Extreme Sports and Assumption of Risk: A Blueprint
University of California, Davis - School of Law
April 6, 2010
University of San Francisco Law Review, Vol. 38, 2004
A growing number of personal injury litigants stand outside the contours of tort law. Plaintiffs who are hurt while engaging in high risk recreational activities do not fit within a doctrine that uses “reasonableness” as its central criterion. Reasonableness hinges on whether the cost of an untaken precaution outweighs that of a particular harm. In many risky sports, the only way to avoid getting hurt is to forego the activity altogether. For most people, this is not a burden. Even if it is, the lost opportunity value is dwarfed by the omnipresent specter of grave injury. For example, consider the sport of motocross, which involves racing and performing stunts on off-road motorcycles. Motocross is so dangerous that midway through the professional circuit's most recent season, half of its contestants had suffered broken bones or concussions. Thus, the reasonably prudent person would probably never try the sport. However, if it is unreasonable to take part in motocross, then it must also be unreasonable for a motocross track owner to offer the plaintiff the opportunity to do so. Risky sports defy classification under tort law's fundamental norm.
For years, this theoretical problem had little pragmatic significance. If an injured sports participant filed suit, the business entity that provided the activity would invoke the affirmative defense of assumption of risk. Traditionally, assumption of risk barred a plaintiff's claim--whether his behavior was reasonable or unreasonable - on the ground that he voluntarily chose to encounter a known danger. However, assumption of risk partially overlapped with the doctrine of contributory negligence, which completely precluded recovery if the plaintiff engaged in unreasonable conduct. Recently, most jurisdictions replaced contributory negligence with comparative negligence, which apportions damages according to fault. Thus, the existence and scope of a commercial recreation vendor's liability exposure depends on a complex web of specialized duty rules, sports-specific exculpatory statutes, and contractual waivers.
This Article proposes a subtle doctrinal shift that would bring high risk recreational activities back within the negligence concept and provide vendors with a dependable basis for barring claims. Because common law tort rules offer little guidance, purveyors of recreational activities increasingly rely on waivers as a means of protecting themselves from liability. Yet courts often find such agreements unenforceable as a matter of contract law. Therefore, this Article advocates giving waivers independent tort significance. Business entities that provide extreme sports should be held to an additional duty to take reasonable steps to inform patrons of an activity's dangers. Although the duty to inform would have little effect on the day-to-day operations of vendors, many of whom already take elaborate steps to warn patrons, it would bring extreme sports back within the reasonableness concept. A fully-informed plaintiff's decision to engage in an extreme sport indicates that, for him, the benefits of the activity outweigh its risks. Warnings would thus allow businesses to cater only to those people who find such activities to be reasonable. By limiting the availability of a risky activity only to those who truly prefer to face its dangers, defendant businesses would ensure that they too are operating on the right side of the negligence line.
Number of Pages in PDF File: 66
Keywords: assumption of risk, extreme sports, primary assumption of risk, secondary assumption of risk, negligenceAccepted Paper Series
Date posted: April 9, 2010
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