Thursday, May 30, 2019
Court of Appeal:
Woman Who Incurred Brain Damage Fails to Persuade That Justices Triable Issues of Fact Exist Based On Boosted Dangers to Her Through Failure to Take Measures After Earlier Head Injuries
By a MetNews Staff Writer
The Court of Appeal yesterday upheld a summary judgment for a university and a coach in an action by a woman who incurred brain damage as the result of performing a stunt as a cheerleader, holding that the defense of primary assumption of the risk withstood her allegations of negligence in not making sure it was safe for her to participate in light of head injuries a few months earlier.
Los Angeles Superior Court Judge Gregory J. Weingart, on assignment to Div. One of this district’s Court of Appeal, wrote the opinion which affirms a judgment by Los Angeles Superior Court Judge Robert Broadbelt III in favor of Azusa Pacific University (“APU”) and coach Rosie Francis.
The plaintiff, Shelbie Stevens, suffered a mild head injury during practice in September 2012, and incurred a concussion in October of that year, causing her, on a doctor’s advise, not to participate in cheerleading for about a month.
When she returned to the cheerleading team, she noted that she didn’t feel “100 percent” fit. During practice on Nov. 28, Stevens participated in a stunt though protesting her reluctance because the other cheerleaders, with she had to act in tandem, had body types different from hers.
She was unable to hold her footing and a team member who was standing on her shoulder and that another cheerleader, fell, landing on Stevens’s head.
Cheerleading involves striving to build human formations and individuals flying up into the air and coming back down with the aid of others. This, combined with the ineluctable law of gravity, poses risks of physical injury….Given the nature of modern cheerleading, possible physical injuries include blows to the head that may result in a concussion.:
The jurist quoted Court of Appeal Justice Kenneth Yegan’s 1998 opinion in Aaris v. Las Virgenes Unified School District which says:
“We sympathize with an injured cheerleader and any student injured while participating in extracurricular activities which are inherently dangerous. Such activities are, however, voluntary. There are benefits and burdens associated with such activities. Unfortunately, some students participating in such activities are injured. As we shall explain, the doctrine of primary assumption of the risk bars a cheerleader’s negligence lawsuit against the school.”
Argues Defense Surmounted
Stevens acknowledged that cheerleading is inherently dangerous and that the university and the coach made a prima facie showing that there were no triable issues of fact. But, she contended, she had demonstrated that triable issues do exist as to whether the negligence of the defendants subjected her to a greater risk than is inherent in the activity.
Among the precautions that should have been taken, the plaintiff argued, were having someone present during practice who has training in recognizing concussions, making sure the cheerleader gets medical attention (which she did not after the first injury), and implementing a “return to play” protocol entailing professional mental and physical testing. She also maintained that she should have been warned of “second impact syndrome”—vulnerability to serious injury from a second impact when there had not been complete recovery from an earlier one.
Weingart responded that while such measures “would all likely decrease the inherent risks of cheerleading, the failure to do these things does not increase the inherent risks of the sport.”
“Instead, the purpose of each action urged by plaintiff is to decrease the potential severity of an injury by ensuring it is promptly addressed and remediated. Numerous cases have rejected the argument that athletic sponsors and instructors owe these types of duties to decrease risk, and we find no reason here to deviate from their reasoning….
“We are also cognizant of the potential cost the duties urged by plaintiff would impose. Plaintiff claims there would be no meaningful financial imposition here because APU already has athletic trainers and other personnel on campus who could discharge the duties plaintiff urges us to impose. As the trial court noted, Stevens’s argument is essentially that APU should have classified cheer as an athletic team rather than a club, so the cheer team would have access to all athletic resources. Requiring such access would chill a school from creating clubs when it lacks the resources to create official teams, resulting not in more teams but fewer clubs.”
While the danger can be increased by allowing an injured participant to return too early, Weingart said, the evidence did not show any statements by Stevens to Francis during the two months following her return to cheerleading—other than her initial statement that she was not “100 percent”—that would alert the coach to her being in peril.
The case is Stevens v. Azusa Pacific University, B286355.
James W. Kirby and Steven C. Kirby of the Redondo Beach firm of Kirbys Law represented Stevens. El Segundo lawyers Patrick E. Stockalper and Melissa M. Wetkowski of Kjar, McKenna & Stockalper acted for the defendants.
Copyright 2019, Metropolitan News Company