By Grace Wagner & Elizabeth Catalano, of Montgomery McCracken
(Editor’s Note: The following appeared in Sports Medicine and the Law, a periodical of Hackney Publications. Subscriptions are complimentary and can be obtained here.)
The Court of Appeals of Indiana recently held that a high school could not be liable for negligence for an incident that left a student-cheerleader with a broken jaw and shattered teeth.
After William Henry Harrison High School (“Harrison High School”) sophomore Isabella Reynolds suffered extensive facial injuries during a cheerleading routine gone wrong, her parents sued Harrison High School, its varsity cheerleading coach Roberta Patton, and the Tippecanoe School Corporation (“TSC”), alleging four negligence claims primarily based on Coach Patton’s direction and supervision of the cheerleading stunt.[1] The trial court granted TSC’s summary judgment motion on all claims except Reynolds’ claim based on failure to provide proper supervision. The case eventually reached the Court of Appeals of Indiana, where the court determined that the accident occurred during the course of “ordinary cheerleading activities,” thus barring Reynolds’ claim since she had assumed the risk of her injuries. In Indiana, like many other states, injured athletes like Reynolds are often unable to prevail on negligence claims where their injuries occurred while voluntarily participating in sports with inherent risks.
Reynolds’ Stunt Gone Wrong
On January 23, 2019, Reynolds, then a junior varsity cheerleader, received a text from Coach Patton asking her to join the varsity team as a substitute for the next day’s game. Delighted, Reynolds attended a portion of the varsity practice that night to run through the routine and game plan.
The varsity routine required that Reynolds be hoisted into the air and lowered back down to the ground, so the team practiced with protective mats covering the floor. Although she was not a member of the varsity squad, Reynolds was an experienced cheerleader and had already performed this stunt several times before joining the varsity practice. She was confident and ready to perform at the game after executing the routine with her stunt group two or three times. Coach Patton noted that Reynolds had run through the stunt “flawlessly” and “perfectly” and determined that she was “game ready.”
The next day at the pre-game warmup, the group practiced the stunt as they had the night before, but without any protective mats covering the gym floor. Coach Patton stood nearby and supervised the various stunt groups. During a run through of the stunt, Reynolds was hoisted into the air, but her teammates failed to catch her and dropped her onto the gymnasium floor, breaking her jaw and most of her teeth.
Immediately after the fall, Coach Patton and the other cheerleaders scrambled to pick up Reynolds’s broken teeth. Instead of immobilizing Reynolds to prevent further injury, Coach Patton instructed her to stand up and walked her to the nearest trashcan because she was bleeding onto the gym floor. Once Reynolds’ father arrived at the school, he transported her to the emergency room. The botched stunt required Reynolds to undergo emergency surgery, continued medical treatments, and rehabilitation.
Reynolds’ Lawsuit
In September 2019, Reynolds’ parents brought an action on behalf of their daughter in the Tippecanoe County Circuit Court alleging that Harrison High School, TSC, Coach Patton, and Harrison High School Athletic Director Jerry Galema carelessly and negligently:
- failed to inspect and discover the dangerous conditions existing at the practice;
- failed to warn Reynolds of the dangerous conditions existing at the practice when the defendants knew or should have known about them;
- failed to provide proper supervision to keep Reynolds reasonably safe under the existing conditions; and
- failed to correct the dangerous stunt at the gym when the defendants knew or should have known of the existence of the danger.
The parties agreed to dismiss Patton, Galema, and Harrison High School as defendants, leaving TSC as the sole defendant. TSC moved for summary judgment on of Reynolds’ claims. In March 2021, the trial court granted TSC’s motion as to all claims except failure to provide proper supervision. TSC moved for the court to reconsider, arguing that TSC was entitled to judgment as a matter of law under Indiana law. After another denial, TSC appealed to Court of Appeals of Indiana.
Assuming the Risk on Appeal – The Pfenning Rule
The Indiana appellate court answered two questions on appeal: (1) whether Coach Patton had breached the duty of care owed to Reynolds, and (2) whether negligent supervision could be a separate cause of action under state law.
To prevail on her claims of negligence, Reynolds’ needed to show that the defendants owed her a duty of care, that the defendants breached that duty, and that the breach proximately caused her injury.[2] While breach is typically a fact question for juries to answer, Indiana has a limited rule for negligence claims arising from ordinary sports activities. Under the Pfenning Rule, “when a sports participant injures someone while engaging in conduct ordinary in the sport—and without intent or recklessness— that participant does not breach a duty.”[3] Thus, if a defendant is not found to have breached a duty under Pfenning, the plaintiff’s negligence claim fails.
Ordinary Sport Activities
Under Pfenning, “ordinary conduct” in a sport depends on an analysis of the sport generally, not an analysis of the specific activity. Ordinary conduct is defined in a broad way because judges are more likely to have general knowledge of a sport and to prevent judges from becoming “armchair quarterbacks.”[4]
TSC argued that the routine performed by the stunt group was ordinary within cheerleading and that warming up without protective mats was standard practice. TSC also cited both Reynolds and Coach Patton’s testimony that cheerleaders are regularly tossed into the air and caught by their teammates.
Reynolds countered that the circumstances surrounding her accident were anything but ordinary, specifically that “call[ing] up” a junior varsity player the day before a game, having her practice a drill only two to three times, and conducting warmups without mats or supervision was not typical cheerleading coach behavior. Reynolds relied on testimony from two cheerleading coaches who stated that they would have conducted the warmups differently and that Coach Patton made errors in her coaching technique.
Although Reynolds provided evidence that Coach Patton’s individual actions and level of supervision were inappropriate in that instance, the appeals court held that it did not suggest that the routine was unordinary in the sport of cheerleading generally. A general analysis of cheerleading showed that both the routine and the circumstances under which it was performed were completely ordinary and that TSC had satisfied the “ordinary behavior” element of the Pfenning analysis such that Reynolds could not establish a breach of duty.
The court further held that the Pfenning rule effectively barred Reynolds’ negligent supervision claim, because once an act is deemed ordinary behavior in the sport in general, the court would not separate out actions by one participant unless they are intentional or reckless. The parties agreed that Coach Patton was neither reckless nor intentional in her coaching decisions, and therefore her actions could not be evaluated under a separate claim of negligent supervision.
Because the Pfenning rule barred Reynolds’ claims, the court did not need to consider whether the doctrine of incurred risk, or assumption of the risk, further barred her claims. Reynolds knew that she could be dropped or suffer a head injury while cheerleading, she voluntarily agreed to participate in the warmup routine when asked, and she participated despite knowing that she would be performing on a bare gym floor without any additional safety measures. Considering this, it is unlikely that Reynolds’ claims would survive an assumption of the risk defense even without Indiana’s sport-specific doctrine.[5]
The Takeaways
Indiana is not the only state with a Pfenning rule equivalent. Many states’ courts apply a similar assumed-risk presumption or “rule” in the sports context, and especially in the contact sports context, including New Jersey, Arizona, California, Massachusetts, Michigan, Hawaii, Ohio, New York, Illinois, Maryland, and Connecticut.[6] It’s important to know whether your state has such a rule, or otherwise how assumption of the risk is interpreted and applied by courts in your state. Even in states without sports-specific rules, assumption of the risk can still be a successful defense. Generally, “a voluntary participant in any lawful game, sport, or contest, in legal contemplation by the fact of his or her participation, assumes all risks incidental to the particular game, sport, or contest which are obvious and foreseeable.”[7]
While these rules may vary to a degree, generally, if a sports activity leading to injury is considered ordinary in the sport generally, and there is no intentional or reckless conduct otherwise, this doctrine blocks what may otherwise be a successful negligence claim. Performing a stunt on a gym floor and risking a fall may be ordinary in cheerleading, but other sports activities may not be so ordinary or defensible, such as punitive exercise or drills that can lead to catastrophic injury or death.
Some plaintiffs, like Reynolds, will try to argue “failure to warn” to get around an assumption of risk defense. So how could a player assume a risk about which they were not warned? Reynolds’ failure to warn claims failed in her case, but it is important to note that there are possibly some risks in certain sports that may not be assumed. This is seen in many of the brain-injury-from-contact-sport cases (e.g., football, hockey, rugby, etc.). Plaintiffs argue that while the risk of sustaining a concussion from participating in the sport may be inherent and foreseeable, the long-term risks associated with repetitive concussive and subconcussive blows (i.e., degenerative brain diseases) are not foreseeable and they were never warned about those risks. Thus, the players could not assume these types of risks. Like in Reynolds’ case, testimony from coaches and athletes can establish whether or not a risk is ordinary and foreseeable. Specifically with concussion and degenerative brain diseases, as society’s knowledgebase as a whole progresses, it will be interesting to see how athletes can argue assumption of the risk in regard to CTE, dementia, and other long term diseases as conversation surrounding those risks evolves and the risks themselves become more apparent.
[1] Tippecanoe Sch. Corp. v. Reynolds, 187 N.E.3d 213 (Ind. Ct. App. 2022).
[2] Matter of C.G., 157 N.E.3d 543, 546 (Ind. Ct. App. 2020).
[3] Megenity v. Dunn, 68 N.E.3d 1080, 1082 (Ind. 2017).
[4] Tippecanoe Sch. Corp. v. Reynolds, 187 N.E.3d 213, 218 (Ind. Ct. App. 2022)
[5] Id. at 220.
[6] See, e.g.:
Indiana: Pfenning v. Lineman, 947 N.E.2d 392, 403–04 (Ind. 2011)(addressing claims against a participant of a sport by examining the breach of duty—the existence of which includes asking whether harm is reasonably foreseeable—and holding that “if the conduct of [the] participant is within the range of ordinary behavior of participants in the sport, the conduct is reasonable as a matter of law and does not constitute a breach of duty”).
Arizona: Estes v. Tripson, 188 Ariz. 93, 95–96, 932 P.2d 1364, 1366–67 (Ariz. Ct. App. 1997).
New Jersey: Crawn v. Campo, 136 N.J. 494, 643 A.2d 600, 605 (1994); Egerter v. Amato, Docket No. HNT–L–108–04, 2006 WL 551571, *3 (N.J. Super.Law Div. 2006) (holding “[s]imple negligence does not justify judicial intervention by a coach against his charges”), aff’d, Docket No. A–4005–05T1, 2007 WL 1484541 (N.J. Super.App.Div. 2007), cert. denied, 192 N.J. 478 (2007).
Illinois: Karas v. Strevell, 227 Ill.2d 440, 453, 884 N.E.2d 122, 131 (2008) (“[T]he contact sports exception is an objective doctrine that defines the scope of the defendant’s duty.”).
California: Knight v. Jewett, 3 Cal.4th 296, 319, 834 P.2d 696, 711 (1992) (collecting cases where sports participants assumed the risk).
Colorado: Wells v. Colorado College, 478 F.2d 158 (10th Cir.1973); Laughman v. Girtakovskis, 2015 COA 143, ¶¶ 13-14, 374 P.3d 504, 507–08.
Massachusetts: Brandt v. Davis, 98 Mass.App.Ct. 734, 159 N.E.3d 191 (2020), review denied, 486 Mass. 1111, 163 N.E.3d 384 (2021) (affirming summary judgment against university softball player who was hit in the head by teammates bat after teammate hit a softball off a tee at practice brought personal injury action against teammate alleging negligence, gross negligence, and recklessness and against head coach and university alleging gross negligence and recklessness).
Michigan
Bertin v. Mann, 502 Mich. 603, 615, 918 N.W.2d 707, 713 (2018).
Hawaii: Yoneda v. Tom, 110 Hawaii 367, 373, 133 P.3d 796 (2006) (“ ‘[T]he defense [of assumption of risk] applies to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation[,] except for acts which are reckless or intentional.’ ”).
Ohio: Thompson v. McNeill, 53 Ohio St. 3d 102, 104, 559 N.E.2d 705 (1990) (“Thus a player who injures another in the course of a sporting event by conduct that is a foreseeable, customary part of the sport cannot be held liable for negligence….”), abrogated on other grounds by Anderson v. City of Massillon, 134 Ohio St. 3d 380, 983 N.E.2d 266 (2012); Simmons v. Quarry Golf Club, LLC, 2016-Ohio-525, ¶ 20, 60 N.E.3d 454 (Ohio App. 2016) (“ ‘The types of risks associated with [an] activity [for purposes of assumption of risk] are those that are foreseeable and customary risks of the … recreational activity.’ ”).
New York: Maddox v. City of New York, 66 N.Y.2d 270, 278, 487 N.E.2d 553, 496 N.Y.S.2d 726 (1985) (“There is no question that the doctrine [of assumption of risk] requires not only knowledge of the injury-causing defect but also appreciation of the resultant risk…. It is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results.”); McGee v. Board of Education, 16 A.D.2d 99 (New York Appellate Division, First Department, 1962) (“Generally, the participants in an athletic event are held to have assumed the risks of injury normally associated with the sport … Players, coaches, managers, referees and others who, in one way or another, voluntarily participate must accept the risks to which their roles expose them.”), appeal dismissed, 12 N.Y.2d 1100 (1963).
Maryland:
American Powerlifting Ass’n v. Cotillo, 401 Md. 658, 670, 934 A.2d 27 (2007) (“ ‘[V]oluntary participants in sports activities may be held to have consented, by their participation, to those injury-causing events which are known, apparent, or reasonably foreseeable consequences of their participation.’ ”).
Connecticut: Intrieri v. Mileto, 2016 WL 7661348, at *4–5 (Conn. Super. Ct. Nov. 22, 2016).
[7] See 27A Am. Jur. 2d, Entertainment and Sports Law, § 91, p. 491.
