Michigan “Warrior Dash” Waiver Protects Against Negligence (But Not Gross Negligence or W/W Misconduct)

By Doyice Cotten

mud run

This is the first case encountered by the author that has resulted from one of the popular adventure-obstacle races such as Spartan Race and Tough Mudder. Here, the waiver used for Warrior Dash is challenged.


In July 2011, James Sa participated in a two-day event known as the “Warrior Dash” which is a 5k running race with obstacles, including jumping over fire, wall climbing, and a mud pit. Sa suffered injury at the last event when he dove head-first into a mud pit.(Sa v. Red Frog Events, LLC, 2013 U.S. Dist. LEXIS 151355)

The event emcee, stationed near the mud pit with a microphone and loudspeaker, continually encouraged participants to dive into the mud pit. It was common knowledge among participants that diving into the mud pit was not only permitted, but encouraged.

Prior to participating in the Warrior Dash, Sa signed a “Waiver and Release of Claims” which clearly stated that the participant “agree[s] to not dive into or enter the mud pit head first.” Other pertinent waiver language includes:

1. I understand that entering Warrior Dash is a hazardous activity.

2. I understand that Warrior Dash presents extreme obstacles including, but not limited to: fire, mud pits with barbed wire, cargo climbs, junk cars, and steep hills.

* * *

7. I assume all risks associated with competing in Warrior Dash, including, but not limited to: falls, contact with other participants, negligent or wanton acts of other participants, completing all obstacles, any defects or conditions of premises, and the effects of weather including high heat and/or humidity, all such risks being known and appreciated by me.

* * *


I understand that Red Frog Events, LLC is committed to conducting its race and activities in a safe manner and holds the safety of participants in high regard. I understand that Red Frog Events, LLC continually strives to reduce such risks and insists that all participants follow safety rules and instructions that are designed to protect the participants’ safety. I also understand, however, that participants . . . registering for the race, programs, and activities must recognize that there is an inherent risk of injury when choosing to participate in recreational activities and programs.

* * *


I recognize and acknowledge that there are certain risks of physical injury to participants in Warrior Dash, and voluntarily assume the full risk of any and all injuries, damages, or loss, regardless of severity, that I .. . may sustain as a result of said participation. . . . I assume all risks and hazards incidental to such participation in Warrior Dash, and I hereby waive, release, absolve, indemnify, and agree to hold harmless . . . Red Frog Events, LLC . . . for any claim arising out of an injury to me . . . and from any and all claims, causes of action, obligations, lawsuits, charges, complaints, contracts, controversies, covenants, agreements, promises, damages, costs, expenses, responsibilities, of whatsoever kind, nature, or description, whether direct or indirect, in law or in equity, in contract or tort, or otherwise, whether known or unknown, arising out of or connected with my . . . participation in Warrior Dash.

Michigan Law on Waiver & the Necessity of Referring to “Negligence”

  • Michigan law expressly permits “a party to contract against liability or damages caused by its own ordinary negligence.” (Skotak v. Vic Tanny Intern., Inc., (1994))
  • In Michigan, “the validity of a release turns on the intent of the parties. A release must be fairly and knowingly made to be valid. If the language of a release is clear and unambiguous, the intent of the parties is ascertained from the plain and ordinary meaning of the language.”(Batshon v. Mar-Que Gen. Contractors, Inc., (2001))
  • Michigan courts hold that “indemnity clauses need not expressly mention the indemnitee’s own acts to provide coverage for them.” (Badiee v. Brighton Area Sch.,(2005))
  • Michigan courts have discarded the additional rule of construction that indemnity contracts will not be construed to provide indemnification for the indemnitee’s own negligence unless such an intent is expressed clearly and unequivocally in the contract. Instead, broad indemnity language may be interpreted to protect the indemnitee against its own negligence if this intent can be ascertained from “other language in the contract, surrounding circumstances, or from the purpose sought to be accomplished by the parties.” (Fischbach-Natkin Co. v. Power Process Piping, Inc., (1987))
  • Michigan law plainly holds that the phrases “‘any’ and ‘all’ and the phrase ‘any and all’ . . . include[s] one’s own negligence.” This is because “there cannot be any broader classification than the word ‘all.’ In ‘its ordinary and natural meaning, the word “all” leaves no room for exceptions.'” (Paquin v. Harnischfeger Corp., (1982))

Here, in Sa v. Red Frog Events, court stated the waiver unambiguously covered Red Frog’s own negligence. It cited that the waiver warned plaintiff that entering Warrior Dash was hazardous;  that the event presented “extreme obstacles”; that Sa agreed to “assume all risks associated with competing in Warrior Dash”; and that Sa acknowledged that there was an inherent risk of injury.  Most critically, the court stated, Sa “voluntarily assumed the full risk of any and all injuries, damages or loss, regardless of severity, that [he] . . . may sustain as a result of . . . participation” and agreed to “waive, release, absolve, indemnify, and agree to hold harmless . . . Red Frog for any claim arising out of an injury and from any and all claims including tort that might arise from participation.” Based on this, the court held that the waiver unambiguously covered Red Frog’s negligence; accordingly, the court dismisses plaintiff’s negligence complaint.

The Second Issue: Gross Negligence

 Sa had also filed a claim against Red Frog based on gross negligence.

  • Michigan law states that “a party may not insulate himself against liability for gross negligence or wilful and wanton misconduct.” (Lamp v. Reynolds, (2002))
  • By statute, gross negligence is defined as “conduct so reckless as to demonstrate a substantial lack of concern for whether injury results.” (M.C.L. § 600.2945(d))

The court stated that Sa had adequately alleged that Red Frog was aware of the dangers presented by the obstacles throughout the Warrior Dash and especially those presented by diving headfirst into the mud pit (e.g., it made participants acknowledge that the Warrior Dash is a “hazardous” activity; it expressly enumerated rules regarding how participants were to enter the mud pit). Consequently, the court felt it is plausible that the act of encouraging Plaintiff — and other participants — to dive into the mud pit head first was so reckless as to demonstrate a substantial lack of concern for whether injury would result.

Hence, the court ruled that Sa adequately stated a claim for gross negligence.

The Third Issue: Willful and Wanton Misconduct

The court made clear that gross negligence and willful & wanton misconduct are separate and distinct actions; willful and wanton misconduct is qualitatively different from and more blameworthy than ordinary, or even gross, negligence.

  • The elements of a willful and wanton misconduct claim are: “(1) knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another, (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand, and (3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another.” (Miller v. Bock, (1997))
  • Michigan’s Supreme Court has clarified that “willful and wanton misconduct is made out only if the conduct alleged shows an intent to harm or, if not that, such indifference to whether harm will result as to be the equivalent of a willingness that it does. Willful and wanton misconduct is not . . . a high degree of carelessness.” (Jennings v. Southwood, 1994))

Applying this standard, the court held that it is plausible — though barely — that Red Frog’s actions amounted to willful and wanton misconduct. The court stated than a reasonable jury might conclude that the act of encouraging participants to jump head first into the mud pit despite knowing the risks to the contrary — at the end of a grueling physical endurance challenge when participants are likely to be physically and mentally exhausted — could be interpreted as such indifference to the likelihood that catastrophe would come to a participant. The court ruled that plaintiff had pled enough facts sufficient to plausibly state a claim for willful and wanton misconduct.

So, the waiver was upheld against the allegation of negligence, but failed to protect against charges of gross negligence or willful and wanton misconduct.

 Photo Credit: Thanks to Mr. Muddy Suitman at Flickr.