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Tuesday, January 27, 2009
"Flyer" Goes Down: Wisconsin Supreme Court Finds Cheerleading to be a Contact Sport
Today, the Wisconsin Supreme Court issued its opinion in Brittany L. Noffke v. Kevin Bakke. Howard Wasserman discussed this matter on this Blog last month. Also, check my post on the Sports Law Blog for cheerleader injuries from 2006, and discussions on sports injuries from myself and Geoffrey Rapp here, here, and here. Also, see Geoffrey's recent law review piece on the reckless standard for injuries on the playing field.
The basic facts: Noffke, a "flyer" (the elevated cheerleader during stunting), fell while practicing a "post to hands" stunt in an area without mats. Bakke, the "post" (the one who elevates the cheerleader onto the shoulders of the "base"), lifted Noffke onto the "base," and let go. Instead of moving to the rear to spot Noffke, Bakke moved to the front. Noffke fell to the rear of the "base" and struck her head. This was the first time this stunting group practiced this particular stunt. At the time, her coach (also a middle school teacher from this district), was supervising another group of cheerleaders approximately ten feet away.
Procedural history: Noffke sued Bakke for negligence (failure to spot Noffke), and sued the school district (Holmen) for negligence (failure to provide a second spotter and failure to provide appropriate surfacing/mats). Both Bakke and the school district were granted summary judgment; Bakke succeeded as the circuit court found cheerleading to be a "contact sport" requiring a finding of recklessness to impose civil liability. The school district succeeded on summary judgment as no known and compelling danger arose that gave rise to a ministerial duty on the coach's part. On appeal, the appellate court found that Bakke was not immune from suit since cheerleading is not a "contact sport" as defined by Wis. Stat. 895.525(4m)(a), but affirmed the school district's immunity. The Supreme Court of Wisconsin today affirmed the circuit court's ruling.
For Bakke to achieve immunity under the statute, cheerleading would have to be found by the Court to be a contact sport in this setting (amateur, high school sport). The Court found cheerleading to fit within the plain language of the statute ("physical contact between persons in a sport involving amateur teams"). The Supreme Court goes on to cite to those "recreational activities" that do not enjoy immunity, such as hunting, bowling, horseback riding, and skiing.
The Supreme Court found cheerleading to be a sport because it involves "physical exertion and skill that is governed by a set of rules or customs," and it is a team sport because "a group is organized to work together" to lead fan participation. Utilizing a dictionary and the spirit rules of the National Federation of State High School Associations, the Wisconsin Supreme Court found that cheerleading is a contact sport as it involves physical contact (at times "forceful") between cheerleaders during participation.
Noffke argues that the physical contact between cheerleaders is not of the type contemplated by the Wisconsin legislature (football, hockey, etc.), but rather cheerleader contact in incidental. The Wisconsin Supreme Court, however, responded that the legislature did not intend to just give immunity to participants in "aggressive" sports (side-note: in the Karas decision in Illinois, Justice Burke added an enhanced exception for "full-contact sports"). Noffke then argues that immunity should not apply in this case because cheerleading is not "competitive," but competition is not a requirement in the plain language of the statute, and a "competition" requirement would result in inconsistent results (cheering a team vs. cheerleading competition; practice vs. game).
Interestingly, the Court concludes its opinion relative to Bakke by encouraging the legislature to examine the Supreme Court's opinion and address how the statute would apply to other sports like "golf, swimming, or tennis."
To defeat this immunity, Noffke would have to show that Bakke was reckless, but the facts here did not support such a high standard, so the Wisconsin Supreme Court affirmed that Bakke was immune under the contact sport recreational immunity statute. Contrast this with the Karas case in Illinois, which made its way to the Illinois Supreme Court for review of a Motion to Dismiss based on the pleadings, and as such, evidence was not in the record for determination of whether the "Illinois contact sports exception" applied to the facts outside of the complaint.
With regard to the school district, Noffke argued that the coach (as an employee of the school district) violated a ministerial duty by not providing a second spotter and mats as required by the spirit rules, and that the coach, himself, should have known there was a compelling danger as appropriate safety precautions were not taken for these cheerleaders performing this stunt for the first time. However, the Wisconsin Supreme Court found that the school district was not bound to the spirit rules because it did not adopt the same, and as such, the coach had discretion on whether to provide a second spotter and mats. Further, looking to the actual spirit rules, there are no additional spotters or mats "required", but rather, the same are "suggested".
Of note here factually: the cheerleaders had performed more difficult stunts together before, both Noffke and Bakke thought they could perform this stunt, Bakke was a trained spotter, the stunt could be accomplished safely without Bakke's spot (Bakke was not the "base"), and the coach knew the level of difficulty of this stunting group to be "much higher". These same facts were essential to the Wisconsin Supreme Court in finding there to be no known or compelling danger that would remove the coach from immunity.
This decision continues to shed light on the fact that cheerleading is a dangerous sport, and as such, proper coach training (both technique and safety) is imperative. Cheerleading has evolved along with the sports that it supports (i.e. football), but while advances in safety equipment (helmets, pads, etc.), training, and playing/practicing surfaces has advanced in sports like football to go along with the faster, bigger, and stronger athletes, cheerleaders are exponentially advancing the physical difficulties of their sport with no real change in safety since football players were wearing leather helmets. It is a good step for the courts to acknowledge the athleticism and physical contact involved in cheerleading, but continued participation in cheerleading may suffer if safety policies are not adopted as rules rather than mere suggestions to coaches and teams.