Recreation Law Center: Negligence as Inherent Risk

Crace, et al.  v. Kent State University, 2009 Ohio App. LEXIS 5785 (December, 2009)

We talk a lot, in the recreation and adventure education industry, about providing information to participants on the inherent and other risks of the activities.  This practice is valuable for a variety of reasons—both practical and legal.  In addition, it is a smart and fair thing to do.  On the legal end, we talk about the concept of "assumption of risk" and what that means in the context of a service provider's legal exposure and ultimate liability. The Crace case—out of Ohio—provides an opportunity for us to discuss the different types of assumption of risk, how these concepts are viewed by the courts, and how service providers can benefit from these doctrines in the context of a lawsuit. The activity happens to be cheerleading, but, as always, the doctrines we discuss apply to the gamut of recreation and adventure activities.

In Crace, et al.  v. Kent State University, 2009 Ohio App. LEXIS 5785 (December, 2009), Angela Crace was injured while participating in a cheerleading maneuver known as "the Big K", in a practice before a basketball game. Crace was a junior at Kent State University (KSU—"defendant") and captain of the cheerleading squad. 

The Big K was a human pyramid, composed of a base and middle layer, with "flyers" coming off the top. Spotters were positioned at the base to protect the flyers as they came down. The maneuver had the highest level of difficulty permitted by the NCAA. The squad had performed this maneuver successfully several times in past seasons, but several members of the current squad had never performed it. The cheerleading coach positioned Crace as a flyer. The first two attempts failed, resulting in Crace falling "about 15 feet" but caught by the spotter. On the third attempt, the cheerleading coach substituted another squad member as a spotter—Cobbin—who had never seen nor assisted the maneuver. Cobbin claimed he told the coach he was "uncomfortable" in the spotting position; the coach claimed the statement "never occurred." Crace went for a third attempt and failed. As she fell, Cobbin "panicked, shielded his eyes, and moved out of the way." As a result, Crace's 15 foot fall was unbroken, and she fell to the gym floor, suffering catastrophic injuries, including immediate paraplegia.

Crace and her parents ("plaintiffs") sued KSU for negligence and loss of consortium, claiming KSU was liable based upon the alleged negligence of its cheerleading coach (Buchman) in conducting the cheerleading practice. The lower court ruled that plaintiffs' claims were barred by the primary assumption of risk doctrine, and dismissed plaintiff's claims. Plaintiffs appealed, asserting that the Court had applied the assumption of risk doctrine incorrectly.

The Appeals Court affirmed the lower court in dismissing the plaintiffs' claims based upon primary assumption of risks.  The Court began by defining the various types of assumption of risk, including primary—under Ohio law.  

First, the Court noted that this was not a case of "express" assumption of risks. Although Crace and her parents had signed an "informed consent" before each cheerleading season, the document did not contain language expressly relieving KSU from liability (for negligence). 

The Court next looked at the application of the doctrine of primary assumption of risks. The Court noted that Ohio law supports the application of this doctrine to incidents involving "sporting events and recreational activities."  Under Ohio law, a participant who voluntarily engages in a sporting event or recreational activity, assumes the inherent risks of the activity—including the negligence or carelessness of those involved in that activity—whether those involved include co-participants or non-participants. Correspondingly, those involved in the activity have no duty to protect the participant from the inherent risks of the activity, and cannot be found liable to an injured participant absent proof of reckless or intentional misconduct on the part of the person charged with wrongdoing. The Court stated that the application of primary assumption of risk is a question of law for the court to decide, and emphasized that its application is not dependent on a participant's actual knowledge of, consent to, or appreciation of the risks. By virtue of his voluntary participation, the participant assumes the risks inherent in the activity—whether those risks are known or unknown ("The law simply deems certain risks as accepted by plaintiff regardless of actual knowledge or consent.").  The rationale for primary assumption of risks, the Court stated, is that "…certain risks are so inherent in some activities that the risk of injury is unavoidable.

The Court distinguished yet another version of assumption of risks—implied (oftentimes termed "secondary") assumption of risks. The Court explained that the application of this doctrine requires proof that the plaintiff "...consented to or acquiesced in an appreciated or known risk" causing injury (arising from a breach of the defendant's duty of care). In Ohio (as in many states), plaintiff's secondary assumption of risks is viewed as a form of comparative fault, and is compared to the fault of the defendant in determining plaintiff's ultimate recovery. Plaintiffs had urged that this was the proper analysis (an ordinary negligence standard) to be applied by the Court, since, Plaintiffs argued, the application of the primary assumption of risk doctrine should only be applied to a co-participant's conduct (not to a coach's conduct). The Court disagreed, citing a variety of Ohio cases that had applied the primary assumption of risks doctrine to bar claims against organizers, operators, sponsors or other non-participants. The Court cited a variety of Ohio case law observing that it made no sense to apply the higher reckless or intentional misconduct standard as between co-participants, and apply a lower negligence standard to related non-participants.

The Court completed its analysis by noting that before it could apply primary assumption of risks, it must determine whether the incident at hand—"an injury due to a fall"—was an inherent risk of the sport of cheerleading. The Court affirmed the lower court's finding that it was. The Court then must determine whether the KSU coach had engaged in reckless or intentional misconduct. The Court noted there was no allegation or evidence that the coach intentionally caused the injury, and so the inquiry focused upon whether her conduct was reckless. There was conflicting testimony on whether the coach had violated the American Association of Cheerleading Coaches and Administrators ("AACCA") guidelines for coaching cheerleading maneuvers, or cheerleading customs and practices—including proper progression and sequencing of skills in performing the move. However, the Court identified that, according to the expert testimony, even if a coach were to follow all guidelines and practices, the risks of a fall (or spotter failure) could not be eliminated. Relying on the lower court's factual findings, the Court found there was no evidence to support that the coach's conduct was reckless or intentional. As a result, the Court affirmed the lower court and dismissed plaintiffs' complaint on the strength of the primary assumption of risk doctrine.

Discussion

Perspective on Primary Assumption of Risks

Ohio's rulings on the application of primary assumption of risk are aggressive. This type of approach might be termed an "enhancement" of the traditional approach to primary assumption of risk, in that the negligence of co-participants or others is considered an inherent risk of the activity—liability only attaches with a finding of reckless or intentional misconduct. It appears that only a limited number of states have adopted this enhanced approach (see comments, below).

The traditional "inherent risk" primary assumption of risk doctrine is that in agreeing to participate in a sport or recreational activity, the participant (minor or adult) assumes the inherent risks of the activity, whether those risks are known or unknown. Like the enhanced approach, the provider has no duty to protect the participant from these risks and no liability for injuries resulting from these risks. However, under the traditional doctrine, inherent risks are those risks considered integral to an activity, but do not include (the risk of) the negligence of those involved. That is, for example, a service provider and its staff still have a duty to exercise reasonable care in the conduct of the activity (not to ‘enlarge' traditional inherent risks), and the issue often becomes: what caused the injury—an inherent risk of the activity or provider negligence?    

 The enhanced primary assumption of risks approach started out, it appears, to address public policy efforts to protect—as between co-participants—active and uninhibited participation, and—as between an instructor and student—an instructor's ability to push the student beyond their comfort level, in the learning process. (see Knight v. Jewett, 3 Cal. 4th 296 (1992) and Kahn v. East Side Union High School, 75 P.3d 30 (Sup. Ct. Ca. 2003)). Thus, the doctrine originally had a more narrow application. As mentioned above, the Ohio courts, along with other jurisdictions (such as Illinois—see Karas v. Strevell, et al., 2008 Ill. Lexis 284 (2008)) have extended enhanced primary assumption of risks to benefit other non-participants, including sponsors, operators and universities. Interestingly, the Crace Court doesn't cite the ‘instructor/student' policy rationale (well articulated in Kahn, supra))—in support of its decision to extend the benefits of the primary assumption of risk rule to coaches—presumably relying instead, on the policy rationale to reduce potential litigation.   

We are aware that Wisconsin has codified the concept of enhanced primary assumption of risks—at least, as between co-participants—in their state's inherent risk legislation. In that law, defined "contact sports participants" are only liable to a co-participant "…if the participant who caused the injury acted recklessly or with intent to cause injury." Wisc. Stat. 895.525.  Other states may have done something similar.

Many states have codified some version of the inherent risk (primary assumption of risk) doctrine in their statutes (and may have more than one statute addressing this) and/or in their case law. Have your attorney check both case law and statutes to determine how primary and other forms of assumption of risk are handled in your jurisdiction.

  • In some jurisdictions, the courts mix application of primary and secondary assumption of risk concepts in how they address the risks of sport and recreation activities. For example, in determining whether a plaintiff has assumed the risks, these courts consider the experience level of the plaintiff, and their subjective knowledge and appreciation of the risks causing the injury. (See, Christian v. Eagles Landing Christian School, et al., 2010 Ga. App. LEXIS 284). Other courts consider an instructor's supervisory or instructional responsibilities as separate from the application of primary assumption of risk. Instead of the ‘grace' given instructors or coaches in some jurisdictions, like Ohio and California (the reckless or intentional standard), a failure to exercise reasonable care in instructing or supervising an activity could be viewed as an "enlargement" of the inherent risks of the activity, barring application of primary assumption of risks. Put another way, the cause of the incident was not an inherent risk of the activity, but the failure to exercise reasonable care in supervising or instructing the activity.  (See, e.g., Ballou v. R-C-S School Dist., 2010 N.Y. App. Div. LEXIS 2984 (N.Y. App. April, 2010; Morales v. Beacon City School Dist.,2007 N.Y. App. Div. Lexis 10558 (2007)).
  • Note the Crace Court's discussion of express assumption of risks. The Court states that express assumption of risks would be equivalent to plaintiff's written agreement to release KSU from liability—presumably for negligence. Here, plaintiff and her parents had signed an "informed consent" before each cheerleading season, but it did not contain any language releasing KSU from liability. If it had, and the Court had upheld the document, it would not have needed to address the application of primary assumption of risks. [In other cases, express assumption of risks can be oral or written, and may or may not include an assumption of the ‘risk' of an organization or individual's negligence—although that is quite common].
  • In upholding the application of primary assumption of risk to the coach's conduct, the Crace Court cited to the Ohio Supreme Court's decision in Gentry v. Claycraft (802 N.E.2d 1116 (Ohio, 2004). In that case, the Supreme Court applied the primary assumption of risk doctrine to bar a claim brought by the parents of a 4 year old injured in a "chairbuilding" activity with another youngster—emphasizing the fact that knowledge and appreciation of the risks is irrelevant. Citing one of its previous rulings, the Supreme Court stated: "the reckless/intentional standard of liability applies regardless of whether the activity was engaged in by children or adults, or was unorganized, supervised, or unsupervised…to hold otherwise would open the floodgates to a myriad of lawsuits involving the backyard games of children."

What do you think of Ohio's approach?  Should the negligence or carelessness of a coach or instructor be considered an inherent risk of the activity—eliminating their duty to exercise reasonable care in the context of sport or recreational activities? 

Bottom line, the doctrine of primary assumption of risk—whatever approach your jurisdiction may take—can be a powerful tool for recreation providers—as can a full understanding of all aspects of assumption of risk. Work with your legal counsel to understand the application of these doctrines in your state.