It is a sad affair. 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 varsity junior football team. He sued the El Dorado Union High School 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 District Court of Appeals later ruled.
INJURY AND SIGNED WAIVER 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 has played on offensive, defensive and special teams. Nick pulled out of the game in the fourth quarter just before the end of the game five or 10 minutes later, he said the word “coach” and collapsed. Nick was rushed to hospital but suffered head trauma.
Nick and his father have signed a full and thorough liability waiver and assumption of risk agreement. The press release was well written. By signing both Nick and his father on his behalf, they released any claims for injury or death that may occur while playing.
CONCUSSION/HEAD INJURY PROTOCOL
Nick’s coaches had given all players and discussed a comprehensive concussion and head injury information sheet, including the symptoms and signs of a concussion. Union Mine had essentially complied with the California Interscholastic Federation’s bylaws and gaming management guidelines. 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 a release of all claims, which under the law amounts to an express assumption of the risk of playing football.
The appeals court noted that express waivers like signed releases are valid and enforceable in the situation of recreational activity like a football game.
The Court of Appeal wrote that a waiver of liability and assumption of risk may constitute an exclusion of liability based on negligence, but they cannot serve as an exclusion of liability based on gross negligence. The court went on to analyze the team’s concussion protocol, coach training, in-game monitoring of players, concussion equipment issued to all players, and medical care provided at the scene. Ultimately, the appeals court found that the school and its coaches had not been grossly negligent. The language used in the disclaimer was thorough and met legal requirements. It was binding. Judgment for Union Mine.
COMMENTARY ON THE ASSUMPTION OF RISK
The court’s analysis in the Nick Brown case involved an express assumption of risk because a release of all claims had been signed. There is another type of risk assumption that we have written about many times and that is the primary risk assumption. If someone playing soccer or another rigorous recreational activity like basketball or skiing sustains an injury, the law considers the injured party to have assumed the risk of injury inherent in the sport. There is no injury claim unless the responsible party has increased the risk of injury. I dare say that Nick Brown’s trial would also have failed because of the main assumption of the risk doctrine. Sad day, however.
Jim Porter is a Porter Simon attorney licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s areas of practice include: real estate, development, construction, business, HOAs, contracts, personal injury, accident, mediation and other transactional matters. He can be reached at [email protected] or http://www.portersimon.com