By Carla Varriale, Esq.
In a recent decision that underscored the considerable risks and safety concerns associated with cheerleading and is bound to have far-reaching implications, the Wisconsin Supreme Court has held that high-school cheerleading is a contact sport. The Court ruled that cheerleader/athletes who negligently injure other participants are immune from liability. Likewise, the Court determined that the school district was immune from liability for the alleged negligent acts of a cheerleading coach.
In Noffke v. Bakke, 308 Wis. 2d 410, 748 N.W.2d 195 (2008), the plaintiff, Brittany L. Noffke sustained injuries while practicing a “post-to-hands” cheerleading stunt. She fell backwards off of the stunt formation and struck her head on a tile floor. A teammate (and a defendant), was to have moved into position during the stunt and caught Noffke after she fell back. He moved into the wrong position, however, and failed to catch her. Mats or other safety equipment were not provided. At the time of the accident, Noffke’s coach (a teacher from the school district), was supervising another team nearby. Noffke commenced a negligence action against her teammate, the school district and the school district’s insurer.
Initially, the Court was charged with determining whether Noffke’s teammate was immune from liability under a Wisconsin statute which provides immunity from negligence actions for participants in a recreational activity which involves physical contact between persons in a sport involving amateur teams. The Court concluded that, pursuant to Wis. Stat. §895.525(4m)(a) (2005-06), Noffke’s teammate was immune from liability because he was participating in a recreational activity involving physical contact between persons in a sport involving amateur teams.
After analyzing the language of §895.525(4m)(a) and consulting a dictionary in order to parse the terms “contact” and “contact sports,” the Court determined that cheerleading is a sport which involves a considerable amount of physical contact (and sometimes “forceful interaction”) among the participants and, as such, falls within the scope of the statute. The Court contrasted “recreational activities” that do not enjoy immunity, such as bowling, horseback riding and skiing and reasoned that cheerleading is a contact sport because it involves “physical exertion and skill that is governed by a set of rules or customs,” and a team sport because “a group is organized to work together” to lead fan participation. The Court also consulted the spirit rules of the National Federation of State High School Associations and determined that cheerleading is a contact sport because it involves physical contact between cheerleaders.
Moreover, the Court expressly encouraged the Wisconsin Legislature to “review this important statute and consider our interpretation”, particularly with regard to how it may apply to such school team sports such as golf, swimming or tennis.
The Court then considered whether the lower court erred when it concluded as a matter of law that Noffke’s teammate was not reckless, since recklessness eliminated his immunity from liability under §895.525(4m)(a). Noting that the record lacked any evidence that Noffke’s teammate “consciously disregarded the risk of serious bodily harm” to Noffke, the Court held he was not reckless as a matter of law. Rather, his conduct was merely inadvertent or unskillful.
Lastly, the Court considered whether Wis. Stat. §893.80(4) afforded the school district with immunity for the alleged negligent acts of the cheerleading coach. §893.80(4) conveys broad immunity for liability for the legislative, quasi-legislative, judicial and quasi-judicial acts of a municipality, its officers or employees. The Court concluded that the school district was immune under the circumstances, noting that there was no known and compelling danger giving rise to a ministerial duty (and that, in any event, no such duty was violated by the cheerleading coach). Noffke argued that the coach (as an employee of the school district) violated a ministerial duty by not providing a second spotter and mats as required by the spirit rules, and that the coach should have known there was a compelling danger as appropriate safety precautions were not taken for the cheerleaders performing this stunt for the first time. The Court found, however, that the school district was not bound by the spirit rules because it had not adopted them. The spirit rules, moreover, did not require additional spotters or mats, but rather merely “suggested” these safety precautions. Consequently, the coach had the option of providing a second spotter and mats and chose not to do so.
The Naffke decision, which the first of its kind, is a potential bellwether for other jurisdictions. The Court’s analysis led to an unusual request that the Wisconsin legislature “…once again review this important statute” and consider “how the statute may apply to additional school team sports.” Whether the Wisconsin legislature will heed this invitation, and what impact it will have on other school sports in Wisconsin and nationwide, remain to be seen.
The Naffke decision, which has attracted national attention, also underscored the inherent risks associated with cheerleading. The Court’s scrutiny of the applicable standards and safety equipment (or lack thereof) was notable. Naffke may lead to enhanced awareness of the importance of ensuring that cheerleader/athletes have sufficient protection and supervision. And that is something to cheer about.
Carla Varriale, Esq. is a partner in Havkins, Rosenfeld, Ritzert & Varriale, LLP in New York. Her legal practice focuses on legal issues of interest to sports, entertainment and recreational teams and venues. She also teaches “Sports Law and Ethics” at Columbia University’s School of Continuing Education. She can be reached at 646-747-5115 and carla.varriale@hrrvlaw.com.
