Publication Year



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.