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New Article on Recklessness

By Rick Karcher, Michael McCann, Geoffrey Rapp, Greg Skidmore, and Howard Wasserman

The tort standard of "recklessness" is essential in sports injury cases. At least until the Illinois Supreme Court's decision last month in Karas, the universal rule was that participants in contact sports could not recover for personal injuries from other participants for mere negligence. Instead, "recklessness" or "wanton and willful" misconduct was required. In some states, this limitation on liability is extended to all sports, not just contact sports (although, at least here in Ohio, not to potato-sack racing)

One problem that has plagued both courts evaluating particular cases and law students studying the doctrine is the point at which conduct becomes more than "mere" negligence and crosses into "recklessness" territory. Similarly, at some point conduct crosses a line from "recklessness" to "intentional." Cumbersome descriptions of recklessness in the Restatement of Torts have not helped clarify the meaning of this concept in tort law.

I've posted a rough draft of my new paper on the subject, tentatively entitled "The Wreckage of Recklessness." In the piece, I discuss a number of sports torts cases and lines of cases, including golf injury lawsuits, the recent Illinois line of cases culminating in Karas, and the seminal (and odd) case of Hackbart (which Greg discussed in this post). I'd welcome feedback on my piece, which will be coming out later this year in the Washington University Law Review, via e-mail. You can download the piece free of charge from SSRN. Here's an abstract:

"Recklessness" is one of the oldest concepts in Anglo-American tort law, but also one of the most poorly understood. Often identified as a tort falling somewhere between negligence and intentional misconduct, recklessness has evaded precise judicial interpretation for two hundred years. The Restatement of Torts defines recklessness as conscious disregard of a substantial risk of serious harm, but courts have been unable to interpret consistently the key elements of this definition. This Article suggests that judicial confusion is not simply the product of linguistic imprecision on the part of the ALI. Rather, the Restatement version of recklessness is inconsistent with the actual behavioral and cognitive processes humans employ in the face of risk and uncertainty. Recent work in behavioral economics and neuroeconomics indicates that individuals fail to process risk in the way the black-letter-law definition of recklessness presumes, and calls into question the degree to which decisions can easily be classified as conscious or unconscious. Rather than continue to struggle to add clarity to an already convoluted articulation of doctrine, law reformers should reconceptualize the tort concept of recklessness not in terms of what it is, but in terms of what it does: allow a particular plaintiff to recover for a defendant's carelessness where ordinary negligence doctrine would bar relief.

Full post as published by Sports Law Blog on March 24, 2008 (boomark / email).