“The timorous may stay at home”

by Walter Olson on June 12, 2006

John Caher in the New York Law Journal discusses the views of Benjamin Cardozo on assumption of risk:

Assumption of risk in cases arising from athletic or recreational activities is a principle that has been part of New York law at least since 1929, when in Murphy v. Steeplechase Amusement Co., 250 NY 479, Chief Judge Benjamin N. Cardozo said that one who “takes part in … sport accepts the dangers that inhere in it so far as they are obvious and necessary.” That case involved a plaintiff who fell from an amusement park ride called “The Flopper” and suffered a leg injury.

“Nothing happened to the plaintiff except what common experience tells us may happen at any time as the consequence of a sudden fall,” Cardozo wrote in reversing the Appellate Division, 1st Department. “Many a skater or a horseman can rehearse a tale of equal woe… . One might as well say that a skating rink should be abandoned because skaters sometimes fall.” He added: “The timorous may stay at home.”

(“Panel Rules Hurt Olympic Skater Assumed ‘Inherent Risk’ of Sport”, May 1). Declarations and Exclusions (Apr. 7) and Rick Karcher (May 22) have more on some recent assumption-of-risk cases in California, including a 6-1 decision by the state’s high court ruling that a college baseball player could not sue over a “bean ball”. See Mike McKee, “Calif. Supreme Court: Ballplayer Can’t Sue for Bean Ball”, The Recorder, Apr. 10.

{ 3 comments }

1 Amy Alkon 06.11.06 at 11:53 pm

“The timorous may stay at home.”

Hear, hear.

2 Deoxy 06.12.06 at 10:43 am

My child’s daycare was forced to remove its monkey bars recently (probably the last ones in a hundred mile radius), which they have had on their playground for YEARS, and which the children have used daily for all that time.

Why did they remove it? It was required to reneew their license.

“The timorous may stay at home.”

I WISH THEY WOULD. Instead, the stay in the courthouse.

3 Amy Alkon 06.12.06 at 11:16 am

Falling is a natural part of childhood. You do it then, when your bones are more pliable, learning that it hurts like hell and you should be more careful.

The French and Europeans in general are so much less prissy about how they raise their kids. They’re allowed to run and play and fall in France — it’s considered part of life. And in Italy, when somebody walks into a room with a baby, they pass it around to everybody…with no worries (statistically unfounded, by the way, if you look at books like Barry Glassner’s Culture Of Fear) that there’s a “funny uncle” at every turn. Consequently, their kids are much better adjusted (in my experience) in terms of having contact with other human beings. South American children, in my experience, are also this way. Maybe it’s a Latin orgins thing. Regardless, we’re prissy about this to our detriment.

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