Child Safety: Who get's sued when they drop the Cheerleader and she cracks her casaba?
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In the past few months the issue of Cheerleading dangers has been put to the forefront here at InjuryBoard. In a Fox News video report the lawsuit between cheerleaders and the Wisconsin School District is explored.
In this post let us examine the assumption that all tort reform is good, saves money for everyone and encourages participation in school activities.
I've sat in the stands at football games and basketball games watching the cheerleaders perform. Okay well maybe I don't always watching the moves but sometimes I do. What may seem like an exciting cheer move can, if the acrobatic move goes bad, lead to ruin for all involved. At a Drake Basketball game a season or two ago one aerobatic move resulted in the cheerleader hitting the floor extremely hard when the base missed catching her. It stunned the crowd waiting to see if she could get up or would be taken out on a stretcher. In that case she got up and was lead to a chair to get her wits together. The moves these cheerleaders are doing should be a concern to every parent whose child participates in sports, but especially in Wisconsin.
Here is what I mean by this. Let's say five Iowa State, University of Iowa or Drake University Cheerleaders, both male and female, are involved in a move where one small young lady is tossed into the air. If the move fails and the young lady lands on her knee, shoulder, spine, neck or head and injuring herself catastrophically, who pays for the costs of medical care and rehabilitation? What parents have to ask themselves is if the young lady is their child or if the students at the base are their children, who can get sued and how will the hundreds of thousands of dollars to care for the injured young woman be covered?
What parents have to ask themselves is if the young lady is their child or if the students at the base are their children, who can get sued and how will the hundreds of thousands of dollars to care for the injured young woman be covered?
In this Wisconsin case Brittany Noffke, and Kevin Bakke, both cheerleaders were told by the instructor to practice a move in the hallway. While executing the move Noffke's head came into contact with the tile floor resulting in a cracked skull.
Wisconsin law prohibits participants in contact sports from suing each other for unintentional injuries.
The Wisconsin Supreme Court is considering the question of whether cheering is (under the Wisconsin statute) considered to be a contact sport. Seem like an odd question to you? If you can't believe that anyone would consider cheering a "contact sport", think about the contact between the cheerleaders head and the floor. Wasn’t that contact? In essence the Court will decide what type of contact was contemplated by the legislature. Contact with the floor or contact between cheerleaders may not be contact at all under this Wisconsin law. The statute doesn't list those sports the legislature wanted to be included as contact sports. So what is a contact sport in Wisconsin? And in this instance it may not be the right kind of contact. You may be lead to ask the question: So contact may not be contact?
Is volleyball, wrestling, track and field, soccer, chess, badminton or golf contact sports?
Well one has to consider what the legislature intended to mean when it wrote the contact sport statute. What is sport and what is intended contact? Contact with anything, including the floor or contact with just opponents? In this case the Plaintiff doesn't want cheering to be a contact sport, because then she can't sue to recover for costs of mending a cracked skull. The Defendant does want cheering to be a "contact sport", because then he gets immunity. The Court of Appeals Of Wisconsin ruled in favor of the Plaintiff when it ruled that cheering isn't a contact sport. The Court also ruled that the school district is immune from suit. According to that ruling the kid who did what he was told by the cheer coach can get sued but the adult coach can't be sued.
Not all tort reform is fair, equitable and for some it doesn’t save money.
Is this fair? Let's see, kid does what instructor tells him to do, the way the instructor told him and in the location where he was told to do it - he gets sued for doing it wrong and in a location where there was no mat and his parents get to sit through depositions while the teacher gets to go to practice. Certainly Kevin’s family won't be encouraged to allow participation in this "non-contact sport" in the future. He'll be playing chess for the next three years. Certainly not golf because it includes steel shafted clubs and hard-as-a-rock balls. Not tennis because of the titanium metal rackets and 100+ mph serves that can take out an eye. And forget doubles because two players on the same side of the net could easily strike each other with a racket or collide and tear an ACL. Volleyball probably isn't probably a contact sport either, although it's out due to spiking the ball into a players face. Do they have competitive typing in Wisconsin?
Most tort deform, I mean reform (sorry) goes like this: Okay if we take away the right to sue it's gotta be good for everyone involved. Right? Wrong!
The Appeal Court sided with the Plaintiff saying because cheerleading doesn't involve contact between opponents it's not a contact sport as intended by the statute. Which means Brittany and her parents can sue Kevin. The Supreme Court is considering whether it interprets the statute the same and the Court of Appeal's decision that Brittany can't sue the school. The Court of Appeals found the Spirit Rules are not laws or regulations that apply to the School District and it's staff. The Spirit Rules were never adopted by the school district and therefore can not be used to establish negligence; with regard to proper training or spotting. So while coaches may abide by the rules, or not abide by them, in the end in Wisconsin they get to walk away from responsibility for their lack of oversight. Meanwhile Kevin and his parents, along with their homeowner's insurance company, assuming they had insurance, get to defend this pimply faced kid who was doing what he was told to do by the adult supervisor.
Later today I'll publish the entire decision here at InjuryBoard along with the Wisconsin Supreme Court oral argument announcement of October 8, 2008.
And we wonder why this next generation is confused?
I bet the Wisconsin legislature intended to encourage participation through immunity to participants of contact sports. Or the legislature intended to at least take away any disincentives. But in reality the way tort reformed immunity works is at odds with the idea of what tort reform does. Tort reform is intended to save everyone money and to encourage participation in doing things society wishes to encourage.
Does immunity encourage participation? Not from Kevin’s standpoint.
Does immunity save everyone money? No, because all the Kevin’s who participate in any sport whether it’s considered contact or non-contact need to be insured with both an umbrella liability policy that covers catastrophic injury to anther and health, life and disability insurance policies that cover their own child’s risk of injury while participating in school sports. Instead of the school district carrying one policy and covering all participants, every parent in the district that can afford one and cares about their child’s economic future need to purchase insurance coverage.
Does this type of tort reform make sense? No, not if you’re the one who might get sued. Yes from the standpoint of selling insurance it works very well; because you get to sell a lot more policies.
The real assumption made in all tort deform is this: I or my family will never be injured and need the civil justice system to help me.
Assumption number two: If I get sued I don’t care if I was right or wrong, I just don’t want to be responsible.
What does make sense? We have kids who are just trying to get good grades and go on to college while staying active and learning to be well rounded adults. Their parents want them to participate and to know kids are safe; or, when they are injured that the school district will take responsibility or at least have some insurance to assist with taking care of medical costs. In this instance the cost of participating in this non-contact sport that participation lead to a cracked skull is shoved all onto another kid and his family. Kevin and his family get to shoulder the burden. If the school district had one policy covering everyone and said if each acts reasonably and not negligent they aren’t legally responsible then everyone saves money and participation is encouraged.
Tort reformers assume that without immunity everyone sues everyone for anything. And that’s just one more unfounded assumption created by the insurance industry that has resulted in selling more insurance. Adopting that kind of tort reform simply shifts the burden from those responsible for the injury to those who are injured. And in this instance, the Wisconsin contact sports immunity statute has muddied the water even more allowing the teacher a get-out-jail-free card while forcing parents to buy more liability insurance covering catastrophic injury.
Clear as mud right? I know we lawyers are terrible with talking in ways that lay people are too lazy to learn. So allow me to try in simple terms to help you understand how to protect yourselves.
Until people can get that thought through their heads let's consider what you can do to protect yourself.
1. Buy an umbrella policy that covers your child’s liability when participating in school activities.
2. Buy a disability policy that does the same.
3. Buy a health insurance policy with unlimited lifetime coverage.