(Editor’s Note: What follows is an excerpt from an article that appeared in the January issue of Concussion Litigation Reporter. To see the full article, subscribe at http://concussionpolicyandthelaw.com/subscribe/)
By Carla Varriale, of Havkins, Rosenfeld, Ritzert and Varriale
In a case that is of keen interest to youth sports, a California court denied recent motions by Pop Warner Little Scholars Inc. (“PWLS”) and other defendants seeking dismissal of the claims against them. In Crystal Dixon, et al v. Pop Warner Little Scholars, Inc., the plaintiffs’ Third Amended Complaint put forth claims for negligence, respondeat superior and violations of California’s Business and Professional Code, among others. The Third Amended Complaint also contained a claim for punitive damages. The motions for adjudication of issues were denied in part because of lingering questions about the failure to coach the injured plaintiff in proper tackling technique and whether there was a conscious disregard for his safety based on the evidence presented. The Third Amended Complaint alleged that the injured plaintiff was rendered a quadriplegic after he attempted to tackle an opposing player using an improper head-first tackling technique which he claimed his coaches taught and instructed him to use.
The decision is instructive for two reasons.
First, the “Parental/Guardian Permission and Waiver Agreement” (the “Waiver and Release”) failed to protect PWLS under the circumstances although it was clear, unambiguous and specifically referenced the risk of injury at issue in the Dixon case.
The Waiver and Release stated:
INTENT TO INFORM
I acknowledge that I am fully aware of the potential dangers of participation in any sport and I fully understand that participation in football, cheerleading and/or dance, and related activities may result on SERIOUS INJURIES, PARALYSIS, PERMANANET [sic] DISABILITY AND/OR DEATH to myself, my children, and/or entire family. Further, I do hereby forever discharge, waive, release, absolve, indemnify, and agree to hold harmless Pop Warner, and any and all organizers, sponsors, supervisors, administrators, officers, directors, staff, referees, participants, and persons transporting the above named participant to and from activities, from any claim arising out of any injury to myself and/or my/our child whether the result of negligence or any other cause…” (“Compendium of Exhibits,” Exhibit “D;” emphasis theirs).
The court acknowledged that under California law, to be enforceable a putative waiver or release must clearly apprise the releasor or indemnitor of the effect of the release or waiver. In fact, every possible specific act of negligence of the defendant need not be spelled out in the agreement or even discussed by the parties. It is only necessary that the act of negligence, which results in injury to the releasor, be reasonably related to the object or purpose for which the release is given.
Based on the language cited above, there was … (for the full summary, visit http://concussionpolicyandthelaw.com/subscribe/ to subscribe)