The majority of U.S. jurisdictions hold that voluntary participants in athletic contests owe no duty of care to each other to reduce or eliminate the risks of harm that are inherent in the sport itself. Knight v. Jewett, 3 Cal. 4th 296, 316-20 (1992); Gauvin v. Clark, 537 N.E.2d 94, 97 (Mass. 1989). The rationale often given is that the plaintiff has assumed such risks because he has consented to relieve the defendant from the general duty of reasonable care by virtue of his decision to voluntarily participate in an activity that necessarily creates these inherent risks. Turcotte v. Fell, 68 N.Y.2d 432, 437-39 (1986). Another rationale that is offered in support of this decision is the policy that “vigorous and active participation in sporting events should not be chilled by the threat of litigation.” Gauvin, 537 N.E.2d at 97.
However, a different rationale that has little if anything to do with consent supports the rule that participants owe no duty of care to reduce or eliminate the risks of harm that are inherent in the sport itself.
Negligence claims for injuries caused by a fellow participant’s vigorous conduct falling within the rules of the particular game are essentially claims that the very design of the game itself is defective. For example, in Knight, during the course of a touch football game, the defendant jumped up in an attempt to intercept a pass and during his descent he collided with the plaintiff causing her to fall. Knight, 3 Cal. 4th at 300. In the lawsuit she subsequently filed, plaintiff essentially claimed that a sport that allows opposing teams to regain possession of the ball by catching it before the intended receiver can do so creates the very kind of negligent conduct she attributed to the defendant – leaping aggressively to intercept a pass with little disregard for her safety. Thus, in this sense negligence claims against co-participants in sporting events are essentially claims that the design of the game creates unreasonable risks of harm and should be fundamentally altered with “safer” alternatives.
Faced with such claims, courts understandably look for doctrines that would limit the scope of judicial review. After all, imposing the duty of reasonable care that the plaintiff in Knight sought would impermissibly alter those aspects of the sport that are inherent in its very nature and provide it with its appeal and value to the public. Id. at 318-19. Not surprisingly, whether the plaintiff’s “reasonable alternative design” would impermissibly alter the functional utility of a product is one of the factors relevant to the determination of whether a product, such as a car or a firearm, is defective under the risk-utility test that the majority of courts have adopted. Restatement (Third) of Torts: Products Liability (1998) §2(b). Thus, the application of assumption of risk to negligent conduct committed during sport events can also be viewed as a means of preserving the utility of the product that the plaintiff claims is defective – the sport itself.
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