Risking safety for school spirit: schools often rely on exculpatory contracts to escape liability when their cheerleaders get hurt. Knowing the limits of these releases can help you rally the court's support for your client's claim.

Cheerleading is a far more dangerous activity today than it was a decade ago. Over the years, it has evolved into a competitive sport of its own. Privately sponsored cheerleading squads now vie for titles and trophies at local, state, and national competitions.

The increasingly competitive nature of the sport has driven high school and college cheerleading squads to perform ever more risky acrobatic and gymnastic feats, and serious injuries are more common. (1) The National Center for Catastrophic Sport Injury Research at the University of North Carolina found that "high school cheerleading accounted for 50 percent of all high school direct catastrophic injuries to female athletes and 64.5 percent at the college level." (2) Researchers also noted an increase in catastrophic injuries to female athletes since 1983, and they attributed this in large part to "the change in cheerleading activity, which now involves gymnastic-type stunts." (3)

A recent study published in the journal Pediatrics looked at emergency room statistics from 1990 to 2002 and found an increase of 110 percent in cheerleading-related injuries treated in hospital emergency departments during that time. (4) The same study reported that most cheerleading injuries (61.9 percent) occurred at school and found that the increase in injuries "is most likely the result of an increase in the difficulty of stunts being attempted by cheerleaders in recent years as cheerleading has evolved from a school-spirit activity into an activity demanding high levels of gymnastics skill and athleticism." (5)

Rather than taking steps to monitor cheerleaders more closely, educational institutions have increasingly relied on exculpatory contracts to avoid liability. These contracts can be used to insulate an institution from liability completely or partially.

Cheerleading is a sport without a central regulatory authority. Various organizations have published safety guidelines for cheerleading, but they are inconsistent. Some apply only to particular competitions, while others are limited to certain age groups or organizations. Most guidelines outline physical boundaries, like ceiling heights, rather than minimal safety standards for cheers or training requirements for coaches.

Several organizations offer certifications for coaches, but their standards and membership requirements vary widely. The American Association of Cheerleading Coaches and Advisors (AACCA), the only not-for-profit cheerleading advisory group, publishes safety guidelines. (6) It also tests and certifies coaches, but not all schools require the certifications, and other organizations publish competing, less comprehensive guidelines that many coaches choose to follow. (7)

The potential consequences of error in high school and college cheerleading are greater than those of many other sporting activities. When a soccer coach fails to properly train team members, the team risks losing the game. However, because cheerleading involves skilled gymnastic stunts--often performed in the air--if cheerleaders are not properly trained, they risk suffering catastrophic injury.

Defensive line

In recent years, courts have examined whether exculpatory contracts should prevent recovery in cheerleading injury cases or be admitted as evidence of a victim's negligence or assumption of the risk. (8) Because state law regarding these contracts differs, decisions have varied widely.

Some states are hostile toward releases, while others recognize them as an important defense tool. Many slates no longer maintain the assumption-of-the-risk defense, recognizing instead that the factors underlying that defense are naturally part of a comparative fault analysis.

In determining whether to enforce exculpatory contracts, courts generally first determine whether they contravene public policy. This question usually turns on whether there is a "special relationship" or a disparity in bargaining power between the parties. If an exculpatory contract does not violate public policy in some way, then a court will often construe the contract against the drafter to see if a reasonable person would have clearly understood it. (9) Both hurdles usually must be cleared before a court will enforce an exculpatory contract.

Is there a special relationship between educational institutions and cheerleaders? A large percentage of serious cheerleading injuries occur at the high school or college level. (10) Consequently, most serious injury claims name educational institutions as defendants.

Several courts have held that a college's duty to protect its students from harm arises from a special relationship. (11) However, "courts have been reluctant to characterize the basic student-college relationship as 'special' so as to invoke a duty on behalf of the college." (12) Rather, courts often find the existence of a special relationship between a college and its students only in certain contexts. (13)

In Davidson v. University of North Carolina, a state appeals court found a special relationship between the school and a sophomore member of the junior varsity cheerleading squad. (14) The student suffered permanent brain damage when she fell from a pyramid during a practice.

The court found that although the university had not provided the squad a coach or adviser, and the cheerleaders had taught themselves how to perform stunts, there was a relationship of "mutual dependence" between the parties, and the university exerted control over the plaintiff. This formed the basis of a special relationship.

The Davidson court explained that the university exerted a high degree of control over the cheerleader because it maintained an alcohol policy, a minimum grade-point average requirement, and rules regarding general conduct for those who participated in student clubs. The court found "mutual dependence" because the university depended on the cheerleading program generally as representatives of the school at official athletic events. The resulting special relationship in Davidson led the court to invalidate the exculpatory contract signed by the plaintiff. (15)

Other courts have focused on the disparity in bargaining power between the parties. Despite the dangers involved in cheerleading, the activity is often relegated to the status of a club, more like a chess or rugby group than a recognized sports team. However, the West Virginia Supreme Court found in Kyriazis v. University of West Virginia that a college maintains a "decisive advantage in bargaining strength" over a student involved in any school recreational club activity. (16)

In Kyriazis, a student was injured while playing club rugby. The club members were required to sign a release to remain on the team. The court said that because "the university qualifie[d] as a 'public service,' and because it possessed a decisive bargaining advantage over the [student] when he executed the release," the document was "void as a matter of ... public policy." (17) Decisions like this have huge implications for future cheerleading injury cases.

Is cheerleading part of the educational experience? In Kyriazis, the West Virginia Supreme Court applied a six-factor test propounded by the California Supreme Court in Tunkl v. Regents of the University of California for analyzing exculpatory contracts. (18) The Tunkl analysis has been adopted in many states, and several courts have used it to invalidate exculpatory agreements. (19)

One such case involved an exculpatory contract in the context of interscholastic athletics. In Wagenblast v. Odessa School District No. 105-157-166J, two state school districts required waivers of liability as a precondition to participate in school sports. The court found all the Tunkl factors present, citing the many ways in which interscholastic sports are regulated (such as through the student handbook). (20)

While acknowledging that students do not have a "fundamental right" to participate in interscholastic sports, the Wagenblast court recognized that sports have "educational and cultural value." (21)

The court said that "not only have interscholastic sports become of considerable importance to students and the general public alike, but in most instances there exists no alternative program or organized competition.... While outside alternatives exist for some activities, they possess little of the inherent allure of interscholastic competition." (22)

Wagenblast has been cited nationally in cases involving a variety of school sports. (23) Certainly, the same considerations exist in cheerleading-injury suits. Though there are some private leagues, most cheerleaders become involved in cheering through their school, and schools often financially support the activity.

Other courts, however, have found that cheerleading is neither a sport nor a public service. For instance, the Massachusetts Supreme Court found, in Sharon v. City of Newton, that a high school student's "participation in the city's extracurricular activity of cheerleading was neither compelled nor essential, and [concluded] that the public policy of the commonwealth is not offended by requiring a release as a prerequisite to that participation." (24) In Sharon, the claim of a cheerleader who was injured while practicing at a public high school was dismissed based on a release her parents signed while she was still a minor. (25)

Assumption of the risk

Even where an exculpatory contract does not fully release a defendant, it can help support an assumption-of-the-risk or comparative negligence defense. Most states recognize assumption of the risk on some level--some seeing it as a complete bar to recovery and some as evidence of comparative negligence. At the same time, courts have found that assumption of the risk normally does not bar a claim where the risk is not obvious or where a person was injured by a hidden danger.

Several courts have found educational institutions liable when they breached the standard of care by enhancing or failing to expose risks that were not obvious. (26) For example, in Nova University v. Katz, a college cheerleader was injured when she went ahead with a stunt although she knew no spotters were present. The assumption-of-the-risk defense did not bar her claim. The court said, "While she may have waived risks inherent in the sport itself, those do not include failure to have proper supervision and to have spotters. She did not absolve the school of its responsibility for proper instruction and to properly supervise the activity." (27)

In another college cheerleading case, Kirk v. Washington State University, a jury found the school, its board of regents, and the student association negligent for failing to provide adequate supervision, training, and coaching of practices; warn about the hardness of synthetic turf; and provide adequate literature on the proper and safe method of performing partner stunts. (28)

The plaintiff in that case had been injured in a cheerleading practice while performing a stunt she had done before, but never on artificial turf. Although the court found that she had assumed the inherent risks of cheerleading (such as falling), the defendant was liable for her injuries because it had created other risks. (29)

Similarly, in Sheehan v. Hicksville Union Free School District, a high school cheerleader fell to the floor and was injured while cheering at a basketball game. The court found that while the plaintiff had assumed cheerleading's inherent risks, a jury should determine whether the school's failure to provide proper supervision unreasonably increased those risks. (30)

Likewise, in Cody v. Massapequa Union Free School District No. 23, a high school cheerleader was injured when she knowingly performed a familiar stunt without a spotter. The court held that while she assumed the risks of cheerleading, she did not assume risks that were "unreasonably increased" by the acts or omissions of the defendants. (31)

Most of these cases question whether an educational institution has any responsibility to provide students instruction in cheerleading at all. This is related to the question of a cheerleading squad's status at a school. Is it a special-interest club wholly separate from the school, or is it an official function of the school?

Some courts have found that educational institutions owe no duty to provide cheerleaders with a coach or instruction because cheerleading is a voluntary activity. In Fisher v. Northwestern State University, a Louisiana appellate court overturned a verdict in favor of a college cheerleader who was injured while performing a stunt. The trial court had found the college negligent for failing to provide a coach or other adult supervision over the club team.

However, the appellate court held that "Northwestern owed no duty to its cheerleaders to provide adult supervision to monitor the activities and tell them what stunts they could safely try next" and doubted whether "such an expert ... exists who has the capability of telling cheerleaders what stunts they can safely try next" given the "inevitability of accidents." (32)

While it is true that no coach can prevent all accidents to participants, the purpose of certifying cheer coaches is to train them to skillfully assess cheerleader readiness and choose appropriate stunts that will reduce the risk of serious injury. (33) Coaches of gymnastics and other disciplines undertake this task daily.

Lessons to be learned

These cases raise serious questions about what it means for a school to sponsor an activity like cheerleading and what a school's duty should be when a participant is injured. Current law often fails to reflect the reality of cheerleading today: It is a difficult and sometimes dangerous activity that requires skill and knowledge to perform safely.

Educational institutions have traditionally depended on cheerleaders to raise school spirit and support for other athletic teams. Growing enthusiasm for school sports is partially responsible for the creation of modern cheerleading in that greater support for school sports teams has encouraged more competition and higher expectations for cheerleading, leading squads to do more advanced moves. Is it therefore fair to allow schools to escape liability for failing to teach cheerleader safety? This question must be asked when considering the fairness of exculpatory contracts.

Courts considering these cases should recognize that there are different types of cheerleading activities and that schools can make choices that limit risk. For example, a school could easily restrict a cheerleading squad to leading cheers or performing dances (like the cheerleaders of the National Football League) and prohibit gymnastic stunting. This would place cheerleaders in a more traditional role, but it would also significantly reduce the risk of serious injury. A squad limited to dances or cheers would not necessarily need a coach, as those activities are far less risky than gymnastic stunts are.

An educational institution could also choose to allow cheerleaders to perform gymnastic stunts and provide a competent and qualified cheerleading coach or adviser. Although stunting is risky even with a qualified coach, the potential for injury to participants would be greatly reduced.

However, too many schools make neither of these choices, opting instead to allow cheerleaders to perform gymnastic stunts without proper supervision. By holding schools responsible for choosing wrongly, advocates for injured students will help increase cheerleading safety and foster more responsible educational institutions.

Notes

(1.) See, e.g., Aaris v. Las Virgenes Unified Sch. Dist., 75 Cal. Rptr. 2d 801 (Ct. App. 1998); Rendine v. St. John's Univ., 735 N.Y.S.2d 173 (App. Div. 2001); Fisherv. Northwestern State Univ., 624 So. 2d 1308, 1311 (La. Ct. App. 1993), cert. denied, 631 So. 2d452 (La. 1994).

(2.) See Nat'l Ctr. for Catastrophic Sport Injury Research, Twenty-Second Annual Report (June 29, 2005), available at www.unc.edu/depts/nccsi/ AllSport.htm (last visited Feb. 24, 2006).

(3.) Id.

(4.) Brenda J. Shields and Gary A. Smith, Cheerleading-Related Injuries to Children 5 to 18 Years of Age: United States, 1990-2002, 117 PEDIATRICS 122 (2006) available at www. pediatrics.org/cgi/content/full/117/1/122 (last visited Feb. 24, 2006).

(5.) Id. at 128.

(6.) AM. ASS'N OF CHEERLEADING COACHES AND ADVISORS (AACCA), CHEERLEADING SAFETY MANUAL (Gerald S. George ed., 1997). See also www.aacca.org/collegesafety. asp; www.aacca.org/hssafety.asp.

(7.) See, e.g., National Spirit Group Safety Guidelines, www.nationalspirit.com/ncasafety. asp; U.S. All Star Federation Safety Guidelines, www.usasf.net/Rules0506/USASF0506Rules Book.pdf; United Cheer Safety Guidelines, www.unitedcheer.com (click on "Safety Guidelines" at left).

(8.) See, e.g., Liability of School or School Personnel for Injury to Student Resulting from Cheerleader Activities, 25 A.L.R. 5th 784 (2002).

(9.) See, e.g., W. KEETON ET AL., PROSSER & KEETON ON THE LAW OF TORTS [section] 68, at 482-84 (5th ed. 1984).

(10.) Most cheerleading safety guidelines forbid younger children from performing the higher-level skills allowed for high school and college cheerleaders. See, e.g., AACCA, supra note 6.

(11.) See, e.g., Johnson v. Schmitz, 119 F. Supp. 2d 90, 98 (D. Conn. 2000); Doe v. Yale Univ., 748 A.2d 834, 853-54 (Conn. 2000); Kirk v. Wash. State Univ., 746 P.2d 285, 291 (Wash. 1987).

(12.) Geiersbach v. Frieje, 807 N.E.2d 114, 117 (Ind. App. Ct. 2004). See also Davidson v. Univ. of N.C., 543 S.E.2d 920, 927 (N.C. Ct. App. 2001), cert. denied, 550 S.E.2d 771 (N.C. 2001).

(13.) See, e.g., Schneiderv. Plymouth State Coll., 744 A.2d 101,105 (N.H. 1999); Kleinknecht v. Gettysburg Coll., 989 F.2d 1360, 1367-69 (3d Cir. 1993).

(14.) 543 S.E.2d 920, 927.

(15.) Id.

(16.) 450 S.E.2d 649, 655 (W. Va. 1994).

(17.) Id.

(18.) 383 P.2d 441,444-45 (1963). In reviewing an exculpatory contract, the Tunkl court looked at whether: (1) the contract concerned a business of a type generally thought suitable for public regulation; (2) the party seeking exculpation was engaged in performing a service of great importance to the public; (3) the party holds itself out as willing to perform this service to any member of the public who seeks it, or any member coming within certain established standards; (4) as a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against those who seek its services; (5) in exercising a superior bargaining power, the party confronts the public with a standardized adhesion contract of exculpation and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence; and (6) as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or its agents.

(19.) See, e.g., Moore v. Hartley Motors, Inc., 36 P.3d 628, 631 (Alaska 2001); Porubiansky v. Emory Univ., 275 S.E.2d 163, 168 (Ga. Ct. App. 1980); Ash v. N.Y. Univ. Dental Ctr., 564 N.Y.S.2d 308, 312-13 (1990).

(20.) 758 P.2d 968 (Wash. 1988).

(21.) Id. at 972.

(22.) Id. This language follows generally the language in Bd. of Ed. of Indep. Sch. Dist. No. 92 v. Earls, 536 U.S. 822,831 n.4 (2002) ("Participation in such extracurricular activities is a key component of school life, essential in reality for students applying to college, and, for all participants, a significant contributor to the breadth and quality of the educational experience").

(23.) See also Kyriazis, 450 S.E.2d 649 ("recreational activity sponsored by a state university constitutes public service" because "athletics are integral and important elements of the education mission").

(24.) 769 N.E.2d 738, 745-46 (Mass. 2002).

(25.) See also Riddle v. Universal Sport Camp, 786 P.2d 641 (Kan. Ct. App. 1996).

(26.) See Kirk, 746 P.2d 285,288-89 (citing KEETON, supra note 9, [section] 68, at 487; 2 F. HARPER & F. JAMES, TORTS 1162-65 (1956 & Supp. 1968); RESTATEMENT (SECOND) OF TORTS [section] 496C (1) (1965)). See also Prillaman v. Sark, 567 S.E.2d 76 (Ga. Ct. App. 2002).

(27.) 636 So. 2d 729, 730 (Fla. Dist. Ct. App. 1993).

(28.) 746 P.2d 285,287.

(29.) Id. at 289.

(30.) 645 N.Y.S.2d 181,182 (App. Div. 1996).

(31.) 642 N.Y.S.2d 329,331 (App. Div. 1996).

(32.) 624 So. 2d 1308, 1311. See also Aaris, 75 Cal. Rptr. 2d 801 (summary judgment granted in favor of the defendant where injured high school cheerleader voluntarily participated in "inherently dangerous" activity).

(33.) See, e.g., AACCA, supra note 6.

J. CRAIG SMITH practices law with Koskoff Koskoff & Bieder in Bridgeport, Connecticut.