By Gina McKlveen
A California Court of Appeal for the Third Appellate District recently affirmed an El Dorado County trial court decision that held Union Mine junior varsity football player, Nick Brown, assumed the risk of his traumatic brain injury after he and his father signed a waiver at the beginning of the 2015-2016 athletic season.
Every year in the United States nearly 8 million high school students participate in sports at the junior varsity and varsity levels. At the beginning of each of these high school sport seasons, an athletic handbook, or similar document, explaining the rules, rights, and responsibilities of the student-athlete is routinely distributed by the high school, its athletic director or its coaches, to these minors. These student-athletes are then instructed to review and sign the athletic handbook as a condition to their eligibility to play on any high school sports team. Additionally, since almost all high school students are below the age of majority, and because of their age are unable to form the requisite legal assent to form a binding agreement, a parent or guardian is also required to sign an acknowledgement they have read and understand the terms of the athletic handbook. Typically, each athletic handbook contains a release and waiver, whereas both the student-athlete and the parent or guardian gives up their right to file a lawsuit against the school district and its agents even if there is an injury, paralysis or death that occurs during a school-related sports activity since the student-athlete has assumed the risk by voluntarily participating in the sport.
In 2015, prior to Nick Brown’s sophomore football season, the Athletic Director for Union Mine High School gave Nick the athletic handbook which read in part that if Nick “is hurt, injured, or even dies, I/we [i.e. the student, his/her parent/s, guardian/s, heir/s…] will not make a claim against or sue the El Dorado Union High School District [hereafter EDUHSD], its trustees, officers, employees, and agents, or expect them to be responsible or pay for any damages.” Furthermore, the handbook stated that “the undersigned [parties], understand and acknowledge that the above-named student has voluntarily chose to participate in school-related activities at his/her own risk…and fully understand that said school-related activities may involve numerous risks, dangers, and hazards, both known and unknown, where serious accidents can occur.” Both Nick and his father, Read Brown, signed this handbook, effectively agreeing to the terms and conditions of this release and waiver.
The contents of this signed athletic handbook became undeniably relevant to litigation following an August 28, 2015 home game where Nick played various positions including quarterback, running back, receiver, and special teams, sustaining several tackles and blows to the head, before he eventually walked himself off the field in the fourth quarter after a particularly hard hit. The only medical staff present at that game was a chiropractor, who did not consult Nick after any of his prior hits nor after the final hit which took him out of the game. A few minutes later, the game ended, and Nick got up from the bench, walked a few paces then suddenly collapsed. The chiropractor suspected heat exhaustion, but since no other medical personnel was present to confirm, he called an ambulance which arrived 10 minutes later. At the hospital, Nick was treated with an emergency decompressive surgery for a subdural hematoma, also known as brain bleed. A year later, Nick’s doctor diagnosed the former football player with optic nerve damage in his left eye, a condition that the doctor concluded would have occurred at the same time as Nick’s brain injury. The doctor also opined that any appropriately trained medical professional would have immediately been able to detect this condition if Nick had been examined on the sidelines after he left the field during the 2015 game.
As a result, Nick and his mother, Laurie Brown, filed suit against EDUHSD alleging that its employees, including coaches and trainers, failed to implement polices to proactively identify head injuries including concussions and other brain damage in student-athletes. Furthermore, the Browns argued EDUHSD failed to provide the appropriately trained personnel or licensed health care professionals to identify these types of head injuries and evaluate or treat student-athletes for any possible injury before returning to the game. Nick’s complaint also sought damages related to a second cause of action for EDUHSD’s failure to warn his parents of the risks associated with violent contact to the head as well as symptoms resulting from this type of contact, and any increased risks associated with the lack of adequate access to appropriately trained and licensed medical professionals available to detect student-athletes’ injuries.
Despite these arguments, the trial court granted a summary judgment motion against the Browns. On appeal, the presiding judge adhered to the lower court’s ruling, stating that by signing the athletic handbook, “Nick and Read unequivocally agreed to assume the risk of injuries caused by the negligent acts of the District employees in coaching and supervising Nick while he played football and in treating him for those injuries.” The judge pointed to the nature of the sport as a rationale for the relevant duty owed in Nick’s situation, writing that “stopping players and removing them every time they suffer a blow in a football game simply is not feasible.” Moreover, the judge recognized EDUHSD’s effort to secure the presence of a medical doctor and though the doctor declined to attend, EDUHSD still provided a chiropractor “with some professional training in evaluating for traumatic brain injuries…and an EMT with a truck equipped with basic first aid and life support equipment” at the game. Finally, in terms of Nick’s failure to warn argument, the Court of Appeal was also unpersuaded, finding that “[p]aperwork sent home as part of the handbook and signed on the same date as the release…expressly covered all injuries Nick might suffer playing football.”
This decision, therefore, left nothing to assume regarding the application of the assumption of the risk for student-athletes and their parents who sign the express waivers in annual athletic handbooks releasing school districts from liability of even the most traumatic brain injuries.