A football player injured during a game was barred from filing a claim against the school district and its employees after signing an express assumption of the risk agreement. The school followed all applicable CIF and school regulations regarding concussions and was not grossly negligent in its actions.
Facts
Nick Brown was a sophomore at Union Mine High School and a member of the Junior Varsity football team. Union Mine is a high school within the El Dorado High School District (District). Every student athlete received a handbook from the athletics office that had to be read and signed by the student as well as a parent. Included with the handbook was a form entitled, “El Dorado Union High School District Release of Liability and Assumption of Risk Agreement.” Prior to the season in question, Nick and his father signed this agreement. The boxes for football and baseball were checked in a list of possible activities. The release states in part, “If student is hurt, injured, or even dies, I/We will not make a claim against or sue the District, its trustees, officers, employees and agents, or expect them to be responsible for any damages.” Also included within the packet was a document entitled, “Parent Concussion/ Head Injury Information Sheet.”
Nick suffered a traumatic brain injury during a football game in August of 2015. Although no unusually hard hits or falls occurred during the game, towards the end Nick removed himself from the game. Those observing him leave the field did not notice anything unusual. It was not until after the game, when Nick spoke to his coach with slurred speech and collapsed that they knew something was wrong. A chiropractor present at the game first thought it was heat stroke, but quickly realized that Nick’s cognitive abilities were impaired and called for an ambulance.
At the hospital the doctors concluded that Nick had suffered a large left subdural hematoma with midline shift and cerebral herniation, which was treated with emergency decompressive surgery and evaluation of the subdural hematoma. After surgery, his treating physician also diagnosed him with an optic nerve pallor in his left eye that was caused by the injury. The Brown family sued the district for negligence and damages stemming from the injury to Nick.
The District moved for summary judgment arguing that the Browns had signed an express release assuming the risk of injury and barring any suits against the District and its employees. The trial court granted the motion for summary judgment and this court affirmed.
Are Waivers of Negligence Claims for Injuries Suffered in Athletics Lawful?
Express waivers of the right to bring claims for injuries caused while playing sports are permissible. “When an individual signs an express waiver of liability, he promises not to exercise the right to sue for harm caused in the future by the wrongful behavior of a potential defendant, eliminating a remedy for wrongdoers.” Coates v. Newhall Land & Farming, (1987) 191 Cal.App.3d 1,7. After the signing of an express waiver, the defendant is relieved of a legal duty to the plaintiff and cannot be found liable for negligence.
The only exception to this well-established general rule is when the defendant acted with gross negligence in such a way that it is not in the public interest to allow the behavior to go unchecked. On this front, however, it is also clear from relevant case law that “exculpatory agreements in the recreational sports context do not implicate the public interest and therefore are not void as against public policy.” Benedak v. PLC Santa Monica, 104 Cal. App.4th at 1356-57. So long as the waiver does not attempt to excuse gross negligence it will most likely stand muster in court and be upheld as valid.
The Release Signed by the Plaintiffs in This Case Was Valid, Enforceable, and Not Against Public Policy
The release in question stated the following, in part: “I, the undersigned, understand and acknowledge that the above-named student has voluntarily chosen to participate in school-related activities at his/her own risk. I/We know and fully understand that said school-related activities may involve numerous risks, dangers, and hazards, both known and unknown, where serious accidents can occur, and where participants can sustain physical injuries, damage to their property, or even die. I/We acknowledge and willingly assume all risks and hazards of potential injury, paralysis, and death in the school-related activities . . . .”
It went on to release District employees and affiliates from liability as well, ” I/we voluntarily agree to release, waive, discharge, and hold harmless the District and its trustees, officers, employees, and agents from any and all claims of liability arising out of their negligence, or any other act or omission which causes the above-named student illness, injury, death or damages of any nature in any way connected with the student’s participation in the school-related activities. I/We also expressly agree to release and discharge the District, its trustees, officers, employees, and agents from any act or omission of negligence in rendering or failing to render any type of emergency or medical services. “
California courts have consistently upheld releases that are clear and specific as to what rights the signatory is waiving. The document must be written in such a manner that a person unfamiliar with legal language can read it and fully understand its contents. It must clearly and unmistakably lay out for the reader that by signing they are willingly relieving any potential defendants from liability for negligent acts or omissions that may occur causing injury or property damage.
Here the release clearly states that the signor is releasing any right to sue for any injuries, or even death, that may occur as a result in participating in sports with the District. In doing so the Brown family unequivocally agreed to assume the risk of injuries caused by any negligent acts or omissions by District employees involved in coaching and supervising their son.
The plaintiffs argue that the release does not apply to their particular situation because it does not address lack of proper assessment, monitoring, or availability of speedy medical attention and/or transport to the hospital. They claim that it is too general and can apply to any school activity. The court disagreed noting that agreement contained a list of activities covered by the agreement. The Brown family specifically checked off the sports of football and baseball. “It is only necessary that the act be reasonably related to the object or purpose for which the release is given.” Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 757.
The crux of the question is not whether the specific activity causing the injury is mentioned in the release, but rather the scope of the release. An act of negligence is reasonably related to the purpose of the release if it is included in the scope. The release here expressly mentioned that the District would not be held liable for any acts by coaches, or other employees for any potential injuries sustained while the student engaged in the sport. Therefore, the release was specific and clear enough to give the Browns a full accounting of their rights and explanation as to what rights they were waiving before they signed it.
The Actions of the Coaches and the District Did Not Constitute Gross Negligence
An individual cannot assume the risk of an injury that is not known or appreciated before it happens. This standard is a broad one, however. As the court in Taverneir v. Maes explained, “Neither knowledge of the danger involved, nor appreciation of the magnitude of the risk, requires clairvoyance to foresee the exact accident and injury which in fact occurred. It is sufficient to know that it is the range of possibilities,” (1996) 242 Cal.App.2d 532, 544. In addition, knowledge of a particular risk is not necessary when the release expressly waives liability for all potential risks as it did in this case. The Browns assumed and acknowledged “all risks and hazards of potential injury, paralysis and death in school-related activities.”
It is general knowledge that football often causes traumatic head and other serious injuries to players. The plaintiff’s own expert stated this fact in his testimony. In addition, the paperwork sent home with the release included a document informing the family about concussion and head injuries as well as detailing the fact that such injuries can result in “devastating and even fatal consequences.” This document was also signed and acknowledged by the family.
The Browns could potentially overcome the assumption of the risk, if they can prove that the District and/or its employees acted with gross negligence. “Gross negligence is the exercise of so slight a degree of care as to raise a presumption of a conscious indifference to the consequences.” People v. Watson (1981) 30 Cal.3d 290, 296.
The District submitted several pieces of evidence to show that the coaches and other employees were not grossly negligent in the situation surrounding Nick Brown. This evidence included:
- All coaches employed by the District were required to undergo concussion training.
- At every game coaches and staff monitored players for potential head injury by watching them on the field, and speaking to them during timeouts and halftime.
- The symptoms watched for were consistent with their training and CIF rules.
- Nick displayed no warning signs during the game.
- Nick and his family were well informed regarding the risks associated with playing football.
- All players were advised to take themselves out of the game if injured.
- A chiropractor with some professional wherewithal in traumatic brain injuries was present at the game and examined Nick after his collapse. An EMT with basic first aid and life support equipment also attended the game.
- Upon realization that Nick required further care, an ambulance was immediately called and arrived within minutes.
The Browns argue that despite the information provided to families before the season began, more could have been done to educate the families and players about the warning signs and symptoms of a concussion or head injury. While this may be true, the court found that the failure of the District to further educate families on the dangers of concussions does not rise to the level of gross negligence. There is no evidence of a complete disregard for Nick’s well being and the coaches involved took all measures that reasonable coaches in the same position would take. There was no departure from any accepted norms in this case.
The District was not grossly negligent, as the plaintiffs claim, in providing medical care to Nick once alerted to his medical issue. CIF bylaws recommend, but do not require, that school administrative staff provide first aid capability and/or a medical doctor on hand at athletic events. Here, a request for a doctor to be on hand was made, but was denied. Instead, a chiropractor with some professional training in evaluating traumatic brain injuries and concussions as well as an EMT with a truck equipped with basic medical supplies were present that day.
When Nick collapsed he was examined by the chiropractor who after surmising that he was suffering from heat stroke, realized that his cognitive function was compromised and that he needed to be transported immediately to the hospital. The plaintiffs argue that the District was grossly negligent in failing to have qualified medical staff available at the game and that this oversight resulted in a delay in his treatment and potential exacerbation of his injuries.
The court was not persuaded by this argument because the District was in compliance with the requirements under CIF rules. The chiropractor at the game examined him immediately after he collapsed and recommended professional assistance. Nick also asserts that as he was hit at least 28 times during the game and his coaches should have conducted more assessments to check for head injuries. The court shot down this argument as well, acknowledging that the nature of football does not allow coaches to stop and start the game every time a player is tackled. Removing a player every time they are hit to check for signs of concussion is not feasible.
Cases addressing the issue of future liability for negligence consider whether the defendants’ conduct “substantially or unreasonably increased the inherent risk of the activity” so as to constitute gross negligence. Eriksson v. Nunnink (2011) 191 Cal.App.5th at pp. 358-359. Given the evidence of due care taken by coaches and others on the field with Nick the day of the injury, this court concluded that a finding of gross negligence was not warranted.
Key Takeaways
- A clear and specific express release of liability for school sports will successfully bar future claims for negligence.
- Express assumption of the risk may only be overcome if a plaintiff shows that a defendant acted with gross negligence.
- It is common knowledge that the game of football comes with the inherent risks of traumatic head and other serious injuries.
- Coaches who completed training for concussion identification acted reasonably by checking on players during timeouts and at half time to assess whether any signs of concussion were apparent. Coaches cannot be expected to stop the game after every tackle to assess for concussion.