Appeals Court Sides with School District after Cheerleader Sues over Concussion
A California state appeals court affirmed a lower court’s ruling, dismissing the claim of a cheerleader, who suffered a concussion and then sued the school district for negligence. The doctrine of assumption of risk figured prominently in the decision.
Plaintiff Rachel Baggay started cheering in the eighth grade. That summer, prior to her ninth grade year, she decided that she wanted to try out for the cheerleading team at Linfield Christian School. The court noted that Baggay participated in a camp in the summer of 2010, during which they practiced stunts and were allegedly warned of the dangers of stunts.
After school started, the cheerleading team practiced Monday through Thursday for about two and a half hours a day. Baggay was in the advanced stunting group, which was more experienced than the other groups. The team practiced stunts from mid-September 2010 to October 20, 2010- the day that Baggay sustained injuries while positioned as a base. The flyer came down too far to the right and fell on Baggay. Her elbow hit Baggay between the eyes, causing a concussion.
Baggay filed a complaint against Linfield that included a first cause of action for negligence entitled “Negligence/Recklessness,” a second cause of action for promissory fraud (entitled “False Promise”), and a third cause of action for negligent misrepresentation.
Linfield countered with a motion for summary judgment or, in the alternative, summary adjudication, on the grounds that primary assumption of the risk barred Baggay’s recovery for injuries that she received during her voluntary participation in cheerleading, and that she could not establish essential elements of her causes of action for false promise and negligent misrepresentation.
The trial court granted Linfield’s motion, agreeing with the defendant that “the primary assumption of the risk doctrine bars Baggay’s claim.”
The plaintiff appealed.
Addressing the primary assumption of risk argument first, the appeals court noted that “California’s assumption of risk doctrine has taken two quite different forms. Primary assumption of risk is a complete bar to recovery. It applies when, as a matter of law, the defendant owes no duty to guard against a particular risk of harm. Secondary assumption of risk applies when the defendant does owe a duty, but the plaintiff has knowingly encountered a risk of injury caused by the defendant’s breach. Liability in such cases is adjudicated under the rules of comparative negligence.” (Gregory v. Cott (2014) 59 Cal.4th 996, 1001, 176 Cal. Rptr. 3d 1, 331 P.3d 179.)
It further cited the California Supreme Court, which “concluded that, in recognition of the circumstance that some risk of injury is inherent in most sports, and in order to avoid the detriment to a sport that would arise from discouraging participants from vigorously engaging in the activity, it is appropriate to hold that a participant breaches a duty of care to a co-participant only if he or she ‘intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.’” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 995-996, 4 Cal. Rptr. 3d 103, 75 P.3d 30 (Kahn), quoting Knight v. Jewett (1992) 3 Cal.4th 296, 320, 11 Cal. Rptr. 2d 2, 834 P.2d 696 (Knight).)
In Kahn, the Supreme Court held that “the same general standard should apply in cases in which an instructor’s alleged liability rests primarily on a claim that he or she challenged the player to perform beyond his or her capacity or failed to provide adequate instruction or supervision before directing or permitting a student to perform a particular maneuver that has resulted in injury to the student. A sports instructor may be found to have breached a duty of care to a student or athlete only if the instructor intentionally injures the student or engages in conduct that is reckless in the sense that it is ‘totally outside the range of the ordinary activity’ involved in teaching or coaching the sport. (Kahn, supra, at p. 996.)
“Applying this standard in the present case, we conclude that the doctrine of primary assumption of the risk bars Baggay’s negligence claim. In Aaris v. Las Virgenes Unified School Dist. (1998) 64 Cal.App.4th 1112, 75 Cal. Rptr. 2d 801 (Aaris), the Court of Appeal applied the doctrine of primary assumption of the risk to modern high school cheerleading, which the Aaris court noted has become a sporting activity that includes acrobatics and gymnastics and, consequently, involves a much greater risk of injury than it did in the past.”
Applying the case history to the instant case, the appeals court wrote that “Baggay does not claim that her coaches acted with the intent to cause her injury, and there is no evidence in the record from which a trier of fact could reasonably find that her coaches acted recklessly in the sense of engaging in conduct that is totally outside the range of the ordinary activity involved in coaching modern cheerleading. The risk of harm to Baggay and the other members of her stunt group in attempting to execute an extension lib full down is inherent in the stunt itself; there is no evidence that Baggay’s coaches, in the words of the Aaris court, ‘increased the risk of harm beyond that which was inherent in the gymnastic activity.’ (Aaris, supra, 64 Cal.App.4th at p. 1119.)”
Of note, Baggay also argued that her claims “are not barred by primary assumption of the risk because a concussion is not an inherent risk of cheerleading.”
The appeals court disagreed. “In the context of assumption of the risk,” it wrote. “Inherent risk does not refer to the type of injury that the plaintiff sustains or the manner in which the injury occurred, but rather the reason for the injury.” (Stapper v. GMI Holdings, Inc. (1999) 73 Cal.App.4th 787, 794, 86 Cal. Rptr. 2d 688.) “An inherent risk is one that, if eliminated, would fundamentally alter the nature of the sport or deter vigorous participation. (Ford v. Polaris Industries, Inc. (2006) 139 Cal.App.4th 755, 772, 43 Cal. Rptr. 3d 215.)
“The reason for Baggay’s injury was that the flyer in her stunt group fell because the group failed to properly execute a cheerleading stunt that they had previously practiced and successfully executed multiple times. It is part of the fundamental nature of modern cheerleading that stunt groups will practice and perform acrobatic stunts that involve an obvious risk of injury to the flyer and to other group members if something goes wrong during a stunt. To eliminate the risk that a flyer might fall while practicing a stunt would fundamentally alter the nature of cheerleading and deter vigorous participation in the sport. Thus, any type of injury that reasonably could be expected to result from such a fall is an inherent risk of modern cheerleading. The concussion that Baggay suffered was no less a foreseeable cheerleading injury than the knee injury that the plaintiff in Aaris suffered.
“Baggay contends that Linfield increased the inherent risks of cheerleading by failing to provide adequate instruction in technique and safety, directing the group to practice a stunt that was beyond their level of experience and capability, failing to provide adequate spotting for the stunt, and allowing her group to attempt an advanced stunt that they lacked the necessary strength and conditioning to perform. Even if these alleged acts and omissions by the coaches did occur and increased the risk of injury, they would not defeat the defense of primary assumption of the risk because, at most, they constitute ordinary negligence rather than reckless conduct that is totally outside the range of the ordinary activity involved in coaching cheerleading. (Kahn, supra, 31 Cal.4th at p. 996.) As noted, to support a cause of action based on allegations that a sports instructor failed to provide adequate instruction or required a student plaintiff to perform beyond his or her capacity, it is insufficient to show that the instructor was negligent; the plaintiff must prove that the instructor intended to cause the plaintiff’s injury or acted recklessly. (Id. at pp. 996, 1011.)”
Rachel Baggay, a Minor, etc. v. Linfield Christian School; Ct. App. Calif., 4th App. Dist., Div. 1; D066859, 2015 Cal. App. Unpub. LEXIS 2032; 3/23/15
Attorneys of Record: (for plaintiff and appellant) Alderlaw, P.C. and Jennifer P. Burkes. (for Defendant and Respondent) Daley & Heft and Lee H. Roistacher
