A federal judge from the Central District of California has ruled that USA Water Polo “struck the proper balance between promoting vigorous competition and ensuring the safety of its competitors,” when it dismissed the claim of a mother, whose 16-year-old daughter, H.C., suffered a concussion in the pool.
The mother, Alice Mayall, had claimed that USA Water Polo failed to have an adequate concussion policy or respond in a timely manner to the concussion, “aggravating” the initial injury and leading to post-concussion syndrome.
By way of background, H.C. played water polo for one of 500 USA Water Polo-registered clubs and was participating in a tournament 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.
The complaint sought damages for gross negligence, alleging specifically that USA Water Polo failed to: (i) implement system—wide concussion and return-to-play guidelines for athletes who have sustained concussions; (ii) adequately educate and adopt rules requiring the education of coaches, staff and athletes about the symptoms and long-term consequences of concussions; and (iii) implement system-wide guidelines for screening and detecting head injuries. The complaint concluded that USA Water Polo had a duty to supervise, regulate, monitor and provide reasonable and appropriate rules to minimize the risk of injury to players, and that USA Water Polo breached that duty of care.
Mayall argued that USA Water Polo has the power to enact, enforce or modify rules “that would properly protect participants from concussions that are preventable, as well as properly protect participants who suffer concussions from returning to play until they have progressed through a widely accepted stepwise, graded exertional return-to-play protocol and are symptom free for at least 24 hours.”
She sought, on behalf of her daughter and similarly situated athletes, injunctive relief, the establishment of a medical monitoring program, compensatory damages, punitive damages, compensation for pain and suffering and attorneys’ fees.
In its analysis, the court found that the plaintiff “has not sufficiently shown that H.C. suffers an ‘injury in fact’ that supports standing under Article III.”
Among the other reasons the court dismissed the claim was the fact that the plaintiff did not allege “sufficient facts that H.C. is realistically threatened by a repetition of a violation.” For example, the allegation does not “provide that H.C. is currently playing for a team governed by the defendant’s rules and policies.” Furthermore, the plaintiff has not shown that an injury is “impending.” Her “bare statistical assertions describing the heightened risk of concussions for young people are not enough to show that H.C. faces an imminent risk of harm.” Her allegations “therefore don’t persuade the court that H.C. suffers the required ‘injury in fact’ to have standing to seek injunctive relief other than for medical monitoring of H.C.”
In addition, the plaintiff failed to show that USA Water Polo “increased the risk of head injuries ‘above and beyond the risks inherent in water polo.’ That vague, legal conclusion in the amended complaint is not enough to show that Defendant’s failure to implement (1) return-to-play guidelines, (2) guidelines to screen and detect head injuries, or (3) substitution rules for medical evaluation purposes increased the risks of head injuries beyond those inherent in the game.” The court emphasized that “a failure to minimize a risk does not equate to increasing that risk.”
The court went on to examine whether or not “a risk is inherent in the sport.
“… Specifically, courts look to (1) the nature of the sport, (2) the defendant’s role in the sport or relationship to the plaintiff, and (3) whether imposing a duty would chill vigorous participation in the sport or alter its fundamental nature. Knight, 3 Cal. 4th at 317; Ferrari v. Grand Canyon Dories, 32 Cal. App. 4th 248, 253, 38 Cal. Rptr. 2d 65 (1995). ‘Conduct is not inherent in the sport if that conduct is totally outside the range of ordinary activity involved in the sport . . . [and] if the prohibition of that conduct would neither deter vigorous participation in the sport nor otherwise fundamentally alter the nature of the sport.’ Moser v. Ratinoff, 105 Cal. App. 4th 1211, 1222, 130 Cal. Rptr. 2d 198 (2003). The California Supreme Court has reaffirmed that ‘operators, sponsors, and instructors’ of physical recreational activities owe no duties to eliminate or minimize inherent risks of injury in a sport, but only owe duties not to increase the inherent risks of injury. Nalwa, 55 Cal. 4th at 1162; see also Balthazor v. Little League Baseball, Inc., 62 Cal. App. 4th 47, 49, 72 Cal. Rptr. 2d 337 (1998) (finding that a baseball league had no duty to decrease the risks in the sport and thus owed no duty to protect a player from being hit by a pitch because that risk was inherent in the sport); Connelly v. Mammoth Mt. Ski Area, 39 Cal. App. 4th 8, 12, 45 Cal. Rptr. 2d 855 (1995) (finding that an alpine ski operator owed no legal duty to a skier because the operator did not increase the risk of colliding with a ski lift tower).”
The fact that the plaintiff admitted that concussions are common in water polo did not help her cause, according to the court. It noted that she alleged in the complaint that “head and facial injuries are common either through direct contact or contact with the ball” and that “concussions can and frequently do occur without any contact with the head.”
Finally, the plaintiff failed to show that the defendant “undertook a specific duty to prevent or manage players’ head injuries.” The court added that “neither passively providing information about concussions nor generally discussing the importance of concussion management shows that the defendant undertook a specific, affirmative step to protect H.C. from suffering a concussion or aggravating her injury.”
The court wrote that its decision “is by no means a panacea to the policy question lying beneath the action. Nor should the decision result in limiting efforts, voluntary or otherwise, to prevent concussions in water polo or other sports. Those safety efforts may be laudable and even necessary to adequately ensure the well-being of athletes. But the facts alleged in this case do not present this federal District Court applying California common law with the opportunity to judicially require those safety efforts.”
Alice Mayall, as parent and guardian of minor H.C., on behalf of H.C. and all others similarly situated, v. USA Water Polo, INC.; C.D. Cal.; CASE NO. SACV 15-0171 AG (KESx), 2016 U.S. Dist. LEXIS 43839; 3/30/16
Attorneys of Record: (for plaintiff) Daniel J Kurowski, Elizabeth A Fegan, PRO HAC VICE, Hagens Berman Sobol Shapiro LLP, Chicago, IL USA; Steve W Berman, PRO HAC VICE, Hagens Berman Sobol Shapiro LLP, Seattle, WA USA; Elaine T Byszewski, Hagens Berman Sobol Shapiro LLP, Pasadena, CA USA. (for defendant) Jeffrey M Lenkov, LEAD ATTORNEY, Steven J Renick, Vi Applen, Manning and Kass Ellrod Ramirez Trester LLP, Los Angeles, CA USA; Steven C Amundson, LEAD ATTORNEY, Manning and Kass Ellrod Ramirez Trester LLP, San Francisco, CA USA.
