Personal Injury to High School Cheerleaders Becoming Greater Problem

Injuries to high school cheerleaders serve as an intriguing intersection of many conflicting legal rights and duties. An interesting stew is created with evaluating the balance of whether a participant has assumed the risks inherent in cheerleading, against the legal duty that a school district may have to protect the safety of its students, leavened with the effect of the release or waiver of liability that a parent has probably signed on behalf of that student as a condition of the student's participation in cheerleading. How satisfying that stew is to the interests of the injured cheerleader depends on the laws of the state where the injury occurred.

Assumption of the Personal Injury Risk

Cheerleading today is much more than girls and boys with pom pons, megaphones, sweaters, and spirit. Elements of gymnastics now dominate the "performance" given by squads at games and other events. Competition is usually the name of the game, just as competitive as the activity being contested by the athletes at the same time. As a result of the increasingly athletic activity inherent in cheerleading, it is more easily seen as a "sport" just like football, basketball, soccer, and others. In most states, then, an analysis of the risk of personal injury or other harm assumed by a participant in cheerleading is conducted in the same way that a court would analyze the issue presented by the injury suffered by a football player.

There is a legal concept known as "assumption of the risk" which holds that a person may, either expressly or impliedly, agree that other people involved in an activity with him owe him less or no duty of care to not cause him personal injury. One might expressly assume the risk of personal injury by agreeing that the others will not be legally responsible for him -- usually memorialized by a "release" or "waiver" of liability. When a person voluntarily takes part in an activity which has known inherent risks of injury or harm, she might impliedly accept the risks of that harm. Whether a person plays football, snow skis, rides a wakeboard, "car surfs," or performs a basket toss in a cheerleading routine, there are risks of personal injury inherent in these activities.

In the states which have not adopted assumption of the risk, ordinary negligence standards apply in deciding whether or not a co-participant owed a duty of due care to the injured person.

How completely the application of assumption of the risk prevents or limits a recovery from other participants is usually broken into two categories: complete ("primary") or partial ("secondary"). In activities where the risk of personal injury is so inherent in the activity that it cannot be performed, or performed well, without those risks, the assumption of the risk is primary -- as long as the injury resulted from conduct which is inherent in the activity, no one owes another participant a duty to protect him from that injury. When the risk of personal injury is a part of the activity, but not inherent in all conduct of the activity (such as driving or traveling by car) the other participants have some duty to protect others from injury but the participant must also protect himself from injury.

In most states which have adopted assumption of the risk, participation in "sport" is a circumstance in which primary assumption of the risk can be applied. "Sport" is vigorous physical activity, usually performed with others in a competitive environment. Most sport involves the possibility of physical contact between participants, often forceful physical contact. Sport also involves the performance of physical activity which pushes the participant's body into stressful or straining conditions (running, twisting, tumbling, pitching) often with a risk of personal injury if the participant does not perform the activity as expected (diving from a high dive, a gymnast on the rings or pommel horse or high beam). Sport also involves coaches, trainers, spotters, and others who help develop the more active participants' expertise in the activity, and therefore are "participants". Sport also involves the owners, operators, and maintenance people of the ski slopes or fields or floors where the activities occur. If people were legally liable for the injuries caused to others in these activities, or a coach or gym was responsible when an athlete did not perform a routine safely, there would be a damper on the full enjoyment of these activities; people would have to hold back or limit what they do. As the California Supreme Court wrote in Kahn v. East Side Union High School (2003) 31 Cal.4th 990, 1004, 4 Cal.Rptr.3d 103,

Principles of the doctrine of primary assumption of the risk of injury inherent to certain sporting activities exist because, as a matter of policy, it would not be appropriate to recognize a duty of care when to do so would require that an integral part of the sport be abandoned, or would discourage vigorous participation in sporting events.

Imposing legal liability for personal injuries would change the sport. Therefore, these states hold that a participant impliedly assumes the risks of personal injury that are inherent in a sporting-type activity. In many of these states cheerleading is seen as a sport, and so a cheerleader impliedly assumes the risks of personal injury which are inherent in modern cheerleading.

In California (one of the states which has adopted primary assumption of the risk, applied it to sports, and considers cheerleading a sport), the analysis of these issues is a two-step process. First is to decide whether or not the injury was caused by conduct which is inherent in and an integral part of the activity. If not (such as a case where a middle school student was hit in the head by a golf club during PE), the analysis stops and returns to general negligence analysis. If the risk is inherent (such as diving too deeply from blocks in competitive swimming and injuring yourself when you hit the bottom of the pool), then the court moves to the next step. In that step, the court must evaluate whether the person or entity who is the defendant in the case, as a co-participant in the activity, "intentionally injured the participant or engaged in conduct that is so reckless as to be totally outside the range of ordinary activity involved in the sport" (Knight vs. Jewett (1992) 3 Cal.4th 296, 320, 11 Cal.Rptr.2d 2.) which increased the risk of, and contributed to, the at-issue injury.

When it comes to a coach or instructor, the question is better phrased as whether the defendant acted with the intent to cause the injury or acted recklessly in his supervision or instruction which increased the risks of injury inherent in the activity. How to judge whether supervision or instruction was "reckless" remains an open question, with one formulation being instruction "which departs from the range of ordinary instructional activities, increasing the risks of injury beyond those inherent in teaching a sport, and is therefore subject to liability, when his or her conduct constitutes a gross or extreme departure from the instructional norms." (Kahn v. East Side Union High School District, supra, concurring opinion of Justice Werdegar at page 1019.)

Looking now at cheerleading injuries, we have potential claims against co-participants along two dimensions: other members of the squad, and the teacher/coach of the squad. To determine whether or not a claim might be allowed against a team member, we must evaluate whether the conduct of that team member unreasonably increased the risk of injury by conduct outside of the ordinary gymnastics/cheerleading activity. This does not mean to be without skill, this does not include making a mistake in the performance of the maneuver or not understanding how to do it. To be possibly liable the team member must have stepped far outside of the bounds of normal performance in causing the injury. To evaluate the possible liability of a coach or instructor, we must look beyond being untrained or lesser trained: the coach's instructions or the failure to properly supervise must be an extreme departure from the norms for coaches of the activity. As you can imagine, these determinations are very fact dependent and often require the resolution of disputed factual issues.

Duty of School Instructors

In most states, schools and their staff have a special relationship with their students. Since a major element of that relationship is the supervision and guidance of young people, teachers have a higher duty to protect students from harm while the students are under their supervision. In many states this duty is described or imposed by statute. This duty of care is characterized in California as being the duty of a "prudent person" in like or similar situations, rather than an "ordinary" person.

In states which would not be applying a primary assumption of the risk analysis to the injured cheerleader's claims, this higher duty of care would make it easier for the cheerleader to be successful in a case against the school district or its employees for negligent supervision or coaching.

What happens when this higher duty of care is met by a primary assumption of the risk circumstance (no duty or greatly reduced duty)? States will answer this differently. Most states would not use the higher duty of care in its assumption of the risk analysis -- this would negate the doctrine in these cases -- but would apply the higher duty if the court finds that the injury did not result from a risk inherent in the activity. Your state may, or may not, apply the "prudent man" standard in deciding the second prong of the test, whether the conduct of the participant was reckless and unjustly increased the risk of injury. It will be easier to establish recklessness if the co-participant will be held to a prudent man standard of care.

Legal Effect of Release/Waiver of Liability Signed by Parent

The participants in most sponsored risky activities are required to sign a Waiver of Liability as a condition of being allowed to participate. In such a waiver, a participant will agree that the participant will not be able to sue the sponsoring entity and its employees because of an injury suffered because of the participation. A minor does not have legal capacity to sign such a waiver, so the minor's parent(s) must sign on her behalf. Is this signed waiver an express assumption of the risk of injury on behalf of the minor cheerleader and, if so, how far does this protect the sponsoring entity and its employees?

As you might have already guessed, it depends on your state. Most states will enforce the waiver against the claims of the cheerleader, even when signed by a parent. Because participation is seen as a necessity for the minor and this signature as a requirement for participation, it will be enforced. Other states will not enforce the waiver.

To what extent the claims against the sponsoring entity are waived depends on the terms of the waiver document and state law. These documents are strictly construed against the sponsoring entity, and in the light of any uncertainty about whether a claim is waived the waiver would not be enforced. Most if not all states have a public policy which will not enforce a term which purports to allow a waiver of the consequence of acts which were intended to cause personal injury, or which were caused by reckless or grossly negligent conduct.

In California, a waiver signed by a parent is enforceable against the cheerleading participant. The waiver can properly be given to a government entity like a school district. If properly worded, a waiver might be enforced in favor of the school district. However, since California imposes a higher duty of care for students on schools and their employees, and liability would not imposed unless the teacher or coach was reckless in her coaching, such a waiver would not bar an action against a coach or her employer if the claim were to survive the two-part analysis of the application of primary assumption of the risk.

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