University Waiver Null in Injured Cheerleader's Paralysis

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In the case of Gonzalez v. University System of New Hampshire, a cheerleader sued for injuries sustained during a university cheerleading practice. The cheerleader argues that the university was both negligent and reckless, and responsible for her resulting injuries. In law, recklessness consists of disregard of, or indifference to, consequences under circumstances involving danger to life or safety of others, even if no harm was intended. For the cheerleader’s recklessness claim to succeed, she must prove there was a causal connection between the recklessness alleged and the injuries incurred. Negligence is the failure of an individual to use reasonable care, which results in either damage or injury to another. The cheerleader must prove that (1) the university owed her a duty; (2) the university breached that duty and; in doing so (3) directly caused (4) a real and compensable injury.

On November 16, 1999, the cheerleader was a sophomore at Keene State College, an institution under the administrative control of the University System of New Hampshire. She was a member of the cheerleading club, and attempted to perform a “pyramid” formation during practice, which was under the direction of their coach. While atop the pyramid, the cheerleader fell sustain serious injuries. As a result of the fall she is a quadriplegic. The cheerleader sought damages for permanent injuries, loss of earning capacity, medical expenses, loss of ability to enjoy life’s activities, as well as putative damages. There are two types of injury in law: (1) economic damages; and (2) noneconomic damages. Economic damages are compensation for monetary expenses related to an injury, such as medical costs and even lost wages. These damages are easily verified by medical bills, invoices, and employment records. Noneconomic damages compensate individuals for non-monetary losses, which are not readily quantifiable. Examples include pain-and-suffering, loss of future enjoyment, and loss of companionship. These damages are subjective, and determined by the jury or finder of fact. For personal injury compensation, the engineer had assigned his indemnification rights against the main employer, to the employee. The University denied any liability, and instead argued: (1) that the injuries were caused by the cheerleader’s own failure to use reasonable care, and were barred by both a liability waiver and the state university’s governmental immunity.

The court noted that the substantive law of New Hampshire governed the case, because the cheerleader's injury and the alleged tortious activity took place in New Hampshire, where she was a full-time student. However, Connecticut law governed matters of procedure. Because the release signed by the cheerleader was invalid under New Hampshire law, the suit was not barred by the release signed. The court denied defendants' motion for summary judgment as to the cheerleader's negligence count, as there were issues of fact that had to be determined by a jury.

The court did grant summary judgment for the breach of fiduciary duty and recklessness counts. To determine the appropriate standard of care to be applied to participants, sponsors, and organizers of recreational athletics, a court considers: (1) the nature of the sport involved; (2) the type of contest, for example, amateur, high school, little league, pick-up, etc.; (3) the ages, physical characteristics and skills of the participants; (4) the type of equipment involved; and, (5) the rules, customs and practices of the sport, including the types of contact and the level of violence generally accepted. The university may be held liable to the cheerleader for unreasonably creating or allowing risks other than those that are inherent in the sport, or for increasing inherent risks, and in any event will be held liable for reckless or intentional injurious conduct totally outside the range of ordinary activity involved in the sport, but liability should not place unreasonable burdens on the free and vigorous participation in the sport. A defendant may not be held liable for negligent or even reckless or intentional injurious conduct that is not outside the range of ordinary activity involved in the sport of cheerleader. The injury resulted from the cheerleader’s fall from a team formation, and without a doubt falls well within the range of an ordinary cheerleading activity.

If you have a child with a disability and have questions about special education law, please contact Joseph C. Maya, Esq., at 203-221-3100, or at JMaya@mayalaw.com, to schedule a free consultation.

Source: Gonzalez v. Univ. Sys. of N.H., 2005 Conn. Super. LEXIS 288 (Conn. Super. Ct. Jan. 28, 2005)