Jan. 27, 2009 – An injured cheerleader could not overcome the statutory immunity from negligence lawsuits granted to a school district and a fellow student involved in scholastic sports, the Wisconsin Supreme Court held.

The statutory shield from negligence liability in connection to school sports withstood a challenge before the Wisconsin Supreme Court from an injured cheerleader in Noffke v. Bakke, 2009 WI 10.

Cheerleader Brittany Noffke was performing a stunt that called on fellow cheerleader Kevin Bakke to lift her up onto the shoulders of a third cheerleader. This maneuver had not been attempted by these students before and no mats were provided by the coach. Bakke was supposed to remain behind Noffke in case she fell, but he did not. Noffke fell and struck her head.

Noffke argued that Bakke had negligently failed to spot her. She also alleged that the coach had failed to provide a second spotter and the coach should have required mats. Before the trial court, Bakke and the school district successfully asserted immunity from negligence suits arising out of recreational sports activities found in Wis. Stat. § 895.525 (4m)(a) and immunity for the acts of public employees found in Wis. Stat. § 893.80 (4), respectively. On review, the court of appeals upheld the school’s claim of immunity, but found Bakke exposed because cheerleading is not the type of competitive contact sport within the meaning of § 895.525.

The supreme court affirmed the finding for the school district and reversed regarding Bakke.

Qualifications for recreational sports immunity

Analyzing § 895.525 (4), the court set out a four-part test for Bakke to qualify for immunity:

• Participation in a recreational activity
• The recreational activity includes physical contact between persons
• Those person are participating in a sport
• The sport involves amateur teams

In this case, the dispute hinged on the meaning of the last three elements. To satisfy the second step, the court relied upon a dictionary definition of “physical contact” and the cheerleading rule book’s depictions of stunts involving forceful interactions between participants. The court then applied dictionary definitions to “sport” (“an activity involving physical exertion and skill that is governed by a set of rules or customs”) and “team” (“a group organized to work together”).

The court turned away Noffke’s argument that the Legislature intended to cover the aggressive contact of football rather than the incidental touching of cheerleading. The court criticized Noffke for grounding this argument in the title of subsection (4)(m): “Liability of contact sports participants.” The court said that the title of a statute is not part of the law and it cannot affect its interpretation. Moreover, the court said the distinction between “aggressive” and “incidental” contact is too uncertain.

Likewise, the court rejected Noffke’s effort to impose a requirement of “competition.” The court observed that the word is absent from the statute and reading it into the law would lead to inconsistent results between a football team playing a game versus merely practicing.

Was Bakke reckless?

The immunity under § 895.525 (4) is lost if the defendant was reckless – that is, acting in conscious disregard of an unreasonable and substantial risk of serious bodily harm to another. The court of appeals ruled that Bakke was not reckless, but Noffke argued that this was a question properly reserved for a jury.The supreme court ruled that the record contained no indication that Bakke’s errors were more than “a lack of skill, inadvertence or simple negligence.”

School district liability

Noffke argued that the school district should lose its immunity because its employee violated a ministerial duty imposed by law. A ministerial duty is one that is so highly routinized in the time, mode, and occasion for its performance that the actor has no discretion for variation.

Specifically, Noffke contended that the official cheerleading rule book calls for a coach to provide a spotter and mats. Reading the regulation book, the court found that the purported “rules” are suggestive guidelines, leaving coaches with considerable leeway. Further, the court noted that the school district never officially adopted these rules.

Alternatively, Noffke argued that the coach was confronted with a “known and compelling danger” that gave rise to a ministerial duty to take precautions. The court said that although mats were not provided and this was the first time these cheerleaders performed this particular stunt, the record showed that they had performed more difficult stunts together. Additionally, Noffke herself believed the stunt was “medium easy” and the coach had assigned Bakke to be Noffke’s spotter. Consequently, the court found that the danger presented did not rise to the requisite level to impose a duty upon the coach.

The court added that when a known danger imposes a ministerial duty, the need for corrective action must be so clear that there is just one available response. In this case, the court said that there were a wide range of precautions that could have been taken, including the coach’s appointment of a spotter to prevent injury. The court said the situation was not so perilous that the coach could only have provided mats, as argued by Noffke.

Abrahamson’s concurrence

Chief Justice Shirley Abrahamson concurred with the court’s conclusion, joined by Justice Ann Walsh Bradley. Abrahamson agreed with the majority’s conclusion but criticized its reliance upon dictionary definitions.

“Dictionaries usually furnish more than one meaning to a word, and a court has to be careful not to select a friendly definition it likes from the many offered without explaining its choice,” Abrahamson wrote. She said that other, equally valid definitions of “sport” and “team” convey “an element of competition that may or may not be present in cheerleading.”

Abrahamson advised the better approach to construing the statute was by finding the interpretation that best advanced its legislative purpose. In this instance, she said the Legislature expressly sought to decrease “uncertainty regarding the legal responsibility for deaths or injuries that result from participation in recreational activities and thereby to help assure the continued availability in this state of enterprises that offer recreational activities to the public.”

Consistent with that principle, Abrahamson said that the court properly decided the issue when it rejected efforts to narrow the immunity statute by imposing a requirement of “competition.” Such a stipulation would create uncertainty when “a cheerleading squad may cheer at a basketball game one day but then competes in an organized cheerleading contest the next,” she said.