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Wednesday, June 28, 2006
Indiana Court Declines to Extend Co-Participant Sports Tort Standard to Jet-Skiing

An Indiana Appellate court declined Monday to extend the relaxed tort law standard for co-participants in organized sports, under which co-participants cannot be liable for mere negligence but only for reckless misconduct or intentional wrongdoing, to the activity of jet-skiing. In Davis v. Lecuyer, 2006 WL 1726636, the court distinguished jet-skiing from triathlon competitions, as to which had earlier applied the relaxed recklessness standard in Mark v. Moser. The Davis court explained:
Applying a recklessness standard to any use of a jet ski in order to encourage vigorous participation is neither a legitimate nor necessary policy goal. Moreover, the nature of jet skiing does not present the same potential for a flood of litigation as do certain contact sports. Jet skiing simply does not raise the concern expressed in Mark that if "simple negligence were to be adopted as the standard of care, every punter with whom contact is made, every midfielder high sticked, every basketball player fouled, every batter struck by a pitch, and every hockey player tripped would have the ingredients for a lawsuit if injury resulted."
This holding is contrary to that reached by several California courts, which have held that water skiing, tubing, and jet skiing constituted sports as to which "primary assumption of risk" barred actions for mere negligence. See, e.g., Ford v. Gouin, 11 Cal.Rptr.2d 30 (Cal. 1992). In that case (which served as the basis for one of my Sports Law exam hypos this spring), California's Supreme Court reasoned that
[i]mposition of legal liability on a ski boat driver for ordinary negligence . . . likely would have the same kind of undesirable chilling effect on the driver's conduct that the courts in other cases feared would inhibit ordinary conduct in various sports.
Should courts be worried about chilling vigorous jet skiing?


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