Alice Mayall, as parent and guardian of minor H.C., on behalf of H.C. and all others similarly situated, Plaintiff-Appellant,
USA Water Polo, Inc., Defendant-Appellee.
and Submitted March 9, 2018 Pasadena, California
from the United States District Court No.
8:15-cv-00171-AG-KES for the Central District of California
Andrew J. Guilford, District Judge, Presiding.
Elizabeth Anne Fegan (argued), Hagens Berman Sobol Shapiro
LLP, Chicago, Illinois; Steve W. Berman, Hagens Berman Sobol
Shapiro LLP, Seattle, Washington; for Plaintiff-Appellant.
Jeff Renick (argued) and Jeffrey M. Lenkov, Manning &
Kass Ellrod Ramirez Trester LLP, Los Angeles, California, for
Before: William A. Fletcher, Paul J. Watford, and John B.
Owens, Circuit Judges.
panel reversed the district court's dismissal for failure
to state a claim of a putative class action against USA Water
Polo, alleging negligence, breach of voluntary undertaking,
and gross negligence, concerning USA Water Polo's failure
to implement concussion-management and return-to-play
protocols for its youth water polo league.
plaintiff alleged that her minor daughter, H.C., was returned
to play as a goalie in a water polo tournament after being
hit in the face by the ball and while manifesting concussion
symptoms, received additional hits to the head, and as a
result she suffered severely debilitating post-concussion
prevail in a negligence claim under California law, a
plaintiff must plead the existence of a duty, a breach of
that duty, and damages proximately caused by the breach.
California Civil Code § 1714(a)'s "primary
assumption of risk" doctrine provides that an entity
does not owe a duty of care where "conditions or conduct
that otherwise might be viewed as dangerous . . . are an
integral part of the sport itself." Knight v.
Jewett, 834 P.2d 696, 708 (Cal. 1992).
alleged that USA Water Polo was liable for injuries suffered
when H.C. was hit in the head again, after she
returned to play. The panel held that under California law,
secondary head injuries such as those suffered by H.C. were
not "inherent in the sport" of water polo, and
therefore USA Water Polo owed a duty of care to H.C. The
panel rejected USA Water Polo's contention that it
fulfilled its duty of care to H.C. with the existence of its
"Rules Governing Coaches' Conduct" that was
applicable to all of its teams.
the voluntary undertaking claim, plaintiff alleged that by
failing to establish a concussion-management and
return-to-play protocol for its youth water polo league, USA
Water Polo failed to exercise reasonable care in the
performance of its undertaking, resulting in H.C.'s
concussion. The panel held that USA Water Polo increased the
risk of secondary concussions to players who improperly
returned to pay, a risk that USA Water Polo could eliminate
through the implementation of concussion-management protocols
already used by its national team. The panel further held
that the failure of USA Water Polo to promulgate safety rules
that would have protected H.C. was sufficient to support a
voluntary undertaking claim.
its gross negligence claim, plaintiff alleged that USA Water
Polo repeatedly ignored the known risk of secondary injuries,
and repeatedly ignored requests that it implement a
concussion-management and return-to-play protocol. The panel
held that plaintiff's allegations, taken as true,
demonstrated 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, and its inaction amounted to gross negligence under
panel concluded that the second amended complaint pleaded
sufficient facts to support claims upon which relief can be
granted under California law for negligence, voluntary
undertaking, and gross negligence.
FLETCHER, CIRCUIT JUDGE
Mayall brought this putative class action against USA Water
Polo as a representative of her minor daughter, 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
Second Amended Complaint ("SAC") alleges that H.C.,
Mayall's daughter, was returned to play as a goalie in a
youth water polo tournament after being hit in the face by
the ball and while manifesting concussion symptoms. 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 district court dismissed the
suit under Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim under California law. We have
jurisdiction under 28 U.S.C. § 1291. We reverse and
to the SAC, H.C. was a "healthy, high-achieving,
straight-A honors student and multi-sport athlete" who
played for a water polo team under the governance of USA
Water Polo. On February 15, 2014, when H.C. was either
fifteen or sixteen, she was injured while playing goalie
during an annual three-day "WinterFest" tournament
organized and managed by USA Water Polo. H.C. "was hit
hard in the face by a shot which led to a concussion."
The game continued while "H.C. swam to the side of the
goal and spoke with her coach . . . ." The coach, who
was "lacking any concussion management training,
qualifications, and education from USA Water Polo,"
asked "a couple questions." Even though she was
"dazed," H.C. was returned to play for the
remainder of the game. Later that day, H.C. played in more
games and took more shots to the head, exacerbating her
initial injury. The additional shots to the head were
witnessed by the referee and by H.C.'s coach. H.C. was
never evaluated by a medical professional during the
days later, H.C. suffered from headaches, sleepiness, and
fatigue so severe that she was unable to attend school. For
the next two weeks, H.C. experienced excessive sleeping,
dizziness, intolerance to movement, extreme sensitivity to
light, headaches, decreased appetite, and nausea. On March 4,
2014, Mayall took H.C. to a doctor, who diagnosed her with
post-concussion syndrome. On March 12, the doctor recommended
a consultation with a neurologist. The neurologist confirmed
symptoms persisted, and she was unable to return to school.
H.C. took part in a "home-and-hospital instructional
program" for the remainder of the 2013-2014 school year.
H.C.'s academic ability was severely degraded. Her
neuropsychologist noted that H.C. demonstrated "a
deficit in her ability to hold information in her mind or
complete tasks, and was functioning in a low-average range in
memory and controlled attention." At the time of filing
the SAC, H.C. continued to suffer from persistent
post-concussion syndrome, characterized by excessive
sleeping, chronic headaches, and limited physical stamina.
Because of her symptoms, H.C. was unable to attend public
alleges that USA Water Polo is the" 'national
governing body for the sport of water polo in the United
States'" (quoting from USA Water Polo bylaws).
"USA Water Polo is the sanctioning authority for more
than 500 Member Clubs and more than 400 tournaments are
conducted nationwide each year[.]" "USA Water Polo
requires all players and participants to follow the policies,
bylaws, rules of conduct, and regulations it has
enacted." USA Water Polo's "Policies and
Guidelines" state that USA Water Polo is "committed
to creating a healthy and safe environment for all of our
members." "[A]s acknowledged by USA Water
Polo's CEO, Christopher Ramsey, USA Water Polo's
corporate documents support the obligation that USA Water
Polo is responsible for health and safety issues."
alleges that scientific studies show that there are
substantial neurological risks in allowing athletes to return
to play before they have completely recovered from a
concussion. One study cited by the SAC concludes that
"returning an athlete to participation before complete
recovery may greatly increase the risk of lingering,
long-term, or even catastrophic neurologic sequelae."
The SAC alleges, "As of 2002, consensus had been reached
in the medical and scientific community for the cornerstones
of the management and treatment of concussions."
Reflecting this consensus, an international group of experts
has agreed on post-concussion "return-to-play"
protocols, the most recent of which is the "Zurich II
Protocol," published in 2012. With respect to children
and adolescents, the Zurich II Protocol provides:
Because of the different physiological response and longer
recovery after concussion and specific risks (eg, diffuse
cerebral swelling) related to head impact during childhood
and adolescence, a more conservative RTP [return-to-play]
approach is recommended. It is appropriate to extend the
amount of time of asymptomatic rest and/or length of the
graded exertion in children and adolescents. It is not
appropriate for a child or adolescent athlete with concussion
to RTP on the same day as the injury, regardless of the level
of athletic performance.
2011, three years prior to H.C.'s injury, USA Water Polo
had developed a detailed "USA Water Polo Concussion
Policy" for athletic trainers for USA Water Polo's
national team. However, USA Water Polo did not require, or
even recommend, that its Concussion Policy be followed by
other water polo teams under its governance. The SAC alleges
it ignored repeated requests-even pleas-to implement a
concussion protocol for its other teams.
2011 and 2014, USA Water Polo received numerous emails
reporting incidents in which young athletes suffered
concussions and requesting implementation of a concussion
policy for all water polo events. For example, in August
2011, officials at Fullerton College "alerted USA Water
Polo about a player who was injured during a USA Water
Polo-sanctioned game" and "requested any USA Water
Polo concussion guidelines[.]" USA Water Polo's
Director of Club and Member Programs, Claudia Dodson,
acknowledged that there was no concussion policy applicable
to the college. Professor Peter Snyder, the Head Swim Coach
at Fullerton, then sent another email regarding the incident,
encouraging USA Water Polo to implement a
concussion-management and return-to-play protocol. After USA
Water Polo responded by sending Snyder the national
team's policy, Snyder pointed out that the policy
"was only applicable to an extremely small portion of
the USA Water Polo membership," and "implored"
USA Water Polo to implement a protocol for all levels of
play. But USA Water Polo took no action.
alleges that at the time of H.C.'s injury in 2014 and
during the class period, USA Water Polo had no
concussion-management policy or return-to-play protocol for
its youth water polo teams. However, USA Water Polo did have
"Rules Governing Conduct" applicable to all
coaches, referees and athletes, not limited to those
associated with the national team. "[B]uried in the fine
print" of the Rules was a provision stating that USA
Water Polo coaches were "expected to demonstrate good
sportsmanship," including "avoiding . . .
encouraging or permitting an athlete to return to play
pre-maturely following a serious injury (e.g., a concussion)
and without the clearance of a medical professional."
alleges three causes of action under California law:
negligence; breach of voluntary undertaking; and gross
negligence. The district court granted a motion to dismiss
under Rule 12(b)(6), holding that (1) the SAC fails to allege
a duty owed to H.C. by USA Water Polo and therefore fails to
allege actionable negligence; (2) the SAC insufficiently
alleges that a task or duty was "specifically"
undertaken by USA Water Polo, and that USA Water Polo had
increased the risk of harm to H.C.; and (3) the SAC fails to
allege gross negligence because it fails to ...