A California state appeals court has affirmed a grant of summary judgment for a school district and other defendants in a case in which they were sued for negligence by a flag football participant after he suffered a concussion at the hands of an opposing player.
The key issue on appeal was the plaintiff’s contention that the fact that the opposing team was allowed to wear soft-sided helmets increased the risk of injury, thus invalidating the defendants’ argument made in their motion for summary judgment that the plaintiff was subject to the assumption of risk doctrine.
Plaintiff and appellant Jordan Bridges (Jordan) was a student at Bellarmine-Jefferson High School (Bellarmine-Jefferson) in California. During the summer of 2012, after Jordan had finished his freshman year, he joined Bellarmine-Jefferson’s summer seven-on-seven team, coached by David Machuca (Machuca), who was also head coach of the school’s regular football team.
During a scrimmage held at Panorama High School on June 7, 2012, Jordan played wide receiver. Machuca and five assistants supervised and coached Jordan’s team. Their opponent in the scrimmage was a team from Granada Hills Charter High School (Granada Hills). The players from Granada Hills wore soft helmets during the scrimmage. Jordan described the soft helmets as “like wearing a cap” or “like a beanie that covered your ears” with “little pads on top of your head.” The Bellarmine-Jefferson players were not wearing soft helmets.
At some point during the scrimmage, Jordan was running to catch a pass. A Granada Hills player appeared to push Jordan in the back. A second Granada Hills player had been running toward Jordan, and as Jordan fell to the ground, that second player attempted to jump over Jordan, apparently in an effort to avoid contact. The second Granada Hills player’s knee made contact with Jordan’s head, and Jordan suffered a concussion.
Jordan sued in December 2013, naming the school district, the Roman Catholic Archbishop of Los Angeles, the Archdiocese of Los Angeles, and Archbishop Jose J. Gomez as defendants. He alleged causes of action for “negligence including negligent supervision and care of students,” breach of mandatory statutory duty, and negligent hiring, training, supervision, and retention. He claimed that the defendants “increased the risk of harm and amount of danger posed to those playing football” by “order[ing]” the Bellarmine-Jefferson players, including Jordan, to play without protective equipment while “simultaneously order[ing]” the players from the other school “to play with protective equipment, including helmets.”
As mentioned above, the defendants moved to dismiss based on the primary assumption of the risk doctrine “because incidental collisions are inherent in seven-on-seven football and defendants had not done anything to increase the risk inherent in the sport,” according to the appeals court.
In support of their motion, the defendants submitted declarations from two coaches as well as the California Interscholastic Federation (CIF). The declarations from [delete] stated that “pro-style football helmets and other hard helmets are not permitted in seven-on-seven football, soft helmets are not required by CIF regulations and most seven-on-seven teams are not provided with soft helmets, but CIF regulations do permit players to wear soft helmets during seven-on-seven games.”
In opposition, the plaintiff presented an expert declaration from Gavin Huntley-Fenner (Huntley-Fenner), a human factors and safety consultant, and others.
Huntley-Fenner’s declaration described his expert qualifications and disclosed he “reviewed documentation relating to this matter, including the deposition transcripts of Jordan Bridges, Aaron Bridges [Jordan’s father], Claudia Bridges [Jordan’s mother] and . . . Machuca.” Huntley-Fenner opined “the fact that the opposing players wore protective headgear made them play more aggressively and thereby increased the possibility of making injurious contact with Jordan Bridges’ team than would be the case if they were not wearing such gear.”
He explained his opinion as follows: “Being protected, the opposing player’s risk tolerance would increase as they would believe that they would be less likely to suffer injury . . . . thus tending to act more aggressively and be more likely to make aggressive contact . . . .” Huntley-Fenner further opined “that having Jordan Bridges play against a team that was wearing soft padded headgear increased the risks inherent in the activity and changed the nature of the game.”
The defendants countered that Huntley-Fenner’s statements “lacked foundation, were improper expert opinion, lacked proper bases for expert opinion, and were irrelevant,” according to the court.
The trial court ruled for the defendants, finding that “the primary assumption of the risk doctrine applied (and barred recovery) because Jordan voluntarily participated in seven-on-seven football, and being struck in the head by the knee of a defensive player, ‘i.e., a participant’s normal energetic conduct,’ is an risk inherent to the sport.”
The trial court believed “the padded helmets did not . . . increase the inherent risk of accidental contact by making players more likely to play aggressively because aggressive play is an integral part of football” and “there is no evidence that aggressive play led to the Plaintiff’s injury.” The court found it was “not reasonable to draw an inference from the fact that the other team had padded helmets that this increased or caused a risk of a knee striking the Plaintiff’s head when the Plaintiff was knocked down while attempting to catch a pass.”
The plaintiff appealed, and the appeals court affirmed:
“There can be no dispute that the primary assumption of the risk doctrine generally applies to seven-on-seven football games. We need only decide whether defendants carried their initial summary judgment burden to make a prima facie showing that the doctrine applies here (because they had not increased the risk of playing seven-on-seven football), and if so, whether plaintiffs’ evidentiary showing nevertheless requires a trial to resolve factual questions concerning the doctrine’s applicability. Our answer to both questions compels affirmance. Accidental collisions and aggressive play by opponents are ordinary features of seven-on-seven football and risks inherent to the sport. On the admissible evidence, there is no dispute the defendants did nothing to increase the risk by permitting their players to scrimmage against a team wearing soft helmets–as permitted by CIF rules.”
The appeals court elaborated in the applicability of the assumption of rick doctrine, citing case law in support of the following supposition: “Even where no tackling is permitted or intended, football players run at fast speeds and quickly change directions; balls are thrown; chaos sometimes reigns. Accidents are bound to happen, and aggression is often a primary ingredient of success.”
Next it turned to the question of whether having one team wear protective gear, while another does not could translate to increasing the risk of injury.
“While no case we have found addresses this specific question, a handful of cases have addressed whether the absence of a safety precaution is a normal, or inherent, aspect of an activity,” wrote the court. “Though the contexts in which the cases analyze the question differ, they all employ a similar analytical framework and look to the industry norm or standard when determining whether a risk is inherent.”
Most significant was Balthazor v. Little League Baseball, Inc. (1998) 62 Cal.App.4th 47, 72 Cal. Rptr. 2d 337, where “the court considered whether a baseball organizer’s provision of helmets without face guards rather than helmets with face guards increased the risk of the sport. In affirming application of primary assumption of the risk to bar liability, the court noted ‘the face guard which Balthazor argues should have been required was not part of the normal safety equipment used by the League.’”
This brought the analysis back to the CIF and its regulations.
“Our analysis of the issue under consideration accordingly turns on whether differences in protective gear are a normal aspect of seven-on-seven football,” wrote the court. “The record contains the following pertinent uncontroverted facts. CIF regulations, which apply to high school football, permit–but do not require–seven-on-seven teams to wear soft helmets. Most seven-on-seven teams are not provided with soft helmets. And ‘it is not uncommon for scrimmages to occur in which some players wear [soft helmets], and others do not.’ Thus, while not all scrimmages involve one team wearing optional safety gear while the other does not, the occurrence is ‘not uncommon,’ and CIF has not seen fit to prohibit it. In other words, differences in optional safety gear is a normal aspect, and an inherent risk, of seven-on-seven football.”
Jordan Bridges et al. v. Bellarmine-Jefferson High School et al., Ct. App. Calif., 2d App. Dist., Div 5; B278124, 2018 Cal. App. Unpub. LEXIS 5055; 7/25/18
Attorneys of Record: (for Plaintiffs) Carpenter, Zuckerman & Rowley, John C. Carpenter and Gary S. Lewis. (for Defendants) Polsinelli, Daniel W. Bir, Mathew R. Groseclose, and David K. Schultz.
