Quite a Show – Concussed Cheerleader Barred From Making Claim RE Failed High School Cheer Stunt (CA)


Baggay v. Linfield Christian School (California)
(not published)

A high school cheerleader suffered a concussion while performing a stunt during practice.  She filed a lawsuit against the school, asserting causes of action for (1) “negligence/recklessness,” (2) “false promise,” and (3) negligent misrepresentation.  The school filed a motion for summary judgment, or in the alternative summary adjudication, on the grounds that the claims were barred by the primary assumption of risk doctrine and that the plaintiff could not establish the essential elements of her false promise (promissory fraud) and misrepresentation claims.  The trial court granted the school’s motion, and the cheerleader appealed.

On appeal, the cheerleader argued that her claims were not barred by primary assumption of the risk “because a concussion is not an inherent risk of cheerleading,”  The Court of Appeals for California disagreed, stating that “‘[i]nherent risk’ does not refer to the type of injury that the plaintiff sustains or the manner in which the injury occurred, but rather the reason for the injury.” (Emphasis in the original.)  The Court continued, “An inherent risk is one that, if eliminated, would fundamentally alter the nature of the sport or deter vigorous participation.”  The plaintiff was injured because the group of cheerleaders failed to properly execute a stunt they had previously practiced and had previously successfully executed.  It is fundamental to the nature of modern cheerleading that teams will practice and perform stunts that involve the risk of injury.  Thus, “any type of injury that reasonably could be expected to result from such a fall is an inherent risk of modern cheerleading.” (Emphasis in the original.)

The cheerleader contended that the school increased the risks associated with the activity by “failing to provide adequate instruction in technique and safety, directing the group to practice a stunt that was beyond their level of experience and capability, failing to provide adequate spotting for the stunt, and allowing her group to attempt an advanced stunt that they lacked the necessary strength and conditioning to perform.”  However, the Court explained that even if those alleged acts and omissions did occur and increased the risk of injury, they would not defeat the primary assumption of the risk doctrine because “at most, they constitute[d] ordinary negligence rather than reckless conduct that is totally outside the range of the ordinary activity involved in coaching cheerleading.”

As to the cheerleaders false promise and negligence misrepresentation claims, the Court concluded that they were also barred by the primary assumption of the risk doctrine.  Both claims were based upon the school’s alleged failure to provide adequate instruction.  The Court stated that “a plaintiff cannot avoid application of the doctrine by attempting to plead a negligence claim as a cause of action for negligent misrepresentation or promissory fraud.”

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