ALICE MAYALL, as parent and guardian of minor H.C., on behalf of H.C. and all others similarly situated v. USA WATER POLO, INC.
No. 16-56389
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
November 28, 2018
D.C. No. 8:15-cv-00171-AG-KES
OPINION
Appeal from the United States District Court for the Central District of California Andrew J. Guilford, District Judge, Presiding
Argued and Submitted March 9, 2018 Pasadena, California
Filed November 28, 2018
Before: William A. Fletcher, Paul J. Watford, and John B. Owens, Circuit Judges.
Opinion by Judge W. Fletcher
California Law / Negligence
The panel reversed the district court‘s dismissal for failure to state a claim of a putative class action against USA Water Polo, alleging negligence, breach of voluntary undertaking, and gross negligence, concerning USA Water Polo‘s failure to implement concussion-management and return-to-play protocols for its youth water polo league.
The plaintiff alleged that her minor daughter, H.C., was returned to play as a goalie in a water polo tournament after being hit in the face by the ball and while manifesting concussion symptoms, received additional hits to the head, and as a result she suffered severely debilitating post-concussion syndrome.
To prevail in a negligence claim under California law, a plaintiff must plead the existence of a duty, a breach of that duty, and damages proximately caused by the breach.
Plaintiff alleged that USA Water Polo was liable for injuries suffered when H.C. was hit in the head again, after she returned to play. The panel held that under California
Concerning the voluntary undertaking claim, plaintiff alleged that by failing to establish a concussion-management and return-to-play protocol for its youth water polo league, USA Water Polo failed to exercise reasonable care in the performance of its undertaking, resulting in H.C.‘s concussion. The panel held that USA Water Polo increased the risk of secondary concussions to players who improperly returned to pay, a risk that USA Water Polo could eliminate through the implementation of concussion-management protocols already used by its national team. The panel further held that the failure of USA Water Polo to promulgate safety rules that would have protected H.C. was sufficient to support a voluntary undertaking claim.
Concerning its gross negligence claim, plaintiff alleged that USA Water Polo repeatedly ignored the known risk of secondary injuries, and repeatedly ignored requests that it implement a concussion-management and return-to-play protocol. The panel held that plaintiff‘s allegations, taken as true, demonstrated that USA Water Polo was well-aware of the severe risk of repeat concussions and of the need to implement a policy to remove players from play after suffering a head injury, and its inaction amounted to gross negligence under California law.
The panel concluded that the second amended complaint pleaded sufficient facts to support claims upon which relief
COUNSEL
Elizabeth Anne Fegan (argued), Hagens Berman Sobol Shapiro LLP, Chicago, Illinois; Steve W. Berman, Hagens Berman Sobol Shapiro LLP, Seattle, Washington; for Plaintiff-Appellant.
Steven Jeff Renick (argued) and Jeffrey M. Lenkov, Manning & Kass Ellrod Ramirez Trester LLP, Los Angeles, California, for Defendant-Appellee.
OPINION
W. FLETCHER, Circuit Judge:
Alice Mayall brought this putative class action against USA Water Polo as a representative of her minor daughter, alleging negligence, breach of voluntary undertaking, and gross negligence. The gravamen of Mayall‘s complaint is that USA Water Polo failed to implement concussion-management and return-to-play protocols for its youth water polo league. The Second Amended Complaint (“SAC“) alleges that H.C., Mayall‘s daughter, was returned to play as a goalie in a youth water polo tournament after being hit in the face by the ball and while manifesting concussion symptoms. After she was returned to play, H.C. received additional hits to the head. As a result, she suffered from severely debilitating post-concussion syndrome. The district court dismissed the suit under
We have jurisdiction under
I. Background
According to the SAC, H.C. was a “healthy, high-achieving, straight-A honors student and multi-sport athlete” who played for a water polo team under the governance of USA Water Polo. On February 15, 2014, when H.C. was either fifteen or sixteen, she was injured while playing goalie during an annual three-day “WinterFest” tournament organized and managed by USA Water Polo. H.C. “was hit hard in the face by a shot which led to a concussion.” The game continued while “H.C. swam to the side of the goal and spoke with her coach . . . .” The coach, who was “lacking any concussion management training, qualifications, and education from USA Water Polo,” asked “a couple questions.” Even though she was “dazed,” H.C. was returned to play for the remainder of the game. Later that day, H.C. played in more games and took more shots to the head, exacerbating her initial injury. The additional shots to the head were witnessed by the referee and by H.C.‘s coach. H.C. was never evaluated by a medical professional during the tournament.
Two days later, H.C. suffered from headaches, sleepiness, and fatigue so severe that she was unable to attend school. For the next two weeks, H.C. experienced excessive sleeping, dizziness, intolerance to movement, extreme sensitivity to light, headaches, decreased appetite, and nausea. On March 4, 2014, Mayall took H.C. to a doctor, who diagnosed
H.C.‘s symptoms persisted, and she was unable to return to school. H.C. took part in a “home-and-hospital instructional program” for the remainder of the 2013-2014 school year. H.C.‘s academic ability was severely degraded. Her neuropsychologist noted that H.C. demonstrated “a deficit in her ability to hold information in her mind or complete tasks, and was functioning in a low-average range in memory and controlled attention.” At the time of filing the SAC, H.C. continued to suffer from persistent post-concussion syndrome, characterized by excessive sleeping, chronic headaches, and limited physical stamina. Because of her symptoms, H.C. was unable to attend public school.
The SAC alleges that USA Water Polo is the ” ‘national governing body for the sport of water polo in the United States’ ” (quoting from USA Water Polo bylaws). “USA Water Polo is the sanctioning authority for more than 500 Member Clubs and more than 400 tournaments are conducted nationwide each year[.]” “USA Water Polo requires all players and participants to follow the policies, bylaws, rules of conduct, and regulations it has enacted.” USA Water Polo‘s “Policies and Guidelines” state that USA Water Polo is “committed to creating a healthy and safe environment for all of our members.” “[A]s acknowledged by USA Water Polo‘s CEO, Christopher Ramsey, USA Water Polo‘s corporate documents support the obligation that USA Water Polo is responsible for health and safety issues.”
The SAC alleges that scientific studies show that there are substantial neurological risks in allowing athletes to return to
Because of the different physiological response and longer recovery after concussion and specific risks (eg, diffuse cerebral swelling) related to head impact during childhood and adolescence, a more conservative RTP [return-to-play] approach is recommended. It is appropriate to extend the amount of time of asymptomatic rest and/or length of the graded exertion in children and adolescents. It is not appropriate for a child or adolescent athlete with concussion to RTP on the same day as the injury, regardless of the level of athletic performance.
In 2011, three years prior to H.C.‘s injury, USA Water Polo had developed a detailed “USA Water Polo Concussion Policy” for athletic trainers for USA Water Polo‘s national team. However, USA Water Polo did not require, or even recommend, that its Concussion Policy be followed by other water polo teams under its governance. The SAC alleges it
Between 2011 and 2014, USA Water Polo received numerous emails reporting incidents in which young athletes suffered concussions and requesting implementation of a concussion policy for all water polo events. For example, in August 2011, officials at Fullerton College “alerted USA Water Polo about a player who was injured during a USA Water Polo-sanctioned game” and “requested any USA Water Polo concussion guidelines[.]” USA Water Polo‘s Director of Club and Member Programs, Claudia Dodson, acknowledged that there was no concussion policy applicable to the college. Professor Peter Snyder, the Head Swim Coach at Fullerton, then sent another email regarding the incident, encouraging USA Water Polo to implement a concussion-management and return-to-play protocol. After USA Water Polo responded by sending Snyder the national team‘s policy, Snyder pointed out that the policy “was only applicable to an extremely small portion of the USA Water Polo membership,” and “implored” USA Water Polo to implement a protocol for all levels of play. But USA Water Polo took no action.
The SAC alleges that at the time of H.C.‘s injury in 2014 and during the class period, USA Water Polo had no concussion-management policy or return-to-play protocol for its youth water polo teams. However, USA Water Polo did have “Rules Governing Conduct” applicable to all coaches, referees and athletes, not limited to those associated with the national team. “[B]uried in the fine print” of the Rules was a provision stating that USA Water Polo coaches were “expected to demonstrate good sportsmanship,” including “avoiding . . . encouraging or permitting an athlete to return
The SAC alleges three causes of action under California law: negligence; breach of voluntary undertaking; and gross negligence. The district court granted a motion to dismiss under
We reverse and remand for further proceedings.
II. Standard of Review
“We review de novo the district court‘s grant of a motion to dismiss under
III. Discussion
A. Negligence
To prevail in a negligence claim under California law, a plaintiff must plead the existence of a duty, a breach of that
The SAC alleges that USA Water Polo had a “duty to Plaintiff . . . to prohibit same day return to play after a concussion, head blow or the exhibition of concussion symptoms, as well as to prohibit premature return to play before a player has fully recovered from a concussion, is asymptomatic after proceeding through a stepwise return to play protocol, and is cleared by a physician.” The SAC further alleges that USA Water Polo breached that duty “by failing to implement any policies, rules or regulations” to prohibit such “return to play.” Finally, the SAC alleges that H.C. was harmed by USA Water Polo‘s breach of the alleged duty.
1. “Primary Assumption of Risk” Doctrine
Under California‘s “primary assumption of risk” doctrine, a person or entity does not owe a duty of care under
Mayall does not argue that USA Water Polo is liable under
Knight is the principal California case. Plaintiff was injured by another player during an informal game of touch football. The California Supreme Court denied recovery under its primary assumption of risk doctrine and offered a number of examples to illustrate the concept of “inherent in the sport“:
[A]lthough moguls on a ski run pose a risk of harm to skiers that might not exist were these configurations removed, the challenge and risks posed by the moguls are part of the sport of skiing, and a ski resort has no duty to eliminate them. . . . [A]lthough a ski resort has no duty to remove moguls from a ski run, it clearly does have a duty to use due care to maintain its tow ropes in a safe, working condition so as not to expose skiers to an increased risk of harm. . . . [T]he latter type of risk, posed by a ski resort‘s negligence, clearly is not a risk (inherent in the sport) that is assumed by a participant. . . . [I]n a game of baseball a player generally cannot recover if he or she is hit and injured by a carelessly thrown ball[.] . . . [I]n a game of basketball, recovery is not permitted for an injury caused by a carelessly extended elbow.
The reasoning and result in Ratcliff support Mayall. Injury from a flying bat at a baseball game and from returning to play in a water polo game after an initial head injury can be minimized or eliminated. The court in Ratcliff acknowledged that the stadium owner could not have protected all patrons from flying bats, but held that the owner at least had a duty where “the greatest danger exists” and was “reasonably to be expected.” Ratcliff, 81 P.2d at 626. Similarly, while a water polo coach or sponsoring organization may be unable to protect a player from an initial blow to the head, the player can be protected from a secondary injury from a repeated blow, where “the greatest danger exists” and was “reasonably to be expected.” Such secondary injury “increase[s] the risks to a participant over and above those inherent in the sport.” Knight, 834 P.2d at 708. Such secondary injury is not “inevitable or unavoidable.” Campbell v. Derylo, 89 Cal. Rptr. 2d 519, 524 (Cal. Ct. App. 1999).
In Avila v. Citrus Community College District, 131 P.3d 383 (Cal. 2006), in contrast, plaintiff was a community college baseball player. He alleged that he had been hit by a “beanball” thrown by the pitcher for the opposing team from Citrus College, in retaliation for a previously hit Citrus College batter. Applying the primary assumption of risk
The case before us resembles Kahn more closely than Avila. H.C.‘s coach knew that she had been hit in the head, had time to evaluate her, and knew or should have known that returning her to play had the potential of significantly exacerbating her injury. As in Kahn, where the injury did not result from a risk inherent in competitive swimming, the secondary injury suffered by H.C. did not result from an inherent risk in water polo. And unlike in Avila, where the injury resulted from a one-time blow to the head, the secondary injury suffered by H.C. occurred after the initial blow.
Finally, the case before us is remarkably similar to Wattenbarger v. Cincinnati Reds, Inc., 33 Cal. Rptr. 2d 732 (Cal. Ct. App. 1994). A seventeen-year-old high school baseball player suffered an arm injury while pitching during a tryout for the Cincinnati Reds, a major league baseball team. On his third pitch, the plaintiff felt his arm ” ‘pop’ but experienced no particular pain.” Id. at 734. He stepped off the mound and told Reds personnel that his arm had popped. “Receiving no response, plaintiff returned to the mound and threw another pitch. He immediately experienced severe pain in his arm and quit pitching.” Id. The defendant team contended that plaintiff‘s arm injury was inherent in the game of baseball. The California Court of Appeal disagreed. It wrote that the “pop” experienced during the third pitch was
Had plaintiff stopped after his third pitch . . . , we would have no difficulty finding primary assumption of risk a bar to recovery. . . . However, the incident did not end with the third pitch. . . . Viewed in the light most favorable to plaintiffs, the evidence establishes defendants initially directed plaintiff to pitch and then permitted him to continue after he informed them his arm had “popped.” It is reasonable to infer that when plaintiff, a 17-year-old, informed the Reds’ personnel that his arm had “popped,” he was seeking guidance as to how to proceed. Hearing nothing to countermand the original instruction to pitch, and obviously anxious to please and impress the scouts, plaintiff threw another pitch, thereby causing further injury.
The court‘s holding in Wattanberger rests on the primary-secondary distinction that is at the core of Mayall‘s case. The first injury (the “pop“) was inherent in the game of baseball. The secondary injury, suffered after the plaintiff was allowed to continue pitching after experiencing the “pop,” was not inherent. Because it was foreseeable to Reds personnel that “further use of the injured member” posed an increased risk compared with the risk before the “pop,” the court held that the secondary injury was not an “integral part of the sport itself.” Knight, 834 P.2d at 708. Similarly, Mayall concedes that H.C.‘s first injury, incurred when she was hit in the face
We recognize that the California Supreme Court cautioned in Knight that
USA Water Polo argues in its brief that if it did owe a duty of care to H.C., the “existence” of its “Rules Governing Coaches’ Conduct,” applicable to all USA Water Polo teams, fulfilled that duty. We disagree.
The Rules Governing Coaches’ Conduct are contained in a six-page, single-spaced document. The Rules cover conduct under a number of different headings: “sportsmanship,” “violent behavior,” “recruiting,” “registration,” “incident reports,” “drugs and alcohol,” “relationship with athletes,” “background screening,” “CPR and first aid screening,” “reporting rules violations,” and “enforcement.” There is no heading labeled “athlete safety” or “concussion protocol.” The language applicable to concussions comes under the heading “sportsmanship.” The Rules provide as follows:
Sportsmanship
Coach members of USA Water Polo are expected to demonstrate good sportsmanship. This includes, but is not limited to, avoiding the following conduct:
1. Hazing, bullying, harassing or taunting;
. . .
2. Physically or emotionally abusing: (a) an athlete, (b) coach, (c) a referee or (d) any person participating in, or conducting, USA Water Polo sanctioned events.
. . .
b. The term “physical abuse” means: (i) contact or non-contact conduct that results in, or reasonably threaten[s] to, cause physical harm . . . or (ii) any act or conduct described as physical abuse or misconduct under any federal or state law (e.g. child abuse, child neglect, assault). . . . Examples of physical abuse include, without limitation, behaviours such as: . . . (vii) encouraging or permitting an athlete to return to play pre-maturely following a serious injury (e.g., a concussion) and without the clearance of a medical professional.
(Bolding in original; italics added.)
The USA Water Polo Concussion Policy applicable to the national team, as well as the Zurich II Protocol, are substantially different from the Rules of Conduct. The Concussion Policy is a one-page single-spaced document, promulgated and applied to the national team in 2011, three years before H.C.‘s injury. The Policy addresses only head injuries. It provides:
Once a player has been identified as suffering a concussion or mild traumatic brain injury (MTBI) by a medical professional or a coach or team manager recognizes the following:
Any injury that may result in a bad headache, altered levels of alertness, or unconsciousness and/or affecting memory, judgment, reflexes, speech, balance, coordination, and sleep patterns.
The following Protocol should be followed:
1. Initial evaluation by an ATC, EMT, DC, D.O., or MD following the SCAT 2 protocol (see attached).
2. The team physician should be notified immediately and return to play is prohibited on the same day and will be determined by the team physician or physician responsible for the athlete. Protocol is as per SCAT 2 recommendations as well. The athlete will be followed periodically by the physician to access [sic] return to play.
3. The physician will notify the coach after each evaluation as to athlete‘s condition pending the athlete‘s consent to share medical information.
(Italics and underlining in original.) “SCAT 2” is shorthand for Sport Concussion Assessment Tool 2. SCAT 2 is a detailed four-page questionnaire designed to assess the seriousness of a head injury. On its first page are twenty-two criteria such as “headache,” “dizziness,” and “confusion,” with assessments rated on a scale of 0 to 6 for each of the
The Zurich II Protocol was published in 2012, one year after USA Water Polo promulgated its Water Polo Concussion Policy and applied it to the national team. The Protocol is a twelve-page single-spaced document devoted entirely to concussions in sporting activities. Among other things, the Protocol provides detailed guidance for detecting and treating concussions. It provides:
On-field or sideline evaluation of acute concussion
When a player shows ANY features of a concussion:
A. The player should be evaluated by a physician or other licensed healthcare provider onsite using standard emergency management principles and particular attention should be given to excluding a cervical spine injury.
B. The appropriate disposition of the player must be determined by the treating healthcare provider in a timely manner. If no healthcare provider is available, the player should be safely removed from
practice or play and urgent referral to a physician arranged.
C. Once the first aid issues are addressed, an assessment of the concussive injury should be made using the SCAT3 or other sideline assessment tools.
D. The player should not be left alone following the injury and serial monitoring for deterioration is essential over the initial few hours following injury.
E. A player with diagnosed concussion should not be allowed to RTP [Return to Play] on the day of injury.
(Bolding in original.) The Protocol attaches copies of SCAT 2, SCAT 3 and Child SCAT 3, as appendices.
The differences between the Rules Governing Coaches’ Conduct, on the one hand, and the Water Polo Concussion Policy and the Zurich II Protocol, on the other, are striking. First, the Rules cover a large variety of topics, ranging far beyond concussions. Second, the Rules are merely hortatory, saying what the coaches are “expected” to do. Third, the language in the Rules referring to concussions is, as stated in the SAC, “buried in the fine print.” Fourth, the language referring to concussions comes under the misleading heading of “sportsmanship.” Fifth, the language comes under the additionally misleading heading of “physical abuse,” defined as “(i) contact or non-contact conduct that results in, or reasonably threaten[s] to, cause physical harm . . . or (ii) any act or conduct . . . [such as] child abuse, child neglect,
In stark contrast, the USA Water Polo Concussion Policy and the Zurich II Protocol are single-topic documents addressing only head injuries. They are mandatory rather than hortatory. Their instructions are detailed and clear, instructing coaches and others precisely what to do to in order to assess the seriousness of a blow to the head, and in order to protect athletes who may have suffered a concussion. Finally, they make clear the seriousness of a suspected concussion, with SCAT 2 telling coaches in bold print, ”Any athlete with a suspected concussion should be REMOVED FROM PLAY, medically assessed, monitored for deterioration[.]”
The SAC alleges that the USA Water Polo Concussion Policy and the Zurich II Protocol instruct coaches and other officials as to the accepted standard of care for athletes who may have suffered concussions during an athletic contest. It further alleges that the Rules Governing Coaches’ Conduct fall short of providing such instruction, and that the existence of the Rules does not satisfy USA Water Polo‘s duty of care. Based on the above comparison, we agree and conclude that the existence of the Rules does not satisfy the duty of care.
B. Voluntary Undertaking
Under California law, a voluntary undertaking claim requires a showing that (1) an actor undertook to render services to another; (2) the services rendered were of a kind
The SAC alleges that USA Water Polo voluntarily undertook the duty of ensuring that “proper safety precautions have been taken to protect the personal welfare of . . . athletes,” and committed itself to “creating a healthy and safe environment of all of [its] members.” The SAC, citing USA Water Polo‘s national team concussion protocol, further alleges that USA Water Polo “realize[d] that rules regarding concussion management and return to play were necessary for the protection of H.C. and the Class so as not to increase the risk of prolonging concussion injuries.” The SAC alleges that by failing to establish a concussion-management and return-to-play protocol for its youth water polo league, USA Water Polo failed to exercise reasonable care in the performance of its undertaking-ensuring a healthy and safe environment for its players-resulting in H.C.‘s concussion and other head injuries to members of the purported Class.
USA Water Polo argues that the SAC insufficiently alleges a duty “specifically” undertaken by USA Water Polo. According to USA Water Polo, the duty it undertook to “create a healthy and safe environment” was insufficient to trigger liability. But the SAC does not just allege a general undertaking by USA Water Polo to promote health and
Citing Nalwa v. Cedar Fair, L.P., 290 P.3d 1158 (Cal. 2012), USA Water Polo further argues that its actions do not support a voluntary undertaking claim. In Nalwa, the plaintiff sued an amusement park owner for negligence after she fractured her wrist while riding a bumper car. Id. at 1160. Plaintiff argued that defendant‘s efforts to minimize head on collisions between bumper cars demonstrated that defendant owed her a duty to eliminate such collisions. Id. The California Supreme Court rejected this argument, explaining that “not every rule imposed by an organizer or agreed to by participants in a recreational activity reflects a legal duty enforceable in tort.” Id. at 1163. The Court went on to explain that an operator might still “violate its ‘duty to use due care not to increase the risks to a participant over and above those inherent’ in the activity . . . by failing to provide routine safety measures.” Id. In the case before us, the SAC alleges that USA Water Polo failed to use its authority to provide routine and important safety measures, including a concussion-management and return-to-play protocol that protects players. USA Water Polo thereby increased the risk of secondary concussions to players who improperly returned to play, a risk that USA Water Polo could eliminate through the implementation of concussion-management protocols already used by its national team.
C. Gross Negligence
California law defines “gross negligence” as “either a ‘want of even scant care’ or ‘an extreme departure from the ordinary standard of conduct.’ ” City of Santa Barbara v. Superior Court, 161 P.3d 1095, 1099 (Cal. 2007). The SAC alleges that the USA Water Polo‘s “extreme departure from the ordinary standard of conduct” constituted gross negligence.
The SAC alleges that USA Water Polo repeatedly ignored the known risk of secondary injuries, and repeatedly ignored requests that it implement a concussion-management and
These allegations, taken as true, demonstrate that USA Water Polo was well-aware of the severe risk of repeat concussions and of the need to implement a policy to remove players from play after suffering a head injury. USA Water Polo‘s inaction in the face of substantial evidence of risk of harm, constitutes “an extreme departure from the ordinary standard of conduct,” and amounts to gross negligence under California law.
For the foregoing reasons, we hold the SAC pleads sufficient facts to support claims upon which relief can be granted under California law for negligence, voluntary undertaking, and gross negligence.
REVERSED and REMANDED.