Private Law Theory

ABSTRACT
In the last decade or so, California and Utah courts have developed a new gross negligence standard. Applying what this Note refers to as the ‘increase of risk test’, courts have held in numerous cases that a genuine issue of material fact existed whether the defendant unreasonably increased the inherent risk of harm to the plaintiff. Increase of risk is an unworkably vague test. It enables plaintiffs who signed valid liability waivers to survive summary judgment in negligence suits against operators of recreational facilities. At the summary judgment stage, increase-of-risk analysis transforms gross negligence cases involving liability waivers into ordinary negligence cases stripped of express assumption of risk. Although the test enables courts to achieve arguably desirable public policy outcomes, it is conceptually unsound. This Note provides background information on gross negligence, assumption of risk defenses, and the increase of risk test; analyzes the test in theory and application; and proposes three methods of cutting the knot into which the test has tied gross negligence jurisprudence in Utah and California.

Terhaar, Timothy, Gross Confusion in the Negligence Law of Recreational Activity (March 1, 2022).

First posted 2022-04-08 16:30:14