December 2014 - Parks & Recreation - 26

L AW R E V I E W

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
On appeal, Sonetti argued that the district fell below its standard of care for
24 Parks & Recreation

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. "

| D E C E M B E R 2 0 1 4 | W W W. N R PA . O R G

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.

December 2014 - Parks & Recreation

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