August 23rd, 2012

NYC Marathon Cancels Baggage Check (Legal Fallout?)

Verazanno-Narrows Bridge at the start of the NYC Marathon

Ahh, running and the law, my sweet spot. Before going on to read this story about the New York City Marathon, I need to tell you that I am planning to run this November for the 14th time. I once did a Blawg Review devoted to the event and had a letter published in the New York Times regarding this magnificent piece of urban theatre. My passion for the event, however, will not temper my comments here.

In the news today, the NYC Marathon decided to cancel its baggage checking at the beginning of the race. And legal problems could result by killing off a service that had been promised, and on which participants relied, when signing up for the race many months ago.

This is the way the service has worked in years past: Runners show up at Fort Wadsworth in Staten Island, sitting at the base of the Verazanno-Narrows Bridge. We arrive by buses and ferry and private cars hours before the event start, because you can’t have 40-50,000 people arrive at the same time. It is a logistical issue that gets coordinated with military precision.

Runners bring many things to this village, including extra clothes to wear in the early morning November chill, as well as dry clothes for the end of the run. Many will bring disposable clothes for the start — I’ve made many a trip to the Salvation Army in the week before to buy a few items that will be discarded as the canon booms for the race’s start.

But the clothes needed for the end of the marathon are what’s really important (not to mention car/house/hotel keys, phones, cash,metro cards, etc.). Once the body cools down at the end of 26.2 you will still wearing wet clothes, socks and sneakers. Any commute longer than an hour is not something you want to be doing while dressed like that.

Because those dry clothes are so valued, runners check their bags on dozens of UPS trucks in the staging area to be reclaimed later. And that leads to the finish area of the NYC Marathon being turned, each year, into the world’s largest locker room as runners strip down and change.

Now that service is gone, and runners are stuck in the wet, smelly clothes. If you live on Manhattan’s Upper West Side and are walking home it isn’t a big deal. But most don’t. And the only solution to the keys/phone/cash problem, is to carry them during the race, which few people really want to do.

The reason for killing off the service is that, at the end of the race in the tight confines of a Central Park roadway, it could take a good 30-45 minutes to retrieve that checked bag. The walk will be another mile, on top of the ones you just ran, as you wind your way through the finishers chute getting food, water, finisher medals, heat shields, medical attention and finally to the endless line of UPS trucks and the lines at each truck waiting for the bags.

The New York Road Runners Club, which puts on the event, has found this logistical nightmare to be too much, even when pulling trucks out of the park last year to use side streets. As they expand upwards to the 50,000 runner barrier – and perhaps beyond in the year to come — they can no longer manage. They either cap the growth of the event, or kill the baggage check.

Because they decided to kill it they will offer to the runners a one-size-fits-all fleece hooded poncho in the finish area. But that only covers up the now-disgusting clothes that are glued to the body; it doesn’t get rid of them.

Is there a legal angle here? I think so. Runners pay a hefty fee to run this race, $216 this year. And one of the things they knew they were getting was the transportation of their clothes, cell phones, wallet, etc. Some stuff can still be stuffed in pockets for those of us who are non-elite, but many really don’t want to carry anything for the race.

Does this lead to a potential consumer class action on behalf of runners? That is certainly a possibility, because they have not offered runners the option of cancelling and getting their money back due to the policy change. According to Business Week:

There will be no reimbursements for runners who don’t agree with the policy change, said Richard Finn, a spokesman for the organization.

Runners, after all, paid for one thing and will receive another. If they wanted to make this change, it was something that should have been announced before registration was opened up.

One other note on my running credentials, I’m also the founder and Race Director of a half marathon trail race just north of New York City. The idea of not having a baggage check is unthinkable to runners. We even have the showers at ours (since we finish at a High School, we use the locker room). I know what it means to runners, both as participant and race director, to have such services.

If you go to Twitter right now, you will see it lighting up with complaints. Mary Wittenberg, the CEO of the New York Road Runners (and former BigLaw attorney and marathon champ), invited comment at #NYRRListens and has been getting an earful. A few select comments:

From @ashlyntastic @INGNYCMarathon There’s nothing I dislike more than marinating in wet running clothes post race. #NYRRlistens

From @arunninglifetc This organization isn’t about serving the runners anymore, not when you don’t listen to the runners. #NYRRListens

From ‏@mldemmons SUPER excited about being soaking wet in 50+ degree weather after running 26.2 miles in November in NYC! #NYRRlistens #NoTheyDont

From ‏@UrbanRunr Makes no sense for a race in Nov. I’ve never been so cold as after my first NYC. People need their dry clothes after. #NYRRlistens

Someone, somewhere, may elect legal action. (And no, it won’t be me.) Whether it succeeds or not is another story, but clearly the better move would have been to implement the policy change before people started to pay their money.

April 17th, 2012

The Boston Marathon (Highway to Hell)

Pre race mug shot - because I needed a legal angle for the blog

Yeah, it was hot out there. The average temperature for Boston this time of year is 47 degrees. And runners favor such races with temps in the high 40s – low 50s.

The temperature yesterday, however, was 87 degrees at the finish line for the 116th running of the Boston Marathon for those of us in the middle of the pack. Elsewhere it was reported to have hit 89. And that, my friends, is a whole lot of hot.

When I first wrote about the Boston Marathon in 2007 I did so to wish others well as I pined to one day run fast enough to earn my entry ticket. And when I wrote a second time in 2009, I told my story of personal redemption after having finally qualified and run.

But this was not about redemption, or pining. There would be no eyes toward personal bests, or running fast enough to qualify for another Boston. This was, quite simply, the meteorological luck of the draw. People had trained for months on end, had made their plans, and travelled great distances to run the premier marathon in the world that is open to amateurs. Because after Boston in the pecking order, there is only the Olympic Trials.

And so we went, with runners going off in three waves out of the rural suburb of Hopkinton at 10:00, 10:20 and 10:40 as the the thermometer soared up to 80. Very few took up the offer of deferring until next year. There were two rules of thumb: Drink a lot and adjust your running plan, or you would not see the finish line.

While I don’t usually take walk breaks in marathons, I knew this would be an exception. But I didn’t expect that I would take the first one after just four miles. Four miles?

And I took them every mile thereafter except for one (the last mile, which I refused to walk). I wasn’t alone, and knew if I didn’t start re-charging my batteries with those walks early on I was a candidate for the medical tent.

The odd thing about this race is that there was no sweet spot. No time to simply cruise. For most people that run this distance the first few miles are just to shake out the legs and anxiety. Miles 4-16 should be the comfort zone. Those moments never happened.

Brutal was the word for the day. When the sun disappeared for 30 seconds behind the sole cloud in the sky, a roar went up from runners and spectators alike that rippled down the course. Early on I heard the refrain from Highway to Hell blaring from speakers. There was nothing to do but laugh.

Photo credit: Lorianne DiSabato on Flikr

The crowds were nothing less than awesome and the water sprays were out in force – firemen with hydrant attachments, homeowners with hoses, kids with spray guns.

Since the early running goes through so many small towns — Ashland, Framingham, Natick, Wellesely and Newton — before hitting the big city, the route is a constant stream of homes and villages with local parties along the way. With 500,000 spectators, this is the the biggest event in New England. And the locals were doing what they could for us. Passing out water, passing out oranges, passing out support and passing out beer. And yes, you’re damn right I took some beer. It fortified me for Heartbreak Hill, part of the hills of Newton between miles 17 and 21.

It was during those walk breaks that the crowd really played a part, as I had written my name on my shirt. This is a twofer: The crowds love knowing who is in front of them and the runner gets support. So when I was walking, the chanting would start. Sometimes solo, but sometimes large groups urging me on. And that helped snap me out of some of the longer walk breaks deep into the race.

The view of the other runners in those late stages brought to mind images of refugees trudging toward safety. I saw more people walking up Heartbreak than running it, moving forward, forward, inexorably forward.

From today’s New York Times came this interview using the word of the day:

“This was the toughest marathon I’ve ever run, and I’ve done 5 Ironmans, 3 Bostons and about 20 marathons,” said Mark Williams, 45, of Richmond, Va. He said his time was 30 minutes slower than six months ago. “It was brutal.”

And this from Jason Argent on Twitter:

My 5th #BostonMarathon a brutally rough go in 90 degree temps. 45 mins off my time last yr. Just happy to be alive after that death march.

One of the problems the race organizers had was not knowing exactly how runners would handle the heat. There isn’t a lot of real-world data on the subject of running 26 miles in those temps. One striking example was the 2007 Chicago Marathon that was cancelled mid-race due to heat, when water stops ran out of the precious liquid. (Many early runners were grabbing two or three cups and dowsing themselves, leaving the back of the pack without.) I carried backup of fluids yesterday, just in case. But water seemed plentiful, at least from my middle-of-the-pack vantage point, and I drank so much Gatorade I felt like I was being prepped for a colonoscopy.

When I did hit the finish on Boylston Street in Boston’s Back Bay section I came in about 30-35 minutes off my expected finish time. But I wasn’t disappointed, as others did the same. Adding 30-45 minutes was normal according to most people I spoke to, and that includes top local runners capable of cracking three hours in average conditions.

Few runners train in such heat. Even those in hot weather climates like Florida or Arizona are likely to train early in the morning or after the sun goes down. But mid-day, with no time to acclimate to these temperatures because this is a spring marathon and not a fall race? To quote Donald Rumsfeld:

There are known knowns. These are things we know that we know. There are known unknowns. That is to say, there are things that we know we don’t know. But there are also unknown unknowns. There are things we don’t know we don’t know.

And one thing the vast, vast majority of runners didn’t know was how we would handle the heat. It turned out that there were 2,100 runners treated for dehydration out of 22,000 starters. As for the other 90% wondering if would could handle the heat: We can, and we did. But we might not be too keen on repeating the adventure.

And now the legal part of this post. (I have to have one, don’t I?) When athletes toe the starting line of an event, they assume the risks of competing. And that includes dealing with the weather.

My finishers medal will now be placed in a prominent spot in my trophy room. Also known as the tie rack in my closet.

For those with an interest in running and the law, once upon a time I did a Blawg Review based on the NYC Marathon.

Lastly, for those who ran Boston yesterday, this video’s for you.

My legal posts can be followed with my Twitter handle @Turkewitz, but for the running, it’s @PaineToPain.

Elsewhere:

Surviving the Boston Marathon (The New Yorker)

Boston Marathon Deferrals: Here Are the Facts (Runners World)

Boston Marathon a Battle, from Start to Finish (Tom Renner)

…Nothing in my running bag of tricks – energy gels, water, Gatorade, alternating walking and running – seemed to do much good. The temptation to walk off crossed my mind frequently… [more at link]

Boston Marathon 2012: Mile by Mile (Mile Posts by Dorothy Beal):

You don’t hit the wall at the 8 mile mark. I knew it was the heat….Mile 21 was my first mile in the 10′s. I’m not sure the last time I saw a number in the 10′s…By Mile 23 I had started vomiting….[more at link]

RACE REPORT: Brian Adkins Finishes 2012 Boston Marathon (Marathon Brian):

…I had finished the 2012 Boston Marathon, 41 minutes slower than 2011′s performance in my first Boston run, but probably my proudest day as an athlete and event competitor….

The Boston Marathon: A Recap (I Dabble):

It was my slowest marathon to date, but is easily the one I am most proud of.

Boston 2012: The Hot One (Apple Crumbles):

…At 10K, people were already struggling. I wasn’t alone….

Race Report: Boston Marathon (Will Run for Beer):

…when I wrote on Sunday night of my revised goals for the race, I still thought I’d run a 3:20 and then come back here and be all “that was hard, but if you trust your training, you can do it.”

Instead I ran a 3:50 and honest to God considered dropping out. Of the Boston Marathon.

Lest you be wondering if the heat was really that big a deal, it was…

Too Hot to Handle: Boston Marathon Race Report (Runnrgirl’s Blog):

The first 3 miles …so i was bouncing along, pretty content for a while, and then i started feeling nauseous. i’ve battled nausea while running before so i thought it was still nerves and it would shake out as my body got used to running…the nausea led to some dry-heaving…

Boston Marathon Recap (linseyontherun):

I planned to crush the marathon. I aimed to run my best marathon by far, shooting for a goal between 3:15 and 3:18. That didn’t happen and normally, I’d look back on this marathon and be devastated. This year, I feel accomplished and am still in a bit of shock over how I persevered and made it to the finish line.

Baked in Boston (Sweet Victory):

Obsessions over my pace were replaced by obsessions over the ice bags and sprinklers that the fans of Boston had all over the course. I’d heard it before and now I know it’s true: these are the best marathon fans in the world. I ran from ice bag to ice bag, through sprinklers and hoses, doing everything possible to keep my core cool…

My Boston Marathon Lesson: Remember the Goal (Dan Taylor):

I finished my first Boston Marathon yesterday and want to capture the most important lesson I learned from that experience.

Although I learned the lesson in the excruciating heat of the Boston Marathon I know for me it’s a lesson that I’ll carry over into other parts of my life…

What NOT Running the Boston Marathon Taught Me (Run Brit Run):

Not running on Monday was one of the hardest decisions I’ve ever had to make. For 5 months, my life was training for Boston. Everything I did was planned around training runs. I barely went out, I spent an abnormal amount of time with my foam roller, and when people asked what my weekend plans were the response was always how long my long run was that week. Giving up the culmination of all of that hard work crushed me….

xx will update with good blogs posts as they are found xx

April 14th, 2012

A real warning label…

Sometimes people make fun of wacky warning labels that they see, like the warning on a Batman costume that said “Cape does not enable user to fly,”

But sometimes, they are well-written and real, and need to be appreciated. They aren’t written for the benefit of lawyers and courts and fear of an obscure suit, but for the benefits of participants in an event. Like this for this Monday’s Boston Marathon, where temperatures are expected to soar into the 80s, about 30 degrees too warm:

Advisory From Boston Marathon Medical Directors to Entrants in the 2012 Boston Marathon

Saturday, April 14, 2012 as of 11:30 a.m.

We are looking closely at the current weather situation which is projected to be quite warm. The B.A.A. is closely monitoring this situation for for race day decisions. If the temperatures reach certain levels, running will put even the most fit athletes at risk for heat injury.

We are now making the recommendation that if you are not highly fit or if you have any underlying medical conditions (for example-cardiac disease, pulmonary disease or any of a number of medical problems), you should NOT run this race.

Inexperienced marathoners should not run.

Those who have only trained in a cooler climate and who may not be acclimated (for at least the last 10 days) to warm weather running conditions should also consider not running.

For those very fit athletes who decide to run, you should take significant precautions:

Run at a slower pace and maintain hydration.

You should frequently take breaks by walking instead of running.

This will not be a day to run a personal best. If you choose to run, run safely above all else. Speed can kill.

Heat stroke is a serious issue and is related to intensity of running as well as the heat and humidity.

Good hydration is important but over hydration can also be a problem. Thirst is an indication that you are under-hydrated. You should maintain hydration levels slightly greater than your hydration program in your training, but not excessively so.

Even the fittest athletes, that take precautions can still suffer serious heat illness. Recognizing symptoms of heat illness in yourself and others is critical , this may include headaches, dizziness, confusion, fatigue, nausea and vomiting. If you experience any of these, stop running immediately and if symptoms persist seek medical attention.

Boston Marathon Co-Medical Directors,
Dr. Pierre d’Hemecourt and Dr. Sophia Dyer

March 28th, 2012

A New Personal Injury Waiver (Updated x2)

Running the trail, December 2005

I don’t think I’ve ever used this blog to crowd-source actual legal work, but, what the hell…

As regular readers know, I not only like to run (Boston Marathon in three weeks, if the hammy stays healthy) but am also the founder and race director for a half-marathon trail race in Westchester County.

This puts me at the junction of two concepts: First, putting on a fun running event, and two, trying to avoid potential injuries for my athletes and lawsuits.

Now, generally speaking, an athlete can’t successfully sue a person or organization putting on an athletic event due to the concept of assumption of risk. Assumption of risk means, generally:

By engaging in a sport or recreational activity, a participant consents to those commonly-appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.

So how does a lawyer protect the organizers? Well, since the time of the dinosaurs, it has been by WRITING IN ALL CAPS BECAUSE IT IS SO EASY TO READ and using godawful legalese. This also ensures that no one actually reads the piece of paper that will get waved around to defend a lawsuit later.

But — and you knew there was a “but” coming didn’t you? — it isn’t that I’m worried about being sued, what I want first and foremost is to prevent injury. So I wrote my own waiver, trying to make it as readable as possible. And I offer it up now for your comments as to what it is missing or how it should be changed. Without further ado…a waiver for a trail race…

I realize that this trail has plenty of rocks, roots, stumps and other tripping hazards. There are two stream crossings with stepping stones. The trail is narrow at times and could be crowded as faster runners overtake slower ones. There might be poison ivy, ticks, bugs, bees and other woodsy things you find in the great outdoors. (Is this a great waiver, or what?)

Wind and rain may create mud holes, fell trees and limbs and create hazards that race officials don’t even know about. Vandals may swipe trail markings. Race officials may deliberately create extra hazards. Just for fun.

I’ve also been informed that there are a number of wooden catwalks, whose condition varies with their age and the weather. Those boards can become damaged in storms, or simply be jarred loose by other runners. They are also very slippery when wet. I agree to stay in the center of these walks and will not pass while on them. I understand that I will have more than ample opportunity to pass other runners in safer spots. In other words, I agree to cool my jets on the catwalks.

I also understand that there are only three water stops, so it’s important to carry a water bottle and any food that I want.

But even though I might get hurt or lost, I want to compete in this race. I therefore release and discharge all race officials, volunteers, sponsors and municipalities, and I also release the rocks, roots, bugs and other stuff, dead or alive, gnarly or not, that might cause me to get seriously hurt. I know that trail running is a high-risk activity.

By signing this form I certify that I am physically fit, responsible for my own actions, and have sufficiently trained for an event of this nature. In other words, I won’t sue any of the people or groups responsible for this race if I get hurt. And if I am under 18, then my parent or guardian is signing this release.

I agree to all of this even though it is written in plain English instead of stupid legalese.

Update: Something else to add, perhaps:

This trail has known knowns; there are things I know that I know.

I also know there are known unknowns; that is to say I know there are some things I do not know.

But there are also unknown unknowns – there are things I do not know that I do not know.

And I accept the risks of all of that. Known and unknown.

Update #2 (3/31/12): At Legal Blog Watch, Bruce Carton made some additional suggestions.

September 18th, 2011

Reach the Beach Relay (And Assumption of Risk)

Did you ever want to go racing along rural roads in New Hampshire at 2 a.m., guided only by a headlamp, some signs, and the blinking butt-light of others? And several miles later you get to climb into a van full of other sweaty, smelly runners wanting to do the same thing? I thought so.

You can see a map of the 200-mile race course of the Reach the Beach Relay to the right, starting at Canon Mountain in the White Mountains and ending at little Hampton Beach, New Hampshire’s sliver of actual Atlantic Ocean coastline.

For those not clued in to this little race, teams are usually comprised of 12 people split between two support vans. The 200 miles is diced up into 36 legs. Runners in van one each take turns with the first six legs and then hands off to van two. Then repeat. Again and again until all 36 legs are done and you’ve spent 24-30 hours of your life either running or supporting other runners, and maybe catching an hour or three of sleep at most.

That means, with 434 teams, about 4,000-5,000 runners using 800 support vans on a mass migration across the state of New Hampshire at the speed of foot. Sounds like fun, right?

Hello Kitty. Athletic Club. Really.

And I should probably mention that one of the 434 teams is the Hello Kitty Athletic Club, who show up with pink bathrobes, Girl Scout sashes, and Hello Kitty hats? One carries a pink parasol. Then they will humiliate you by beating you. And everyone else. And run the 200 miles at a pace of 5:53/mile as they did this year.Here’s a video of them talking smack a couple of years back. This will not be my team, ever, but let’s face it, you wouldn’t want to miss this, would you?

Because this is a law blog, I’ll try to tie this weekend’s adventure into that subject. But let’s face it, sometimes a guy just has hunt down adventure for the hell of it. (When I wrote about running the Boston Marathon two years ago, I didn’t even try for a legal tie-in.)

Since I’m also the Race Director for the Paine to Pain Trail Half Marathon (October 2nd this year), I have other concerns about runners getting hurt (and the potential for liability). Because I don’t care to be sued. So this lets me riff on three activities near and dear to me: Running, race organizing, and the law.

So let’s take a look at the adventure, and the two big risks that come with it. This is important, I think, because of the public perception that people can sue for anything. While they might be able to sue, that doesn’t mean they can sue with success.

First is the obvious; the running surface. Running on streets presents a challenge for even the best of runners, as one twig or pencil could cause a rolled foot and send someone sprawling. Pot holes. Gravel. Uneven roadbeds. Road kill. Now run that surface on unlit roads at night while you’re exhausted with cars whizzing by on rural roads. You don’t really need a light to get the picture.

The second risk is the vehicles. Run on the road’s shoulder, as we did for mile after mile, and you must contend with cars and trucks. And drunks. And sleepy drivers driving support vans in your own race on oft-times narrow roads. Some intersections you cross on your own. Some have police or volunteers.

Those are the big two risks in running for which liability could conceivably be imposed on others for a runner’s injury.

Now I’m going to focus on New York law, since that is where I’m admitted, but the basic concepts are likely to be the same elsewhere, even if there might be deviations in some of the details.

This is the basic principle:

“[B]y engaging in a sport or recreation activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.”

Now let’s look at a sample case:

In Conning v. Dietrich a triathlete fell off a bike during a training ride organized by a club, and was then hit by a car. The accident happened when the plaintiff was following a fellow cyclist and the shoulder narrowed, and there was a difference in elevation between the shoulder and the gravel area to the right of the shoulder. When the plaintiff saw another cyclist leave the shoulder and swerve onto the gravel surface, she followed. Then attempted to get her bicycle back onto the shoulder, at which point the front wheel of her bicycle caught the slight rise in the shoulder’s elevation, and she fell into the roadway where she was hit.

In Conning, the plaintiff claimed against the club was negligent in allowing her to ride on “a decrepit and narrow path.” And she sued the driver of the car for negligence. Different defendants, same results?

No. There were different results when the defendants asked for judgment before a trial had even occurred. If there are no factual issues, and the law is clearly on one side, a judge can take the case away from a jury on a motion for summary judgment.

So as to the claims against the club, the club can fairly claim that the plaintiff assumed the risk of the ride. First off, “[t]he risk of striking a hole and falling is an inherent risk of riding a bicycle on most outdoor surfaces.” In addition, “the risk of encountering ruts and bumps while riding a bicycle over a rough roadway … is so obvious … or should be to an experienced bicyclist … that, as a matter of law, plaintiff assumed any risk inherent in the activity.” The same would no doubt hold true for runners.

If you read the opinion, you can also see subtleties in how the court treats actual competition compared to non-competition (a training ride) and the effects of written waivers. Yeah, we lawyers do know how to complicate things, but the decision is instructive for people on how a court goes about tossing out a claim. Essentially, the claim is tossed out because the club did not take the plaintiff on “an unreasonably dangerous roadway surface,” and that she was “able to observe the roadway as she was riding on the shoulder. Also, despite observing the narrowing of the shoulder, she continued to ride. Plaintiff, did not, as she knew she could have, slowed down or stopped.” She assumed the risk of her participation.

By contrast, the court ruled that the claim against the driver had issues of fact for a jury to resolve as to whether he “used that level of ordinary care that a reasonably prudent person would have used under the same circumstances and if not, whether the subject accident was foreseeable.”

So those injured in a competition that take place on a roadway would likely find differing results depending on who they believe was at fault. Want to blame the organizers of the event? That will be tough to do if the risks were forseeable. Want to blame that drunk driver who clipped you while you ran on the shoulder? Well, the risks of road racing do not include drunks veering off the road.

I taped my calf for the third leg of the race.

One other risk: That of self-inflicted injury because you refused to stop despite being hurt. In this race, I managed to injure my hamstring in the first leg of the event, and then managed to injure my calf in the second leg due to a change in gait while I nursed the hammy. Could I have quit in order to save myself from further injury? The problem is that this is a team event and, last I checked, there is no “I” in team. So I taped up the hammy with first aid tape, and then taped the calf. Then put on the running tights to hold it all in place. And when I thought the calf needed even more support, I found some red duct tape to hold it together for the third leg.

So I got injured. And I blame myself.

We ran two teams this year: Fox Chase 1 and Fox Chase 2. We finished 47th and 50th, with an average pace of 7:30. I’m seated, second from right.

Elsewhere on the race (I’ll put up more links if I find good ones):

Reaching the Beach (Run It)

Scenes from HKAC Victory at RTB 2011 (Hello Kitty AC)

Reach the Beach (RACE acidotic)