finding that a liability release agreement failed to release defendants, a state college and University System, from liability where the agreement could be interpreted as releasing cheerleading club members, other third parties, or the plaintiff herselfSummary of this case from Porter v. Dartmouth College
January 28, 2005
MEMORANDUM OF DECISION
On November 16, 1999, the plaintiff, Emyne Gonzalez, was a sophomore at Keene State College (KSC), an institution under the administrative control of the University System of New Hampshire (USNH). The plaintiff was a member of the cheerleading club and, together with a number of her fellow cheerleaders, attempted to perform a "pyramid" during practice, under the direction of their coach, Karen Wilson (Wilson). While atop the pyramid, the plaintiff fell, sustaining serious injuries. As a result of the fall she is a quadriplegic.
The plaintiff is a Connecticut resident. She has brought this action in Connecticut Superior Court against the defendants, KSC and USNH. No question of personal jurisdiction over the defendants is raised.
The plaintiff's amended complaint is in three counts: negligence, breach of fiduciary duty and recklessness. Each count, however, repeats the same allegations of tortious acts and omissions against both defendants: proper rules governing the coaching of safe cheerleading or the hiring of cheerleading coaches were not promulgated or followed; the defendants hired an inadequately trained teacher/coach of cheerleading; cheerleading students were not properly trained; cheerleading students were allowed to participate in cheerleading activities without proper safety provisions; and the agents, servants or employees of the defendants were otherwise negligent or reckless. The plaintiff seeks damages for permanent injuries, loss of earning capacity, medical expenses and loss of the ability to enjoy life's activities. The plaintiff also seeks punitive damages.
The defendants have denied that they committed any tortious acts or omissions that caused the plaintiff's injuries and losses. They also have interposed several special defenses, including that the plaintiff's injuries and losses were caused by her own failure to use reasonable care; that her claims are barred by a written release of liability she signed; that the defendants are entitled to sovereign and governmental immunity; that the plaintiff's claims arc barred by the doctrine of assumption of risk; that the defendant's liability is limited by N.H. Rev. Stat. § 541-B:14; that punitive damages are prohibited by N.H. Rev. Stat. § 541-B:14; and that the plaintiff's claims of recklessness are barred by the statute of limitations.
The defendants have moved for summary judgment on the grounds that the facts do not support the plaintiff's claim of recklessness and that her claims are barred by a release she signed, by the statute of limitations and by the doctrines of assumption of the risk and sovereign immunity.
The parties agree that the substantive law of New Hampshire governs this case because the plaintiff's injury and the allegedly tortious activity occurred in New Hampshire, where the plaintiff was a full-time student, and because the defendants are political and corporate bodies of the state of New Hampshire. N.H. Rev. Stat. §§ 187-A:1; 187-A:11. See generally Williams v. State Farm Mutual Automobile Ins. Co., 229 Conn. 359, 372, 641 A.2d 783 (1994); O'Connor v. O'Connor, 201 Conn. 632, 519 A.2d 13 (1986); 1 Restatement (Second), Conflict of Laws §§ 6, 145 (1971). Connecticut law, however, governs matters of procedure. Broderick v. McGuire, 119 Conn. 83, 101-02, 174 A. 314 (1934).
Connecticut law, therefore, governs summary judgment procedure before this court. "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact . . . [T]he moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to astrict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § 380 [now § 17-45] . . ." (Citations omitted; internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 405-06, 848 A.2d 1165 (2004).
The affidavits and other documentary evidence submitted by the parties establish the following facts. The plaintiff was a student at KSC from August 1998 until the time of her injury on November 16, 1999. During this tine, KSC had, among its extracurricular activities, a cheerleading club. Cheerleading was not a sport or athletic event but, rather, a self-governing special interest club with twelve members. Membership was voluntary; there were no tryouts and any student who volunteered could be a member of the club. This, however, did not guarantee that a person could participate in cheerleading stunts.
In its 1999-2000 Student Programs Handbook and Calendar, Programming Guidelines and Policies for Clubs and Organizations, KSC recognized that activities such as clubs are "vital to the mission of the college and the personal development of its students." The cheerleading club was officially recognized by KSC, entitling it to use space on campus and to apply for monies from the Student Activity Fund. Student organizations seeking such monies would meet with Paul Striffolino, the Director of the Student Center. Striffolino also assisted in scheduling space on campus for such groups. An activity for which a club was permitted to use college space or received money was deemed an officially sponsored event. Requests for money were routinely granted by the director of the student center unless the request was for liquor or something illegal. If the director learned that a coach or advisor was doing something inappropriate, he would consult with the vice president of student affairs. The vice president of student affairs had the authority to dismiss an advisor or coach. The director had asked an advisor of another student organization to step down because the advisor had engaged in inappropriate activity on college property.
Student organizations such as the cheerleading club were required by KSC to have an advisor who was a full-time member of the KSC faculty or staff. The advisor was required to play a role in three major areas of the organization: group growth, group maintenance and program content. The advisor's responsibility for group growth included "advisory activities that improve the operation and effectiveness of the group and help it progress toward its goal." With respect to group maintenance, the advisor was expected to "maintain the existence of the student organization and to help keep it out of unnecessary difficulty by alerting the group to college policies and procedures . . . arbitrating group disputes, providing advice when called upon, providing history and tradition of past groups when advisable, advise of financial matters, and helping groups be aware of the importance of good public relations for the organization and the institution." With respect to program content, an advisor was expected to assist "the organization to complement the formal curricular offerings of the College by, inter alia, `supplying expert knowledge and insight of experience . . .'" According to the "1999-2000 Student Programs Handbook and Calendar, Programming Guidelines and Policies for Clubs and Organizations," "the Advisor should attempt to perform growth, maintenance, and content functions as seem appropriate to specific situations . . . The Advisor's objective should be to make membership in the organization an educationally meaningful experience. The Student Organization Advisor should go beyond the role of the passive bystander and be prepared to provide active ongoing academic and social leadership to the student group." It was through advisors that KSC monitored club activities.
The cheerleading club's advisor was not required to have expertise in cheerleading. Although the club had an advisor, Deborah Butler, only once did she speak with club members. She never attended a club meeting.
Although the club was not required to have a coach, it retained a volunteer coach. If a member of the club had a complaint about a coach's inappropriate activity, the club's advisor would have met with the club. If the complaint was verified, the advisor would have "gone up the chain of command" and advised the club to do the same.
Prior to attending KSC, the plaintiff had never been a cheerleader, though she very much wanted to be one. She began attending practices of the KSC cheerleading club during her freshman year, the 1998-1999 school year. The person who coached the club during the first half of the year, a woman named June, did not allow the plaintiff to participate in "pyramids" or performances. In cheerleading pyramids, the following positions exist; the bases who stand on the ground; the fliers who climb up on top of the bases; the spotters, who stand behind the pyramid and help the fliers climb, catch fliers if they fall and help them dismount when the stunt is over; and the back spotters who perform the same function but also hold up the fliers.
During the plaintiff's freshman year, she attended practices faithfully and practiced to be a "flier." However, she was not given a uniform and was not allowed to perform with the squad because June did not believe that the plaintiff was ready to do so. During June's tenure, the plaintiff did not consider herself a member of the club although she continued to attend practices.
June did not get along with members of the club, and early in 1999, the club dismissed her as coach. For a few weeks thereafter the club operated without a coach. Eventually, the members of the club requested that Karen Wilson become their coach. Wilson agreed to do so, without compensation. The club's officers introduced Wilson to Butler. The defendants admit, for purposes of their motion, that Wilson was their agent.
Wilson had been a college cheerleader but had never coached at the college level. However, she had coached elementary school children and had been certified by the Pop Warner organization since 1995 to do so. She had also received training in early 1999 by an organization known as "Cheer Ltd." in North Carolina. She attended coaches meetings at the annual cheerleading championship in Florida and was certified as a cheerleading judge.
"Pop Warner Little Scholars, Inc. (Pop Warner) is a not-for-profit national organization that organizes and conducts regional and local Pop Warner youth football and cheerleading leagues throughout the United States." Dreamcatcher Software Development, LLC v. Pop Warner Little Scholars, Inc., Docket No. 3:01CV808(AVC) (D.Conn. March 28, 2004).
Under Wilson, practices were longer and livelier but more serious. Still, members had a good time. Wilson also increased the size of the club and encouraged the existing members, who were nearly all female, to invite males to join. Wilson attended every practice and followed NCA or NCAA rules. She was aware that serious injury and death were risks of cheerleading, that it was important for her to train the cheerleaders properly and to position them properly in a pyramid so that they could progress through a stunt safely and avoid injury. She instructed the club that they were not to do any stunts if she was not present. She decided what stunts the club would do, unless club members objected. She required that, while performing the stunts, the participants keep their eyes up, remain on a mat, pay attention and not be distracted by onlookers. In addition, participants were not to talk during the stunt, but that rule was not followed. Participants were required to keep their fingernails short and their hair pulled back and were not allowed to wear jewelry or baggy clothes. Wilson insisted that members use proper techniques. However, no class was specifically designated for the learning of safety rules, nor were written safety materials given to the members. Rather, Wilson imparted safety rules to the group on a random, trial and error basis. During the summer between the plaintiff's freshman and sophomore years, Wilson encouraged members to attend a summer program on cheerleading sponsored by Cheer Ltd.
As Wilson had the members try new and higher stunts, the plaintiff did not feel as safe. Some club members, such as Jennifer Vasil, Stacey Stanhope and Elizabeth Dame, spoke up when they were uncomfortable doing certain stunts. Wilson would be supportive, and the club would move on to another activity. One member, Shaun Mahaffey, quit the club because he did not feel safe. The higher the stunts, the more people fell. According to the plaintiff, however, no one was hospitalized or on crutches during her freshman year. Wilson encouraged the plaintiff to try stunts. The plaintiff did so, though she fell from pyramids "quite a few" times during her freshman year.
The plaintiff enjoyed being in the club and generally loved doing cheerleading stunts. Occasionally the plaintiff was afraid and would tell Wilson that she was "a little afraid." However, she was reluctant to express her apprehension too often. Wilson would generally encourage her to keep trying. When the plaintiff indicated that she was very afraid of a stunt, Wilson abandoned it. Although the plaintiff testified at her deposition that she often thought that practices were unsafe and that the club was not prepared for stunts, the plaintiff loved to do stunts and never asked not to be a flier or to change positions.
In order to progress from one stunt to another, the plaintiff and other club members would have to show that they "were proficient in the easier stunts, and then if the coach felt that we were capable, she would ask us [the club members] to try other ones." When a new member first became a spotter, he or she was accompanied by an experienced spotter. If a member was not otherwise occupied, Wilson or the club captains would ask the member to be a spotter. Often, Wilson would stand in and act as a back spotter if no other competent spotter was available. In building a new pyramid, Wilson would ordinarily first talk the club through the stunt. Second, she would have the club "shadow" the pyramid on the ground, meaning that they would pretend to do the pyramid but without fliers. Finally, Wilson would have the club build the pyramid one level at a time.
Deposition of Plaintiff, p. 86; see also Deposition of Lukow, p. 57; Deposition of Packard, pp. 41, 102.
Deposition of Karen Wilson, March 26, 2004, p. 313.
The plaintiff performed with the club at a basketball game during her sophomore year and performed in a pyramid as a flier at another athletic game.
Prior to the date she was injured, the plaintiff had previously fallen from pyramids and other stunts in practice. Other members would break her fall or try to catch her; the plaintiff could not recall if she had ever hit the ground. She once sustained a concussion, but the club captains discouraged her from informing Wilson about it. She had also sustained bruises, aches and pains from falling. Although the club practiced on mats, other members of the club sustained concussions, twisted ankles, knee injuries, a fractured foot, a lost tooth and shoulder problems. The plaintiff testified at her deposition that "[f]alling wasn't a very big deal to [Wilson]."
On November 1, 1999, Wilson or her assistants presented the members of the club with a document for their signature, releasing KSC from liability for future harm. The members of the club, including the plaintiff, signed the document.
On November 16, 1999, Wilson was eager to try a new stunt known as a "4-2-1" that she had seen at a competition and, according to the plaintiff, "wanted to get right to business and just do it." The plaintiff is not aware that anyone consumed alcohol, drugs or medication prior to the practice. There was no music or distractions. Wilson explained where people would be positioned and how the stunt would look when it was finished. The plaintiff did not ask any questions. The club did not break into smaller stunt groups but "got right to it."
The pyramid was to consist of bases, middle tier fliers and the plaintiff at the top, above the middle tier fliers. There were two bases and a back spotter for each of the two mid-tier fliers. Scott Bawden was one spotter, and two people, one of whom was Ida Lukow, were on either side of him. Bawden was tall and thin, and the plaintiff had fallen when he was positioned as the spotter or base in earlier stunts. This pyramid would go up differently than prior pyramids. According to the plaintiff: "Other pyramids that we did . . . they would go up first and then I would go up last and step into their [middle tier fliers'] thighs, but this one I had stood on their thighs to begin with and we all went up together."
After the pyramid was up, the plaintiff was to fall back and be caught by the three people stationed behind the pyramid. The club had never attempted this pyramid before. The plaintiff was injured the first time they tried to put it up.
Before the pyramid was elevated, the plaintiff was seated in Bawden's arms with her feet on the thighs of two girls who would be the middle tier of the pyramid. These girls were standing at ground level and supporting the plaintiff's legs. The middle tier fliers held the plaintiff by her calves. Two bases supported each middle tier flier. Bawden, the plaintiff's back spotter, was crouched behind her with his hands supporting the plaintiff by her hips and thighs and was to push her forward and up by her buttocks as the pyramid was raised. Wilson stood in front of the pyramid and told other extra cheerleaders to stand in front also, in case the stunt fell forward.
As the pyramid was elevating, Bawden pushed the plaintiff over his head. As he did so, the plaintiff lost her balance and flipped backwards, striking Bawden's head with her upper body before continuing to fall down, landing on the back of her head and then her stomach as her body flipped over. As the plaintiff lay on the floor, she could not feel her legs. She was taken to a hospital by ambulance and ultimately flown to Dartmouth Hospital for emergency surgery. The plaintiff suffered a broken neck and has been rendered a quadriplegic. Additional facts will be provided as necessary.
The defendants claim that the plaintiff's entire action is barred by the release she signed on November 1, 1999. The plaintiff contends that the release is invalid under New Hampshire law. The court agrees.
The release signed by the plaintiff stated as follows:
I Emyne Gonzalez, in full recognition and understanding of the responsibilities, hazards, and dangers inherent in my participation in Cheerleading do hereby agree: (a) to assume all risks and responsibilities involved in the program described, and (b) for myself and my heirs, to release and hold harmless Keene State College, its trustees, officers, agents, and employees from and against all claims, demands, actions, and causes of actions for damages I may sustain or incur due to personal injury, death, or property damage, whether or not the result of negligent acts or omissions, arising from my participation in the program.
I further agree that I will defend, indemnify, and hold harmless Keene State College, its trustees officers, agents, and employees in the event that anyone other than myself sustains personal injury, property damage, or death due to my participation in this program.
In the event that my participation in the program causes damage to the property of KSC Athletics, I agree to indemnify KSC Athletics for such loss.
11/1/99 Emyne Gonzalez
"In New Hampshire, exculpatory contracts are generally prohibited. A defendant seeking to avoid liability must show that the exculpatory agreement does not contravene public policy; i.e., that no special relationship existed between the parties and that there was no other disparity in bargaining power. Where the defendant is a common carrier, innkeeper or public utility, or is otherwise charged with a duty of public service, the defendant cannot by contract rid itself of its obligation of reasonable care. Restatement (Second) of Torts § 496B, comment g (1965); Restatement of Contracts § 575 (1932); see Wessman v. Railroad, 84 N.H. 475, 152 A. 476 (1930).
"Courts have refused to uphold such agreements because one party is at an obvious disadvantage in bargaining power. [W. Keeton, D. Dobbs, R. Keeton, D. Owen, Prosser and Keeton on The Law of Torts § 68, at 482 (5th ed. 1984) (hereinafter cited as Prosser Keeton).] `The disparity in bargaining power may arise from the defendant's monopoly of a particular field of service, from the generality of use of contract clauses insisting upon assumption of risk by all those engaged in such a field, so that the plaintiff has no alternative possibility of obtaining the service without the clause; or it may arise from the exigencies of the needs of the plaintiff himself, which leave him no reasonable alternative to the acceptance of the offered terms.' Restatement (Second) of Torts § 496B, comment j (1965). Cf. Cailler v. Humble Oil Refining Co., 117 N.H. 915, 919, 379 A.2d 1253, 1256 (1977). Where there is a disparity in bargaining power, the plaintiff may not be deemed to have freely chosen to enter into the contract; accordingly, courts refuse to enforce the agreement. See Shaer Shoe Corporation v. Granite State Alarm, Inc., 110 N.H. 132, 135, 262 A.2d 285, 287 (1970).
"Once an exculpatory agreement is found unobjectionable as a matter of public policy, it will be upheld only if it appears that the plaintiff understood the import of the agreement or that a reasonable person in his position would have known of the exculpatory provision. Furthermore, the plaintiff's claims must have been within the contemplation of the parties at the time of the execution of the agreement . . . The parties need not, however, have contemplated the precise occurrence that resulted in the plaintiff's injuries. They may adopt language to cover a broad range of accidents, as they did in this case by specifying injuries involving negligence on the part of the defendants.
"Nonetheless, since the terms of the contract are strictly construed against the defendant, the contract must clearly state that the defendant is not responsible for the consequences of his negligence. Prosser Keeton, supra § 68, at 483-84. As long as the language of the release clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant's negligence, the agreement will be upheld. Cf. Commercial Union Assurance Co. v. Brown Co., 120 N.H. 620, 623, 419 A.2d 1111, 1113 (1980)." Barnes v. New Hampshire Karting Assn., Inc., 128 N.H. 102, 106-07, 509 A.2d 151 (1986).
The plaintiff asserts that the release she signed is invalid because (1) the defendants cannot establish the absence of an issue of material fact as to the existence of a special relationship between herself and KSC, (2) the defendants cannot establish that there was no disparity of bargaining power between herself and KSC, (3) she did not understand the release, and (4) she was not provided with consideration for the release. In addition, the plaintiff argues that even if the release is otherwise valid, it is not a bar to her claims of breach of fiduciary duty and recklessness, contained in the second and third counts of her complaint, respectively. The defendants argue that the undisputed facts show that all of the requirements of Barnes v. New Hampshire Karting Assn., Inc. are satisfied and that the release is enforceable. The court holds that because the defendants have not shown the absence of a genuine issue of material fact as to the existence of a special relationship between the defendants and the plaintiff, in her capacity as a member of the cheerleading club, the plaintiff's action is not barred by the release.
The plaintiff also argues that the defendants improperly rely on a six-factor test adopted by the California Supreme Court in Tunkl v. Regents of University of California, 60 Cal.2d 92, 383 P.2d 441 (1963), and that questions of fact remain as to the application of that fact in this case. The test propounded in Tunkl has not been adopted in New Hampshire. As observed CT Page 1668 supra, all parties agree that the substantive law of New Hampshire governs the validity of the release. Accordingly, this court does not apply the Tunkl test.
Whether a special relationship exists between a college and a member of a self-governing college club, membership in which is entirely open and voluntary, is an issue of first impression in New Hampshire law. "When a decision from the highest state court is lacking, we must anticipate how that court would rule on the question presented." J.M. Lynne Co. v. Geraghty, 204 Conn. 361, 368, 528 A.2d 786 (1987).
The plaintiff relies on cases such as Lash v. Cheshire County Savings Bank, Inc., 124 N.H. 435, 438, 474 A.2d 980 (1984), Schneider v. Plymouth State College, 144 N.H. 458, 462, 744 A.2d 101 (1999), Marquay v. Eno, 139 N.H. 708, 662 A.2d 272 (1995), and Davidson v. University of North Carolina, 142 N.C.App. 544, 543 S.E.2d 920, 927, cert. denied, 353 N.C. 724, 550 S.E.2d 771 (2001), in support of her argument that the defendants have not established the absence of a special relationship as a matter of law. The defendants argue that the undisputed facts do not give rise to a special relationship and also cite to Davidson v. University of North Carolina, supra, in support of their argument.
Neither Lash v. Cheshire County Savings Bank, Inc., supra, 124 N.H. 435, nor Schneider v. Plymouth State College, supra, 144 N.H. 458, involved a determination of what facts give rise to a special relationship for purposes of nullifying a release. Rather, both Lash and Schneider involved claims of breach of fiduciary duty. "A fiduciary relationship has been defined as a comprehensive [term] and exists wherever influence has been acquired and abused or confidence has been reposed and betrayed." (Internal quotation marks omitted) Lash v. Cheshire County Savings Bank, Inc., supra, 124 N.H. 438. A special "relationship is akin to a fiduciary duty, but need not rise to that same level." Lehman Bros. Commercial Corp. v. Minmetals International Nonferrous Metals Trading Co., 179 F.Sup.2d 118, 153 (S.D.N.Y. 2000); see Soltys v. Wellesley Country Club, Massachusetts Superior Court at Norfolk, No. 0000050 (October 28, 2002) (a fiduciary relationship may arise from a special relationship). Thus, for example, while courts have held that a landlord and tenant have a special relationship; Tanguay v. Marston, 127 N.H. 572, 503 A.2d 834 (1986); such parties do not, absent special circumstances, have a fiduciary relationship. Bellows Falls Trust Co. v. American Mineral Products Co., 89 N.H. 551, 556-57, 3 A.2d 98 (1938) (holding no fiduciary relationship exists between sublessor and sublessee).
In Lash v. Cheshire County Savings Bank, Inc., supra, 124 N.H. 435, the plaintiffs executed a secured loan for $35,000 with the defendant bank. Without the plaintiffs' permission, the bank credited the account of a creditor of the plaintiffs with the lionshare of this loan. The court held that the bank breached a fiduciary duty to the plaintiffs. This holding was based on a plethora of state statutes which held banks to a higher level of conduct than that of other corporations. Id., 438. Here, the parties have not cited any New Hampshire statutes governing the relationship between a public university such as KSC, and a member of a college club, nor has the court located any such statutes.
In Schneider v. Plymouth State College, supra, 144 N.H. 458, the plaintiff, who was sexually harassed and intimidated by a college professor, sued Plymouth State College (PSC) and USNH and recovered a verdict for, inter alia, breach of fiduciary duty. On appeal, the defendants argued that no duty existed between a post-secondary educational institution and its students. The Supreme Court disagreed, stating "In the context of sexual harassment by faculty members, the relationship between a post-secondary institution and its students is a fiduciary one . . . Students are in a vulnerable situation because the power differential between faculty and students . . . makes it difficult for [students] to refuse unwelcome advances and also provides the basis for negative sanctions against those who do refuse . . .
"When the plaintiff enrolled at PSC, she became dependent on the defendants for her education, thereby requiring them to act in good faith and with due regard for her interests . . . The relationship between students and those that teach them is built on a professional relationship of trust and deference, rarely seen outside the academic community. As a result, we conclude that this relationship gives rise to a fiduciary duty on behalf of the defendants to create an environment in which the plaintiff could pursue her education free from sexual harassment by faculty members." (Citations omitted; internal quotation marks omitted.) Id., 462-63. The court also noted that it was not basing its decision on the defendants being "parental proxies over minor students" but, rather, on a fiduciary relationship. Id., 463.
Schneider is vastly distinguishable from the instant case. First, the Schneider court carefully limited its holding of a fiduciary relationship to "the context of sexual harassment by faculty members . . ." Id., 462. No such behavior is implicated in this action. Second, the "power differential between faculty and students" on which Schneider was based is similarly absent here. Wilson was retained by the club members. Her predecessor had been discharged by the members. Also, there is no evidence on which a jury could find that participation in the cheerleading club carried the same overriding importance to the plaintiff, or other club members, that a college education does.
In Marquay v. Eno, supra, 139 N.H. 708, seventh grade and high school students were sexually abused by their coach or teacher. The New Hampshire Supreme Court held that "schools share a special relationship with students entrusted to their care, which imposes upon them certain duties of reasonable supervision . . .
"Major factors influencing our conclusion that a special relationship exists between schools and students include the compulsory character of school attendance . . . the expectation of parents and students for and their reliance on a safe school environment, and the importance to society of the learning activity which is to take place in public schools . . ." (Citations omitted.) Id., 717.
Eno is of little relevance to the instant case. KSC is a college institution that students voluntarily choose to attend. Its students are generally of majority age; N.H.Rev.Stat.Ann. § 21-B:1; and are not "entrusted" to the care of the school. Moreover, cheerleading is simply not an important activity to society compared to learning.
The common law rule that a person is a minor to the age of 21 is hereby abrogated. A person who has reached his eighteenth birthday is hereby declared to be of majority for all purposes, except as prohibited by the constitution of New Hampshire and of the United States."
In Davidson v. University of North Carolina, supra, 142 N.C.App. 555, on which both the plaintiff and the defendants rely, a sophomore at the University of North Carolina (UNC) suffered permanent brain damage when she fell from a pyramid while she was a member of the school-sponsored, intercollegiate cheerleading squad. The squad did not have a coach or advisor, the members taught themselves how to perform stunts, and they received no safety training or instructions. Id., 547. Under state law, UNC's liability turned in part on whether it had a special relationship with the plaintiff. The court held that it did, stating: "Here, UNC depended upon the cheerleading program for a variety of benefits. The JV squad was responsible for cheerleading at JV basketball games, women's basketball games, and wrestling events. The JV squad represented UNC at a trade show, and often entertained the Rams Club before games. Plaintiff testified, and [the Vice Chancellor and Dean for Student Affairs at UNC] acknowledged, that the cheerleaders acted as representatives of the school at official athletic events. Likewise, the cheerleaders received significant benefits from UNC as a result of participating in the cheerleading program. They were provided school uniforms purchased by the school. They were provided transportation by UNC, and they used university facilities and equipment for practices. Participation on the JV or varsity squad allowed the student to satisfy one hour of the school's physical education requirement.
"We also find it significant that UNC exerted a considerable degree of control over its cheerleaders. Typically, schools exert a high degree of control over many aspects of a student athlete's life . . . Here, UNC cheerleaders had to abide by certain standards of conduct, such as maintaining a minimum GPA and refraining from drinking alcohol in public. Such control affects our analysis in at least two ways. First, the argument that a duty of care should not be imposed upon a school because it may stifle student autonomy is considerably less compelling where the school already exerts significant control over the students in question. Second, when a school exerts significant control over students as a result of their participation in a school-sponsored athletic activity, the students may have higher expectations with regard to the protection they will receive from the school. Here, plaintiff testified that she expected UNC to look out for her, and that she expected the cheerleaders would be adequately trained. Such expectations can result in the assumption by a student that, in the absence of any warning from the school that particular activities pose a significant risk, such activities have been determined to be safe. This kind of assumption may then prevent the student from making an independent assessment of the risk posed by those activities." (Citation omitted.) Id., 555-56.
However, the Davidson court was careful to "emphasize that [the] holding is based on the fact that plaintiff was injured while practicing as part of a school-sponsored, intercollegiate team. Our holding should not be interpreted as finding a special relationship to exist between a university, college, or other secondary educational institution, and every student attending the school, or even every member of a student group, club, intramural team, or organization. We agree with the conclusion reached by other jurisdictions addressing this issue that a university should not generally be an insurer of its students' safety, and that, therefore, the student-university relationship, standing alone, does not constitute a special relationship giving rise to a duty of care." Id., 556.
The ultimate finding of a special relationship in Davidson was based on a subordinate finding of a relationship of mutual dependence. Id., 555 ("Various scholars, authorities, and courts in other jurisdictions . . . have recognized that special relationships are most often premised upon the existence of mutual dependence").
Although the New Hampshire Supreme Court has not explicitly articulated a single, all-purpose test for determining when a special relationship exists, it has adopted § 314A of the Restatement (Second) of Torts § 314A, which provides various examples of special relationships in the context of the rule that a special relationship may give rise to a duty to protect a person from the acts of another. See Dupont v. Aavid Thermal Technologies, Inc., 147 N.H. 706, 710-11, 798 A.2d 587 (2002); Marquay v. Eno, supra, 139 N.H. 717. A unifying principal in those relationships deemed "special" is generally a "relation of dependence or of mutual dependence." (Emphasis added.) 2 Restatement (Second), Torts, § 314A, comment b (1965). New Hampshire cases, however, have not stressed the mutuality component of the dependency requirement, beyond some entry payment by the dependent party, in order to find a special relationship. See, e.g., State v. Bruce, 132 N.H. 465, 471, 566 A.2d 1144 (1989) (special relationship between parent and child); Roberts v. Ward, 126 N.H. 388, 393, 493 A.2d 478 (1985) (special relationship may exist between grandparent and grandchild); In re Sprague, 132 N.H. 250, 257, 564 A.2d 829 (1989) (special relationship between psychiatrist and patient); Averill v. Cox, 145 N.H. 328, 337, 761 A.2d 1083 (2000), and Halstead v. Murray, 130 N.H. 560, 566, 547 A.2d 202 (1988) (special relationship between attorney and client); Tanguay v. Marston, 127 N.H. 572, 577, 503 A.2d 834 (1986) (court notes landlord-tenant and common carrier-passenger relationships are special relationships); Iannelli v. Burger King Corp., 145 N.H. 190, 194, 761 A.2d 417 (2000) ("landlords and tenants have a special relationship that does not exist between a commercial establishment and its guests"); McLaughlin v. Sullivan, 123 N.H. 335, 338, 461 A.2d 123 (1983) (court recognizes that special relationship giving rise to duty of care to prevent another's suicide is imposed on institutions having actual physical custody and substantial control over persons and also on individuals and institutions having special training or expertise enabling them to detect mental illness or suicide and who have the control necessary to prevent it); cf. Murdock v. Keene, 137 N.H. 70, 623 A.2d 755 (1993) (complaint alleging that jailer knew prisoner was likely to attempt suicide stated cause of action).
Restatement (Second) of Torts § 314A provides: "Special Relations Giving Rise to Duty to Aid or Protect
(1) A common carrier is under a duty to its passengers to take reasonable action
(a) to protect them against unreasonable risk of physical harm, and
(b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.
(2) An innkeeper is under a similar duty to his guests.
(3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.
(4) One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other." A "caveat" to this Restatement section states: "The Institute expresses no opinion as to whether there may not be other relations which impose a similar duty.
2 Restatement (Second), Torts § 314A (1965).
Cognizant that "[t]he existence of a special relationship requires a fact-specific inquiry"; Sintros v. Hamon, 148 N.H. 478, 483, 810 A.2d 553 (2002); the court examines the evidence produced by the parties, viewing the evidence, as the court must on summary judgment, "in the light most favorable to the opponent." (Internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 405, 848 A.2d 1165 (2004).
Viewing the evidence in a light most favorable to the plaintiff, this court cannot find as a matter of law that the defendants have proven that there is no genuine issue of material fact as to whether the plaintiff had a special relationship with KSC with respect to her participation in the cheerleading club. First, without the official status that KSC conferred on it, the club was not entitled to use college space. Unlike clubs engaged in other endeavors, a jury could infer that it was unlikely that students would have participated in an off campus cheerleading club. Second, as an officially recognized club, the cheerleading club was entitled to receive monies from the Student Activity Fund. Few indicia of dependency are as telling as money. Although whether the cheerleading club actually received such funds is unclear, this remains a question of fact for the jury which the defendants were obliged to remove for purposes of the instant motion. Thus, there is evidence on which a jury could reasonably find that KSC controlled the very existence of the cheerleading club. Third, through the office of an advisor, KSC could maintain a degree of control over club activities and respond if they were found to be inappropriate. The extent of such control may turn on the interpretation of the 1999-2000 Student Programs Handbook, which in turn may be a question of fact for the jury. "The construction of a written document is a matter of law, where the meaning is to be ascertained from the document itself but where the meaning can be understood only from extrinsic facts, the construction is generally a question of fact for the jury." (Internal quotation marks omitted.) Foley v. Huntington Co., 42 Conn.App. 712, 728, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996). Fourth, according to the plaintiff, members of the club were required to maintain a minimum GPA, another indicia of control. See Davidson v. University of North Carolina, supra, 142 N.C.App. 555. Fifth, the defendants have admitted for purposes of this motion that Wilson, the club's coach, was their agent.
That the plaintiff's participation in the cheerleading club was voluntary, a fact underscored by the defendants, does not necessarily negate the existence of a special relationship. The relationship between psychiatrist and patient, attorney and client, landlord and tenant, common carrier and guest are all voluntary relationships, and all have been found by the New Hampshire Supreme Court to give rise to special relationships. See In re Sprague, supra, 132 N.H. 257 (psychiatrist and patient); Averill v. Cox, supra, 145 N.H. 337 (attorney and client), Tanguay v. Marston, supra, 127 N.H. 572 (landlord and tenant; common carrier and passenger).
With respect to mutuality, there is neither evidence nor a claim that KSC required members of the cheerleading club to abide by any special standards of conduct, or that members were recruited, received scholarships or represented the school at any activities. Indeed, other than the statement in the Student Programs Handbook that clubs in general were "vital to the mission of the college and the personal development of its students," and that the club cheered at one or two school events, there is little evidence of mutual dependency between the cheerleading club and KSC.
While "courts have been reluctant to characterize the basic student-college relationship as `special' so as to invoke a duty on behalf of the college"; Geiersbach v. Frieje, 807 N.E.2d 114, 117 (Ind.App. 2004); there is sufficient evidence of dependency by the cheerleading club on KSC to give rise to a special relationship. The court cannot find as a matter of law that the defendants have met their burden of proving the absence of any genuine issue of fact with respect to the existence of a special relationship between the defendants and the plaintiff. Therefore, there is a question of fact as to the validity of the release signed by the plaintiff.
In the event the court is mistaken in its conclusion that there is a question of fact as to whether the parties had a special relationship, and because of the likelihood of further proceedings in this matter, the court briefly addresses other issues raised by the parties concerning the release.
The plaintiff contends that the release is void for lack of consideration. Specifically, the plaintiff argues that "KSC was obligated by its own rules to allow any KSC student who wanted to be a member of an existing sport program to participate in that activity . . . Club sport programs were not allowed to cut unqualified participants. . . . Cheerleaders had not signed releases before November 1, 1999, a date during the cheerleading season. The directive to sign the releases was not accompanied by any additional promise or obligation by KSC."
"Plaintiff was one of many students who accepted KSC's enticements to join the KSC community, and she had sought out KSC partially for its cheerleading program . . . However, over a year later and in the middle of the cheerleading season, KSC first required its cheerleaders to sign the release. KSC, however, did not offer to change its position in any manner or offer any new consideration of their rights. This agreement lacked the necessary `quid pro quo' required to make a binding contract under New Hampshire law." Plaintiff's Memorandum, September 14, 2004, p. 36.
The defendants respond that "the consideration given was the plaintiff's continued participation in the club." The defendants cite Sharon v. Newton, 437 Mass. 99, 106-07, 769 N.E.2d 738 (2002) and § 496B of the Restatement (Second) of Torts, for the proposition that it is not essential for agreements to assume the risk to be supported by consideration. Defendants' Memorandum of Law in Reply to Plaintiff's Objection to Motion for Summary Judgment, September 19, 2004, p. 14.
"Offer, acceptance and consideration are essential to contract formation . . . Consideration is present if there is a benefit to the promisor or a detriment to the promisee." Chisohn v. Ultima Nashua Industrial Corp., 150 N.H. 141, 144-45, 834 A.2d 221 (2003). A promise without consideration is invalid. Watkins Son v. Carrig, 91 N.H. 459, 461-62, 21 A.2d 591 (1941). Past consideration will not support a promise. Perreault v. Hall, 94 N.H. 191, 194, 49 A.2d 812 (1946).
The defendants' reliance on Sharon v. Newton, supra, 437 Mass. 99, is misplaced. Not only is Sharon a Massachusetts case, binding neither on New Hampshire nor on this court in its application of New Hampshire law, but Sharon is distinguishable on its facts. In Sharon, a sixteen-year-old plaintiff, Merav Sharon, was injured in November 1995, while participating in a high school cheerleading practice. In August 1995, her father had signed a release similar to the release at issue here. Upon turning eighteen, Merav sued the city of Newton. The city pleaded the release as a defense. The plaintiff argued that the release was void because it was not supported by consideration. The Supreme Judicial Court of Massachusetts disagreed, holding that the plaintiff's "participation in the cheerleading program, was adequate consideration for the release." Id., 112. In Sharon, however, it appears that the plaintiff's father signed the release before the commencement of the school year, not in the midst of the school year, as here.
Nonetheless, the defendants' position is supported by Smith, Batchelder Rugg v. Foster, 119 N.H. 679, 406 A.2d 1310 (1979). In Foster, the defendants had worked for the plaintiff accounting firm for three years as accountants pursuant to oral agreements of employment. Thereafter, the defendants signed written contracts that contained a covenant in which they agreed that they would not compete with the plaintiff upon the termination of their employment. The written contracts also provided that the defendants' employment was terminable by either party on thirty days' written notice, and terminable by the plaintiff if, in its sole judgment, it was not satisfied with the defendants' services. "These restrictive covenants were not part of the prior oral agreements but defendants were confronted with the written covenants only after they had substantially changed their positions in reliance upon the prior oral agreements." Id., 681. The defendants voluntarily terminated their employment with the plaintiff and established their own accounting firm. The plaintiff brought an action to enforce the restrictive covenants.
The New Hampshire Supreme Court held that the written notice requirement was sufficient consideration for the defendants' promise not to compete with the plaintiff upon the termination of their employment. Id., 682. However, the court also held that "[c]ontinued employment after signing an employment contract constitutes consideration for a covenant not to compete contained therein." Id., 683, citing Daughty v. Capital Gas Co., 285 Ala. 89, 92-93, 229 So.2d 480 (1969) and Farm Bureau Service Co. v. Kohls, 203 N.W.2d 209, 212 (Iowa 1972). See Annot., "Sufficiency of Consideration for Employee's Covenant Not to Compete, Entered into After Inception of Employment," 51 A.L.R.3d 825 § 49(b) (1991) ("An employee's continued employment has been held or recognized in the following cases to be a sufficient consideration for a covenant not to compete which the employee signed after the inception of his employment, at least where it appeared that the employee would have been discharged, or where he actually remained in the plaintiff's employ for a substantial time after the execution of the contract").
Farm Bureau Service Co. v. Kohls, supra, 203 N.W.2d 212, which was cited by the court in Smith, Batchelder Rugg v. Foster, supra, 119 N.H. 683, cited 54 Am.Jur.2d Monopolies, Restraints of Trade, and Unfair Trade Practices § 550 (1971) in support of its holding. The most recent revision of that treatise now states, in relevant part:
The jurisdictions are in disagreement as to whether continued employment, or the promise of continued employment, can qualify as independent consideration, where it is required to support a non-competition covenant entered into after the commencement of employment. One line of cases states that an employer may obtain a covenant not to compete after the employee begins work, and the covenant may be based merely on continuation of employment after the covenant is signed by the employee [citing, inter alia, Smith, Batchelder Rugg v. Foster, supra, 119 N.H. 679, and Roessler v. Burwell, 119 Conn. 289, 176 A. 126 (1934), in footnote], or on the employer's promise to continue at-will employment, even where the continued employment is for an indefinite period of time. Although continuation of employment is deemed to be sufficient consideration, the court may still consider what the consideration is in determining whether the consideration is grossly disproportionate to the injury incurred by the covenantor or the benefit accruing to the covenantee from the enforcement of the covenant.
Other cases take the view that the continuing employment is sufficient consideration to support a covenant not to compete executed after commencement of employment where the continuing employment is for a definite term.
It has been held that continued employment alone is not sufficient consideration to support an anticompetitive covenant which is not contained in the initial oral-employment contract, where the covenant appears in a written contract for an indefinite term of employment.
A different approach notes that the promise of continued employment standing alone is not sufficient consideration for a covenant not to compete signed after employment has begun, but if there has been actual performance in the form of continued employment, then, under a general contractual principle, full or substantial performance precludes the employee from complaining about lack of consideration.
54A Am.Jur.2d, Monopolies, Restraints of Trade, and Unfair Labor Practices § 898 (1996).
Foster provides a usual analog to the instant case. Prior to November 1, 1999, the plaintiff was a KSC student, a member of the cheerleading club and had practiced stunts with the club without having to sign a release. On November 1, 1999, Wilson and her assistant coaches presented the club's members with the release to sign. Although pursuant to KSC's policy, the plaintiff would remain a member of the club whether or not she signed the document, Wilson or her assistants made it clear to the club members that they would not be able to perform stunts unless they signed the release. The plaintiff signed the release and was permitted to continue practicing stunts with other club members. Just as continued employment after signing the covenant not to compete was sufficient consideration in Smith, Batchelder Rugg v. Foster, supra, 119 N.H. 679, permitting the plaintiff to continue performing cheerleading stunts was sufficient consideration to support the release signed by the plaintiff.
The plaintiff argues that the release fails to satisfy the other requirements of Barnes v. New Hampshire Karting Assn., supra, 128 N.H. 102. Specifically, the plaintiff claims that the release is otherwise against public policy and that there was a substantial disparity in the parties' bargaining power. The court disagrees.
First, the court concludes that requiring an individual to sign a release as a condition to engaging in cheerleading stunts in a non-team college club is not against the public policy of New Hampshire. Cheerleading is not affected with a public interest. See id., 108. Cheerleading is not a service of great importance to the public, nor is it a matter of practical necessity. See id.
Second, the defendants have sustained their burden of showing that there was no substantial disparity in the parties' bargaining power. The plaintiff was under no physical or economic compulsion to sign the release and, though the Student Handbook stated that student clubs and organizations in general were "vital to the mission of the college and the personal development of its students," cheerleading was not an essential service or activity. Id.
Third, that the plaintiff testified in her deposition that she did not understand that she was releasing the defendants from liability for their future negligence when she signed the release is not fatal to its validity. The rule in New Hampshire is that an exculpatory agreement will be upheld "if it appears that the plaintiff understood the import of the agreement or that a reasonable person in his position would have known of the exculpatory provision." Id., 107. The use of the disjunctive "or" connotes that the Barnes court intended that either the plaintiff's subjective understanding of an exculpatory agreement or that a reasonable person would have done so is sufficient. See State v. Baroudi, 137 N.H. 62, 64-65, 623 A.2d 750 (1993).
However, this court concludes that the agreement fails the exacting requirement of Barnes that, strictly construed, "the contract must clearly state that the defendant is not responsible for the consequences of [its] negligence." Barnes v. New Hampshire Karting Assn., supra, 128 N.H. 107. While the release signed by the plaintiff clearly releases KSC from all "causes of actions for damages I may sustain or incur due to personal injury . . . whether or not the result of negligent acts or omissions, arising from my participation in [cheerleading]," the release "fails because no particular attention is called to the notion of releasing the defendant[s] from liability for [their] own negligence." (Emphasis added.) Audley v. Melton, 138 N.H. 416, 419, 640 A.2d 777 (1994). With its long history of hostility to exculpatory contracts, the New Hampshire Supreme Court, in recent cases, has employed the rules of construction of contracts hypertechnically and has admittedly engaged in the parsing words. See Wright v. Loon Mountain Recreation Corp., 140 N.H. 166, 170-71, 663 A.2d 1340 (1995); Audley v. Melton, 138 N.H. 416, 418-19, 640 A.2d 777 (1994). In light of Wright and Audley, it is likely that court would hold that the negligence for which the plaintiff was releasing the defendants could be deemed to be that of her fellow club members, other third parties or herself. For this reason, even if there were no question of fact as to the existence of a special relationship between the defendants and the plaintiff, the court holds that the release is not valid under New Hampshire law.
The defendants argue that the plaintiff's action is barred by the doctrine of sovereign immunity. The court disagrees.
"Under the doctrine of sovereign immunity, the State [of New Hampshire) may not be sued in State court without its consent. Mahan v. NH Dep't of Admin. Services, 141 N.H. 747, 749, 693 A.2d 79 (1997). `The legislature waived the State's sovereign immunity when it enacted RSA [New Hampshire Revised Statutes Annotated] chapter 541-B, subject to several exceptions.' Id. RSA 541-B:19 (1997) states, in part:
Without otherwise limiting or defining the sovereign immunity of the state and its agencies, the provisions of this chapter shall not apply to:
. . .
(c) Any claim based upon the exercise or performance or the failure to exercise or perform a discretionary executive or planning function or duty on the part of the state or any state agency or a state officer, employee, or official acting within the scope of his office or employment."
A forum court such as this must generally accept the construction of a statute adopted by the highest tribunal of the jurisdiction that enacted the statute. Daury v. Ferraro, 108 Conn. 386, 399-400, 143 A. 630 (1928). The New Hampshire Supreme Court has "said that the discretionary function exception retains governmental immunity for conduct involving an executive or planning function characterized by the exercise of a high degree of official judgment or discretion. See Mahan [ v. NH Dept. of Administrative Services, supra,] 141 N.H. at 749. This exception is satisfied where the executive or planning function involves the weighing of alternatives and making choices with respect to public policy and planning. Id." Delaney v. State, supra, 146 N.H. 176.
The court has "declined to draw a bright line between discretionary planning and the ministerial implementation of plans, however. Rather, [it has] stated that it would be possible for workers to implement a faulty design or plan, for which no tort liability should result, but that if, on the other hand, workers negligently follow or fail to follow an established plan or standards, and injuries result, then a government entity could be subject to tort liability . . . It is essential, in making this calculation, to be mindful that `[c]ertain essential, fundamental activities of government must remain immune from tort liability so that our government can govern.'" (Citations omitted; internal quotation marks omitted.) Id.
Under this test, the state is not entitled to sovereign immunity for the acts or omissions of either Wilson, Butler or Striffolino. None had an executive or planning function "characterized by the exercise of a high degree of official judgment or discretion." While Wilson undoubtedly had broad discretion in the manner in which she coached the cheerleading club, and Butler had broad discretion in how often she met with the club, "[n]ot all governmental decisions involving an element of discretion fall within the discretionary function exception to the State's waiver of sovereign immunity . . . [R]ather, the exception applies and immunity attaches when a decision entails governmental planning or policy formulation, involving the evaluation of economic, social, and political considerations." Mahan v. Dept. of Administrative Services, supra, 141 N.H. 749. There is no evidence that the decisions by Wilson, Butler or Striffolino entailed such considerations. The defendants are not entitled to summary judgment on the ground of sovereign immunity.
The defendants argue that an amendment to the plaintiff's complaint that added a count in recklessness is barred by the statute of limitations. The court disagrees.
The plaintiff fell and sustained her injuries on November 16, 1999. This action was brought in May 2001 in two counts, negligence and breach of fiduciary duty. In April 2004, the plaintiff filed a request to amend her complaint to allege a third count sounding in recklessness. The defendants objected, and the court overruled their objection, but did so without prejudice to the defendants later raising the issue as to whether the third count was barred by the statute of limitations. The defendants then amended their answer and special defenses to add a special defense of the statute of limitations. The defendants now make that claim a ground of their motion for summary judgment.
The defendants argue that the count of the plaintiff's amended complaint sounding in recklessness is barred by New Hampshire's Revised Statutes Annotated § 508:4, which provides in pertinent part: "Except as otherwise provided by law, all personal actions, except actions for slander or libel, may be brought only within 3 years of the act or omission complained of, except that when the injury and its causal relationship to the act or omission were not discovered and could not reasonably have been discovered at the time of the act or omission, the action shall be commenced within 3 years of the time the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the injury and its causal relationship to the act or omission complained of." This statute governs claims of recklessness in New Hampshire. Dobe v. Commissioner, Dept. of Health Human Services, 147 N.H. 458, 791 A.2d 184 (2002). The plaintiff argues that Connecticut law governing statutes of limitations applies to her recklessness count, and that under that law, the third count relates back to the filing of her original complaint. The court agrees with the plaintiff.
As observed supra, the general rule is that even where foreign law governs matters of substance, forum law governs matters of procedure; Broderick v. McGuire, 119 Conn. 83, 101-02, 174 A. 314 (1934); including statutes of limitation. Morris Plan Industrial Bank v. Richards, 131 Conn. 671, 42 A.2d 147 (1945); see 1 Restatement (Second), Conflict of Laws, supra, §§ 142, 143. Therefore, the Connecticut statute of limitations governs.
Connecticut General Statutes § 52-584 is the statute of limitations that governs the plaintiff's claim of recklessness. General Statutes § 52-584 provides in relevant part: "No action to recover damages for injury to the person . . . caused by . . . reckless or wanton misconduct . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . ." Since the requests for leave to amend the complaint to add the recklessness count was filed more than three years after the defendants' alleged acts of recklessness, that count is barred by § 52-584 unless it relates back to the filing of the original complaint. The court concludes that it does relate back.
In Gurliacci v. Mayer, 218 Conn. 531, 548-49, 590 A.2d 914 (1991), the Connecticut Supreme Court held that an amendment to a negligence action adding a count alleging that the defendant acted wilfully, wantonly or maliciously related back to the filing of the original complaint where "[t]he new allegations did not inject two different sets of circumstances and depend on different facts . . ., but rather amplified and expanded upon the previous allegations by setting forth alternate theories of liability." (Citation omitted; quotation marks omitted.) Id., 549. In practice, wilful, wanton and reckless "have been treated as meaning the same thing." (Internal quotation marks omitted.) Matthiessen v. Vanech, 266 Conn. 822, 833, 836 A.2d 394 (2003); see Craig v. Driscoll, 262 Conn. 312, 342-43, 813 A.2d 1003 (2003). The plaintiff's recklessness count pleads essentially the same facts alleged in her negligence count. Accordingly, the recklessness count relates back to the filing of the original complaint and is not barred by the statute of limitations.
The defendants argue that there is no issue of fact with respect to the plaintiff's count for recklessness and that they are entitled to judgment in their favor as a matter of law on that count. The plaintiff argues that there is sufficient evidence of recklessness by Wilson and others in the KSC administration. She argues that Wilson, Striffolino and Butler were all aware that serious injury was a risk of cheerleading. Striffolino and Butler failed to monitor or supervise the activities of the club. Wilson knew that improper training or positioning of cheerleaders could lead to serious physical injury. The court agrees with the defendants.
Recklessness consists of "disregard of or indifference to consequences under circumstances involving danger to life or safety of others, although no harm was intended." (Internal quotation marks omitted.) Migdal v. Stamp, 132 N.H. 171, 176, 564 A.2d 826 (1989). There must be a causal connection between the recklessness alleged and the injuries incurred. MacLeod v. Ball, 140 N.H. 159, 161, 663 A.2d 632 (1995). "Proximate cause is a question for the jury unless the evidence is such that no reasonable [person] could find legal fault or causation." (Internal quotation marks omitted.) Id.
The record is devoid of reckless conduct by Wilson. Even assuming that she did not have sufficient credentials to coach a college cheerleading team, there is no question that she had been a college cheerleader, had training in coaching from Cheer Ltd. and was certified as a college cheerleading judge. Despite isolated lapses in management and enforcement of her rules on prior occasions, on the date of the plaintiff's injury there was no lack of discipline. The members appeared at the practice and "got down to business." At best there is a question of fact as to whether Wilson used due care in putting up the pyramid. Thus, at best, there is question of fact as to negligence, but not as to recklessness. Cf. Bolmer v. McKulsky, 74 Conn.App. 499, 812 A.2d 869, cert. denied, 262 Conn. 954, 818 A.2d 780 (2003).
Nor is there evidence from which a trier could find that Butler or Striffolino disregarded or were "indifferen[t] to the consequences under circumstances involving danger to life or safety of others." While they failed to monitor the activities of the cheerleading club and knew that cheerleading could be dangerous in a general way, neither was aware that anything particularly dangerous to life or safety would occur on the date of the plaintiff's fall. Moreover, neither one had any expertise in cheerleading, nor were they required to. Thus, any suggestion that they would have prevented the plaintiff's injury had they exercised more active monitoring is speculation. They had no idea that Wilson would attempt the pyramid when she did, nor, more importantly, did they know that Wilson allegedly would not follow proper progressions in doing so. Had they been physically present at the practice at which the plaintiff was injured, they would not have had the expertise to intercede to prevent what was, at best, simple negligence. There is, in short, no question of fact that any omission on their part was not a legal cause of the plaintiff's injuries.
The court further observes that while, in Connecticut, a defendant who has been found to have committed recklessness is liable for punitive damages; Vandersluis v. Weil, 176 Conn. 353, 358, 407 A.2d 982 (1978); New Hampshire "forbids the award of punitive damages . . . However, when the act involved is wanton, malicious, or oppressive, the compensatory damages awarded may reflect the aggravating circumstances." (Citations omitted; internal quotation marks omitted.) Panas v. Harakis, 129 N.H. 591, 608, 529 A.2d 976 1987). For such "liberal compensatory damages . . . there must be ill will, hatred, hostility, or evil motive on the part of the defendant." (Citations omitted; internal quotation marks omited.) Aubert v. Aubert, 129 N.H. 422, 431, 529 A.2d 909 (1987). The record reflects that there was no such animosity here.
The defendants argue that they are entitled to summary judgment on the second count, alleging breach of a fiduciary duty, because the evidence establishes that there is no issue of fact that there was no fiduciary duty by the defendants. The plaintiff argues that KSC was a fiduciary. The court agrees with the defendants.
As stated supra, "a fiduciary relationship has been defined as a comprehensive [term] and exists wherever influence has been acquired and abused or confidence has been reposed and betrayed . . ." (Internal quotation marks omitted.) Lash v. Cheshire County Savings Bank, Inc., supra, 124 N.H. 438. "[A] confidential relation exists between two persons when one has gained the confidence of the other and purports to act or advise with the other's interest in mind." (Internal quotation marks omitted.) Cornwell v. Cornwell, 116 N.H. 205, 209, 356 A.2d 683 (1976). "In doubtful cases, whether the conduct of two parties was such that a fiduciary relationship existed between them is a question of fact for the trier . . .
"The trend is toward liberalizing the term [fiduciary] in order to prevent unjust enrichment. Cornwell v. Cornwell, [ supra, 116 N.H. 209], (citing Restatement (Second) of Trusts § 44, Comment a, at 114 (1959)). [O]nce a person becomes a fiduciary, the law places him in the role of a moral person and pressures him to behave in a selfless fashion . . ." (Citations omitted; internal quotation marks omitted.) Lash v. Cheshire County Savings Bank, Inc., supra, 124 N.H. 438.
This is not a doubtful case. There is no allegation, let alone proof, that "influence has been acquired and abused or confidence . . . reposed and betrayed." Id. There is neither allegation nor evidence of a misuse of a power differential by the defendants that caused the plaintiff's injuries, or of abuse of a professional relationship of trust and deference. Compare Schneider v. Plymouth State College, supra, 144 N.H. 458, 462-63; Brzica v. Trustees, Dartmouth College, 147 N.H. 443, 447-48, 791 A.2d 990 (2002). While Schneider v. Plymouth State College, supra, 144 N.H. 462, found that a fiduciary relationship existed between a college and its students "[i]n the context of sexual harassment by faculty members," this case is a far cry from Schneider. That a fiduciary relationship exists between an institution and an individual "in certain cases . . . does not mean that a fiduciary relationship always exists. See Lash [ v. Cheshire County Savings Bank Inc.,], 124 N.H. at 439, 474 A.2d at 982." Ahrendt v. Granite Bank, 144 N.H. 308, 311, 740 A.2d 1058 (1999) (finding no fiduciary relationship between bank and depositor); compare In re Stanton, 147 N.H. 724, 727, 805 A.2d 419 (2002) (board of trustees of city retirement system had fiduciary duty to system's members and beneficiaries) with In re Barney, 142 N.H. 798, 710 A.2d 408 (1998) (board of trustees of New Hampshire retirement system did not owe petitioner fiduciary duty to inform her of her eligibility for disability retirement benefits before she acted to her detriment by withdrawal of membership); see also Colby v. Colby, 96 N.H. 452, 454, 79 A.2d 343 (1951) ("The fiduciary relationship that exists between tenants in common is limited to the acquisition of a title adverse to the common interest"). At rock bottom, this is a negligence case in which the core issues are duty, breach and proximate cause. New Hampshire law does not support the existence of a fiduciary relationship on these facts.
Finally, the court addresses the defendants' claim that the plaintiff's action is barred by the doctrine of assumption of risk.
In New Hampshire, "[t]he term `assumption of the risk' has been used to express distinct common law theories, derived from different sources, which apply when a plaintiff has knowingly exposed herself to particular risks . . . The three distinct legal concepts encompassed by the term are: (1) a plaintiff's consent in exposing herself to a defendants negligence; (2) a defendant's negligence together with a plaintiff's negligence which causes the plaintiff injury; and (3) a plaintiff's voluntary participation in a reasonable activity with known risks such that a defendant owes no duty to the plaintiff to protect against harm arising from those risks . . .
"The first theory, the express assumption of the risk, applies when a plaintiff assumes the risk of injury by expressly releasing a defendant from liability for negligent acts. See Barnes v. N.H. Karting Assoc., 128 N.H. 102, 106 (1986). Under this theory, a defendant is not liable for injuries suffered by a plaintiff who consents to expose herself to the defendant's negligence. Id. Although New Hampshire law generally prohibits a plaintiff from releasing a defendant from liability for negligent conduct in limited circumstances a plaintiff can expressly consent by contract to assume the risk of injury caused by a defendant's negligence." (Citation omitted.) Allen v. Dover Co-Recreational Softball League, 148 N.H. 407, 413, 807 A.2d 1274 (2002). The defendants' claim of express assumption of the risk is based on the plaintiff's execution of the release. Since the court has determined that there is a genuine issue of material fact as to whether a special relationship existed between the defendants and the plaintiff with respect to her status as a member of the cheerleading club, there is a question of fact as to the validity of the release and, therefore, a question of fact as to whether the plaintiff expressly assumed the risk of being injured while performing stunts in the cheerleading club.
"The second theory, the secondary implied assumption of the risk, applies to situations where a defendant breaches a duty of care owed to a plaintiff and the plaintiff also breaches a duty of care she owes to protect herself against the harm." Allen v. Dover Co-Recreational Softball League, supra, 148 N.H. 414. Since the enactment of a comparative fault statute in New Hampshire, this species of assumption of the risk is no longer an absolute bar to a plaintiff's recovery. Id. Moreover, since for purposes of their motion for summary judgment the defendants do not contend that the plaintiff was negligent, this theory of assumption of the risk is inapplicable. Id.
"The third theory, the doctrine of primary implied assumption of the risk, applies when a plaintiff voluntarily and reasonably enters into some relation with a defendant, which the plaintiff reasonably knows involves certain obvious risks such that a defendant has no duty to protect the plaintiff against injury caused by those risks." Id.
Under New Hampshire law, "when a defendant breaches a duty owed to a plaintiff and the plaintiff knows of the danger presented by a defendant's negligence and voluntarily encounters it, the defendant may be held liable . . . The fact that the plaintiff knew of the danger and voluntarily encountered it, does not, in and of itself, bar the plaintiff from recovering for her injuries; rather, this fact is merely evidence to be considered with other relevant facts on the issue of [the plaintiff's negligence] . . . Use of the term `assumption of the risk' to bar a non-negligent plaintiff's recovery merely because she knew that a defendant breached a duty owed to her has been repeatedly rejected by [the New Hampshire Supreme] [C]ourt, which has held that a plaintiff does not assume the risk of injury simply by knowing of and voluntarily encountering a risk created by a defendant's negligence.
"When, however, a defendant owes no duty to a plaintiff in light of a particular risk, the defendant cannot be held accountable to a plaintiff who is injured upon the plaintiff's voluntary encounter with that risk. See LaFontaine v. St. John, 92 N.H. 319, 321, 30 A.2d 476 (1943) (employer had no duty to warn employee not to "occupy so precarious a position" when employer could not "have anticipated that any [employee] would [act in such a way]"). In other words, "a defendant who has no duty cannot be negligent." (Citations omitted; emphasis added; internal quotation marks omitted.) Allen v. Dover Co-Recreational Softball League, supra, 148 N.H. 416.
"Under this theory, we must determine what duty if any the defendants owed to [the plaintiff] to protect her against the risk that she would be injured when she participated in [the cheerleading club]." Id.
"Generally, persons owe a duty of care only to those who are foreseeably endangered by their conduct and only with respect to those risks or hazards whose likelihood made the conduct unreasonably dangerous . . . Determining the standard of care in a particular case, i.e., the duty placed upon a defendant under given circumstances, is a question of law . . . The standard of care against which a defendant's conduct is measured is essentially an objective one . . . and is defined as how a reasonable man might act under the same circumstances . . ." (Citations omitted; internal quotation marks omitted.) Id., 417.
In Allen, the plaintiff was hit in the head by an errantly thrown softball while participating in an adult co-recreational, slow-pitch softball tournament. Id., 409. She sued the softball league, its sponsor, and the sponsors of the teams playing in the tournament. The defendants argued that they should be held only to a recklessness standard and that "`recreational athletic activities would be chilled without a recklessness standard.'" Id., 417. The New Hampshire Supreme Court disagreed, holding that "the negligence standard, properly understood and applied, is suitable for recreational athletic activities because the conduct of a participant, sponsor or organizer is measured against the conduct that a reasonable participant, sponsor or organizer would engage in under the circumstances." Id. The court also observed that "[t]he prevailing rule of torts today is that where there is negligence by an individual or a corporation liability follows. Immunity is the rare exception." Id. Since a negligence standard applies to a participant, as well as to a sponsor or organizer of an athletic event, the court cannot conceive a principled basis on which to apply a different standard to a coach. Indeed, it does not appear that the defendants advocate for a different standard.
"Participating in a sport gives rise to `commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.' Hacking v. Town of Belmont, 143 N.H. 546, 553 (1999). Risks that are outside the range of the ordinary activity involved in the sport, however, do not reasonably flow from participation. See id. at 553-54. Thus, in ordinary negligence terms, a participant, sponsor or organizer who creates only risks that are normal or ordinary to the sport acts as a reasonable person of ordinary prudence under the circumstances . . . When one creates an unreasonable risk under the circumstances, however, he has breached the standard of care . . .
"To determine the appropriate standard of care to be applied to participants, sponsors and organizers of recreational athletics, we consider: (1) the nature of the sport involved; (2) the type of contest, i.e., amateur, high school, little league, pick-up, etc.; (3) the ages, physical characteristics and skills of the participants; (4) the type of equipment involved; and (5) the rules, customs and practices of the sport, including the types of contact and the level of violence generally accepted . . . A defendant may be held liable to the plaintiff for [unreasonably] creating or countenancing risks other than risks inherent in the sport, or for increasing inherent risks, and in any event will be held liable for reckless or intentional injurious conduct totally outside the range of ordinary activity involved in the sport, but liability should not place unreasonable burdens on the free and vigorous participation in the sport . . . A defendant, however, may not be held liable for negligent, or even reckless or intentional injurious conduct that is not outside the range of ordinary activity involved in the sport." (Citations omitted; emphasis added; internal quotation marks omitted) Allen v. Dover Co-Recreational Softball League, supra, 148 N.H. 417-18.
Wilson was under a duty to use reasonable care in coaching the cheerleading club, including directing the club in performing stunts such as pyramids. Falling from a cheerleading pyramid and thereby sustaining an injury is a risk inherent in and arising out of the nature of cheerleading, a misnomer for an athletic activity that has evolved into a form of acrobatics and gymnastics. Aaris v. LasVirgenes Unified School District, 64 Cal.App. 4th 1112, 1114-15, 75 Cal.Rptr.2d 801 (Cal.Ct.App. 1998); Rendine v. St John's University, 289 App.Div.2d 465, 735 N.Y.S.2d 173 (N.Y.App.Div. 2001); Fisher v. Northwestern State University, 624 So.2d 1308, 1311 (La.Ct.App. 1993), cert. denied, 631 So.2d 452 (1994). When the plaintiff voluntarily participated in cheerleading stunts such as a pyramid, a reasonable activity that she knew involved obvious risks such as falling, Wilson, and the defendants vicariously, had no duty to protect her against injury caused by those risks. See Allen v. Dover Co-Recreational Softball League, supra, 148 N.H. 416.
The remaining question is whether there is a genuine issue of material fact as to whether the defendants breached a duty to the plaintiff that increased these inherent risks. Although the club was not required to have a coach, once Wilson became its coach she had a duty to act as a reasonably prudent coach in view of the age of the club's members and the attendant circumstances. Fisher v. Northwestern State University, supra, 624 So.2d 1311.
The plaintiff advances several arguments in support of her contention that the defendants negligently increased the risks inherent in cheerleading. Principally, she argues that Wilson was negligent and that the defendants are vicariously liable. Since the defendants have admitted for purposes of their motion that Wilson was their agent, any negligence on her part would be imputed to the defendants under ordinary agency principles. Blue Cross/Blue Shield v. St.Cyr, 123 N.H. 137, 143, 459 A.2d 226 (1983).
In New Hampshire, "[t]he doctrine of imputed negligence . . . has been definitely limited to cases where there was a right to control in the relationship of master and servant, principal and agent or a joint enterprise." (Citation omitted.) Slough v. Schwartz, 94 N.H. 138, 140, 48 A.2d 921 (1946). The defendants do not argue that they lacked the right to control Wilson.
The plaintiff asserts her theories of negligence against Wilson through deposition transcripts of Wilson herself, the plaintiff, and various members of the club, and also through deposition excerpts of a coaching expert and a cheerleading expert. The defendants challenge the opinions asserted by these experts and the relevance of certain facts on which they rely.
As to the evidence that a court may consider in ruling on a motion for summary judgment, Practice Book § 17-46 provides: "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and show affirmatively that the affiant is competent to testify to the matters stated therein." Deposition testimony submitted in connection with a motion for summary judgment is held to the same standard. "Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997).
The plaintiff submits the deposition of James Johnson, Ph.D. Dr. Johnson opined that Wilson was not qualified to coach cheerleading and that she created an undisciplined practice environment that resulted in the plaintiff's injury. Specifically, Johnson testified:
The coach had them do a stunt that was far and away above their level. The coach did not spend the time necessary to result in a high chance of success for this particular stunt. I think the environment of the coach with regard to having students on the team who were her favorites resulted in an undisciplined environment. I believe that there were uncertainties. I believe that athletes were fearful of doing that particular stunt and . . . that particular fear and uncertainty and the poor training, frankly, of the males in this particular case, resulted in a series of events that were uncoordinated. And they were trying to do something, in my opinion, that is quite difficult, and I can base that on a huge amount of experience in this area and teaching that I believe that the coordination of that many people doing something as difficult as they were doing was dangerous.
In support of his opinion, Dr. Johnson adverted to evidence that an intoxicated person had once been permitted to attend a practice, that Wilson had favorites among the club, that she had held a party at her home attended by club members and where alcohol was served, that in an effort to get more males into the club Wilson had told the females to tell males they would be able to "grope" females.
Dr. Johnson's opinions are not considered by the court because they would not be admissible at trial. This is so for two reasons. First, Dr. Johnson has not been shown to have sufficient expertise in cheerleading. Section 7-2 of The Connecticut Code of Evidence provides: "A witness qualified as an expert by knowledge, skill, experience, training, education or otherwise may testify in the form of an opinion or otherwise concerning scientific, technical or other specialized knowledge, if the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue." As the commentary to § 7-2 states: "the witness must be qualified as an expert. See, e.g., State v. Wilson, 188 Conn. 715, 722, 453 A.2d 765 (1982); see also, e.g., State v. Girolamo, 197 Conn. 201, 215, 496 A.2d 948 (1985) (bases for qualification). Whether a witness is sufficiently qualified to testify as an expert depends on whether, by virtue of the witness' knowledge, skill, experience, etc., his . . . testimony will `assist' the trier of fact. See Weinstein v. Weinstein, 18 Conn.App. 622, 631, 561 A.2d 443 (1989); see also, e.g., State v. Douglas, 203 Conn. 445, 453, 525 A.2d 101 (1987) (`to be admissible, the proffered expert's knowledge must be directly applicable to the matter specifically in issue'). The sufficiency of an expert witness' qualifications is a preliminary question for the court. E.g., Blanchard v. Bridgeport, 190 Conn. 798, 808, 463 A.2d 553 (1983); see [Code of Evidence] Section 1-3 (a)." Johnson was not shown to have had familiarity with cheerleading. At best, his expertise was in coaching generally.
"[Q]uestions of evidence are governed by the law of the forum." Downer v. Chesebrough, 36 Conn. 39, 46 (1869); accord, 1 Restatement (Second), Conflict of Laws, supra, § 138.
Secondly, Johnson was not shown to be an expert on causation, and the matters to which he adverted could not, as a matter of law, be a cause of the plaintiff's injuries. For example, Wilson's lack of qualifications to coach the cheerleading club could not be a legal cause of the plaintiff's injuries because, in a negligence case, it is not the actor's qualifications but her acts or omissions that must be a legal cause. In Carlson v. Connecticut Co., 94 Conn. 131, 108 A. 531 (1919), appeal after remand, 95 Conn. 724, 112 A. 646 (1921), the plaintiff sued for the injuries he sustained when he was run over by a trolley owned by the defendant and operated by one of its employees. The case was tried to a jury which found for the plaintiff. On appeal, the defendant claimed that the trial court committed error in charging the jury that the defendant could be negligent "in failing to provide competent and experienced operatives for its car." Id., 136. The Supreme Court agreed. "This was not a good allegation of actionable negligence. Had its charge been well founded, the defendant would not for that cause alone have rendered itself liable to the plaintiff. Whether those concerned in the operation of the car were competent or incompetent, experienced or inexperienced, the defendant would not be liable in this action in either event, in the absence of some negligent act or omission on their part. If there was no such act or omission, there would be no liability on the part of the defendant, however inexperienced, incompetent and unfit for their tasks the defendants employees may have been. If there was such act or omission contributing to the plaintiff's injuries, the defendant would be liable however experienced and ideally competent the negligent actor servant was. The liability of the defendant, if any, must find its basis in negligent conduct on the part of its servant or servants: It cannot rest upon their want of qualification for their task alone." Id.
On the retrial of the case, the jury again found for the plaintiff and the Supreme Court again reversed for a similar reason. "Evidence of incompetency or inexperience is irrelevant because it does not prove or tend to prove the specific negligence alleged. Inactions of this character, evidence of the competency or experience, or of the incompetency or inexperience, of either party or of his servants, is inadmissible as evidence of negligence, or the reverse. The connection is too remote." Carlson v. Connecticut Co., 95 Conn. 724, 731, 112 A. 646 (1921).
In Black v. Hunt, 96 Conn. 663, 115 A. 429 (1921), the plaintiff's intestate was struck and killed by an automobile owned by the defendant and operated by his chauffeur. The complaint alleged, inter alia, that the chauffeu "was an incompetent and inexperienced operator of a car, and caused the collision by his unlawful operation of the car and by his negligent driving in the several ways set forth in the complaint." Id., 664. The case was tried to a jury which found for the defendant. The plaintiff appealed, and the Supreme Court held that incompetency and inexperience were not allegations of actionable negligence. "Under the complaint, the case presented is one of negligence by a servant of the owner in relation to a stranger, and it is not a material fact in such an action that the servant is alleged to be incompetent and inexperienced. Such an allegation in this class of cases, although accompanied by an allegation that the defendant had negligently provided an incompetent and inexperienced operator for his car and thereby caused the injury, would not be an allegation of actionable negligence. Furthermore, an allegation or claim of incompetence and inexperience on the part of a servant, in an actionon of this character, does not permit the introduction of evidence of incompetence and inexperience as tending to prove the specific acts of negligence alleged. The connection is too remote." (Citation omitted.) Id., 664-65; accord, Kurtz v. Morse Oil Co., 114 Conn. 336, 342-44, 158 A. 906 (1932).
Accordingly, Wilson's alleged lack of qualifications are not admissible against her at trial as a causally-related specification of negligence and is not considered on that issue here. Practice Book § 17-46.
Since Carlson, Black and Kurtz, the Supreme Court has recognized a common-law cause of action for negligent hiring. See Shore v. Stonington, 187 Conn. 147, 155, 444 A.2d 1379 (1982); Stiebitz v. Mahoney, 144 Conn. 443, 447, 134 A.2d 71 (1957); see also Ray v. Schneider, 16 Conn.App. 660, 672, 548 A.2d 461, cert. denied, 209 Conn. 822, 551 A.2d 756 (1988); Rutter v. Harris, Superior Court, judicial district of Hartford/New Britain, Docket No. CV 91 0503195 (July 16, 1992, Wagner, J.) ( 7 Conn. L. Rptr. 117, 7 C.S.C.R. 1051). There must, however, be more than mere speculation causally linking such negligence and the ultimate injury. Here, there is none. "[T]here must be some causal relationship between the dangerous propensity or quality of the employee, of which the employer has or should have knowledge, and the injuries suffered by the third person; the employer must, by virtue of knowledge of his employee's particular quality or propensity, have reason to believe that an undue risk of harm exists to others as a result of the continued employment of that employee; and the harm which results must be within the risk created by the known propensity for the employer to be liable." (Internal quotation marks omitted.) Schmidt v. HTG, Inc., 265 Kan. 372, 399, 961 P.2d 677, 680, cert. denied, 525 U.S. 964, 119 S.Ct 409, 142 L.Ed.2d 332 (1998); see Marquay v. Eno, supra, 139 N.H. 721; see also Spencer v. University of New Mexico, 91 P.3d 73 (N.M.Ct.App. 2004), cert. granted, 91 P.3d 604 (N.M. 2004); Saine v. Comcast Cablevision of Arkansas, 354 Ark. 492, 502, 126 S.W.3d 339 (2003); Lowe v. Surpas Resource Corp., 253 F.Sup.2d 1209, 1247 (D.Kan. 2003); cf. Bost v. Clark, 116 S.W.3d 667, 678-79 (Mo.Ct.App. 2003). Here, there is nothing in the record that suggests that the defendants knew or should have known that Wilson was not qualified to coach the club — having been a college cheerleader, certified by Pop Warner and by Cheer Ltd. — but more importantly there is no evidence that whatever qualifications she supposedly lacked contributed to the plaintiff's injury. Accordingly, the defendants' liability may not be based on negligent hiring.
So too, Dr. Johnson's opinion that Wilson permitted or created an undisciplined environment is inadmissible. There is no evidence that such an environment existed on the day of the plaintiff's fall. The plaintiff testified in her deposition that she was not aware that anyone consumed alcohol, drugs or medication on the day of the practice at which she was injured. There was no music and no distractions. Moreover, there is no genuine issue of material fact as to the lack of a causal connection between any previous "undisciplined environment" and the plaintiff's injury. Accordingly, this opinion of Dr. Johnson is also inadmissible. See generally Malloy v. Colchester, 85 Conn.App. 627, 633-35, 858 A.2d 813 (2004).
The plaintiff also has submitted the affidavit of Gerald S. George, Ph.D. Dr. George holds a doctoral degree in the field of health and physical education with an emphasis in biomechanics and is Senior Editor and Project Director for every edition of the American Association of Cheerleading Coaches Advisors, AACCA Cheerleading Safety manual. According to his affidavit, he is "intimately familiar with the proper standards and practices in the field of cheerleading, cheerleading safety and coaching." Dr. George states that "he has reviewed the depositions, pleadings, photographs, drawings and other relevant documents produced through discovery in this case, including specifically the statements and depositions of witnesses to the incident involved herein . . ."
Dr. George states in his affidavit: "Karen Wilson was not qualified to coach advanced college cheerleading maneuvers when she was hired by Keene State College in 1999, having never coached a college cheerleading squad and having never received any relevant training or certification." For the reasons discussed supra, such a claim does not give rise to actionable negligence, either against Wilson or the defendants.
Dr. George also states in his affidavit: "A coach should never require an injured cheerleader to perform in any cheerleading activity despite an injury. Karen Wilson's acts of encouraging student athletes to perform in cheerleading activities despite injury and without listening to grievances contributed to an undisciplined practice environment, which was a substantial contributing factor to plaintiff's injury." Preliminarily, the record fails to support Dr. George's statement that Wilson failed to listen to grievances. More importantly, even if Wilson had in the past encouraged club members to perform cheerleading activities despite injury, there is nothing in the record to suggest that she did so on the date of the plaintiff's accident or that there prevailed on that date an undisciplined practice environment. "An opinion of an expert may be unreasonable because the grounds upon which it rests are so unreasonable as to make it an error of law for a court to base its decision upon the opinion." Driscoll v. Jewell Belting Co., 96 Conn. 295, 299, 114 A. 109 (1921). This is the case here. This opinion by Dr. George does not raise a genuine issue of material fact.
Dr. George further states in his affidavit: "A college is responsible for supervising and continually evaluating a college cheerleading club on an ongoing basis and hiring a qualified college cheerleading coach just as it gains the benefits of having a college cheerleading program. Keene State College failed to properly supervise and continually evaluate the cheerleading club's activities during the 1998-2000 school years and thereby substantially contributed to the plaintiff's injury. Keene State College, through its employees, realized or should havrealized, the risk of serious harm involved with college cheerleading before 1998."
"Determining the standard of care in a particular case, i.e., the duty placed upon a defendant under given circumstances, is a question of law." Allen v. Co-Recreational Softball League, supra, 148 N.H. 417. Under the test for duty in Allen, supra, 417-18, and considering the admitted hazards involved in cheerleading, and that the activity did not involve competing teams, the participants were adults, no equipment was used, the only contact was consensual and no violence was involved, the court cannot say that KSC had a duty to prohibit the cheerleading club from being self-governing, or to provide it with anything other than a faculty or staff advisor who was not required to have any expertise in cheerleading, and who was not required to attend every practice or meeting. Butler, the club's advisor, knew that cheerleading could result in serious injury, and she did not attend club practices. However, given her lack of any expertise in cheerleading, it is mere speculation to say that had she done so she would have prevented the plaintiff's injury. See Hearl v. Waterbury YMCA, 187 Conn. 1, 444 A.2d 211 (1982). There is no genuine issue of material fact that any such failure on her part to supervise the club's activities was not a cause in fact of the plaintiff's injuries.
Dr. George also opines that "a cheerleading coach must be able to accurately assess performer readiness and choose stunts that coincide with the skill and talent level of the individual cheerleaders as well as the entire cheerleading squad they coach. Karen Wilson failed to properly assess performer readiness and thereby chose stunts totally inappropriate for the KSC squad and beyond their skill level." How Dr. George divined that Wilson failed to assess performer readiness and thereby chose inappropriate stunts above the skill level of the club is not disclosed in his affidavit nor is8. it apparent from the record.
However, Dr, George states in his affidavit that
[p]ursuant to the standard of care for cheerleading coaches, coaches must insure that college cheerleaders follow proper teaching progressions . . .
It is a violation of the coach's standard of care to allow a cheerleading club to attempt to perform a pyramid . . . without using proper progressions with the same group of cheerleaders in the same positions . . .
A 2.5 High pyramid is a pyramid with three tiers of cheerleaders and is the highest allowable pyramid in college cheerleading. A 2.5 High pyramid is an extremely difficult pyramid and should never be attempted unless proper progressions are followed as to each stunt involved and a substantial amount of practice over time. No cheerleader, including a spotter, can be prepared to safely perform a 2.5 high pyramid after only one month of practice with the same squad or stunt group.
The defendants do not dispute the "2.5" pyramid referred to in Dr. George's affidavit is another name for the kind of pyramid from which the plaintiff fell.
Dr. George is qualified to render this opinion. Further, there is support in the record for his opinion. According to the plaintiff: "Other pyramids that we did . . . they would go up first and then I would go up last and step into their [middle tier fliers'] thighs, but this one I had stood on their thighs to begin with and we all went up together." Moreover, a trier could reasonably infer that if the stunt group did not follow a proper progression before attempting the pyramid, such a failure could have been a legal cause of the plaintiff's fall and resulting injuries. If Wilson did not require the group to follow proper progressions, such a failure could have created an unreasonable risk that would increase the inherent risk that the plaintiff undertook. Allen v. Co-Recreational Softball League, supra, 148 N.H. 417-18. Therefore, there is a genuine issue of material fact as to whether the plaintiff assumed the risk of Wilson's negligence, which negligence is imputed to the defendants by reason of their agency relationship with Wilson.
In conclusion, the defendants' motion for summary judgment is denied as to the first count of the amended complaint and granted as to the second and third counts.
BY THE COURT
Bruce L. Levin Judge of the Superior Court