Race Car Driver Paul Dana’s Death and “Assumption of Risk” in Sports Law

Sadly, IRL driver Paul Dana was killed during a warm up lap for the season-opening race. As reported here: “While streaking around the Homestead-Miami Speedway oval during a warmup session, Dana failed to notice that another car had spun to a stop, slamming into it at close to 200 mph.” Dana died two hours later.

There are obvious tort law / wrongful death issues present in these and other tragic tales. Was the driver of the stopped car, Ed Carpenter, negligent in crashing his own vehicle into the wall? How about track designers, for failing to make more obvious the yellow warning lights? To be sure, blame could be placed on Dana as well; according to a fellow driver, “He carried way too much speed in and wasn't aware of what was going on around him.”

As Greg explained here, the doctrine of “assumption of risk” typically prevents participants from recovering via tort for injuries that arise from “natural” parts of the game. This doctrine, along with Dana’s apparent negligence, would likely bar recovery for his death.

The survival of assumption of risk in sports law even in jurisdictions that have moved away from assumption of risk generally (and towards the modern “comparative negligence” doctrine) is surprising. It likely results from the kind of sickening sentiment that infects courts’ sports law jurisprudence (perhaps best illustrated by “Part I” of Justice Blackmun’s decision in Flood v. Kuhn).

As a sometime teacher of first-year tort law, I challenge students to consider the incentive effects of different tort rules. What would happen if assumption of risk did not bar Dana’s (estate’s) recovery? Well, one of two things. Either the IRL (and other racing circuits) would implement greater safety precautions (speed limitations, more warning flags, etc.) designed to reduce the risk of serious injury and resultant liability. Or the IRL would insure against such risks, incurring the cost of higher premia; such costs would be passed on to viewers / spectators / television sponsors.

Most students intuitively defend assumption of risk on the grounds that changes like more aggressively deployed “caution” flags (or nets protecting baseball spectators from foul balls) would “ruin” a sport. Judges, I suspect, often reach their conclusions based on similar instincts. But note what I’ve said about the incentive effects of abolishing assumption of risk in sports: Either the game would change, or IRL would buy more insurance and pass on to fans the costs of premia hikes. If in fact greater safety measures would “ruin” racing, then the IRL would likely pursue the greater-insurance solution. Yes, fans would probably end up paying more for their tickets; but since it’s the fans that are enjoying the benefits of non-ruined racing, isn’t it most fair to let the fans bear the cost?

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