School District Loses Immunity Protection Because Stunt during Pep Rally Was not an Athletic Event

Dec 25, 2015

An Oklahoma state appeals court has reversed the finding of a trial judge, who granted a school district’s motion for summary judgement on governmental immunity grounds after the district was sued by the parent of a student, who was injured while practicing a stunt that would be performed at a pep rally.
In so ruling, the appeals court found that injury occurred during a practice, which was not deemed an athletic event and not subject to the state’s governmental immunity protections.
The plaintiff in the case was Troy Hasenfratz, the parent and guardian of M.H. The defendant was Ponca City Independent School District.
The Ponca City Senior High School has a tradition of having non-cheerleaders perform a cheer at a pep rally before a football game. The cheer could include tumbling, but tumbling was not required. The activity was conducted on school grounds and had the approval of school officials.
M.H. volunteered to participate in performing the cheer. He missed the initial practices due to illness and a snow day. He then came to a practice on February 17, 2013. M.H. and a friend attempted a two-man somersault. M.H. either landed on his neck or his friend rolled over him. M.H. suffered a broken neck resulting in hospitalization and surgeries.
Two school employees supervised the preparation for the pep rally. One was a teacher and the other a secretary. They had the additional roles as cheer leader coach or sponsor. Both had training and they were aware of the dangers associated with tumbling. They testified that they told the participating students about the hazards of tumbling and that they did not require or ask any student to do tumbling unless they had training. In response to questions, the coaches and the school principal agreed that the rally event was not a competition and medals were not awarded. The principal testified that it was not an “athletic event.”
The district maintained that it enjoyed immunity under the Governmental Tort Claims Act (GTCA), 51 O.S. Supp. 2014, 155(5) and (20). The trial court agreed, granted summary judgment. It then denied the father’s motion for reconsideration, leading to the appeal addressed in the instant opinion.
The appeals court focused on the aforementioned Act, which reads that a state or a political subdivision shall not be liable if a loss or claim results from “participation in or practice for any interscholastic or other athletic contest sponsored or conducted by or on the property of the state or a political subdivision.”
The court continued, noting that resolution of Section 155(5) immunity “presents three threshold questions:
“First, whether the district adopted a policy and were the coaches implementing that policy;
“Second, whether the coaches, while performing (or failing to perform) their roles as supervisors of the cheering practice, engaged in acts or services which were in the discretion of the coaches as district employees; and if not
“Third, whether a fact question exists regarding whether the coaches were negligent in carrying out their duties in connection with the sanctioned pep rally.”
The appeals court found on the first question that the district “had adopted a policy to allow the pep rally and practice. The coaches, as school employees, implemented that policy. Therefore, the first question is answered in the affirmative.”
The next two questions required an inquiry into whether the pep rally is an “athletic contest.” The appeals court turned to case law.
“In ruling that an interscholastic softball game was an athletic contest, the Oklahoma Supreme Court has defined the words ‘athletic’ and ‘contest’ as follows:
“The word “athletic” is defined as ‘of, pertaining to, or befitting athletics or athletes.’ The American Heritage Dictionary, [2nd College ed. 1985] supra. at 138. ‘Athletics’ is defined as ‘[a]thletic activities, as competitive sports’ or ‘[t]he principles or system of athletic exercises and training,’ while the word ‘athlete’ is primarily defined as ‘[o]ne who takes part in competitive sports.’ Id. The word ‘contest’ is defined as ‘[a] struggle for superiority or victory between rivals’ or ‘[a] competition.’ Id. at 316. Curtis v. Board of Educ. of Sayre Pub. Schs., 1995 OK 119, 12, 914 P.2d 656, 659.
“Thus, participation in a wrestling match as a part of a physical education class constituted participation in an athletic contest. Evans By and Through Evans v. Oaks Mission Pub. Sch., 1997 OK 97, 945 P.2d 492. On the other hand, participation in a weightlifting class ‘that fulfills the physical education requirement, wherein each student attempts to lift more than he/she lifted earlier in the school year but not in competition with one another’ is not participation in an athletic contest. Hutts v. Western Heights Indep. Sch. Dist. No. 1-41 of Oklahoma County, 2011 OK CIV APP 52, 255 P.3d 449.
“The injury here occurred during a practice for an authorized pep rally. The pep rally was not an enrolled “class.” The students did not compete against each other or against any outside persons. There were no medals or awards for participation. No student was required to engage in tumbling nor were they instructed in the hazards thereof and the students were also free to just walk and wave. The school principal agreed that the pep rally was not an athletic event.
The criterion of ‘an athletic or sports competition where participants strive for superiority or victory’ is missing here. This pep rally and the practice were not a competitive sport or a contest or a practice for an athletic contest. Therefore, the trial court erred in ruling that the school
Troy Hasenfratz, individually and as a parent and guardian of M.H., a minor, v. Ponca City Independent School District; Ct. App. Okla. Div. 4; 114063, , 358 P.3d 964; 2015 Okla. Civ. App. LEXIS 77; 9/21/15
Attorneys of Record: (for for Plaintiff/Appellant) Jacob W. Biby, MARTIN, JEAN & JACKSON – TULSA, Tulsa, Oklahoma, (for Defendant/Appellee) Michael W. Brewer, HILTGEN & BREWER, P.C., Oklahoma City, Oklahoma.


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