Clarifying Duty: California’s No-Duty-For-Sports Regime

60 Pages Posted: 18 Jan 2010

See all articles by Edmund Ursin

Edmund Ursin

University of San Diego School of Law

John N. Carter

Gibson, Dunn & Crutcher LLP

Date Written: January 15, 2010


Based on the policy of not chilling vigorous participation in sporting activities, the California Supreme Court, beginning in 1992, has eliminated the traditional consent-based defense of assumption of the risk and held that participants, coaches, and sports instructors breach a duty of care “only if [they] intentionally injure [the plaintiff] or engage in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.” The court has also recognized that manufacturers of sports equipment and owners of sports facilities have a different role in, or relationship to, sporting activities, making it unlikely that the “intentional injury/recklessness” no-duty rule would shield these commercial activities from owing a full duty of case. However, the court has also written that “defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself.” Courts of appeal have seen this dictum to have created a second, distinct no-duty rule, which has been held to relieve owners of sports facilities from a duty of due care, thus bypassing the analytic and policy framework carefully established under the intentional injury/recklessness rule – and intruding on the role of juries. We argue that these cases, when properly decided, are better seen as instances where, as a matter of law, there is no negligence. The California Supreme Court should bring clarity to the law by recognizing this fact – and eliminating the use of the inherent risk concept.

Keywords: torts

JEL Classification: K1, K10, K13

Suggested Citation

Ursin, Edmund and Carter, John N., Clarifying Duty: California’s No-Duty-For-Sports Regime (January 15, 2010). San Diego Law Review, Vol. 45, No. 383, 2008; San Diego Legal Studies Paper No. 10-007. Available at SSRN:

Edmund Ursin (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

John N. Carter

Gibson, Dunn & Crutcher LLP ( email )

1050 Connecticut Avenue, NW
Washington, DC 20036
United States

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