A state appeals panel has agreed the family of former USC linebacker Matthew Gee cannot sue the NCAA over his death, which she attributes to brain damage sustained as a result of his college football career.
Alana Gee’s wrongful death lawsuit on behalf of her late husband targeted the NCAA, but not the University of Southern California.
At USC, Gee played alongside Pro Football Hall of Fame linebacker Junior Seau, whose 2012 death by suicide became a flashpoint in the nationwide debate about chronic traumatic encephalopathy (CTE).
Gee died in 2018, the fifth of 12 linebackers from the 1989 USC roster who did not reach age 50. A coroner’s inquest determined the cause of Gee’s death to be the result of several factors including alcohol, cocaine, hypertension, heart disease, obesity and sleep apnea. A posthumous brain examination at the Boston University CTE Center determined Gee had stage II CTE.
Los Angeles County Superior Court Judge Terry Green presided over a jury trial in which the NCAA argued Gee assumed a degree of risk when choosing to play football and also said that, as an unincorporated association, it was not legally liable for an individual member institution’s safety regulations.
Alana Gee challenged that ruling before the California Second District Appellate Court, arguing the assumption of risk doctrine was inapplicable and further claiming Judge Green shouldn’t have rejected her request to instruct the jury on association liability. Justice Maria Stratton wrote the panel’s opinion on the appeal. Justices John Wiley and Victor Viramontes concurred.
“Rather than protecting the injured participant from the risks of a sport, the assumption of risk doctrine absolves coparticipants, coaches and instructors, facilities owners/operators and event organizers from a duty of ordinary care toward the participant,” Stratton wrote. “Specifically, they have no duty to protect a participant from a risk which is ‘inherent’ in the sport.”
The panel detailed the NCAA’s history, noting its founding in the early 20th century in response to a rash of deaths among college football players, peaking with 18 fatalities in 1905. But it also noted the NCAA has denied its ability to reduce the amount of hits to players heads, “questioned the very existence of CTE” and challenging the link between subconcussive contact and CTE.
In analyzing the legal concept of inherent risk, the panel said the focus is on whether a given activity presents danger and not the likelihood of specific physical injury. Stratton used as an example a skier who suffered a broken leg: if the injury came from a fall on the slope, the cause was an inherent risk of the activity. But if the patron’s injury derived from a poorly maintained towrope, there is no inherent risk protection for the proprietor.
The panel said three cases Gee cited to bolster her position weren’t applicable because none even suggested a court would have to determine a sport has the potential to result in a specific injury while also involving unusual facts “making them cumbersome at best to apply broadly.”
“Looking at the injury does not reveal the nature of the risk which caused it. A defendant’s liability is determined by the conduct or condition which caused the injury,” Stratton wrote. “it is undisputed that the conduct which causes CTE is repeated head hits, and head hits are an inherent risk of college football. The trial court did not err in finding that the assumption of risk doctrine applied.”
Gee got Judge Green to modify jury instructions to her liking, the panel noted, but on appeal argued Green should further have defined the “essential nature” of football, rather than leaving it to the jury. However, Stratton wrote, Gee didn’t explain how a failure to include that phrase created legal prejudice against her position.
“She has acknowledged that repeated head hits are an inherent risk of football,” Stratton wrote. “As she elaborates in her appellate briefing: ‘College football is a contact sport where blocking and tackling — and the resulting hits to the head — are essential elements of play. Removing those elements would fundamentally change the game, turning college football into something akin to flag football.’ Based on her arguments as a whole, Alana Gee may have wanted an instruction that CTE is not part of the essential nature of college football, or that repeated hits to the head were an essential part of college football. Alana Gee, however, was not entitled to an instruction on extrinsic risk at all, and so any ambiguity could not have prejudiced her.”
The panel said allowing players who appear healthy to continue playing is different from allowing a clearly injured athlete to return and said when Gee played “the NCAA did not know and could not have known which specific college football players had received sufficient hits to cause CTE, or when that threshold was reached.” It further said a duty to warn is only applicable if there is increased health risk under certain circumstances, which Gee’s claims didn’t demonstrate.
Finally, the panel said it didn’t need to resolve whether the NCAA was liable for the alleged inaction of its Football Rule Committee or the actions of member schools at its annual convention because Gee didn’t argue on appeal that such actions or inactions increased the inherent risk of head collisions.
The NCAA did not respond to a request for comment.
Gee is represented by attorney Todd Logan, of Edelson PC. The firm did not respond to a request for comment.