As a general rule, coaches/instructors and other individuals and agencies responsible for conducting sport, recreation and physical fitness programs owe a legal duty to participants to supply proper and necessary protective equipment before going forward with an activity. Moreover, if the necessary protective equipment is supplied by the participant or his/her parents, those responsible for conducting the activity have a legal duty to ensure that such self-furnished protective equipment is reasonably adequate under the circumstances, or provide alternative protective equipment that is adequate. What protective equipment is considered necessary or optional may vary with the setting and generally accepted customs and practices of a given sport or recreational activity.
As illustrated by the case report described herein, the failure to provide the injured plaintiff with a helmet and mouthguard may have created a foreseeable risk of the type of head and facial injury sustained during the activity. Accordingly, since football helmets with attached faceguards and mouthpieces are used for safety or protective devices, a jury could reasonably find the failure to supply such necessary protective equipment provided a basis for negligence liability. Further, the assumption of risk defense against a claim of negligence by an injured participant in a contact sport is limited to the risk of injury inherent in ordinary play and does not include the risk of participating in a training drill that has insufficient protective equipment.
In the case of Sonetti v. Huntington Beach Union School District, 2014 Cal. App. Unpub. LEXIS 7088 (10/1/2014), plaintiff Mark Sonetti was injured during a high school football kickoff drill. After being struck from behind by another player, Sonetti lurched forward and struck another player with his chin, breaking his jaw.
In August 2011, Sonetti had played football for Fountain Valley High School for three years. He made the varsity team in his junior year and was returning as a varsity player for his senior season. In each of his previous seasons, helmets and mouthguards had been used in all fall kickoff coverage drills. In his deposition, Sonetti testified that no fall kickoff coverage drill had ever been run without a helmet. Sonetti admitted, however, that spring drills were not normally run with helmets.
There was no dispute as to what the kickoff coverage drill run that particular Monday was to entail: There was to be no tackling. However, blocking was envisaged, and Sonetti’s coach, defendant John Shipp, admitted that, in the context of the drill, a defender running down the field could end up being blocked. As Sonetti described what happened, he was running down the field in his lane, when he was blocked (or pushed) from behind, and went into the upper torso of an adjacent player, resulting in his injuries.
During his deposition, Coach Shipp effectively conceded helmets were required for football drills. Specifically, Shipp admitted that players would have been wearing properly fitted helmets during the kickoff drill “if the helmets had arrived prior to the day of the accident.” In addition, at Fountain Valley, it was standard practice for players in kickoff drills to wear mouthguards.
Coach Shipp further testified, “All of our kids are supposed to be wearing mouthguards.” According to Shipp, “A player would not be allowed to be in the drill if he wasn’t wearing one.” Shipp also indicated, “Mouthguards normally come attached to the helmets.” When questioned, Coach Shipp indicated he would have sent Sonetti “to go get a mouthpiece” if he had realized Sonetti was not wearing a mouthpiece prior to the kickoff coverage drill in which Sonetti was injured.
The district’s equipment manager also testified that players should have been given a mouthguard attached to helmets, or “get their own individual mouthpiece.” The equipment manager, however, did not recollect whether the required mouthguards had been given out prior to the day of the accident.
Similarly, Sonetti testified at his deposition that mouthguards were normally given out to the players when they received their helmets. Sonetti further testified that he wasn’t given a mouthguard when he picked up his shoulder pads the preceding Saturday. Such testimony further supported the inference that mouthguards were not given out to team members prior to Monday’s practice because the helmets had not yet arrived.
In his complaint, Sonetti alleged his injuries were caused by the school district’s negligence. In response, the district brought a motion for summary judgment. In so doing, the district “did not submit any expert testimony establishing that high school kickoff coverage drills in California are normally run without helmets.” Instead, the appeals court found the school district had simply argued, a “rather remarkable position,” that the “[a]bsence of football helmets does not increase the risks inherent in football.”
In the opinion of Sonetti’s sports safety expert, contact football “must be played with helmets and mouthguards.” Further, Sonetti’s expert stated “kickoff drills are one of the most dangerous plays in all of football due to high rates of speed and the likelihood of violent collisions.” In offering his opinion, however, Sonetti’s expert “did not say whether the normal practice of high school coaches in California is to run kickoff coverage drills with or without helmets.”
The trial court granted summary judgment to the defendant school district based on primary assumption of risk, i.e., participants assume “the normal, inherent risks in the sports activity.” Specifically, the trial court found “bumping, blocking and falling are inherent in football.”
In so doing, the trial court further noted Coach Shipp’s testimony that “Players run the kickoff drill without helmets often.” While Coach Shipp conceded “helmets would have been used if available,” the trial court found such helmet use “had nothing to do with safety.” In so doing, the trial court apparently accepted Shipp’s testimony that the purpose was to “have the players get used to their helmets and improve tackling.”
On appeal, Sonetti argued that the district fell below its standard of care for organizing high school football by not supplying helmets or mouthguards. Accordingly, the appeals court would “ascertain what is the standard practice as regards a given safety feature in an organized sporting activity:”
Going the extra mile beyond what is normal, or providing safety precautions beyond what is standard practice, is not required of a defendant. But complying with standard, customary safety procedures is. (Emphasis of court).
In this particular instance, Sonetti had argued that “supplying helmets and mouthguards is a standard, customary safety procedure that would have prevented or ameliorated his injury.” While participants assume normal, inherent risks in a sport, the appeals court acknowledged that participants would not necessarily assume “increased risks attributable to the defendant, usually an organizer, instructor or promoter.”
Since the trial court had entered summary judgment in favor of the school district, effectively dismissing Sonetti’s claim without a trial, the appeals court would interpret any conflicting evidence in the pretrial record in favor of Sonetti. In so doing, the appeals court found that the school district had “failed to establish that kickoff coverage drills are normally run without helmets.” On the contrary, the appeals court found conflicting evidence from which an inference in favor of Sonetti could be drawn, i.e., the “standard practice is for kickoff coverage drills to be run with helmets at the time Sonetti was injured.” Similarly, the appeals court found conflicting evidence as to whether the district actually had supplied mouthguards for the practice that injured Sonetti, even though “the district admitted it is standard practice to supply mouthguards for kickoff coverage drills.”
Sport Safety Assumption of Risk
As a general rule, the appeals court reiterated the point that “plaintiffs assume the risk inherent in the sport or activity, but do not assume increased risks caused by the defendant. “
Although defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, it is well-established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.
Further, in determining whether a plaintiff could assume the risk of unavailable safety measures in a sport, the appeals court would determine “a norm or industry standard or practice” for a particular safety measure — in other words, the “customary” approach to particular safety precautions in a given sport.
In resolving reasonable inferences from the evidence in favor of Sonetti, the appeals court found Sonetti had established a sufficient basis for the following facts in contesting the summary judgment granted to the district by the trial court:
(1) No mouthguards were given out. In combination with Sonetti’s statement that mouthguards were normally given out with the helmets, and the fact the helmets did not arrive that Saturday, there is a reasonable inference no mouthguards were given out on the Saturday before the Monday practice… [Further, the district] did not provide the declarations of any players to the effect that mouthguards had been given out.
(2) The standard practice of Fountain Valley High School was not to allow players to run kickoff drills without mouthguards. Coach Shipp said that himself.
(3) The standard practice of Fountain Valley High was to run full practices in the fall with helmets, not without them. Sonetti testified that every time the drill had been run in the fall in the previous three seasons, it had been run with helmets. Beyond that, Coach Shipp admitted that if he had had helmets available, he would have had the players wear them. If standard practice was not to wear helmets, Coach Shipp might very well have said he wouldn’t have had the players wear them.
In light of these facts, the appeals court found the pretrial evidence had not conclusively established that Sonetti had necessarily assumed the risk of injury under these circumstances. On the contrary, if Sonetti’s negligence claim was allowed to proceed to trial, a jury could “reasonably conclude that helmets and/or mouthguards were standard practice.” Similarly, a reasonable jury could find “Sonetti’s injuries would have been prevented or would have been less severe” if the district had “passed out helmets or mouthguards.”
While there was conflicting pretrial evidence on whether mouthguards were passed out, the appeals court found there was no dispute that helmets had not been passed out prior to the practice in which Sonetti was injured. Moreover, the appeals court found the district had not established a “standard practice in fall kickoff coverage drills to dispense with helmets.”
Coach Shipp’s testimony suggesting helmets weren’t used is wobbly, and his statement the drill would have been run with helmets if they had arrived suggests a standard practice of conducting kickoff coverage drills with helmets. It is hard to read that testimony as anything other than an admission that the only reason Sonetti wasn’t wearing a helmet was that they were not yet available.
When compared with the unequivocal testimony of Sonetti that in the fall season, kickoff drills had always previously been conducted with helmets, it cannot be said there is no issue as to whether the standard practice of the school was to run such drills without helmets.
Further, in the opinion of the appeals court, there was no pretrial evidence that helmets were “disfavored in the particular drill being run,” nor any pretrial evidence that helmets increased the risk of injury. On the contrary, there was pretrial evidence that the use of properly fitted helmets with mouthguards could be considered a customary safety precaution under the circumstances.
Even assuming the trial court was correct to read Coach Shipp’s testimony to the effect that the only reason helmets had been worn for kickoff drills was to accustom players to their helmets and tackling technique and the coach was indifferent to the extra safety provided by helmets, the uncontradicted evidence, from Sonetti’s sports safety expert, is that helmets would have been desirable for safety reasons…
The kickoff coverage drill here may have fallen short of that standard as well as the law’s. By not waiting until the helmets and mouthguards arrived, the team lost an experienced player to a broken jaw. Football has its inherent risks, but in most contexts, including this kickoff coverage drill, the standard practice appears to be mitigation of those risks by playing the game with helmets and mouthguards.
Accordingly, the appeals court concluded that the trial court had erred in granting summary judgment in favor of the district. As a result, the appeals court reversed the trial court’s effective pretrial dismissal of Sonetti’s negligence claim and allowed the case to proceed to trial. At trial, a jury would decide whether Sonetti had assumed the risk of injury by participating in the kickoff drill without a mouthguard.
James C. Kozlowski, J.D., Ph.D., is an attorney and Associate Professor in the School of Recreation, Health and Tourism at George Mason University. Webpage with link to Law Review articles archive (1982 to present).