Assumption of Risk Doctrine Used in Children’s Sports Injury Cases
An Economic Solution
Michael Luchies, Yahoo! Contributor Network
Jul 23, 2009
Sports injuries account for 3.7 million emergency visits and cost Americans $680 million in medical expenses each year. Every injury comes with costs to the injured party including medical expenses, lost earnings and other damages. Questions rise from sports injuries to whether or not the injury was caused by negligence. Negligence can be summed up as a person’s failure to provide a standard of care that the law requires to protect other persons from injury. A commonly applied doctrine in sports injury cases used as a defense to negligence is the assumption of risk doctrine.
“Assumption of the risk negates the issue of a defendant’s negligence by virtue of a plaintiff’s previous abandonment of his or her right to maintain an action if an accident occurs.” (Parks & Recreation pg .35) The assumption of risk doctrine is applied to protect individuals from being sued who are participating in dangerous activities in which injuries are expected and frequent. This translates to a “play at your own risk” situation meaning that even if another party causes your injury, you bare the risk of injury.
Separate states have taken assumption of risk to mean different things when it comes to sports injuries. Several states including California use assumption of risk as a complete bar of recovery from negligence, meaning that no standard of care is required.
The assumption of risk defense in has extended to children sports and also cases in where there is alleged negligence in coaching. Children are held to assumption of risk but “A child is not to be held to the same standard or degree of care that an adult would have used. A child should be deemed to have assumed the risk if another child of similar age, intelligence, experience and development, would have acted differently under the circumstances.” (Parks & Recreation pg. 35) Despite this statement, it seems as though children are often held to the same standard as exhibited by the following cases; Kelly v. McCarrick (2004), and Kahn v. East Side Union High School District. The assumption of risk doctrine used as a complete bar to recovery in children’s sports injury cases is not an economically efficient application of the rule, and due to the agency problem, coaches are not held responsible for negligence that results in an injury that could have otherwise been prevented.
Kelly v. McCarrick (2004), Maryland
The Kelly’s (plaintiffs) daughter was injured in a children’s softball game while tagging out a runner at second base. The plaintiff’s daughter was standing incorrectly and suffered a severely fractured ankle as a result. The child had played softball for several years and was aware of how to play the game and had voluntarily done so for years.
The Kelly’s attempted to sue the catholic softball league of the grounds that there was negligence in the slide of the opponent, negligent coaching, and negligence on the part of the league through a ‘mismatch’. The court ruled that all three of these claims were covered under the assumption of risk doctrine.
Analyzing Kelly v. McCarrick
In this case three rules outline if Assumption of Risk has been established; 1). The plaintiff had knowledge of the risk of danger, 2) appreciated that risk and 3) voluntarily exposed him/her to the risk.
-Claim of Negligent Coaching
The Maryland court extended the assumption of risk principles to apply to claims of negligent coaching, and the plaintiffs were not able to collect on this claim. There was no evidence that showed a standard of care was not taken (if needed to be taken) into making sure the child was fully aware of potential risks from playing softball. The child had been playing the sport for several years and was expected to know how to properly field her position. It would not be in the best interest of the coach or the league to repeatedly make sure that every player knows exactly what to do in every situation even when they had played for several years. The court makes it known that the burden of precaution is on the child to make sure they know what is to be done while playing the sport.
In this case, if negligence was found against the coach because of the injury, effects of the judgment would harm sports across the country. The negative externality would be the increased costs of being a coach in children’s sports. If a coach is liable for their players’ injuries, it is likely that the marginal costs would outweigh the benefits of coaching. Since most of these catholic children league coaches are volunteers, they are not paid and their benefits are from the joy of volunteering. The costs of potential lawsuits due to injuries would make it economically inefficient to coach for any reasonable person.
-Claim of Mismatch
The Kelly’s claimed that the opponents of her child’s softball team were too skilled to be playing in the same league, and that the player who injured the Kelly’s daughter was more gifted then their daughter, which contributed to the cause of injury.
When playing sports, a participant assumes that some participants would be more skilled, and some less skilled. Unless the margin of ‘mismatch’ is extreme, ex: professional football players against elementary school children, then the court would not honor a mismatch claim.
-Claim of Negligence on the Opposing Player
Simply because the opposing player was aggressive is not enough to constitute negligence. Sporting events are both competitive and dangerous, and it is commonplace for aggressive play to occur. The court would not want to discourage aggressive and competitive play.
-Opinions on ruling in Kelly v. McCarrick
The court was correct in ruling that the Kelly’s could not recover damages from the coach of the Catholic Softball League team, the player who caused the injury, or from the softball league it’s self. In all three claims the Kelly’s daughter is the least cost avoider, meaning she can bare the risk of precaution the easiest. The plaintiff’s daughter could have avoided risk by avoiding contact at second place, better educating herself how to play second base, sought further instruction from coach, or she could have no participated in the game. Any of these would be easier then the league or coach taking extra precaution with each player to make sure an accident does not occur.
“The appeals court acknowledged that coaches must be aware of preventable risks to their athletes and must take measures to properly supervise and care for their players.” As far as the court found, the coach had fulfilled this. The court went on to state that the “coach owes a duty of care not to increase the risk of harm inherent in learning an active sport.” More than a showing of mere carelessness is needed to find negligence in coaching as a result for an injury. In the Kelly’s case there was no evidence that the coach increased the risk of harm to their daughter, and therefore the ruling was for the plaintiff.
Kahn v. East Side Union High School District
California District 6 Appellate Court 2002
In 1994 Olivia Kahn was a 14 year old high school freshman and a member of the Mount Pleasant High School girls swim team. Her coach Andrew McKay knew of the plaintiff’s inexperience and the plaintiff had expressed fears to the coach about diving into the pool, which would be done during a relay race if not the first swimmer in her four person relay. McKay had placed Kahn as the first swimmer of the relay team, so she would start in the pool and not have to dive in the shallow end of the pool during the race. Shortly before the third competition of the year, McKay informed Kahn that she would not be starting the relay, but would compete later in the relay, forcing her to dive in the pool in the shallow end, which she did not know how to do appropriately. Kahn pleaded with the coach to let her start from inside the pool as she did in the first competitions but McKay refused by saying “you either dive off the blocks or you are not swimming.” With only minutes to prepare for the race, Kahn went with two other swimmers to practice diving into the pool. While practicing for the dive, Kahn broke her neck on her third attempt. The Kahn’s later sued the school district and coach McKay on grounds of negligence.
The court stated the following:
Plaintiff was not forced to accept her coach’s challenges; she could have refused to swim. By voluntarily rising to the challenge of attempting an unfamiliar dive, plaintiff assumed the risk that she would be unable to meet that challenge.
The court ruled in favor of the school district, using assumption of risk as a bar from recovery by the plaintiffs.
Analyzing Kahn v. East Side Union High School District Judgment
Kahn v. East Side Union High School District is a clear example of when the assumption of risk doctrine is used inappropriately to bar recovery when negligence is exhibited. In Kelly v. McCarrick, assumption of risk was used to prevent families of injured children from routine sporting accidents from suing the sports league and the coach. There was no calculated negligence in the Kelly case because the child had experience playing softball and the coach would have assumed that the child knew how to play the position properly. In the Kahn’s case, the coach had knowledge of the child’s inexperience in the sport, fear of performing the given task, gave an ultimatum (put child in a state of duress), failed to give her instruction on how to make the dive, and failed to supervise her attempts to practice the dive shortly before it was to be performed in competition. The level of negligence clearly involved with this case is an overwhelming amount that was ignored by the courts use of the assumption of risk doctrine.
In this case the goal of tort law was not met. This case was not decided in an interest to minimize the cost of injury. The Kahn’s had to bare the cost of their child’s broken neck and her future medical cost and loss of enjoyment of life due to negligent coaching. Although in many cases coaches are not held responsible for injuries, the coach in this case did not exhibit a standard of care and should be held responsible for this injury. The coach was not a volunteer but a paid high school coach, and therefore should be held to a higher standard of care then a volunteer coach. Take the quote from the court in the first case; “coach owes a duty of care not to increase the risk of harm inherent in learning an active sport.” One could argue that by forcing the Kahn’s daughter to perform an act she had not practice was exposing her to an increased risk of injury. Using the Maryland courts findings, the outcome of the case may have been different.
Are children under the age of 18 able to assume all of the potential risks of injury?
Lawyer Richard Alexander states; “Fourteen year-olds do not have the legal capacity to agree to anything. They cannot enter into a binding contract, consent to surgery, open a checking account, buy a car, or vote. How a legally incompetent person simultaneously has the legal capacity to assume the risk of a life-threatening risk of permanent injury or death is not explained.” Children, unlike adults, cannot fully assume all risk of injury while involved in sporting events. The average child does not know the vast amount of damage that may result in their participating in a sporting event. A child needs to be taught about the risk and how to prevent themselves from injury, and the perfect person for this job is the coach.
Agency Problem with Assumption of Risk in Children’s Sports
An agency problem is present in children’s sports due to the application of the assumption of risk doctrine as a complete bar from recovery. Consider the agent as the coach of the children’s sports team, and the child and their family as the client. The coach is either paid on a consistent basis during the season or agrees to coach for free (as a volunteer). The client (the child and family) receives instructions and directions from the coach, and rely that the coach is looking out for their best interest. The current system gives an incentive for coaches in children’s sports to neglect teaching the team members how to properly play the sport and avoid injury. An agency problem arises where the coach no longer has a duty to provide further instruction, nor is it economically efficient for them to do so. The coach has no incentive to spend an efficient amount of time teaching the children how to play the sport, because there are no consequences if he/she does not, and no incentives if they do teach and coach an efficient amount.
The assumption of risk doctrine should serve as a complete bar in professional sports and be a possible defense in children’s (under the age of 18) sports. In cases where the injury was caused by a lack of instruction, the coach should be held responsible and the assumption of risk doctrine should not be admissible. This would provide an incentive for coaches to exhibit a standard of care and not make the cost too great so they would not participate. Making the possibility of a suit available would benefit both the children at risk for injury and would minimize the costs of injuries.
Professional athletes have completely assumed the risk, and are compensated for putting their bodies at risk to injury. Professionals are able to protect themselves financially by purchasing insurance, while a child cannot alone purchase insurance, and their family must bare the cost of their injury. Professional athletes have an advanced knowledge of their sport and bare all the risk of injury.
In law often there is no right or wrong answer. Debate will continue for years if not forever about the use of tort law and the assumption of risk doctrine. Through this research paper I contend that the efficient solution towards sports injuries is to only use the assumption of risk doctrine as a complete bar to recovery if the injury was during a professional or collegiate level event. Children are not able to assume the complete risk of injury as they are not able to act as adults. The assumption of risk doctrine used as a complete bar to recovery in children’s sports injury cases is not an economically efficient application of the rule, and due to the agency problem, coaches are not held responsible for negligence that results in an injury that could have otherwise been prevented. The use of assumption of risk to protect negligent coaches should not be allowed, as a coach of children’s sports should be held to a standard of care higher then simply not increasing the risk of injury for a child. Although it would not completely solve the issue at hand, but if coaches were held partially reliable to uphold a standard of care by the law, the agency problem would be solved and many injuries may be prevented in the increased amount of care that the coaches would take in teaching children how to safely play a sport.
Alexander, Richard. Sports Injuries and the Immunity of Coaches, Instructors and Professional Trainers from Liability under California’s Primary Assumption of Risk. http://consumerlawpage.com/article/sports-injure.shtml
Kahn v. East Side Union High School. file:///C:/DOCUME~1/MICHAE~1/LOCALS~1/Temp/kahn%20v%20east%20side%20high%20school.htm
Knight v. Jewitt (1992).
Kozlowski, James. “Injury Can Be Part of the Game.” NRPA Law Review. Parks & Recreation, June 2004 (34-39). Article #1 attached.
Sports and the assumption of risk doctrine in New York
Lura Hess. St. John’s Law Review. Brooklyn: Spring 2002. Vol. 76, Iss. 2; pg. 457, 25