A federal judge from the Central District of California has dismissed with prejudice an amended complaint filed by the mother of a water polo player, who alleged that USA Water Polo was liable for negligence and a breach of voluntary undertaking for returning her to competition too soon after suffering a concussion.
In so ruling, the court found that the plaintiff, Alice Mayall, failed to show that the defendant had done enough to protect players against injuries that might occur from returning to the pool too soon. It drew a line, noting that “failing to minimize risks inherent to the sport is not the same as increasing those risks.”
By way of background, the mother’s daughter, H.C., played water polo for one of 500 USA Water Polo-registered clubs. She was participating in a tournament on February 15, 2014 that was organized and managed by USA Water Polo. On the first day of the tournament, H.C., while playing the goalie position, was hit in the face by a shot, which led to a concussion. H.C’s coach, allegedly lacking any concussion management training, allowed H.C. to continue playing in that game and in subsequent games where she took additional hits to the head.
After the tournament, H.C. started to experience headaches, sleepiness and fatigue and was unable to attend school. Her condition worsened and her symptoms included excessive sleeping, dizziness, inability to tolerate movement, extreme sensitivity to light, headaches, decreased appetite, nausea and the inability to do any school work. Doctors diagnosed her with post-concussion syndrome.
After the first two complaints were dismissed, the plaintiff filed a third complaint, in which the plaintiff “has somewhat changed its position,” according to the court. “The plaintiff no longer requests injunctive relief. And the plaintiff no longer focuses on the risk of receiving concussions in general. Instead, the thrust of the plaintiff’s complaint is that by allowing H.C. to return to play the same day she suffered a concussion without medical clearance, the defendant increased the risk to H.C. of aggravated, secondary injuries.”
The court added that to state a claim for negligence, a plaintiff “must allege facts supporting a duty, breach of duty, causation, and damages.” Friedman v. Merck & Co., 107 Cal. App. 4th 454, 463, 131 Cal. Rptr. 2d 885 (2003). In effect, the legal duty “is the threshold element of a negligence claim.” See id.
The plaintiff alleged that the defendant has a duty “to prohibit same day return to play after a concussion, head blow or the exhibition of concussion symptoms, as well as to prohibit premature return to play before a player has fully recovered from a concussion, is asymptomatic after proceeding through a stepwise return to play protocol, and is cleared by a physician,” according to the court.
“Despite the plaintiff’s efforts to characterize the risk of secondary rather than primary injuries, that distinction is untenable. Getting hit in the head and suffering a concussion is common in water polo.
“Further, even if there is a meaningful distinction between the risk of primary or secondary head injuries, the distinction wouldn’t make a difference here because the court is not persuaded that the risk of secondary concussions is not inherent to the sport. Indeed, the adoption of return to play policies in many states and organizations could prove that the risk of secondary injuries is part and parcel with playing a sport such as water polo. Moreover, the allegations in the complaint generally show that the defendant has made an attempt to minimize the risk of secondary head injuries by adopting a policy prohibiting premature return to play. But even if such an attempt was unsuccessful, failing to minimize risks inherent to the sport is not the same as increasing those risks. See Paz v. State of California, 22 Cal. 4th 550, 560, 93 Cal. Rptr. 2d 703, 994 P.2d 975 (2000).
“Perhaps even more troubling, concussions are not readily recognizable during a game. Whether a concussion is recognizable is important because the defendant’s alleged breach—that the defendant failed to adopt certain return-to-play guidelines before sending a concussed player back in the game—depends on a coach recognizing that the player was concussed in the first place. The plaintiff argues in her opposition that whether concussions are capable of recognition is a question of fact, but here, there are no factual allegations to show that H.C.’s concussion was readily recognizable. During the game, aside from being “dazed,” H.C. didn’t start showing symptoms until two days after being hit in the head. The ability to recognize an injury distinguishes this case from Wattenbarger, a case that Plaintiff relies on. Wattenbarger v. Cincinnati Reds, Inc., 28 Cal. App. 4th 746, 755, 33 Cal. Rptr. 2d 732 (1994).
“The Wattenbarger court imposed a duty on the organizer of a baseball tryout to not aggravate a player’s injury. Id. But as noted in the court’s earlier order, the player’s injury was obvious, as his shoulder was ‘popped.’ Id. What’s more, the plaintiff in Wattenbarger was encouraged to get back in the game. Id. Not only was H.C.’s concussion not obvious like a popped shoulder, but also H.C. was not similarly encouraged to return to play.”
Court Unwilling to Alert Water Polo’s Fundamental Nature
The court added that “it seems that the only way to recognize H.C.’s head injury would have been to stop the game each time H.C. was hit. But the court is not persuaded that water polo’s fundamental nature would not be altered if the defendant had such a duty. The plaintiff even asserts that such a check is part of the defendant’s duty. Building off of the Court’s earlier order, water polo is a contact sport. Taking a player out of the game every time a ball hits her in the head might leave teams without any players left in the game. Such an action would fundamentally alter the game. This alleged duty even goes above and beyond the return-to-play policies adopted by many states and organizations cited by the plaintiff as support.”
The court concluded that the only allegation in the amended complaint “that comes close to duty and breach of duty involves another player who suffered a concussion and who was expected to return to play after paramedics confirmed her concussion. But no allegations suggest that this happened to H.C. “Because the plaintiff has failed to adequately allege a legal duty, the court need not consider whether the plaintiff has properly alleged the remaining elements for her negligence claim.”
Alice Mayall et al. v. USA Water Polo Inc.; C.D. Cal.; SACV 15-0171 AG (KESx), 2016 U.S. Dist. LEXIS 115047; 8/26/16
Attorneys of Record: (for plaintiff) Daniel J Kurowski, Elizabeth A Fegan, PRO HAC VICE, Hagens Berman Sobol Shapiro LLP, Chicago, IL; Steve W Berman, PRO HAC VICE, Hagens Berman Sobol Shapiro LLP, Seattle, WA; Elaine T Byszewski, Hagens Berman Sobol Shapiro LLP, Pasadena, CA. (for defendant) Jeffrey M Lenkov, LEAD ATTORNEY, Steven J Renick, Vi Applen, Manning and Kass Ellrod Ramirez Trester LLP, Los Angeles, CA; Steven C Amundson, LEAD ATTORNEY, Manning and Kass Ellrod Ramirez Trester LLP, San Francisco, CA.
