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On Tuesday, the Wisconsin Supreme Court, in Noffke v. Bakke, ruled that high school cheerleaders qualify for civil liability restriction under state law. The court’s ruling, apparently a first in the United States, was handed down in a suit by a cheerleader (Noffke) alleging negligence against her spotter (Bakke), who failed to catch her during a practice stunt.
Section 895.525(4m)(a) of the Wisconsin Statutes provides that “[a] participant in a recreational activity that includes physical contact between persons in a sport involving amateur teams, including teams in recreational, municipal, high school and college leagues, may be liable for an injury inflicted on another participant during and as part of that sport in a tort action only if the participant who caused the injury acted recklessly or with intent to cause injury.” Thus, future cheerleading injury cases will require the plaintiff to prove that the defendant, at the very least, acted recklessly in causing injury. Generally, a reckless action involves the creation of a substantial and unjustifiable risk of harm to others and a conscious disregard for that risk. Because the court upheld the lower court’s ruling that the spotter did not act recklessly as a matter of law, the claim against him was dismissed.
In reaching the conclusion that cheerleading qualified under the immunity provision, the court looked at the “plain” meaning of the phrase “physical contact.” It then turned to the record, which established that “cheerleading involves a significant amount of contact among the participants that at times can produce a forceful interaction between the cheerleaders when one person is tossed high into the air and then caught by those same tossers.” Thus, according to the court, cheerleading was within the reach of the statutory clause.
This all appears to have been easy for the court, except that the plaintiff argued that cheerleading is not a “contact sport”–a phrase used in the title of subsection (4m). According to Webster’s New College Dictionary, a “contact sport” is a sport in which players make “aggressive” contact, i.e. intend to hurt each other, like ice hockey and football. Nonetheless, the court gave, inter alia, three reasons for dismissing the “contact sport” argument: (1) according to state law, titles are not part of the statutes; (2) the language of the statute does not limit its reach to only “aggressive” sports; and (3) the difficulty in determining “[h]ow much aggressive competitive contact is required for a sport to fall within that interpretation” “would be difficult and [would] create uncertainty.” For similar reasons, the court rejected an argument that the statute applied only to “competitive” sports (many cheerleading teams are “competitive,” though we assume the plaintiff’s team was not).
Unsurprisingly, the court also ruled that the school district, acting through the cheerleading coach, had immunity in performing a state function; that the district did not violate a “ministerial duty” provided by the “spirit rules”; and that no “ministerial duty” arose from allowing cheerleaders to perform a stunt for the first time without safety precaution (see Wis. Stat. sec. 893.80(4)).
Concerns about injuries in female high school sports are heightened in the cheerleading world; as one recent study found, since 1982, two-thirds of “catastrophic” injuries in the female high school category were related to cheerleading. Thus, as observers noted, if cheerleaders were not immunized, spotters (usually boys) would be forced to take out significant insurance policies to cover potential liability from negligent action. On the other hand, it will be interesting to see if Wisconsin “flyers” (usually girls) are still willing to perform risky stunts, or if parents will remove their children from the sport, after Noffke. Parents allow their boys to play risky sports (e.g., hockey, football), but all of these sports require participants to wear significant padding, including helmets.
If parents do not allow their girls to assume the current risk of injury of cheerleading, the sport will have to adapt to ensure parents that the benefits of participation outweigh the risks. Physical protection will have to be improved, possibly including the use of head gear and/or more supportive matting. In the end, Noffke might be in the sport’s best interest.
– Faisal Delawalla
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