909 F.3d 1055
9th Cir.2018Background
- Plaintiff Alice Mayall sued USA Water Polo on behalf of her minor daughter H.C., alleging negligence, breach of voluntary undertaking, and gross negligence after H.C. was returned to play following a head blow and suffered repeated head impacts and persistent post-concussion syndrome.
- Injury occurred at a USA Water Polo–sanctioned youth tournament in February 2014; H.C. was dazed after an initial facial/ head impact, spoke with her coach (who had no concussion training), was returned to play, sustained further head impacts, and was never evaluated by medical personnel onsite.
- H.C. developed prolonged post-concussion syndrome, missed school, and suffered neurocognitive deficits; the SAC alleges ongoing disabling symptoms.
- USA Water Polo had a detailed concussion policy for its national team (promulgated 2011) and did not adopt or require comparable protocols for youth competition; its generic “Rules Governing Coaches’ Conduct” contained only hortatory, buried language about not permitting premature return after a ‘‘serious injury.’’
- The district court dismissed under Rule 12(b)(6) for failure to state claims; the Ninth Circuit reversed and remanded, holding the SAC adequately pled negligence (duty not barred by primary assumption of risk), voluntary undertaking, and gross negligence under California law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty under negligence / primary assumption of risk | USA Water Polo owed a duty to prevent return-to-play after suspected concussion; secondary injuries are not inherent risks | Secondary head injuries are inherent in water polo; no duty under §1714(a) | Secondary injuries after an initial head blow are not necessarily inherent; duty can exist where defendant’s conduct increases risk — negligence claim adequately alleged |
| Whether existing rules discharge duty | USA Water Polo’s national-team concussion policy and consensus protocols reflect the standard; the generic Rules do not protect players | The Rules Governing Coaches’ Conduct suffice to satisfy duty | The generic, hortatory Rules did not fulfill the duty; detailed concussion protocols differ materially and were required to plead breach |
| Voluntary undertaking | USA Water Polo voluntarily assumed responsibility for player safety (by bylaws and national-team policy) and failed to enact youth protections, increasing risk | Not every organizational rule creates an enforceable tort duty; no specific undertaken duty alleged | The SAC sufficiently alleged a specific undertaking (and increased risk) supporting a voluntary undertaking claim |
| Gross negligence | Repeated inaction despite known risks and requests for youth protocols amounted to an extreme departure from ordinary care | No duty, or at most ordinary negligence; not extreme conduct | Allegations that USA Water Polo ignored long-known risks and failed to act while having a national-team policy sufficiently plead gross negligence |
Key Cases Cited
- Knight v. Jewett, 834 P.2d 696 (Cal. 1992) (primary assumption of risk in sports; duty exists to avoid increasing risks beyond those inherent in the sport)
- Ratcliff v. San Diego Baseball Club, 81 P.2d 625 (Cal. Ct. App. 1938) (stadium owner duty to protect patrons from foreseeable flying bats)
- Kahn v. East Side Union High School, 75 P.3d 30 (Cal. 2003) (assumption-of-risk in sports does not bar recovery where coach’s conduct was reckless and outside ordinary coaching)
- Avila v. Citrus Cmty. Coll. Dist., 131 P.3d 383 (Cal. 2006) (being hit by a pitch is an inherent risk of baseball; no duty to protect against beanballs)
- Wattenbarger v. Cincinnati Reds, Inc., 33 Cal. Rptr. 2d 732 (Cal. Ct. App. 1994) (distinguishing an inherent initial injury from a secondary injury caused by allowing continued play)
- Nalwa v. Cedar Fair, L.P., 290 P.3d 1158 (Cal. 2012) (not every safety rule by organizer creates a legal duty; operators may still owe duties to avoid increasing risks)
- Artiglio v. Corning Inc., 957 P.2d 1313 (Cal. 1998) (elements for liability based on voluntary undertaking)