An Ohio state appeals court has affirmed a lower court’s ruling to dismiss the complaint of a cheerleader, who alleged that the sponsor of a competition was reckless in failing to provide proper spotters during a stunt, which led to her injury.
Specifically, the court found that plaintiff Lindsay M. Wolfe failed to demonstrate the requisite “reckless misconduct” to defeat the sponsor’s motion for summary judgment.
The incident in question occurred on February 2, 2003, when Wolfe, who was 13 at the time, participated in a cheerleading competition at the Columbus Convention Center.
Americheer, the defendant, sponsored the competition, which was known as the 2003 Winter Championship. As a prerequisite to the plaintiff participating in the competition, her mother, Barbara Wolfe, signed a “Medical Treatment Authorization and Release of Liability.” The release contained, in pertinent part, the following language:
“I further release AmeriCheer and its representatives from any claims for injury or illness that may be sustained as a result of their participation in this event. I acknowledge and understand that in participating in this event, there is the possibility they may sustain physical illness or injury in connection with his or her participation. I further understand and acknowledge that my daughter [or] [son] and I assume the full risk of physical injury by their participation and I further release the event location, AmeriCheer, Inc., as well as it’s [sic] representatives, from any claims for personal injury, [or] illness that they may sustain during camp.”
At the time of her injury, Lindsay was acting as a “base” who, along with others, supported and lifted another cheerleader, the “flyer,” into the air. At a point in the routine where Lindsay lifted the flyer, the flyer slipped or lost her balance and fell, landing on top of Lindsay. Lindsay sustained a T8 spinal compression fracture as a result of the fall.
The plaintiff sued.
Central to her complaint was the use of spotters during cheerleader competitions. “The spotters are there to catch a cheerleader in case of a fall,” noted the appeals court in the instant opinion. “AmeriCheer provided the spotters used for the 2003 Winter Championship.”
The plaintiff alleged in her complaint that:
“Due to the reckless, wanton and complete disregard for the safety of the plaintiff, the defendant failed to provide the proper spotters and coaching, as a result the plaintiff was caused to sustain severe and permanent injuries to her person when her team members fell onto her person.”
AmeriCheer moved for summary judgment on the grounds that “the release signed by Lindsay’s mother barred any negligence claims. Additionally, AmeriCheer argued that the doctrine of primary assumption of risk also acted to bar Lindsay’s claims.”
The plaintiff countered that “the spotters’ failure to be properly positioned and failure to move in when the team started the stunt constituted reckless and wanton disregard for Lindsay’s safety, not mere negligence. Therefore, … there existed a genuine issue of material fact as to whether the conduct of the spotters was wanton or reckless.”
The trial court found that the signing of the release precluded the plaintiff from bringing “any negligence claims against AmeriCheer related to her injuries,” wrote the appeals court. “The court also agreed with AmeriCheer that the doctrine of primary assumption of risk precluded the negligence claims.”
The appeals court agreed.
“Because of the release signed by Lindsay’s mother and the doctrine of primary assumption of risk, Lindsay is precluded from bringing a negligence action against AmeriCheer,” wrote the appeals court. “Under the doctrine of primary assumption of the risk, a plaintiff voluntarily engaged in a recreational activity assumes the inherent risks of that activity and cannot recover for injuries sustained while engaging in that activity unless the defendant acted recklessly or intentionally in causing the injuries. Marchetti v. Kalish, 53 Ohio St.3d 95, 559 N.E.2d 699 (1990), syllabus; Crace v. Kent State Univ., 185 Ohio App.3d 534, 2009 Ohio 6898, ¶ 13, 924 N.E.2d 906 (10th Dist.).”
The panel of judges found Crace to be especially persuasive. In that case, the plaintiff “was the captain of the Kent State University varsity cheerleading team, was the flyer during a human pyramid stunt. The first two attempts failed, and both times Crace fell from around 15 feet in the air where the spotter at the front of the formation caught her. On the third attempt the stunt failed again. When Crace came down for the third time, the spotter behind her panicked, shielded his eyes and moved out of the way. As a result, Crace’s fall was unbroken, and caused catastrophic injuries. Id.
“As was the case with Crace, Lindsay can only proceed with her personal injury claims if AmeriCheer acted willfully, wantonly, or recklessly. The issue is whether Lindsay has set forth competent evidence establishing a genuine issue of material fact on the issue of willful, wanton, or reckless conduct.”
The court found her evidence lacking.
“There is no evidence in the record that supports these assertions,” wrote the appeals court. “Cheerleading carries inherent risks to those participants engaging in stunts of the kind performed at the Winter Championship. There was no evidence that in 2003 there were standards for spotters or even how many spotters were needed. The only evidence put forth was testimony that two of the spotters were not standing on the mat. Ms. Rossetti watched the video during her deposition, and testified that one spotter was moving in. There was no testimony that the spotters had a duty to move closer when the team began the stunt apart from Lindsay’s observation that at every competition she attended the spotters would walk up. Lindsay claims that when the cheerleaders were practicing or learning stunts that the coaches stood on the mat and spotted for them. While for summary judgment purposes this statement is taken as true, it is somewhat of a red herring. Ms. Rossetti testified that, at camp, the spotters can be close by, but, in a competition, they cannot always be on top of them because they will interfere with something else going on. Lindsay also testified that the coaches spotted them during practices. She then stated: ‘Once we were comfortable with, you know, and they were comfortable with us doing it, yes, they would like stand on the edge of the mat and watch.’ Taken at face value, by the time a team is ready to perform the routine in competition, the coaches, who formerly spotted, would stand at the edge of the mat. Thus, the evidence suggests the spotters were properly positioned. Even if, as Lindsay testified, the spotters should have moved closer in preparation for the stunt, at least one of them did. These facts do not demonstrate a disposition to perversity on the part of the spotters or a failure to exercise any care whatsoever. Therefore, an issue as to whether the spotters’ conduct was wanton does not exist.
“Similarly, evidence regarding reckless misconduct is lacking. As stated above, in order to show reckless misconduct, one must act or intentionally fail to act when it is his duty to the other to do so, knowing or having reason to know of facts which would lead a reasonable person to realize, not only that his conduct creates an unreasonable risk of harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent. Thompson, 53 Ohio St.3d at 104-05.
“The unrefuted evidence is that in 2003 AmeriCheer was under no duty to provide spotters at its competitions, but did provide them to create an additional layer of safety.”
Lindsay M. Wolfe v. AmeriCheer, Inc.; Ct. App. Ohio, 10th App. Dist., Franklin Co.;
No. 11AP-550, 2012 Ohio 941; 2012 Ohio App. LEXIS 827; 3/8/12
Attorneys of record: (for appellant) Plevin & Gallucci Co., LPA, Michael D. Shroge, and Frank L. Gallucci, III. (for appellee) Reminger Co., L.P.A., Martin T. Galvin and Rafael P. McLaughlin.
