A California state appeals court has affirmed a lower court’s ruling that a cheerleader assumed the risk of injury when, after suffering a pair of head injuries, she returned to practice and suffered a concussion, leaving her with “continuing neurological consequences.”
Central to the ruling was the appeals court’s finding that cheer is inherently dangerous and that the defendants did not escalate the risk.
Plaintiff Shelbie Stevens was a student at Azusa Pacific University (APU) when she decided to join the APU cheerleading team. She quickly suffered two head injuries during practices, which led her to consult with two physicians, including a doctor at the APU student health center. Both doctors diagnosed the second head injury as a concussion. The doctor at the student health center allegedly advised “it would be safe for Stevens to return to physical activity” after she “was symptom free for a number of days.”
After sitting out a month, Stevens returned, and practiced for two additional months without incident. She then suffered another concussion.
Stevens filed suit against APU and its cheerleading coach, Rosie Francis, asserting claims for negligence. The trial court granted summary judgment in favor of defendants, finding the claims barred by the doctrine of primary assumption of the risk. Stevens appealed.
By way of background, the court noted that Coach Francis had been a collegiate cheerleader, but had no prior coaching experience and was not yet certified by the American Association of Cheerleading Coaches and Administrators (AACCA) when practices began in August 2012. Coach Francis did, however, receive her AACCA certification in November 2012, before the final concussion. The online training for her AACCA certification included guidelines related to concussions.
Stevens participated in the APU cheer team as a baser, a cheerleader that forms the foundation of various formations and stunts.
The first head injury occurred while the plaintiff was participating in a stunt. A flyer, the cheerleader that typically is at the top of the stunt, fell. During the fall her foot struck Stevens’ head. Following the impact, Stevens felt confused, nauseous, dizzy, and exhausted. But the coach did not see the incident. Stevens returned to practice.
During a Sept. 7, 2012 practice, Stevens was participating in a “basket toss,” in which basers hold onto one another’s arms to launch and then catch a flyer. During the stunt, Stevens made head-to-head contact with another baser as they leaned in toward each other.
“Coach Francis observed the contact, and directed Stevens to sit out for the remainder of the practice, which Stevens did,” wrote the court. “The parties dispute whether Coach Francis asked concussion protocol questions about Stevens’s symptoms and told Stevens to see a doctor—Francis says she did both, while Stevens says Francis did neither. Stevens did go to the hospital after practice, but left without being seen because the wait time was too long.
“Two days later, Stevens went to a different hospital and was diagnosed with a concussion. Stevens was given a note indicating she should not return to school for a few days, and was told she should not participate in any cheerleading or other activity with a risk of repeat injury for the next nine days.
“… Following an examination on September 24, 2012, the doctor advised Stevens she could gradually begin resuming normal activities over the next three days, and could thereafter engage in full activity provided she remained asymptomatic over those three days of gradually increasing activity.”
The third head injury, and final concussion, occurred on Nov. 28, 2012. Coach Francis asked Stevens to attempt a stunt with two other individuals taller and heavier than her. Stevens allegedly told Coach Francis she was not 100 percent comfortable doing the stunt with these other individuals, but Francis and the team members allegedly pushed Stevens to participate. Stevens was unable to sustain her base position, the formation they were practicing collapsed, and a flyer fell on Stevens’ head. Subsequent medical examination indicated this impact concussed Stevens, and that she had suffered associated brain damage.
Stevens did not practice thereafter, and resigned from the cheer team in early January 2013. She said she continues to suffer from visual disturbances, light and noise sensitivity, dizziness, fatigue, and neck and back pain.
Approximately a year and half after she resigned from the cheer team, Stevens sued APU and Coach Francis for negligence and APU again for negligent hiring, training, and supervision of Coach Francis. The defendants moved for summary judgment, a motion the trial court granted, leading to an appeal.
In its review, the appeals court reviewed case law around the primary assumption of risk doctrine. It quickly focused on the “fundamental nature of the sport and the defendant’s role in or relationship to that sport in order to determine whether the defendant owes a duty to protect a plaintiff from the particular risk of harm.” Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161, 41 Cal. Rptr. 3d 299, 131 P.3d 383. On this point, it noted that at least one court has found that “cheerleading is an inherently dangerous athletic activity.” Aaris v. Las Virgenes Unified School Dist. (1998) 64 Cal.App.4th 1112, 1115, 75 Cal. Rptr. 2d 801.
“With regard to the defendants’ role in or relationship to the sport, sponsoring organizations and instructors/coaches are not insurers of student safety,” wrote the court citing Balthazor v. Little League Baseball, Inc. (1998) 62 Cal.App.4th 47, 50, 72 Cal. Rptr. 2d 337. To do so might encourage a “chilling” effect on the sport.
The above conclusion drove the next argument, which is whether or not the defendants increased the inherent risks of cheerleading.
“Stevens first argues that defendants unreasonably increased the inherent risk of injury by: (1) failing to do baseline mental and physical testing of team members prior to any participation, (2) failing to have a person present during practice with specific training on concussion recognition, (3) failing to perform medical evaluations of Stevens after she suffered a head injury, (4) failing to ensure injured team members like Stevens receive medical treatment after injury, (5) failing to implement a ‘return to play’ protocol involving professionally supervised and graduated mental and physical testing after injury (including comparisons to pre-participation baseline testing) before a player is cleared to return to practice, and (6) failing to inform Stevens of second impact syndrome (that is, the danger of suffering a second impact while a previous concussion has not yet healed),” wrote the court.
“While warning participants of certain risks, providing a pre-participation mental and physical measurement baseline in the event of injury, ensuring prompt medical attention for any injury and having a professionally supervised protocol with graduated mental and physical testing to clear a player before she returns to action would all likely decrease the inherent risks of cheerleading, the failure to do these things does not increase the inherent risks of the sport.
“Instead, the purpose of each action urged by plaintiff is to decrease the potential severity of an injury by ensuring it is promptly addressed and remediated. Numerous cases have rejected the argument that athletic sponsors and instructors owe these types of duties to decrease risk, and we find no reason here to deviate from their reasoning. (E.g., Nalwa, supra, 55 Cal.4th at pp. 1163-1164 [no duty to prevent injuries from bumper car ride]; American Golf Corp. v. Superior Court (2000) 79 Cal.App.4th 30, 39, 93 Cal. Rptr. 2d 683 [no duty to mitigate the inherent risk of being hit by an errant golf shot] (American Golf); Balthazor, supra, 62 Cal.App.4th at p. 52 [no duty to provide faceguard on little league batting helmet]; Fortier v. Los Rios Community College Dist. (1996) 45 Cal.App.4th 430, 439-440, 52 Cal. Rptr. 2d 812 [no duty on touch football sponsor to provide protective headwear]; Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8, 12, 45 Cal. Rptr. 2d 855 [ski resort not obligated to pad ski lift towers].)
“We are also cognizant of the potential cost the duties urged by plaintiff would impose,” wrote the court. “Plaintiff claims there would be no meaningful financial imposition here because APU already has athletic trainers and other personnel on campus who could discharge the duties plaintiff urges us to impose. As the trial court noted, Stevens’ argument is essentially that APU should have classified cheer as an athletic team rather than a club, so the cheer team would have access to all athletic resources. Requiring such access would chill a school from creating clubs when it lacks the resources to create official teams, resulting not in more teams but fewer clubs.
“Furthermore, a rule imposing the types of duties alleged by plaintiff here on any sporting activity with a concussion risk would encompass not only schools like APU, but also other organizations without extensive budgets or paid staff like adult recreational clubs and leagues, and youth sports organizations. California has established concussion protocols for youth sports organizations (E.g., Health & Saf. Code, § 124235). The duties urged by plaintiff here go beyond those statutorily mandated—for example, pre-participation baseline medical testing and guaranteed medical care in the event of an injury (which would be necessary to ensure medical evaluation and treatment after an injury, as plaintiff urges). Those duties would impose additional costs either on the organizations or participants in them.”
The court added that while it rejects Stevens’s expansive duty of care arguments, “permitting an injured player to continue participating after an initial injury has been held to increase a sport’s inherent risk. (E.g., Wattenbarger v. Cincinnati Reds, Inc. (1994) 28 Cal. App. 4th 746, 33 Cal. Rptr. 2d 732 (Wattenbarger); Mayall v. USA Water Polo, Inc. (9th Cir. 2018) 909 F.3d 1055 (Mayall).)
“In Wattenbarger, a high school baseball player performed a pitching try out for the Cincinnati Reds baseball organization. After his third pitch, the plaintiff felt his arm “‘pop'” but experienced no particular pain. He informed the Reds’ scouting supervisor and others that his arm popped. Receiving no response, he returned to the mound and threw another pitch which caused bone and tendon damage to his arm. (Wattenbarger, supra, 28 Cal.App.4th at pp. 749-750.) In Mayall, the plaintiff was playing goalie in a water polo tournament. She was hit hard in the face and suffered a concussion. She swam to the side to speak to her coach, who returned her to play despite her being dazed. The plaintiff subsequently took more shots to the head in games later that same day, thereby suffering post-concussion syndrome. (Mayall, supra, 909 F.3d at p. 1058.)
“Both the Wattenbarger and Mayall courts found the defendants in each case had potentially increased the risks inherent in the subject sport by failing to restrict the participation of a player known to be injured. (Wattenbarger, supra, 28 Cal.App.4th at pp. 753-755; Mayall, supra, 909 F.3d at pp. 1063-1064.) Stevens relies on both cases to argue that defendants here impermissibly increased the risks of injury by allowing her to participate after her initial injury in training camp.”
The court found the facts in the instant case “distinguishable from Wattenbarger and Mayall.
“It is undisputed that Coach Francis did not see, and was not made aware, of the August 2012 injury at the time it occurred. Coach Francis witnessed the September 7, 2012 injury. It is undisputed Francis directed Stevens to sit out the remainder of the practice, and that Stevens did not practice further that day following the injury. While Stevens asserts defendants did not ensure she received medical evaluation (a claim defendants dispute), it is undisputed she saw two doctors (including one at APU) who diagnosed a concussion and told her to refrain from activity. It is also undisputed Stevens informed Coach Francis that she had suffered a concussion, could not continue practicing, and in fact did not practice for at least a month following the September 7, 2012 injury.
“While the parties contest whether Coach Francis encouraged activity in violation of the doctor’s orders, this disagreement is immaterial because it is undisputed plaintiff did not begin participating in cheer again until she understood she was cleared by a doctor to do so. When Stevens resumed practice, she indicated she was still not 100 percent and accordingly did not stunt for a period of time. Plaintiff thereafter participated in cheer for approximately two more months before she suffered a third injury. Stevens points to no evidence that in the two months between her resumed participation and the November 28, 2012 injury, she informed defendants of any continuing symptoms (other than her initial statement she was still not 100 percent, which resulted in her practice activities being limited and not including any stunts), or that she exhibited any concerning behavior of which Francis was or should have been aware.
“… In light of these differences from Wattenbarger and Mayall, defendants did not increase the risk of injury inherent in cheerleading by failing to stop or restrict plaintiff’s participation beyond the ways in which it was indisputably already halted and limited.
“Finally, Stevens claims the risk of injury was unreasonably increased by Coach Francis’s lack of qualifications, and the coach’s encouragement to practice a stunt on November 28, 2012 after Stevens indicated she was not 100 percent comfortable doing it. While Stevens makes generalized allegations that Coach Francis was not sufficiently qualified or supervised, Stevens does not cite to any evidence (such as a declaration from a cheer expert) in support of this claim. Defendants submitted a declaration from an experienced AACCA certified cheer coach (Jennifer Long) opining that Francis was qualified, and followed proper instructional technique. To the extent plaintiff submitted any contrary evidence, it was from a soccer coach and a medical doctor—neither of whom was competent to testify about Francis’s qualifications as a cheer instructor or the instructional methods she employed. (Evid. Code, § 803; Williams v. Volkswagenwerk Aktiengesellschaft (1986) 180 Cal.App.3d 1244, 1262, 226 Cal. Rptr. 306 [expert may not testify on area outside their expertise].) Accordingly, Stevens did not demonstrate a triable issue of fact regarding Coach Francis’s qualifications or instructional technique.”
Shelbie Stevens v. Azusa Pacific University et al.; Ct. App. Calif., 2nd App. Dist., Div. One; 2019 Cal. App. Unpub. LEXIS 3653 *, 2019 WL 2281585; 5/29/19
Attorneys of Record: (for Plaintiff and Appellant) Kirbys Law, James W. Kirby and Steven C. Kirby. (for Defendants and Respondents) Kjar, McKenna & Stockalper, Patrick E. Stockalper and Melissa M. Wetkowski.