A California appeals court has upheld a trial court’s decision that a high school football player assumed the risk of injury when he participated in a football drill meant to simulate the act of tackling another player.
The ruling further solidified protections in that state for coaches and their school districts who are defendants in personal injury lawsuits.
Plaintiff Thane Wahrer was a member of the football team of San Bernardino High School, which was having a team practice in July of 2002 when the incident occurred. Wahrer was participating in a drill, without pads or helmet, where he was supposed to approach the line of scrimmage and simulate a tackle of the ball carrier. While performing the drill, Wahrer sustained a fractured nose, severe lacerations to his face, and neurological and orthopedic injuries. The injuries are permanent.
In July 2003, he sued the San Bernardino City Unified School District and the principal, athletic director, and three football coaches of the High School. The complaint alleged “defendants’ negligent supervision and/or direction of the practice created a dangerous condition.”
The defendants moved for summary judgment in April 2004, arguing the action was barred by the doctrine of primary assumption of risk. Plaintiff filed papers in opposition to the motion but did not appear at the hearing. The court found “there was no triable issue of material fact because the evidence showed plaintiff’s injuries were the result of an inherent risk of the activity in which he voluntarily participated.” Wahrer appealed.
The appeals court noted in its opinion that California Interscholastic Federation (CIF) Rule 1922.3, which provides that helmets, shoulder pads, and other protective gear are not permitted in summer practices and that “there shall be no live tackling at any time.”
In its analysis, the appeals court pointed to two California cases, which addressed primary assumption of risk as it related to football.
“In Knight v. Jewett, supra, 3 Cal.4th 296 (Knight), the plaintiff and defendant were on opposing teams in a game of touch football during halftime at a Super Bowl party,” it wrote. “While trying to intercept a pass, the defendant knocked the plaintiff down and stepped on her hand, injuring it so seriously that eventually she had to have a finger amputated.
“A plurality of the Supreme Court concluded that primary assumption of risk barred the plaintiff from recovering. The plurality opinion stated that a participant in an active sport breaches a legal duty of care to other participants . . . ‘only if the participant intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.’ (Knight, supra, 3 Cal.4th 296, 320, fn. omitted.) The opinion explained that ‘in the heat of an active sporting event like baseball or football, a participant’s normal energetic conduct often includes accidentally careless behavior. Imposition of legal liability for such conduct might well alter fundamentally the nature of the sport . . . .’ (Id. at pp. 318-319.)
“Fortier v. Los Rios Community College Dist., supra, 45 Cal.App.4th 430 (Fortier) applied the principles set forth in Knight in determining liability for injuries sustained during a football practice. The plaintiff enrolled in an advanced football class at a community college. Part of the class consisted of ‘seven-on-seven’ drills in which one team of seven players ran pass plays against another team of seven, without pads or helmets and with no tackling permitted. A play would end when a receiver caught the pass and a defensive player touched him, when a defensive player intercepted the pass, or when the pass fell incomplete. (Id. at pp. 432-433.)
“The plaintiff, a pass receiver, collided with a defensive player who was trying to intercept a pass the plaintiff was trying to catch,” sustaining an injury. The plaintiff “argued that the class instructors breached their duty not to increase the risks inherent in football by, among other things, encouraging players ‘to be aggressive’ in the on-field drills and awarding points for pass interceptions. (Id. at p. 436.)”
Relying on Knight, the court held primary assumption of risk barred recovery. Interestingly, the court noted that a drill, such as the seven-on-seven, cannot “be authentically performed if the participants are not carrying out their respective roles aggressively.” (Id. at p. 437.) Further, it held that the inherent risks of football “always include accidental collisions between offensive and defensive players vying for possession of a passed football.” (Fortier, supra, 45 Cal.App.4th at p. 437.)
Application of Cases to Instant Case
The appeals court in the instant case wrote that “although neither Knight nor Fortier is directly controlling here, they establish as a general principle that a risk should be considered inherent if eliminating the risk would chill vigorous participation or fundamentally alter the nature of the sport. They also illustrate that in football, whether a game or practice, energetic conduct and unexpected bodily contact are inherent risks, even though they sometimes result in severe injuries.”
Nevertheless, the appeals court felt compelled to address the plaintiff’s argument that the coaches elevated the inherent risk by requiring the players to “speed it up.”
The court turned to the state Supreme Court’s ruling in Kahn for instruction on this argument. In Kahn, a high school swimmer sued her coach for directing her to perform a racing dive in a shallow pool during a swim meet, as a result of which she broke her neck while practicing the dive before her race. “The Supreme Court made clear that negligent conduct by the coach would not have been enough to overcome primary assumption of risk despite his position as a mentor …: ‘[A] significant part of an instructor’s or coach’s role is to challenge or “push” a student or athlete to advance in his or her skill level and to undertake more difficult tasks . . . . A sports instructor may be found to have breached a duty of care to a student or athlete only if the instructor intentionally injures the student or engages in conduct that is reckless in the sense that it is “totally outside the range of the ordinary activity” [citation] involved in teaching or coaching the sport.’ (Kahn, supra, 31 Cal.4th at p. 996, italics added.)
“Plaintiff does not claim defendants intentionally injured him, and he failed to show he was injured because of any conduct of defendants that fell totally outside the range of an ordinary football practice. Instead, he was injured either because even performing the drill while not moving very fast was inherently risky enough to cause his injury, or because he himself decided to hit Lee harder than he was directed to do. The only way defendants could completely eliminate those risks would be not to run the drill at all. Knight and Fortier expressly reject the proposition that a defendant can be held liable for failing to eliminate the possibility of any injurious contact in a football game or practice. The court properly granted summary judgment.”
Thane Wahrer v. San Bernardino City Unified School District et al; Ct. App. Calif., 4th App. Dist., Div. 2; E036671; 2006 Cal. App. Unpub. LEXIS 1405; 2/16/06
Attorneys of Record: (for plaintiff) Law Offices of Lawrence A. Moy and Leonard Chaitin. (for defendant) Mugg & Harper, Leigh O. Harper and Blake J. Woodhall.
