An Ohio state appeals court has affirmed a trial court’s decision to grant summary judgment to Kent State University in a case where the school was sued after a cheerleader was severely injured after a failed stunt.
The court noted specifically that the assumption of risk doctrine could only be defeated by the plaintiff if she had been a non-participant.
The impetus for the litigation was an accident that occurred when a Kent State University cheerleader, Angela Crace, and her fellow squad members, were practicing a pyramid. The pyramid was two and one-half people high and had the highest degree of difficulty permitted by the NCAA.
Twice, the squad attempted a pyramid and twice Crace fell, however, each time she was caught by an assigned spotter. Before the third attempt, the coach substituted Detrick Cobbin as the spotter. Cobbin had neither seen nor participated in this particular pyramid prior to that day. According to Cobbin, before the third attempt, he told the coach that he was uncomfortable performing as a spotter. The coach said the statement never occurred.
Crace fell a third time and Cobbin failed to catch her. The fall left Crace a paraplegic.
The plaintiff sued KSU, alleging claims of negligence and loss of consortium based upon the coach’s conduct. On November 12, 2008, a trial court ruled for the defendants.
She appealed, arguing the trial court erred when it applied the Doctrine of Primary Assumption of Risk and by granting judgment to the defendant with regard to its application of the standard of reckless or intentional conduct being a requirement.
In addressing the first argument, the court found that it is “well-settled that Ohio law recognizes three separate types of the defense of assumption of the risk: express, primary, and implied.” Ballinger v. Leaniz Roofing, Ltd., 10th Dist. No. 07AP-696, 2008 Ohio 1421, P6, citing Gentry v. Craycraft, 101 Ohio St.3d 141, 2004 Ohio 379, P11, 802 N.E.2d 1116; see also Gallagher v. Cleveland Browns Football Co. (1996), 74 Ohio St.3d 427, 431, 1996 Ohio 320, 659 N.E.2d 1232.
In the instant case, it boiled down to whether it was primary or implied assumption of risk that was most relevant.
Under primary, “an individual assumes the inherent risks of the recreational activity and cannot recover for injuries unless another individual acted recklessly or intentionally.” Santho v. Boy Scouts of Am., 168 Ohio App.3d 27, 2006 Ohio 3656, P12, 857 N.E.2d 1255; see also Marchetti v. Kalish (1990), 53 Ohio St.3d 95, 559 N.E.2d 699, syllabus. The rationale is that certain risks are so inherent in some activities that the risk of injury is unavoidable. Collier v. Northland Swim Club (1987), 35 Ohio App.3d 35, 37, 518 N.E.2d 1226; see also Aber v. Zurz, 175 Ohio App.3d 385, 2008 Ohio 778, P10, 887 N.E.2d 381, quoting Lykins v. Fun Spot Trampolines, 172 Ohio App.3d 226, 2007 Ohio 1800, P34, 874 N.E.2d 811.
The Supreme Court of Ohio further described the underlying rationale in Thompson v. McNeill (1990), 53 Ohio St.3d 102, 559 N.E.2d 705:
“Acts that would give rise to tort liability for negligence on a city street or in a backyard are not negligent in the context of a game where such an act is foreseeable and within the rules. For instance, a golfer who hits practice balls in his backyard and inadvertently hits a neighbor who is gardening or mowing the lawn next door must be held to a different standard than a golfer whose drive hits another golfer on a golf course. A principal difference is the golfer’s duty to the one he hit. The neighbor, unlike the other golfer or spectator on the course, has not agreed to participate or watch and cannot be expected to foresee or accept the attendant risk of injury. Conversely, the spectator or participant must accept from a participant conduct associated with that sport. Thus a player who injures another player in the course of a sporting event by conduct that is a foreseeable, customary part of the sport cannot be held liable for negligence because no duty is owed to protect the victim from that conduct. Were we to find such a duty between co-participants in a sport, we might well stifle the rewards of athletic competition.
Id. at 104.
“As a result, primary assumption of the risk negates a negligence claim because no duty is owed to protect against the inherent risks of the recreational activity. Gentry at 144, citing Prosser & Keeton, The Law of Torts (5th ed.1984) 496, Section 68; see also Santho at P35; Gallagher at 433.”
As for the implied assumption of the risk defense, the court wrote that to prevail, “a defendant must demonstrate that the injured participant, in fact, ‘consented to or acquiesced in an appreciated or known risk.’ Gentry at 144.”
The plaintiff argued that the application of the implied version was controlling, since “primary assumption of the risk cannot relieve a university of liability based upon the conduct of one of its coaches in a cheerleading practice.” The court disagreed, finding that the plaintiff “failed to cite any controlling case law supporting her position.”
The appeals concurred with the trial court that “injuries related to falls are an inherent risk of cheerleading. “Regarding the inherent risks of cheerleading, one court has recognized:
“Not so very long ago, a row of docile cheerleaders would say, ‘rah, rah, rah, sis-boom-bah’ – maybe a leg would kick up into the air, perhaps a jump under the cheerleader’s own power. This would take the cheerleader a foot or so off the ground. That, however, was yesterday. Today, even appellant recognizes ‘the acrobatic gymnastic nature of modern cheerleading.’ It is not unusual for modern cheerleaders to perform gymnastic stunts which may catapult a cheerleader many feet into the air. What goes up, must come down. This includes cheerleaders. Whenever gravity is at play with the human body, the risk of injury is inherent. Aaris v. Las Virgenes Unified School Dist., (Cal.App.2d Dist. 1998), 64 Cal.App.4th 1112, 1115, 75 Cal. Rptr. 2d 801.”
The appeals court went on to state: “We find that appellant was participating in the recreational activity of cheerleading when she was injured as a result of an inherent risk that was incapable of being completely eliminated Further, because the trial court found that [the coach] did not act recklessly or intentionally in causing appellant’s injury, we find that the trial court did not err by finding that primary assumption of the risk barred appellant’s negligence and loss of consortium claims against KSU.”
Angela D. Crace et al. v. Kent State University; Ct. App. Ohio, 10th App. Dist., Franklin Co.; No. 08AP-1080, 2009 Ohio 6898; 2009 Ohio App. LEXIS 5785; 12/29/09
