Law Review: Traumatic brain injury on football field, signed release valid?
This is a sad case. Nick Brown was a sophomore at Union Mine High School in El Dorado County. He suffered a concussion and traumatic brain injury while playing on the junior varsity football team. He sued the El Dorado Union High School District.
The trial judge was former Nevada County Superior Court Judge C. Anders Homer. Judge Homer — one of the best — got it right as the Third Appellate District Court of Appeal later ruled.
INJURY AND SIGNED RELEASE OF ALL CLAIMS
Nick Brown suffered a brain injury when the Union Mine junior varsity football team played a non-league game at Union Mine High School. Nick played offense, defense and special teams. Nick took himself out of the game in the fourth quarter just before the game ended five or 10 minutes later he slurred the word “coach” and collapsed. Nick was rushed to a hospital but suffered a traumatic brain injury.
Nick and his father signed a comprehensive and thorough Release of Liability and Assumption of Risk Agreement. The release was well drafted. By signing both Nick and his dad on his behalf released all claims from any injuries or deaths that could occur while playing.
CONCUSSION/HEAD INJURY PROTOCOL
Nick’s coaches had handed to all players and discussed a comprehensive concussion and head injury information sheet including symptoms and signs of a concussion. Union Mine had basically complied with the bylaws of the California Interscholastic Federation and its game management guidelines. The coaches received concussion training.
SIGNED RELEASE OF ALL CLAIMS
Union Mine High School defended Nick Brown’s lawsuit arguing that he and his father signed the release of all claims which under the law amounts to an express assumption of the risk of playing football.
The court of appeal noted that express waivers like signed releases are valid and enforceable in the recreational activity situation like a football game.
The court of appeal wrote that a waiver of liability and assumption of risk can be a bar to liability based upon negligence but it cannot serve as a bar to liability based on gross negligence. The court went on to analyze the team’s concussion protocol, the coaches training, monitoring of the players during the game, the concussion materials given to all the players and the medical care provided at the scene. In the end the court of appeal concluded that the school and its coaches were not grossly negligent. The language in the Release was thorough and met legal muster. It was enforceable. Judgment for Union Mine.
PORTER’S COMMENT ON ASSUMPTION OF THE RISK
The court’s analysis in Nick Brown’s case involved express assumption of the risk because a Release of All Claims was signed. There is another type of assumption of risk which we have written about on several occasions and that is primary assumption of the risk. If someone playing football or another rigorous recreational activity like basketball or skiing suffers an injury, the law deems the injured party to have assumed the risk of injury inherent in the sport. There is no claim for injuries unless the party in charge increased the risk of injury. I daresay Nick Brown’s lawsuit would also have failed due to the primary assumption of the risk doctrine. A sad day, nonetheless.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at firstname.lastname@example.org or http://www.portersimon.com
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