9th District court reinstates class action against USA Water Polo over athlete's concussion-related injury

By Karen Kidd | Nov 30, 2018


SAN FRANCISCO – A U.S. appeals court this week resuscitated a case against USA Water Polo for allegedly failing to protect a teenage athlete who was allowed to return to play despite suffering a concussion during a tournament in 2014.

U.S. 9th Circuit Court of Appeals three-judge panel reinstated a woman's class-action lawsuit on behalf of her injured teenage daughter. The panel found that USA Water Polo owes a duty to athletes, under California law, to establish rules for when athletes are allowed to return to play after suffering a potential concussion.

The panel agreed with a lower court's ruling that USA Water Polo is not legally responsible for the young athlete's initial injury but ruled that exacerbation of her injury could have been prevented by protocols limiting her return to play. USA Water Polo already has such policies in place for its adult national team.

"Given its policy for the national team, USA Water Polo can hardly contend that a comparably detailed concussion-management policy and return-to-play protocol for its youth-league players would fundamentally alter the nature of water polo," the 28-page opinion issued Wednesday, Nov. 28, said.

Appeals court Judge William A. Fletcher wrote the opinion in which Judge Paul J. Watford and Judge John B. Owens concurred.

Alice Mayall filed the putative class action against USA Water Polo on behalf of her minor daughter, identified in court documents as "H.C.," alleging negligence, breach of voluntary undertaking and gross negligence.

"The gravamen of Mayall's complaint is that USA Water Polo failed to implement concussion management and return-to-play protocols for its youth water polo league," the background portion of the Appeals Court's opinion said.

In her second amended complaint, Mayall alleged that H.C. had been returned to play as a goalie during a February 2014 youth water polo tournament after she was struck in the face by a polo ball "and while manifesting concussion symptoms," the opinion said.

"After she was returned to play, H.C. received additional hits to the head. As a result, she suffered from severely debilitating post-concussion syndrome," the ruling states.

In 2016, a judge on the bench in the U.S. District Court for California's Central District dismissed the case, ruling that H.C.'s injuries were a risk she accepted to play water polo and, therefore, the lawsuit had failed to state a claim under California law.

In a negligence claim of this type under California law, a plaintiff must show a duty existed, as well as a breach of that duty, and that damages were suffered as a proximate cause of that breach.  The "primary assumption of risk" doctrine under California's civil code says that an entity owes now a duty of care when "conditions or conduct that otherwise might be viewed as dangerous" are part of the sport, the ruling states.

In her second amended complaint, Mayall alleged that parents and educators have been raising concerns since about 2011 with USA Water Polo, saying there was a need for a concussion protocol.

"Rather than formulate and implement a protocol for its youth athletes, USA Water Polo did nothing," the Appeals Court opinion said. "Even as a number of state legislatures began to pass laws codifying return-to-play protocols for dealing with concussions, USA Water Polo continued to do nothing."

USA Water Polo didn't implement "a known protocol" for athletes under its governance "despite formulating and implementing such a protocol for its adult athletes on the national team," the opinion said. "These allegations, taken as true, demonstrate that USA Water Polo was well-aware of the severe risk of repeat concussions and of the need to implement a policy to remove players from play after suffering a head injury. USA Water Polo's inaction in the face of substantial evidence of risk of harm, constitutes an extreme departure from the ordinary standard of conduct and amounts to gross negligence under California law."

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