An Ohio state appeals court has delivered a partial victory to the University of Toledo (UT) in a case in which it was sued by a former football player, who suffered a brain injury while performing a stunt during an unofficial team-building exercise.
Plaintiff Kyle Cameron unsuccessfully alleged that the incident was a hazing event and violated the state’s hazing laws (R.C. 2307.44), a decision the lower court rendered and the appeals court affirmed, adding that UT “was actively enforcing its anti-hazing policy at the time of the incident” and did not violate the law.
However, the appeals court disagreed with the lower court’s conclusion that the school was not negligent and that the defense of primary assumption of the risk applied, which shielded the school from liability.
The impetus for the litigation was an incident that occurred on July 12, 2011. Prior to 2011, Cameron was recruited and offered a full athletic scholarship in his sophomore year of high school to play football for the university. After he was recruited, Cameron began weight training at the University under the direction of Rudy Wade, head strength and conditioning coach for the university’s football team. In summer 2011, Cameron, as an incoming freshman, began training with the university’s football team and took summer courses offered by the University.
Beginning in June 2011, prior to the start of the academic year, all the university’s football players, including incoming freshmen and upperclassmen, began a conditioning and training program at the university’s football stadium and athletic facilities. The training program included weight training in the morning that was supervised by Wade, followed in the afternoon by a conditioning program referred to as “metabolics,” which was supervised by upperclassmen.
After the metabolics, all players departed for the day except for the offensive linemen, who remained for what was referred to as “freshman Olympics” or the “O-line challenges.” During the freshman Olympics, the freshman offensive linemen would have to complete a series of activities as directed by the upperclassmen, who did not participate in the activities in anything other than a supervisory role. Some of the activities included a wheelbarrow race, dance contests, bear crawl, worm crawl, kicking or tackling a bag, and dunking a football above the crossbar of the goalposts.
On July 12, 2011, following metabolics, the upperclassmen directed the freshman offensive linemen to participate in the freshman Olympics. Cameron, who was a freshman offensive lineman, but did not have an assigned spot on the team, participated. On that date, the upperclassmen instructed the freshmen to dunk a football above the crossbar of the goalposts. Following other players’ attempts to dunk the football, Cameron jumped off a teammate’s back, dunked the football, and then fell backward, landing on his head or neck. Cameron immediately began convulsing or seizing. Wade, who was present at the time of the incident, sent for John Walters, the football team’s head athletic trainer. Walters found Cameron unconscious on the football field and instructed Billy Saul, a graduate assistant athletic trainer, to call 911. Cameron was taken by ambulance to the hospital. Allegedly, Cameron later learned he suffered brain damage, was no longer able to play football, and ultimately lost his scholarship.
Cameron sued in state court and on Nov. 1, 2016 judgment was rendered on behalf of the university. Cameron appealed, assigning the following four assignments of error for review:
The trial court erred in holding that the affirmative defense of “actively enforcing a policy against hazing at the time the cause of action arose” applied in the instant case.
The trial court erred in holding that Cameron had failed to establish the required elements of hazing as set forth in the anti-hazing statute.
The trial court erred in holding that Cameron had failed to establish the required elements of his claim for negligence.
The trial court erred in holding that Cameron’s action was barred by the doctrine of primary assumption of the risk.
Considering the first and second assignments of error, for hazing, together, the appeals agreed with the lower court, reasoning that “the affirmative defense of actively enforcing a policy against hazing applies in this matter.”
Next, it turned to the more interesting issue of negligence and the assumption of risk doctrine.
The state court concluded that “when (Cameron) voluntarily chose to participate, more specifically, when he chose to run and jump off of the back of another player to dunk the football over the goal post, he assumed the inherent risks associated with that choice.”
The appeals court disagreed, noting that “jumping off the back of another player to dunk a football over the goal post is so inherent to the game of football or to team building that it cannot be eliminated.” Thus, the plaintiff did not assume the risk of injury.
The appeals court added that the university did have “a duty … based, in part, on the foreseeability of the harm suffered by plaintiff.”
Kyle Cameron v. University of Toledo; Ct.App.Ohio, 10th App. Dist., Franklin Co.; No. 16AP-834, 2018-Ohio-979; 2018 Ohio App. LEXIS 1034; 3/15/18
