Give Me An Ache, Give Me a Bruise . . . : Wisconsin Supreme Court Rules Cheerleading is Contact Sport

250px-youthcheerleadingpomponsThe Wisconsin Supreme Court has ruled that cheerleading is a contact sport like footballs and therefore participants cannot be sued for accidentally causing injuries. Brittany Noffke, a former varsity cheerleader at Holmen High School in Wisconsin, sued her spotter after she was allowed to fall backwards off the shoulders of a team member, causing a serious head injury.

The accident occurred in 2004 and Noffke was a so-called “flyer” who is thrown in certain moves. She sued Kevin Bakke, a 16-year-old male student for his negligence as well as the school district. Both are now barred in a decision that will likely be greeted warmly by school districts around the country. Cheerleading injuries have caused growing concerns over the risks of many high throws and impressive moves being used by teams. With growing calls for no limitations to be placed on the sport, this ruling significantly reduces the potential liability for such accidents, at least in Wisconsin.

The Wisconsin Supreme Court was unanimously in its ruling written by Justice Annette Ziegler, who held that cheerleading involves “a significant amount of physical contact between the cheerleaders.” The case turned on the interpretation of immune provisions contained in Wis. Stat. § 895.525(4m)(a), which extends immunity to players who participate in contact sports. Here is the statute:

8

Subsection (4m)(a), Liability of Contact Sports Participants, provides:
A participant in a recreational activity that includes physical contact between persons in a sport
involving amateur teams, including teams in recreational, municipal, high school and college leagues, may be liable for an injury inflicted on another participant during and as part of that sport in a tort action only if the participant who caused the injury acted recklessly or with intent to cause
injury.

The court explores the rules and moves of cheerleading before concluding that it is a contact sport.

The court then finds that the coach and school district are also cloaked in immunity. The only exceptions recognized are for “for those acts associated with: (1) the performance of ministerial duties imposed by law; (2) known and compelling dangers that give rise to ministerial duties on the part of public officers or employees; (3) acts involving medical discretion; and (4) acts that are malicious, willful, and intentional.” The first two exceptions were claimed in this case and rejected.

Yet, finding that a sport is a contact sport does not necessarily mean that all lawsuits are barred. Presumably, there remains intentional torts and notions of gross negligence. More importantly, negligence by schools in the training or supervision of the students would presumably still be possible as the basis for a lawsuit. More notably, the court rejects the idea that safety rules require a spotter and thus are ministerial duties. The court found that such rules are guidelines left to the discretion of the coach — a very significant ruling that will likely to be cited across the country.

For a copy of the opinion, click here.

For the full story, click here.

23 thoughts on “Give Me An Ache, Give Me a Bruise . . . : Wisconsin Supreme Court Rules Cheerleading is Contact Sport”

  1. Yeah, that’s a much bigger number that I’d have thought. I still, however, think that personal responsibility should be factored in. If these activities are engaged in, sure, proper safety precautions need to be taken but none of that obviates all of the risk and the assumption of that risk by the individual choosing to play/cheer/compete. That’s just responsible. Every time I entered a ring – gloves, pads, head gear, shin guards, mouth piece, all of it – I knew that even with that gear I risked injury. What I was doing is inherently dangerous. I took that risk and occasionally it bit me. I took it willingly though and I didn’t whine about getting hurt. But the ability to legislate away risk and the ability to legislate around irresponsible, negligent or risky behavior is limited by both the nature of the physical universe and by the quirks of human nature. In fact, the ability to legislate risk is largely a mathematical fallacy. Randomness happens. No matter what you do, you cannot make risk = 0. Reduce, yes, eliminate, impossible. And humankind’s capacity for taking risky actions, often solely for the thrill and stupid to boot, is well documented. This would be a thinner blog without those people. So the question becomes is this an issue of proper risk management. Again, back to safety. But when all things are equal, no amount of protection will prevent all deaths (or injury). If that’s the goal, ban the activities. That’s the only way to ensure zero deaths. If not, then where does trying to legislate the practically impossible stop? We can’t legislate physics. We can try, but that’s going to work as well as a soup sandwich. Where do we stop? At the state’s door? The coaches? The equipment manufactures? The community? The parents? No. Ultimately the decision rests in the participant. No one is forced to cheer or play football (at least outside of Texas). If everyone else did what they were supposed to and you got hurt, it was still your choice to be in that position. You could have stayed home.

    On the practical side though, torts classes have been arguing over contributory negligence and assumption of risk for years. So have the various states. This could go on and on.

  2. The law should be changed to remove exemption of “contact sports.” Of course, cheerleading is a contact sport in reality.

    For girls in both high school and college, two-thirds of all severe sports injuries (from 1982 to 2007) were related to cheerleading, according to the National Center for Catastrophic Sport Injury Research. You can read the center’s guidelines to help prevent cheerleading injuries at:

    http://www.ethicsoup.com/guidelines-to-help-prevent-cheerleading-injuries.html

  3. Jill etal,
    Cheerleading is one of my pet peeves because of the dangerous stunts or tricks that are attempted with little or no safety issues in mind. One example is when the cheerleader is on top of 2 or more other cheerleaders and the other girls are merely holding her ankles. If she falls either forward or backward the other girls would be left holding her ankle while her head is plummeting towards the floor. They should require legitimate spotters and padding on the floors. Patty, I agree that helmets should be a requirement any time anyone gets on a bike. I do alot of biking and I wouldn’t even think of riding without a helmet.

  4. It’s vitally important for both the young athlete and his/her coach to be clear about the importance of personal safety and treatment
    over getting ‘back in the game’.

    I’m relieved to see Jill’s correction of her earlier misuse of the term ‘weight-lifting’ when referring to ‘weight training’-also called ‘strength training’. There is a big difference.

    And this snippet, from Ohio’s Nationwide Children’s Hospital, echoing both you and me, mespo!

    http://www.nationwidechildrens.org/GD/Templates/Pages/Childrens/SportsMed/SportsMedLongContent.aspx?page=10000

    Neurocognitive (Concussion) Testing

    “Each year, more than 300,000 sports-related traumatic brain injuries occur in the United States. These brain injuries are also known as concussions. Concussions can happen to any athlete, male or female, in any sport. While such injuries may not always be preventable, physicians and athletic trainers are able to do more to recognize and treat concussions to make sure athletes are fully recovered before resuming play.

    Returning to play too soon after a brain injury, or concussion, may lead to serious life-threatening complications. A computerized neurocognitive test is one tool, when accompanied by a thorough medical exam, that may assist a qualified physician with the return-to-play decision…”

    © Nationwide Children’s Hospital · 700 Children’s Drive · Columbus, OH 43205 · (614) 722-2000
    Columbus Children’s Hospital is now Nationwide Children’s Hospital.

  5. mespo,

    “Here’s a link on cheerleading: Other research indicates the overall injury toll from cheerleading has been rising sharply. Based on emergency room data from 114 hospitals, the Consumer Product Safety Commission estimated that the number of emergency room visits to treat cheerleading injuries of any kind jumped from 4,954 in 1980 to 28,414 in 2004. Similarly, a study published in the journal Pediatrics in 2006 calculated that the number of children showing up in emergency rooms with cheerleading injuries rose from 10,900 in 1990 to 22,900 in 2002, a 110 percent increase.

    The most common injuries were arm and leg strains and sprains, but 3.5 percent of the cases involved head injuries.

    Cheerleading “has the potential to be very dangerous,” said Brenda J. Shields, who runs the Center for Injury Research and Policy at Nationwide Children’s Hospital in Columbus, Ohio, and led the Pediatrics study.”

    http://www.washingtonpost.com/wp-dyn/content/article/2008/09/05/AR2008090503099

    To me there is no reason for either of these sports to be played so dangerously. We have to ask ourselves the question of what sport is for in school. If it’s to develop strength and skills then TBI and multiple injuries need play no part. These two sports contain dangerous activity because we allow it. In fact, these two are particularly bad because they are played as a “blood sport” and they are places where parents try to live their dreams through their children. They exlude most kids from participation. Why not have a true athletic program? Weight training, yoga, running and swimming are things many children can participate in to the best of their ability. If there has to be things like cheerleading and football, they can be modified to disinclude activities known to lead to injury. (Making helmets less likely to cause TBI isn’t acceptable–there’s no need for young people to be hitting each other like that in the first place.) We only think they have to be as they are, because that’s the way we were brought up to think. This is not promoting health, it is promoting risk.

  6. Patty C:

    CDC has a wonderful packet of information on concussion and TBI. Every coach should have it. It even has a symptoms/evaluation card for use on the sideline.

  7. Jill:

    TBI among advanced level players is a growing concern, especially during the steroid era that we hopefully just passed through. My stats deal with youth players. The advent of new technology in helmets will likely reduce this risk among the older groups. The University of Pittsburgh has recently completed studies with the new Riddell Revolution helmet and found much greater protection that those found in the more conventional ones. New technology is also on the field from the other two major manufacturers, Shutt and Adams.

  8. Young athletes need coaching in order to recognize the symptoms – headache, dizziness, nausea and changes in emotional status and the importance of receiving treatment to prevent further damage.

    Oh, and let’s go with the latest info (today) from, you guessed it,
    my stomping ground…

    http://www.boston.com/sports/schools/football/articles/2009/01/28/warning_sign_on_youth_football_head_trauma/

    Warning sign on youth football head trauma
    Player had hint of brain disease

  9. mespo,

    Check out this article from the NYT. It links to a sports medicine journal report. I’d be interested to hear what you think. Here’s a clip:

    “A recent study in The American Journal of Sports Medicine led by Barry P. Boden of the Orthopaedic Center in Rockville, Md., found that catastrophic football head injuries were three times as prevalent among high school players as college players — and that “an unacceptably high percentage of high school players were playing with residual symptoms from a prior head injury.”

    For many victims, staying alive is only the first challenge. Kort Breckenridge of Tetonia, Idaho, has trouble holding down a job because of short-term memory problems stemming from a football brain injury two years ago. Brady Beran of Lincoln, Neb., emerged from a coma reading at a kindergarten level; he remains in physical therapy with hopes of running again.

    Second-impact syndrome is relatively rare, however. Experts said that for every such case there can be hundreds of victims of postconcussion syndrome, leaving youngsters depressed, irritable and unable to concentrate, and they sometimes miss school for weeks or perform poorly on tests. Ben Mangan of Lewisburg, Ohio, still has mood swings and cognitive problems deriving from at least one major concussion in 2002.”

    http://www.nytimes.com/2007/09/15/sports/football/15concussions.html?pagewanted=4&_r=1

  10. The American Academy of Pediatrics specifically recommends against
    weight lifting for prepubescent adolescents AND adolescents – especially body-building and power lifting.

    They are, however, along with other experts, in favor of ‘strength training’, which is very different, coupled with involvement in more complex sports.

    The suggestion comes with several recommendations for safety and no claims of greater proficiency in any sport in the future, that I am aware.

    If one really wanted to ‘take this on from a sociological perspective’,
    more emphasis on sports as recreation might be a possible way to go.

  11. Youth football is actually much safer than other sports including biking and soccer due to the safety rules and required equipment. In a recent study, the U.S. Consumer Product Safety Commission examined athletic injuries on a sport-by-sport basis. It found that organized football 5-to-15 year-olds had 12 % fewer injuries per capita than organized soccer for the same age group. Football also had 50% fewer injuries than bike riding and 74% fewer than skateboarding.

  12. FFLEO,

    I am kidding! Although it would be rather spectacular. Nothing quite like the sight of and old guy randomly flinging feces to make people move along! 🙂 Remember, I am only talking about people in high school and under, (excluding those of us who may have repeted 3 or more years in school). There’s still college players.

  13. Jill,

    Of course, I disagree and I will likely reply with more later on.

    However, for now; what else do old guys have to do on Sundays throughout the fall and early winter but to watch cheerleaders and football, and more cheerleaders…?

  14. I want to take this issue on from a sociological perspective. Many times we have discussed arcane forms of religious practice that do great harm. It’s time to discuss sports in the same vein.

    We are beginning to get good science on the effects of certain athletic practices on children. That science needs to replace the arcane practices we encounter in school sports. This means we should modify or even eliminate some sports, such as football or cheerleading when how they are practiced flies in the face of scientific evidence that they are dangerous.

    Football and cheerleading are secular “sacreds” that need to be challenged. Kids do not need these sports to be strong, learn team work, good sportsmanship or enhance athletic skills. In fact, they may undermine all these things. There are sports such as weight lifting where each child works to their own capacity. Additionally, weight lifting is excellent conditioning for other sports a child may choose when they are older. Getting rid of football and cheerleading, or significantly modifying how each of these sports is conducted is really no different that stopping harmful religious practices that have gone on without question for a very long time. It’s time to bring science to sport. No tradition should go unquestioned and these sports are no exception.

  15. Agreed . . . mostly. Unequal application, not only from various immunities, but other systemic inefficiencies/malfunctions/misappropriations also contribute to general instability. One law for all is fair on it’s face. A child understands that. When the law is perceived as unjust, the rule of law withers and dies. And dying it is. A creeping erosion that eats away at the base of American legitimacy. And while I do agree this is an issue in general, I do think there has to be an assumption of risk factored in the analysis here. Physics really do apply to pretty girls. The activity is not compulsory. If you don’t want to fall 10 ft., you don’t have to climb on top of two or more people and dance around. There is a small degree of inherent danger in the activity. Sure, automatic or over broad immunities are a serious issue, but there is an element of personal responsibility for an elective physical activity even if on the government’s dime.

  16. These notions of immunity (sovereign, charitable, intra-family, driver-guest, etc) may have made sense before the advent of comprehensive insurance, but now that are just shields to hide the irresponsibility of everyone from teachers and coaches to governments and charities. They are anachronisms which deny victims compensation, and further the notion that some citizens and entities are more equal than others. We need a federal law to severely limit this restriction on our rights to be made whole.

  17. Physics applies to pretty girls too. Physics! Not just a good idea. It’s the law.

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