Forewarned: Sports, Torts, and New York's Dangerous Assumption

47 Pages Posted: 10 Dec 2014

Date Written: April 8, 2013


For an athlete, injuries are a common occurrence. Yet, what happens when one participant's negligent actions causes another participant's harm? Since at least the days of Benjamin Cardozo, New York State's Court of Appeals has applied the traditional assumption of risk rule to these scenarios, completely barring plaintiffs from recovering damages even in the face of the grossest negligence and the gravest of injuries.

This article argues against such a dogged application of this bright-line rule. Consistent with New York's overall modern approach toward the tort law universe, this article suggests that following a contemporary negligence framework would produce more equitable and societally beneficial results. It further proposes a multi-part test that New York courts could adopt in evaluating sports participant personal injury cases in the twenty-first century.

Keywords: Torts, Sports, Personal Injury, Golf, assumption of risk, comparative negligence, Cardozo, damages

Suggested Citation

Pomerance, Benjamin, Forewarned: Sports, Torts, and New York's Dangerous Assumption (April 8, 2013). Albany Law Review, Vol. 76, p. 1275, 2012/2013, Available at SSRN:

Benjamin Pomerance (Contact Author)

Independent ( email )

United States

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