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Mayall v. USA Water Polo, Inc.

United States Court of Appeals, Ninth Circuit

November 28, 2018

Alice Mayall, as parent and guardian of minor H.C., on behalf of H.C. and all others similarly situated, Plaintiff-Appellant,
v.
USA Water Polo, Inc., Defendant-Appellee.

          Argued and Submitted March 9, 2018 Pasadena, California

          Appeal 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.

          Steven Jeff Renick (argued) and Jeffrey M. Lenkov, Manning & Kass Ellrod Ramirez Trester LLP, Los Angeles, California, for Defendant-Appellee.

          Before: William A. Fletcher, Paul J. Watford, and John B. Owens, Circuit Judges.

         SUMMARY[*]

         California Law/Negligence

         The 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.

         The 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 syndrome.

         To 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).

         Plaintiff 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.

         Concerning 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.

         Concerning 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 California law.

         The 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.

          OPINION

          W. FLETCHER, CIRCUIT JUDGE

         Alice 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 remand.

         I. Background

         According 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 tournament.

         Two 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 the diagnosis.

         H.C.'s 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 school.

         The SAC 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."

         The SAC 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.

         In 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.

         Between 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.

         The SAC 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."

         The SAC 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 ...


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