Athlete’s Negligence Claim Against Coach Falls Because Injury Was Unforeseen

Sep 1, 2006

A California appeals court has affirmed a grant of summary judgment to a football coach in a case where a player sued the coach for negligence after he suffered a debilitating head injury in a football game.
Critical to the court’s finding was that the player exhibited no outward signs of a head injury and did not inform the coach of his head injury prior to being reinserted into the game. Thus, both the trial and appellate court concluded that the plaintiff was subject to the assumption of risk doctrine.
The incident leading to the litigation occurred on September 19, 2003. Participating in a varsity football game for Reseda High School, Nicholas Zemke sustained a dislocated finger that caused him to leave the game. The coaches became aware of Zemke’s specific injury and he was treated on the sidelines. In fact, the court noted that Zemke informed the doctor on the sidelines that there were no other problems. “Zemke did not demonstrate or complain of any symptoms … that would indicate that he had suffered a head injury,” wrote the court.
Thus, the plaintiff returned to the game. Soon thereafter, he collapsed on the field during a time-out, having suffered a right subdural hematoma.
Zemke sued his coaches and the Los Angeles Unified School District (LAUSD), alleging negligence. After the trial court granted the defendants’ summary judgment motion, the plaintiff appealed.
The plaintiff claimed, on appeal, that “he suffered a head injury in the incident in which he sustained the dislocated finger, and that the defendants negligently failed to inquire further into his condition at that time.” The plaintiff’s expert opined that Zemke’s brain injury “was caused primarily by second impact syndrome/malignant brain edema, and that second impact syndrome would not have occurred had Zemke not been permitted to return to the field after his first head injury during the football game.”
In its analysis, the appeals court noted that the assumption of risk doctrine precludes liability for injuries arising from those risks deemed inherent in a sport.
One of the cases honed in on was Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1005-1006 (Kahn), where a coach “challenged” a diver to take an unnecessary risk, “a claim significantly different than that made by Zemke here.”
“(T)he question of whether a coach has a duty to restrict participation of an injured player to avoid aggravating an injury primarily concerns the foreseeability of further injury. (Wattenbarger v. Cincinnati Reds, Inc. (1994) 28 Cal.App.4th 746, 755 (Wattenbarger).) While foreseeability is usually a question of fact, it may be decided as a question of law when the facts are undisputed and ‘there is no room for a reasonable difference of opinion.’ (Silva v. Union Pacific Railroad Co. (2000) 85 Cal.App.4th 1024, 1029.) Here, the facts are undisputed (although their relevance is not), and none of these facts could possibly have made Zemke’s second injury foreseeable to the coaching staff.
“ … Without evidence that Zemke reported his first head injury to anyone on the medical or coaching staff, the coaches were not on notice of Zemke suffering anything beyond a dislocated finger that was easily treated on the sidelines.”
The court added that the instant case “is not at all like Wattenbarger v. Cincinnati Reds, Inc. (1994) 28 Cal.App.4th 746, 755, on which Zemke relies. In Wattenbarger, the plaintiff was in the midst of a pitching tryout for a professional baseball team when he heard his arm “pop” but felt no immediate pain. (Id. at p. 750.) The plaintiff stepped off the pitching mound, reported the injury to team personnel, and received no response. (Ibid.) He returned to the pitching mound and threw one additional pitch, causing pain and injury to his pitching arm. (Ibid.) The Court of Appeal held that the doctrine of primary assumption of the [*11] risk was not applicable and that the team ‘owed a duty of care to protect participants from aggravating injuries during the tryout. This would include preexisting injuries known to defendants as well as those occurring during the tryout.’ (Id. at p. 756.)
Wattenbarger’s statement to the team official placed the team on notice that he had injured his arm such that further arm injury from continued pitching was foreseeable. In contrast, Zemke’s report of a finger injury-which was treated on the sidelines, and the physician cleared Zemke to return to the game-and even his statement that he was not yet ready to reenter the game did not place the coaches on notice that he might have suffered a head injury. Zemke, unlike Wattenbarger, reported no injury to the coaches or medical staff that would have alerted them that treatment or intervention might be necessary beyond attention to his injured finger.
Nicholas Zemke, a Minor, etc. v. Alonso Arreola et al.; Ct. App. Calif., 2d App. Dist., Div. 7; B182891; 2006 Cal. App. Unpub. LEXIS 4999; June 12, 2006
Attorneys of Record: (for Plaintiff and Appellant) Zukor and Nelson, Abram Charles Zukor, Marilyn H. Nelson and James L. Keane. (for Defendants and Respondents) Ivie, McNeill & Wyatt, W. Keith Wyatt and Joung H. Yim.


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