By Doyice Cotten
In a recent case (Wolfe v. AmeriCheer, Inc., 2012 Ohio App. LEXIS 827), a 13 year- old cheerleader suffered a spinal compression injury when a fellow cheerleader fell on her during the execution of a stunt. Only one of the three spotters was in proper position on the mat when she fell. Wolfe’s mother had signed a waiver releasing AmeriCheer from liability.
The trial court enforced the waiver ruling that the waiver protected against negligence claims (Ohio being one of the states in which parental waivers are enforced). Wolfe appealed stating that there was an issue of fact regarding willful, wanton, and reckless conduct.
The court stated that because of the release signed by Lindsay’s mother and the doctrine of primary assumption of risk, Wolfe is precluded from bringing a negligence action against AmeriCheer. The court explained that under the doctrine of primary assumption of the risk, a plaintiff voluntarily engaged in a recreational activity assumes the inherent risks of that activity and cannot recover for injuries sustained while engaging in that activity unless the defendant acted recklessly or intentionally in causing the injuries. The court then distinguished among the concepts of reckless conduct, willful and wanton conduct, and negligence.
Wanton misconduct requires “there must be a failure to exercise any care whatsoever by one who owes a duty of care to another, and the failure must occur under circumstances where there is a great probability that harm will result from the lack of care.”
Reckless disregard for the safety of another “occurs if one does an act … which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable person to realize, not only that his conduct creates an unreasonable risk of harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.” The court went on to say that unreasonable risk of harm is created “when such risk is substantially greater than that which is necessary to make his conduct negligent.”
Negligence is ”synonymous with heedlessness, thoughtlessness, inattention, inadvertence, and oversight, and conveys the idea of inadvertence. The court contrasted negligence with wanton and reckless conduct in that it does not involve premeditated or formed intention, or a conscious purpose to do a wrong act or to omit the performance of a duty.
The court examined the evidence surrounding the actions of AmeriCheer and the spotters and found no evidence of actions that exceeded ordinary negligence; consequently, since the waiver protected AmeriCheer from liability for negligence, the court dismissed the case against AmeriCheer.
Several factors are important to note. First the case occurred in Ohio, a state in which parental waivers are enforced. Had it been in one of many other states, the waiver would have had no effect and AmeriCheer might have been found liable for its negligence. Second, any fault of AmeriCheer did not reach beyond ordinary negligence. If their fault had been aggravated (gross, wanton, or reckless), AmeriCheer would have been liable.
Photo Credit: Thanks to Sergey Vladimirov at http://www.flickr.com/photos/vlsergey/4664756851/sizes/n/in/photostream