties who had not even signed the contract in certain situations).
Those first three factors only make the clause presumptively enforceable because of the final factor: whether “enforcement would be unreasonable or unjust, or that the clause was invalid for such reasons as fraud or overreaching.” At some level, a forum selection clause in an agreement a person makes with a Delaware company that chooses Delaware law and Delaware courts doesn’t appear to be unreasonable or unjust. Proving fraud or overreaching would almost certainly require evidence that we just don’t have in public reports about this lawsuit. My sense is that making out a case of fraud or overreaching is more likely in the context of this type of consumer agreement than it would be in a transaction between business entities. Again, however, I don’t think we know enough at this point to really make a good guess at how that question would turn out.
There’s one other possibility, though I’m not sure how likely it is. It’s possible that Tough Mudder simply doesn’t want to go to the expense of trying to enforce the forum selection clause (although with the case only just now being filed, it’s probably too soon to tell what their strategy will be). I’m no expert when it comes to personal injury law, but I tend to think that the differences in negligence law between West Virginia and Delaware are probably not that drastic (and let’s not forget that the Delaware clause would also specify that Dealware law would apply, even if the case were not heard in Delaware for some reason). If, on the other hand, the question were one of whether the case would happen in Virginia or West Virginia, I think that would make a fight on the forum selection issue much more likely. In Virginia tort law, the doctrine of contributory negligence is still alive and well (at least for the time being). In the few states that still apply contributory negligence, even a small amount of negligence on the part of the injured party precludes him from collecting damages from another party. You can see how if the Sengupta case involved a dispute over whether the case should be heard in Virginia, the likelihood of a fight over venue would increase significantly. Since the stakes are not that high, however, Tough Mudder could decide that it’s not worth fighting over.
Also informing Tough Mudder’s decision whether to fight over the forum could be considerations of which juries they think would be most favorable. According to the American Tort Reform Foundation, West Virginia is the #4 Judicial Hellhole in the United States. According to the report, “The litigation climate in the Mountain State remains one where businesses are subject to pro-plaintiff rulings, fear excessive liability, and lack full appellate review.” Take that assessment for what it’s worth, but Delaware is barely mentioned. Given the choice between what appears to be regarded as a plaintiff-friendly jurisdiction in West Virginia and Delaware, Tough Mudder might decide that the expense up front it worth what it might save them in the long run.
In any event, organizers of events like Tough Mudder should keep a close eye on the outcome of this case. Tough Mudder, of course, involves a lot of risks that run of the mill road races don’t, but that doesn’t mean it has no potential application for folks involved in those other events. Even if people are just running around town and not jumping 15 feet into muddy, icy water, event organizers should probably still be wary of anything that can be portrayed as an unreasonable risk against which the participants were not adequately warned or protected.