By Carla Varriale, Esq.
In a case that is of keen interest to youth sports, a California court denied recent motions by Pop Warner Little Scholars Inc. (“PWLS”) and other defendants seeking dismissal of the claims against them. In Crystal Dixon, et al v. Pop Warner Little Scholars, Inc., the plaintiffs’ Third Amended Complaint put forth claims for negligence, respondeat superior and violations of California’s Business and Professional Code, among others. The Third Amended Complaint also contained a claim for punitive damages. The motions for adjudication of issues were denied in part because of lingering questions about the failure to coach the injured plaintiff in proper tackling technique and whether there was a conscious disregard for his safety based on the evidence presented. The Third Amended Complaint alleged that the injured plaintiff was rendered a quadriplegic after he attempted to tackle an opposing player using an improper head-first tackling technique which he claimed his coaches taught and instructed him to use.
The decision is instructive for two reasons.
First, the “Parental/Guardian Permission and Waiver Agreement” (the “Waiver and Release”) failed to protect PWLS under the circumstances although it was clear, unambiguous and specifically referenced the risk of injury at issue in the Dixon case.
The Waiver and Release stated:
INTENT TO INFORM
I acknowledge that I am fully aware of the potential dangers of participation in any sport and I fully understand that participation in football, cheerleading and/or dance, and related activities may result in SERIOUS INJURIES, PARALYSIS, PERMANANET [sic] DISABILITY AND/OR DEATH to myself, my children, and/or entire family. Further, I do hereby forever discharge, waive, release, absolve, indemnify, and agree to hold harmless Pop Warner, and any and all organizers, sponsors, supervisors, administrators, officers, directors, staff, referees, participants, and persons transporting the above named participant to and from activities, from any claim arising out of any injury to myself and/or my/our child whether the result of negligence or any other cause…” (“Compendium of Exhibits,” Exhibit “D;” emphasis theirs).
The court acknowledged that under California law, to be enforceable a putative waiver or release must clearly apprise the releasor or indemnitor of the effect of the release or waiver. In fact, every possible specific act of negligence of the defendant need not be spelled out in the agreement or even discussed by the parties. It is only necessary that the act of negligence, which results in injury to the releasor, be reasonably related to the object or purpose for which the release is given.
Based on the language cited above, there was no issue with the clarity or contents of the Waiver and Release. Rather, the court determined that there was a question of fact regarding PWLS’ gross negligence. The court questioned whether enforcing the Waiver and Release under the circumstances would violate public policy because it would remove an obligation to adhere to even a minimal standard of care or to release liability for future gross negligence.
The court opined:
With that said, “public policy generally precludes enforcement of an agreement that would remove an obligation to adhere to even a minimal standard of care…[A]n agreement purporting to release liability for future gross negligence…violates public policy and is unenforceable.” City of Santa Barbara v. Superior Court (2007) 41 C. 4th 747, 777. Additionally, “whether conduct constitutes gross negligence is generally a question of fact, depending on the nature of the act and the surrounding circumstances shown by the evidence. (Santa Barbara, supra, 41 C.4th at pp. 767, 781…). The Courts of Appeal have followed suit, holding that generally, it is a triable issue of fact whether a defendant’s lack of care constitutes gross negligence. (Decker v. City of Imperial Beach (1989) 209 C.A.3d 349, 358.).” Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 C.A.4th 546, 555.
Later in the ruling, the court highlighted some of the conflicting testimony and evidence that underscored the denial of the motions because there was a triable issue of material fact whether the defendants’ conduct constituted gross negligence. The court noted the following from the record:
despite PWLS rules that required the Head Football Coach to attend a Nationally Approved Clinic or to complete and pass the American Sport Education Program online training, PWLS did not do anything itself to verify that players, coaches and volunteers review and understand the rules;
PWLS did not do anything directly to ensure that the rules are being complied with by players and coaches (it relied on the local entities to ensure that coaches are teaching proper tackling technique, for example); and
there is no acknowledgement required for the coaches’ code of conduct.
In the Dixon case, the court noted that the injured plaintiff’s head coach was not required to show proof of his certification and that the head coach admitted he did not take the online training that PWLS offered at any time relevant to the accident. He did not receive any certifications as a coach or possess any certifications as a coach. Consequently, the head coach’s certification was not in the team book as required. The absence of this certification in the team book was never discussed with the head coach despite the fact that an official was supposed to check the team book for the same. Moreover, the injured plaintiff attested that he was instructed to face tackle and to tackle head-first, despite his complaints about this instruction to his coaches. He was never disciplined or corrected for tackling incorrectly or unsafely during practices in the 2011 season. The coaches provided conflicting testimony regarding this issue. However, they conceded that they did not believe his failure to adhere to proper tackling technique was significant enough to bench him or to warn his parents. These factors were fatal to the motions and underscored the court’s concern that enforcing the Waiver and Release would be contrary to public policy because it would remove an obligation to adhere to even a minimal standard of care.
The court also addressed the respondeat superior claims raised on the motion. Initially, the court noted that the plaintiffs’ pleading alleged:
“112. Defendant Coaches acted as agents, servants, employees, special employees, alter egos, successors in interest, partners, joint venturers, lessees, and/or licensees of Defendant Pop Warner Entities.
113. In committing the alleged acts and omissions, Defendant Coaches were acting within the course and scope of their authority as agents, servants, employees, special employees, alter egos, successors in interest, partners, joint venturers, lessees, and/or licensees, and in the transaction of the business of the employment or agency.
114. Defendant Pop Warner Entities are therefore liable to Plaintiff Donnovan Hill for the negligent acts and omissions of Defendant Coaches as alleged.”
The court then distinguished the liability issues presented and held:
“Notably, two doctrines may by implicated in assessing liability against an employer. One doctrine is respondeat superior, pursuant to which the employer is indirectly or vicariously liable for torts committed by its employees within the scope of their employment. (Mary M. v. City of Los Angeles (1991) 54 C.3d 202, 208.) The other doctrine is an agency theory pursuant to which an employer may be directly liable for acts of its agents. ‘Vicarious liability based on the tort doctrine of respondeat superior and direct liability based on the theory of actual or ostensible agency are different liability theories which cases do not always distinguish between. [Citation.]’ (Inter Mountain Mortgage, Inc. v. Sulimen (2000) 78 C.A.4th 1434, 1440, fn. 4.). Myers v. Trendwest Resorts, Inc. (2007) 148 C.A.4th 1403, 1427 (emphasis added).”
Although the plaintiffs pled both vicarious and direct liability claims against PWLS, PWLS only addressed the respondeat superior claims. The court held this defect was a fatal one and warranted denial of the motions as well.
Carla Varriale. Esq. is a Partner at Havkins Rosenfeld Ritzert & Varriale, LLP in New York and an adjunct professor at Columbia University’s School for Professional Studies where she teaches Sports Law and Ethics. Her practice is focused on the sports, recreation and fitness industries. She can be reached at 646-747-5115 or carla.varriale@hrrvlaw.com.
