December 2018

Last week, the Ninth Circuit held that secondary head injuries suffered after a potential concussion are not “inherent in the sport” of water polo and, therefore, USA Water Polo owed a minor athlete a duty of care to set protocols for returning to play after sustaining a potential concussion.

Alice Mayall, whose 16-year-old daughter allegedly suffered from post-concussion syndrome, brought a class action against USA Water Polo for injuries her daughter allegedly sustained when playing water polo. Mayall’s daughter was playing goalie in a water polo match when she was struck in the head by a ball. After swimming to the side to meet with her coach while “dazed,” she allegedly received no guidance or instruction on whether she should return to play. Later in the game, she was allegedly struck again and several days later began to suffer from headaches, sleepiness, and severe fatigue. 

Mayall asserted that USA Water Polo was liable for her daughter’s injuries because it failed to implement and follow its own concussion management protocol and  return-to-play procedures for youth water polo players. The Central District of California dismissed the claims finding under California law that USA Water Polo did not owe the youth player a duty of care because secondary head injuries are “inherent in the sport.”  

The Ninth Circuit reversed this decision, finding  that “[i]t requires no depth of analysis to recognize that when one injures himself, further use of the injured member will likely exacerbate the condition.” The Court distinguished between an initial blow to the head, which is an inherent risk in many sports, including water polo, but held that “while a water polo coach may be unable to protect a player from an initial blow to the head, the player can be protected from a secondary injury from a repeated blow, where the greatest danger exists and was reasonably to be expected.” Taking the plaintiff’s allegations as true, which is required for a motion to dismiss, the Court reasoned that because the coach knew that Mayall’s daughter had been hit in the head, had time to evaluate her, and knew or should have known of the risk in returning to play, the assumption of the risk doctrine did not apply and USA Water Polo may have owed her a duty of care.

The Ninth Circuit noted, however, that its holding is not intended to impose a duty of care that would “alter fundamentally the nature of the sport.” But, where there is a concussion management policy already in place that contains return-to-play protocols, like the one established by USA Water Polo, the Court allowed for a second injury to fall outside of the assumption of the risk doctrine to potentially impose a duty of care. Here, it was alleged that the player’s coach knew that she had been hit in the head, had time to evaluate her, and knew or should have known that returning her to play had the potential of significantly exacerbating the injury. The Court found that under these alleged circumstances, the injury involved was not an inherent risk and, therefore, USA Water Polo may owe the player a duty of care.  

As a result of the Court’s ruling, the claims for negligence, breach of voluntary undertaking, and gross negligence will proceed in an attempt by Mayall to impose a duty for USA Water Polo to protect youth athletes from concussions.