A Cheerleader's Safety

Brittany Noffke, a varsity cheerleader at a high school near LaCrosse, Wis., was practicing before a basketball game in 2004.  A 16-year-old male cheerleader who lifted her up to stand on the shoulders of a fellow student was supposed to be her spotter, but he failed to catch her, and she fell, striking her head on the floor.  The family sued the fellow cheerleader and the school for failing to provide a second spotter and safety mats for that stunt.  Noffke v. Bakke, 760 N.W.2d 156 (2009).

In a case of first impression, the Wisconsin Supreme Court ruled that cheerleading is a contact sport, and Noffke could not sue the school district because of statutory immunity and that a ministerial duty was not violated.  The court also ruled that she could not sue her fellow cheerleader, adhering to a judicially created exception to the standard of ordinary care that a participant in a contact sport is liable for injuries to a co-participant only if his conduct is reckless or intentional.

In Illinois, in considering whether cheerleading would be considered a contact sport, one would look at Pfister v. Shusta, 167 Ill2d 417, 657 N.E.2d 1013 (1995).  The state’s highest court found that a game of “kick the can” in a college dormitory hallway amounted to a contact sport.  Still, it is questionable whether cheerleading would be considered a contact sport because cheerleading takes on more of a protective atmosphere where, as a group of athletes, they work together and count on each other to be successful.  Cheerleading is not part of a game.  It is not a competition.  If courts hold that cheerleading is a contact sport and not merely a recreational activity, it is unclear whether there would be any limits on what constitutes a contact sport.

In an Illinois case involving an injured cheerleader, the appellate court found that cheerleading was a “governmental activity” that took place on public grounds and the high school.  The school district and coach were immune from liability under the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/2-109, 2/201 (2008).  Repede v Community Unit School District No. 300, 335 Ill.App.3d 140, 779 N.E.2d 372 (2nd Dist.2002).

To determine whether liability would attach, the recent case of Karas v. Strevell, 227 Ill.2d 440, 884 N.E.2d 122 (2008), used an even higher standard than the Wisconsin court, finding that for an inured person to recover, the misconduct must be intentional.  In an opinion written by Justice Anne Burke, a majority found as a matter of law that a hockey player injured when two opponents charged and “checked” him from behind could not sue a player for his injuries because such conduct was an inherent, unavoidable risk of playing that sport.  She wrote a assumption of risk, and issue that frequently is raised in sports-injury cases.  In organizational contact sports, the plaintiff must demonstrate that the defendants “engaged in conduct ‘totally outside of the range of ordinary activity.’” [citation omitted] The opinion suggests that to hold otherwise would have a “chilling effect” on participants in sports.

I would respectfully suggest that the opposite could occur.  Parents will be discouraged from allowing their children to participate in contact sports if they know that if they are hurt, co-participants and supervisors are virtually  judgment-proof from liability unless it could be proven to have resulted from an intentional wrong.

Lawyers are becoming more creative in identifying liable parties.  In Massachusetts, a 14-year-old girl died after her spleen ruptured when she was encouraged by adult “safety-trained and accredited” coaches to perform cheerleading stunts that were beyond her skill level.

Her lawyer has alleged that the actions of the coaches were inadequate and unreasonable as the first responders to an emergency.  He also sued the companies that certified and trained the coaches at the gym, alleging that these companies are part of a global business that generates $2 billion annually in competitions, camps, uniforms and other activities.

In Texas, a lawyer settled a cheerleading case for an eighth-grader who fell while performing an unfamiliar stunt.  His complaint brought up a constitutional claim against the school for failing to provide the same safety precautions for men’s teams to women’s sports teams, a violation of Title IX.  In California, a lawyer is suing the Los Angeles unified school district for injuries to a 17-year-old cheerleader who fell into a coma after she tried to perform a stunt.  Among the allegations are that no one knew how to operate emergency equipment at the game site.

Many argue that cheerleading has become more dangerous as children and teens are pushed to higher limits, yet safety measures are not being adopted or enforced.

Cheerleading advocates say it has become safer over the years because of a greater awareness of its dangers as well as stronger coordination between state and national groups.

It is suggested that the wise action would be for parents to take out high insurance policies on their children if they are cheerleaders.  Shifting this burden to the innocent participant seems to be the more common rhetoric these days.  It certainly sounds like the safest approach to take until more state courts speak out on the matter.