A Minnesota appeals court has affirmed a lower court’s ruling that the University of Minnesota did not owe “a duty of care” to a cheerleader, who sued the university for negligence after she was injured while practicing a stunt.
Specifically, the panel of judges found that because the university “exerted minimal control” over the cheerleaders it did not have “a special relationship” with the squad, which is a required foundation for “a duty of care” to exist.
On January 29, 2002, Alysia Vistad, a member of its basketball cheerleading squad, attempted a pyramid stunt at a practice. Vistad fell and suffered a cervical spine fracture, and subsequently sued.
In presenting the background of the litigation, the court noted that the squad received minimal instruction and supervision. Although the squad had practiced with a volunteer coach, this coach was no longer involved, and the day of the accident the squad was unsupervised.
It further noted that the squad is part of a registered student organization on the UMD campus. Each year, the athletic department contributed $4,000 to all cheerleading organizations, approximately one-sixth of which was allocated to the Vistad’s squad. The monies were used to reimburse the squad for uniforms and travel expenses. In addition, that athletic department official secured tryout and practice facilities for the squad, but she did not claim any authority over the manner of practice or the conduct of the volunteer coach.
While some concern had been expressed within the department about the dangerous nature of the various squads’ activities, department officials concluded that they did not have the bandwidth to exert control over the various organizations.
On May 16, 2003, Vistad sued the university, which promptly moved for summary judgment. The district court sided with the university, finding that it had no special relationship that resulted in a duty of care. “In the alternative, the district court held that Vistad knew of the difficulty of the pyramid stunt and that her assumption of the risk precluded the university from owing Vistad a duty of care.”
On appeal, Vistad argued that “because universities exert control over student-athletes and derive benefits from collegiate sports programs, a special relationship should exist. See generally James J. Hefferan, Jr., Note, Taking One for the Team: Davidson v. University of North Carolina and the Duty of Care Owed by Universities to Their Student Athletes, 37 Wake Forest L. Rev. 589, 605 (2002); Edward H. Whang, Comment, Necessary Roughness: Imposing a Heightened Duty of Care on Colleges for Injuries of Student-Athletes, 2 Sports Law. J. 25, 40, 43 (1995).”
While noting that Minnesota courts have not directly addressed in published authorities whether a university has a special relationship with a student-athlete in a sports program, the panel found relevant case law elsewhere.
“In Davidson v. Univ. of N.C., 142 N.C. App. 544, 543 S.E.2d 920, 922 (N.C. Ct. App. 2001), a junior-varsity cheerleader was injured while practicing a stunt prior to a game. The North Carolina Court of Appeals observed that, in addition to cheerleading at games, the university often relied on members of the squad as official school representatives for publicity purposes and inferred that, because the school exerted significant control over the students, ‘the students may have higher expectations with regard to the protection they will receive from the school.’ Id. at 927.
“In Kleinknecht v. Gettysburg Coll., 989 F.2d 1360 (3d Cir. 1993), an athlete died while participating in a collegiate lacrosse program. Although the special relationship was not premised on the college receiving any special benefits from this program, the Third Circuit concluded that, because the player had been recruited by the school, he would reasonably expect due care “in a scheduled athletic practice for an intercollegiate team sponsored by the College under the supervision of College employees.” Id. at 1367.
Of relevance to the instant case, however, the panel noted that “both Davidson and Kleinknecht emphasized that this special relationship does not extend to all students and will not necessarily reach intramural sports or other student organizations. Kleinknecht, 989 F.2d at 1368; Davidson, 543 S.E.2d at 928.”
It then identified three cases, where a special relationship “does not exist between a university and a student-athlete” — Orr v. Brigham Young Univ., 960 F. Supp. 1522, 1526-28 (D. Utah 1994); Swanson v. Wabash Coll., 504 N.E.2d 327, 330-31 (Ind. Ct. App. 1987); and Fisher v. Northwestern State Univ., 624 So. 2d 1308, 1309 (La. Ct. App. 1993).
Fisher, in particular, involved a student who was injured while participating in an unsupervised cheerleading organization. “The Fisher court held that the university owed no duty to the cheerleaders to provide adult supervision and, therefore, was not liable. Id. at 1311.”
Turning back to the instant case, the panel wrote that “Although it handled some administrative tasks for the cheerleading program, UMD otherwise exerted minimal control over the cheerleaders. UMD did not provide a coach to direct practices or otherwise impose rules on the participants. And UMD did not profit from either the basketball or cheerleading programs. Based on these considerations, the university was not in a position to protect Vistad from harm, nor could it be expected to do so. And nothing in the record suggests that Vistad was somehow vulnerable. The district court correctly decided as a matter of law that a special relationship did not exist between Vistad and the university. In the absence of a special relationship, the university was without a duty of care on which a negligence claim could be based.”
Vistad’s second arguement was that she did not undertake a primary assumption of the risk that would negate the university’s duty to protect her.
“Several Minnesota cases have evaluated when a particular risk is inherent to a sport. Examples of such inherent risks include slipping and falling while ice skating, Moe v. Steenberg, 275 Minn. 448, 450, 147 N.W.2d 587, 589 (1966), being hit with a paintball during a paintball match, Schneider ex rel. Schneider v. Erickson, 654 N.W.2d 144, 150 (Minn. App. 2002), and hitting something when diving into dark, shallow waters, Snilsberg, 614 N.W.2d at 746.
“A defendant remains liable, however, for conduct that masks or causes an unexpected hazard. Thus, a slip and fall while skating may be inherent to the sport, but not when an entrance to the rink is poorly illuminated and includes unforeseen obstacles. Wagner, 396 N.W.2d at 225-26. A collision while skiing may be inherent to the sport, but not when it involves a motorized vehicle parked at the base of the slope. Verberkmoes v. Lutsen Mountains Corp., 844 F. Supp. 1356, 1359 (D. Minn. 1994).
According to Vistad’s deposition testimony, she appreciated the risks from lack of supervision and the potential for injury by a fall when attempting to execute the stunt with the number of cheerleaders present. Vistad further admits that, when her squad attempted the stunt, she could have chosen not to participate. Even if the university affirmatively failed to supervise the cheerleading practice properly, its actions did not mask or cause an unexpected hazard. Because Vistad knew of the risks inherent in performing the stunt and participated in the stunt rather than avoiding it, the district court correctly held as a matter of law that Vistad had undertaken a primary assumption of the risk.” Alysia Vistad v. Board of Regents of the University of Minnesota; Ct. App. Minn.; A04-2161; 6/28/05
Attorneys of Record: (for plaintiff) Kim E. Brust, Conmy Feste Ltd., Fargo, ND. (for defendant) Mark B. Rotenberg, Jennifer L. Frisch, University of Minnesota, Minneapolis, MN.
