Day on Torts
By now most of us have heard of the Sweat Lodge incident.
The Huffington Post article says that "[m]ore than 50 followers of spiritual guru James Arthur Ray had just endured five strenuous days of fasting, sleep-deprivation and mind-altering breathing exercises [were] into a sweat lodge ceremony" that is said to have resulted in the deaths of three people. The "Spiritual Warrior" event apparently cost $9,000-plus for each participant. One survivor, Beverly Bunn, said that "Ray pushed for participants to go without sleep, enter into altered states of mind through breathing exercises and meditation, compete in a game in which he played God and fast for 36 hours during a vision quest." Bunn also said that "people were vomiting in the stifling heat, gasping for air, and lying lifeless on the sand and gravel floor" in the 415-square-foot sweat lodge. Apparently, people were not forced to stay inside but were highly encouraged. Bunn said "it was all about mind over matter, you’re stronger than your body."
Who is James Arthur Ray? He says he is "an internationally-renowned Personal Success Strategist, Visionary and New York Times Best-Selling Author who has traveled the globe dedicating over two decades of his life to studying the thoughts, actions, and habits of those who create true wealth in every area of their life [who] delivers his practical teachings to hundreds of thousands of individuals and business leaders every year." I confess I never heard of him before this incident, but if his website says he is internationally-renowed I suppose it must be true.
His response to the tragedy? The Huffington Post "Ray has hired his own investigative team to try to determine what went wrong, and vowed to continue with his work despite criticism. ‘I have taken heat for that decision, but if I choose to lock myself in my home, I am sure I would be criticized for hiding and not practicing what I preach,’ he wrote."
Is there tort liability here? First, let me point out that this incident occurred in Arizona and the law of Arizona will almost certainly apply. I do not pretend to know the law of Arizona, and thus I leave it to others to opine on the rights and responsibilities of all involved under Arizona law. However, if this had occurred in Tennessee, the following questions come to mind:
1. Was a waiver signed before the event? In Tennessee, most pre-incident waivers of personal injury and wrongful death claims are enforceable if executed by competent adults. The fight would be over whether the participants were told whether they would be subjected to such high-risk activity so that they could knowingly waive their right to hold the organizers liable for any negligence. Another fight would be over the issue of whether the conduct of the organizers was grossly negligent, because under Tennessee law gross negligence trumps a pre-incident waiver.
2. The organizers would have a duty under Tennessee law to make the event reasonably safe for the participants. That would include a responsibility to have appropriate personnel on hand, which almost certainly would include the responsibility to have appropriate medical personnel on hand if there was a risk of injury.
3. The answer to whether reasonable care was exercised will depend on facts that are not yet known. Were health care personnel consulted before the Sweat Lodge concept was used? Were their recommendations followed? Were there any issue with the Sweat Lodge and the health of the participants in the past? What changes in procedures were adopted – or should have been adopted – as a result of past experience? What personnel were available? How were they trained? Did they have the ability to recognize signs and symptoms of dehydration? Did they have the appropriate supplies and equipment available to render aid? Were appropriate warnings of the risk given? Were the participants in the state of mind to appreciate those risks?
4. There will be allegations of comparative fault and assumption of the risk of any participant that makes a claim. What information were they given? What knowledge did they have? Why did they agree to go forward with the Sweat Lodge experience? Why did they not leave when they began to feel ill? Did they accurately report any pre-existing medical conditions (assuming they were asked)?
As you can see, there are many questions yet to be answered before anyone can determine whether liability is present under these facts. The police are conducting a homicide investigation, and that investigation will be a great assistance in determining the merit of any claims asserted by any participant. That being said, the media reports to date indicate to me that there is a strong likelihood that Ray and his organization have significant exposure for this incident.