We have written several columns on what is called the “Assumption of the Risk” doctrine. Generally, sports and action participants are found to have assumed the risk of injuries inherent in the sport itself. Examples include skiers falling in moguls, a baseball player being hit by a “bean ball,” and flag football players injured during the game. Those plaintiffs were found to have assumed the risk of injuries common in the sport.
Same with the Burning Man participant who literally walked into the Burning Man embers and fell. He assumed that obvious risk
On the other hand, patrons hit by flying bats at a baseball game do not assume that risk, which is why you see netting around the batter’s box and down the first and third baselines.
WATER POLO PLAYER HIT IN THE HEAD
An unnamed student participating in a 3-day “WinterFest” tournament organized by USA Water Polo was hit hard in the face by a shot – which led to a concussion with symptoms like excessive sleeping, dizziness, extreme sensitivity to light, lack of focus, headaches and nausea. She was later diagnosed with post-concussion syndrome.
The game continued until the young goalie swam to the side of the pool and spoke to her coach, who lacking any concussion management training, sent her back in to play – goalie – and she suffered several more shots to the head.
The goalie went from a straight-A honors student and multisport athlete to having to drop out of school, with continuing persistent post-concussion syndrome.
USA WATER POLO SUED
The parents of the goalie, who is unnamed because she is a minor, sued, claiming USA Water Polo should have a protocol in place for concussion injuries. Remarkably, USA Water Polo defended claiming it had no such duties even though adult USA Water Polo players have a concussion protocol and the coaches are trained in concussion management.
INJURIES NOT ASSUMED
Long story short, the trial court ruled in favor of USA Water Polo claiming it did nothing wrong; however, the Ninth Circuit US Court of Appeals reversed the decision finding that USA Water Polo was grossly negligent and could easily have avoided injuries to the goalie by keeping her out of the game. Suffering multiple hits to the head with resulting concussions was totally within the control of the coach, so was not an injury assumed by the young athlete.
I like this decision. The injuries suffered by this student due to USA Water Polo’s non-action was “an extreme departure from the ordinary standard of conduct,” as the Court wrote, and thus grossly negligent. Good ruling.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOA’s, contracts,personal injury, accidents, mediation and other transactional matters. He may be reached at firstname.lastname@example.org or www.portersimon.com.
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