GPSOLO April/May 2010
The Volunteer Sports Coach
We’ve heard the questions before: “Dad, could you coach my Little League team?” or “Mom, can you help with our soccer team?” As a parent, grandparent, uncle, or aunt, we have often been asked to volunteer our time and experience and work with children in an athletic endeavor.
However, before you say “yes,” consider these potential scenarios. You are coaching a Little League baseball team when your star pitcher strikes an opposing batter in the face with a pitch. In another scenario, a ten-year-old Little Leaguer is struck in the eye during warm-ups by a fly ball he misjudged while attempting to make a catch. More extreme examples include a child being bitten by a stray dog that wandered onto the field of play; two boys colliding in the outfield while chasing a fly ball; and a mom being struck in the stands by a fly ball that a player failed to catch (the player was her daughter).
All of these examples involve situations where volunteer, unpaid coaches were named as defendants in a lawsuit. Some of the cases were resolved in favor of the coaches; others were settled for substantial sums of money. These cases are all fact-intensive, and, unfortunately, there is not much uniformity among the states in how these cases are decided or the standards of care to be applied.
For the most part, courts apply negligence principles to these situations. However, the amount of negligence required to impose liability is most often the issue. The amount of negligence required varies from simple negligence to gross negligence or willful, wanton, and reckless conduct.
A coach’s duties to participants may include the duty of supervision, training and instruction, ensuring the use of safe equipment, providing competent and responsible personnel, warning of latent dangers, prompt and proper medical care, preventing injured participants from competing, and matching participants of similar competitive levels. Because children are involved, the law does not allow abrogation of duties simply because a coach is a volunteer and unpaid. The law will require minimum levels of competence of the adults involved in training and instruction. In some states the fact that a coach is working for a charitable organization or a state agency, such as a volunteer high school coach, may make a difference in terms of the amount of negligence required, but it will not divest the coach of the duty to act responsibly or competently.
Injured players can and should be a particular concern to coaches. In Jarreau v. Orleans Parish School Board, 600 So. 2d 1389 (La. App. 1992), a football player injured his wrist during a game. His coaches did not limit his participation or provide a medical referral despite an adverse effect to the player’s level of play. The court stated, “Coaches should not have been expected to diagnose the extent of the plaintiff’s injury, but their failure to provide a medical referral in accordance with school policy, and in the face of persistent complaints of pain and swelling, constituted actionable negligence.” Have you ever heard a coach tell a player, “Suck it up—you’ll be okay”? Maybe the player will, and maybe the player won’t, but coaches who fail to take reasonable steps to be sure the player is okay and fit and able to return to competition may be exposing themselves to liability. Coaches should not make medical judgments beyond regular first aid. See also Halper v. Vayo, 568 N.E.2d 914 (Ill. App. Ct. 1991), where a coach was found liable for moving a wrestler who had sustained a serious knee injury.
Let’s turn to a fictional version of one of the scenarios I presented above. In Albuquerque, New Mexico, two teams were competing in the Albuquerque Little League: the Braves and Reds, each composed of fifth and sixth graders. The coach of the Braves and his assistants were recent graduates of the University of New Mexico and were all only 23 years of age. They were all former college baseball players.
On the mound for the Braves was Jaime, their star pitcher, a lefty sixth grader who was the first pick in the league draft. In the sixth inning, with the Reds winning by two runs, Jaime had been pitching well but had walked the first two batters in the inning. The next batter, a left-handed hitter, stepped up to the plate. Jaime knew he was in a little trouble and had to work harder. His next pitch was high and inside and unfortunately struck the batter in the face. The batter sustained a broken jaw. Although Jaime was a good athlete, he was not used to pitching to left-handed batters. The injured batter had to be transported to the hospital by ambulance. After the game, the coaches were informed that they would be named as parties in a lawsuit to be brought by the parents of the injured player citing negligence on the part of these young coaches. The parents of the injured player alleged that these coaches were negligent in their supervision of Jaime and that they failed to provide proper training and instruction. The parents also alleged, in the alternative, that the actions of the coaches were intentional in that they advised Jaime to hit the batter, or in the alternative that they acted with willful, wanton, and reckless disregard for the safety of their son.
Fortunately for the coaches in this fictitious scenario, New Mexico is one of the states that provides statutory protection for volunteer coaches. The New Mexico statute reads:
Any person or entity who acts without compensation and renders volunteer services as a manager, coach, athletic instructor, umpire, referee or other league official in a formally organized nonprofit sports association for persons under the age of eighteen, to the extent not otherwise covered by insurance, is not liable to any person for any civil damages as a result of any negligent acts or omissions in rendering those services or in conducting or sponsoring that program unless:
A. the conduct of that person or entity falls substantially below the standards generally accepted and practiced in the sport in like circumstances by similar persons or similar nonprofit associations rendering those services or conducting that program;
B. it was reasonably foreseeable that the person’s or entity’s conduct would create a substantial risk of injury or death to the person or property of another; and
C. the harm complained of was not a part of the ordinary give and take common to the particular sport. (NMSA, 1978 Comp. §41-12-1.)
States with similar statutes (most involving similar language) include Arkansas, Colorado, Georgia, Illinois, Indiana, Louisiana, Maryland, Massachusetts, Mississippi, Nevada, New Hampshire, New Jersey, North Dakota, Pennsylvania, Rhode Island, and Tennessee. Similar legislation has been proposed in Delaware, Hawaii, and New York. Notably absent from this list are California, Texas, Ohio, and Michigan, where the number of leagues and teams that fall under this exception would have to number in the thousands.
Clearly, in the scenario above, the plaintiffs would have a difficult time establishing claims on the basis of negligence. However, the New Mexico statute would preserve claims based on intentional acts or gross negligence. In an interesting case, the Wisconsin Supreme Court adopted a negligence standard in sports injury cases in recreational leagues. See Lestina v. West Bend Mutual Insurance Co., 501 N.W.2d 28 (Wis. 1993). Although the court adopted negligence as the standard in Wisconsin, it extensively discussed the law in other jurisdictions and the use of a “recklessness” standard. The court conceded that “few sports cases can be found which have allowed a complainant to recover on proof of negligence” but nonetheless concluded that a negligence standard is “adaptable to a wide range of situations. An act or omission that is negligent in some circumstances might not be negligent in others. Thus the negligence standard, properly understood and applied, is suitable for cases involving recreational team contact sports.” Lestina, supra at 33.
In addition, the court enumerated several “material” factors to be considered in these determinations. These factors include: 1) the sport involved, 2) the rules and regulations governing the sport, 3) the generally accepted customs and practices of the sport (including the types of contact and the level of violence generally accepted), 4) the risks inherent in the game and those that are outside the realm of anticipation, 5) the presence of protective equipment or uniforms, and 6) the facts and circumstances of the particular case, including the ages and physical attributes of the participants, the participants’ respective skills at the game, and the participants’ knowledge of the rules and customs, citing Niemczyk v. Burleson, 538 S.W.2d 737 (Mo. Ct. App. 1976). I would submit that although Wisconsin may refer to this as a “negligence” standard, it would be an excellent approach to use in determining whether or not the conduct is “reckless” or “grossly negligent.” Applying these factors to our scenario, factors three, four, five, and six would make it very difficult for the plaintiffs to prevail on their claims of intentional conduct or gross negligence. Given the age of these children and their skill level, it would be extremely difficult for a child to intentionally hit another with a pitch, particularly in the face. Most of these children do not have the physical dexterity or coordination necessary to be that accurate with a thrown ball. Every child is required to wear a protective helmet because the risk of such an injury is an inherent risk. In addition, given the game situation, no competent coach would instruct a pitcher to hit a batter so as to put the winning run on base, particularly in the last inning of a close game.
Those states that continue to use a pure negligence standard in these cases have in some instances ameliorated the harshness of this approach by case law. Texas does not provide specific immunity by statute but has adopted a “gross negligence” standard applicable to volunteers by case law. See Chrismon v. Brown, 246 S.W.3d 102 (App. 14 Dist. 2007). In Kansas, the courts have held that a volunteer may qualify as an “employee” for purposes of the Tort Claims Act, thus providing statutory immunity. California does not appear to provide immunity for anything. However, there appears to be some case law that indicates that the standard of care to be applied in these cases is not the prudent person duty of care. Exactly what the applicable standard of care is in California is unclear.
It does appear that in one manner or another every state provides some form of protection to volunteer coaches. In those states that apply a pure negligence standard, the defenses of assumption of risk and contributory or comparative negligence will apply. In addition, volunteers may rely on releases, disclaimers, and exculpatory agreements to the extent they do not violate public policy. In most cases, if the release does not eliminate liability for all forms of negligent conduct, the release will survive court scrutiny. As mentioned above, some states have limited liability by use of the doctrine of sovereign immunity and/or by including charitable organizations under the provisions of sovereign immunity or the state tort claims act. However, this is a problematic approach owing to the differences in state law and in particular in those states that have apparently abolished or limited the application of sovereign immunity.
A final consideration is the liability of participants to each other. A majority of jurisdictions that have considered this issue have rejected the application of simple negligence standards in these cases because of a perceived adverse affect on healthy competition. See Lestina, supra. However, the court in Babych v. McRae, 567 A.2d 1269 (Conn. Super. Ct. 1989) appears to have adopted a negligence standard in a participant-versus-participant case.
The courts have distinguished cases involving contact and non-contact sports on the basis that athletes in non-contact sports do not accept the risk of another athlete’s negligence, such as being struck in the eye by a golf ball or errant swing. In Novak v. Virene, 224 Ill. App. 3d 317, 321 (1991), two skiers collided while skiing downhill. The court held that while the collision was “foreseeable,” such contact was not “virtually inevitable contact” applicable to team sports.
As a practical matter, the existence of insurance and carefully drafted releases goes a long way to eliminating any real concerns a volunteer should have about coaching in a recreational sports league. However, it is clearly not safe to assume that a coach has no exposure or that suit can be avoided in all circumstances. States that have provided statutory immunity recognize the importance of volunteers but do not eliminate all liability, and these states are not the majority of jurisdictions.
In those jurisdictions that continue to apply negligence principles, there is a wide diversity in the amount of negligence required. As a guideline for appropriate conduct, the factors set forth in Lestina, supra, are the best—and safest—guidelines that should be followed. The bottom line is that we should always keep in mind the reason we volunteer—for the kids. If we volunteer for our personal satisfaction or to fulfill our own personal needs, we may find ourselves among the defendants in a lawsuit.
Florencio (Larry) Ramirez is a former children’s court judge of the Third Judicial District Court in Las Cruces, New Mexico, and a former chair of the GPSolo Division. He is in solo practice in Las Cruces and may be reached at firstname.lastname@example.org.