Appeals Court Gives Concussed Cheerleader Another Chance, Reversing Trial Court

Nov 24, 2017

A California state appeals has revered a trial court and found that the assumption of risk doctrine should not have barred the claim of a high school cheerleader, who suffered a concussion when she was asked to perform a complicated acrobatic stunt on an allegedly dangerous surface.
The plaintiff in the case was Heather Arnzen, a senior and experienced varsity cheerleader at Temecula Valley High School. During the school’s homecoming football game on September 28, 2012, Arnzen was asked to serve as a “base” for a stunt called the “liberty extension.” The stunt was performed on a dirt track next to the football field. Arnzen fell during the stunt and suffered a concussion.
She ultimately sued the Temecula Valley Unified School District, and her cheer coach, Revan Jebrail, a District employee. Arnzen alleged causes of action against each defendant for negligence and premises liability.
In her negligence claim, Arnzen alleged that the defendants increased the risk of injury inherent in performing the stunt by, among other things, directing the cheerleaders to perform the stunt on the “slick dirt track” and without safety mats. In her premises liability claim, Arnzen alleged the watering of the dirt track to prevent excessive dust during the homecoming activities created a dangerous condition, which posed an unreasonable risk of harm to Arnzen and the other cheerleaders.
The defendants successfully moved for summary judgment. Significantly, the trial court concluded that the negligence claim was barred by the assumption of risk doctrine. The plaintiff appealed.
On appeal, the court focused on Knight v. Jewett (1992) 3 Cal.4th 296, 315, 11 Cal. Rptr. 2d 2, 834 P.2d 696 (Knight); see Civ. Code, § 1714 as determinative case law concerning the school district.
“Knight broadly defined the scope of the duty of care owed by a defendant with some role in or relationship to a sport or to a participant in the sport: ‘Although defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.’ (Knight, supra, 3 Cal.4th at pp. 315-318 [discussing scope of liability of sports facilities owners and operators, such as ballparks and ski resorts].)
“Knight discussed two examples of what would and would not increase the risks of harm inherent in a sport: ‘[A]lthough a ski resort has no duty to remove moguls from a ski run, it clearly does have a duty to use due care to maintain its towropes in a safe, working condition so as not to expose skiers to an increased risk of harm. The cases establish that the latter type of risk, posed by a ski resort’s negligence, clearly is not a risk (inherent in the sport) that is assumed by a participant.’ (Id. at p. 316.)”
Turning to the instructor or coach, the court found similarly applicable case law.
“Instructors, like commercial operators of recreational activities, ‘have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport. . . .'” (Fortier v. Los Rios Community College Dist. (1996) 45 Cal.App.4th 430, 435, 52 Cal. Rptr. 2d 812; Knight, supra, 3 Cal.4th at p. 316.)
Arnzen claimed the defendants did not meet their initial burden of showing that the assumption of risk doctrine barred her negligence claim. Specifically, she charged that the defendants had a duty to show that “Jebrail’s directive” to Arnzen and the other cheerleaders “to perform complicated acrobatic stunts on the slippery and hard track surface, without mats or other safety precautions” did not increase the risk of injury inherent in performing the liberty extension stunt.
She further argued that even if the defendants had met their initial burden, she had raised triable issues sufficient to preclude summary judgment, and that the court erroneously excluded critical evidence submitted in opposition to the motion. This includes evidence that Jebrail violated TVHS’s policy, which was adopted during the previous year. That policy required that such stunts be performed on safety mats.
The appeals court agreed.
Heather Arnzen v. Temecula Valley Unified School District et al.; Ct. App.Calif., 4th App. Dist., Div two; E064589, 2017 Cal. App. Unpub. LEXIS 7575; 10/31/17
Attorneys of Record: (for plaintiff) Williams Iagmin and Jon R. Williams. (for defendants) Carpenter, Rothans & Dumont, Justin Reade Sarno and Louis R. Dumont.


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