A Missouri appeals court has affirmed the ruling of a trial court that a fitness club that was providing professional wrestling lessons to a plaintiff should not have known that the plaintiff was suffering the lingering effects of a concussion when he resumed his lessons with fatal consequences.
Plaintiff Curtis Parker was 28 years old when he mentioned an interest in professional wrestling to a friend, Cecil Lowe. Lowe, who was already a professional wrestler, suggested to Parker that he train at the South Broadway Athletic Club, which had all the facilities necessary to train a wrestler, including a gym, weights, wrestling ring and sauna. In fact, a number of professional wrestlers already worked out and practiced at the Club. Some of them even provided lessons to would-be professional wresters. One of those wrestlers, Robert Harris, began teaching Parker. Harris became a professional wrestler in 1996 and had a professional wrestler’s license from the State of Missouri.
Parker went to the Club for training several times during the summer of 2002. During the fourth lesson, on July 16, 2002, he informed Harris that “his head was hurting him pretty bad,” and Harris informed him that he should “get out of the ring, sit down.”
Parker’s fifth lesson was on July 22, 2002. When he arrived at the Club, Harris asked him how he was feeling. Parker replied, “Well, it took me forever to get rid of my headache. I took all kinds of Tylenols, Ibuprofens and everything. It finally went away after four or five days.” Harris then asked him how he was feeling in the present moment, to which Parker responded: “I’m feeling great.”
Relying on Parker’s repeated assurances, and noting that he “looked normal and . . . talked normal,” Harrison welcomed him back in the ring. During that lesson, Harris began teaching Parker specific stunts, including the “power bomb” – when a wrestler lifts his opponent to chest or shoulder height and drops him to the mat on his back. Performing the stunt, Harris proceeded cautiously. The last attempt involved a full release, where Parker fell all the way down on his back.
At the end of the stunt, Parker sat up. Harris congratulated him and told Parker that he was ready to advance to moves, according to the court. However, when Parker turned around, “his eyes rolled up in his head,” wrote the court. “He went into a seizure and started ‘shaking ferociously.’ An ambulance transported Parker to St. Louis University Hospital where he died nine days later.
Parker’s parents filed a wrongful death lawsuit in the Circuit Court of the City of St. Louis against the Club and Harris, alleging that the club had failed to exercise reasonable care in not requiring Parker to obtain medical clearance before allowing him to resume his wrestling lessons. The Parkers reached a settlement with Harris before the case was submitted to the jury.
At the instruction conference, “the Parkers’ counsel requested that the case be submitted on comparative fault principles,” wrote the court. “Although the Club raised comparative fault as an affirmative defense in its answer, the jury instructions it submitted omitted comparative fault. The trial court declared that ‘[t]his is not a comparative fault case’ and announced that it would not instruct the jury to apportion fault among the parties.
“The Club tendered an instruction based on its affirmative defense of assumption of the risk. The Parkers’ counsel objected that the instruction failed to identify the risk that had to have been assumed or to require that Parker appreciated that particular risk, and therefore, it gave the jury a roving commission. The trial court overruled the objections and gave the assumption of the risk instruction to the jury.”
The jury returned a verdict in favor of the defendant, spawning the appeal. The plaintiffs argued that the trial court erred in two ways:
• In overruling their objections to Instruction No. 7 and in giving Instruction No. 7 to the jury because that instruction misstated the law of assumption of the risk and provided the jury with a roving commission.
• In refusing to instruct the jury on comparative fault because the Club pled comparative fault as an affirmative defense and there was substantial evidence to support a finding that Parker’s negligence contributed to his injury.
The appeals court found, however, that even though “these jury instructions may be erroneous, we affirm the trial court’s judgment because the Parkers failed to make a submissible case.”
The court elaborated on this finding. “(T)he Parkers’ claim depended on two essential issues. First, the Club knew or should have known that Parker had sustained a concussion on July 16, 2002. Second, the Club had a duty to bar him from returning to wrestling activity absent an examination of his physical condition by a medical doctor. Because we find the Parkers did not satisfy the first essential element of their case, we hold they failed to make a submissible case and the trial court’s judgment in favor of the Club should be affirmed.
“The Parkers submitted their case on a theory that Parker’s death resulted from the second-impact syndrome. However, we do not find substantial evidence in the record to prove that the Club knew or should have known that Parker had sustained a concussion on July 16, 2002.
“Here, Harris was only aware that Parker had a headache of unknown cause and origin that had resolved itself before Parker returned to the Club for additional wrestling training on July 22, 2002. When Parker returned to the Club to resume his wrestling activity on that day, Parker looked and talked normally, and told Harris he was feeling great. Dr. Case opined that Parker sustained a concussion prior to his symptoms on July 22, 2002, and his resulting death. However, substantial evidence was not presented at trial that the Club knew or should have known that Parker had sustained a concussion.
“Dr. Case testified that ‘you don’t have to have a concussion to get a headache.’ She testified that while headaches are a symptom of a concussion, there are many others, including, dizziness, nausea, vomiting, lack of awareness of your surroundings, and being easily fatigued. In this case, other than complaining of a headache, Parker did not have any other concussive symptoms. Dr. Case also testified that a CT scan or an MRI of Parker’s brain would not have revealed that Parker had a concussion. On the other hand, Dr. Case testified that a PET scan would have shown this damage to his brain, but ‘[t]here would be no possibility that [Parker] was going to get a PET scan.’ Dr. Case further testified that a regular physical examination ‘might not pick up signs of a concussion, without trying to elicit certain types of symptoms or signs.’
“Under these circumstances, we find the Parkers failed to prove that the Club knew or should have known that Parker had sustained a concussion on July 16, 2002. If it would have been difficult for a doctor to diagnose an initial concussion without recourse to sophisticated diagnostic tests, the Club certainly could not have known that Parker had sustained a prior, unhealed concussion solely based upon his complaint of having a headache. As such, the Parkers failed to make a submissible case against the Club.”
W.C. PARKER, et al., v. The South Broadway Athletic Club; Ct.App. Mo.; No. ED88000; 2007 Mo. App. LEXIS 1129; 8/14/07
Attorneys of Record: (for appellant) Michael A. Gross, Joseph Fredric Yeckel – co-counsel, St. Louis, Missouri; Theodore Hoffman – co-counsel, Steven Marc Gelfman – co-counsel, St. Louis, Missouri. (for respondent) Michael Bruce Maguire, Thomas Michael Ward – co-counsel, St. Louis, Missouri.
