People love to argue about sports. And lacking something really important to argue about, like a Bears-Packers game, they may turn to more trivial issues. Like whether auto racing is a sport, or just gearheads making a lot of left turns. Or whether snowboarding a real sport, or just hippies playing in the snow.
But if a Wisconsin Supreme Court opinion is to be considered binding precedent for purposes of trivial arguments between friends, those arguments are moot.
On Jan. 27, the Supreme Court held that cheerleading is not only a sport, but a “contact sport,” within the meaning of the state’s recreational immunity statute.
As a result, a high school cheerleader who was allegedly negligent while performing a stunt and the school district are immune from liability for injuries sustained by a fellow cheerleader who was injured as a result of the negligence.
James S. Naugler, of Moen Sheehan Meyer Ltd. in La Crosse, who represented the defendant, hailed the ruling.
“This will allow children to participate in cheerleading without fear of being sued for simple negligence,” Naugler said. “The fact is, cheerleading is a highly dangerous sport, involving tossing bodies in the air over a hard surface, not just pompoms.”
In 2004, Brittany Noffke fell while practicing a cheerleading stunt without any floor mats. She sued a fellow cheerleader, Kevin Bakke, for not properly spotting her. She also sued the school district, alleging that the coach was negligent by failing to provide a second spotter, and failing to require the use of mats.
The circuit court granted summary judgment to Bakke and the school district, based on recreational immunity, and governmental immunity grounds, respectively.
The Court of Appeals affirmed as to the school district, but reversed as to Bakke, holding that cheerleading is not a contact sport. 2008 WI App 38, 308 Wis.2d 410, 748 N.W.2d 195.
The Wisconsin Supreme Court granted review, and reversed in part, in an opinion by Justice Annette Kingsland Ziegler, holding that cheerleading is a contact sport.
The statute at issue, Section 895.525(2), broadly defines “recreational activity” to include many enumerated activities and also “any other sport.”
Subsection (4m)(a) grants immunity to participants in a “recreational activity that includes physical contact between persons in a sport involving amateur teams” unless the participant acted recklessly or with intent to cause injury.
The court found four elements necessary for a defendant to obtain the benefit of immunity: (1) participation in a recreational activity; (2) the recreational activity must include physical contact between persons; (3) the persons must be participating in a sport; and (4) the sport must involve amateur teams.
The parties did not dispute that cheerleading is a recreational activity, but Noffke argued it is not a contact sport involving competitive teams, and thus, was not covered by the statute.
Defining a Sport
Citing general dictionaries, however, the court held that cheerleading is a sport, because it is “An activity involving physical exertion and skill that is governed by a set of rules or customs.”
It also held that cheerleaders are members of amateur teams, because a team is “A group organized to work together.”
Finally, it held that cheerleading involves a significant amount of physical contact between participants.
Noffke argued that “physical contact” implicitly means contact between players on opposing teams, but the court disagreed.
The court found that implicit condition contrary to the plain language of the statute.
In addition, the court noted that such an interpretation would deny immunity when a football team practices, and is not in competition with another team, and would only permit immunity for conduct during a game.
“Perhaps such inconsistent applications could be why the legislature specifically chose not to insert a competition requirement into this statute,” Justice Ziegler wrote.
Naugler agreed the language of the statute dictated the result. The Court of Appeals had held that cheerleading was not a “contact sport,” because dictionary definitions of that term expressly limit its application to sports “between opponents.” 748 N.W.2d at 200.
However, Naugler successfully argued to the court that subsec. (4m)(a) itself provided the definition for “contact sport,” so the dictionary definitions do not apply.
Turning to the liability of the school district, the court held that the cheerleading coach violated no ministerial duties, and thus is immune from liability pursuant to sec. 893.80(4).
Chief Justice Shirley S. Abrahamson wrote a concurrence joined by Justice Ann Walsh Bradley, taking issue with the lead opinion’s method of analysis.
Quoting U.S. Supreme Court Justice Antonin Scalia, Abrahamson quipped that resorting to dictionaries to define terms can be “the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one’s friends.”
Abrahamson cited a definition of “sport” that included the language “often undertaken competitively,” and a definition of team that included, “as in a game.” These definitions, Abrahamson found, plainly imply that competition is an implicit characteristic of team sports.
“Just this last September, a Washington Post article stated that ‘cheerleading is not officially considered a sport at most high schools and universities’ and that ‘cheerleading in most states is not considered a sport; it’s an “activity” such as chess club and debating,’” Abrahamson wrote. “It would be very odd if the high schools, universities, and states that do not consider cheerleading a sport could discover the error of their ways simply by consulting a dictionary.”
Nevertheless, because it would further the purpose of the recreational immunity statute to include cheerleading as a contact sport, Abrahamson concurred in the result.
Naugler also agreed with the concurring justices’ discussion of statutory purpose: “The overall goal and policy is that we want people to be able to participate in recreational amateur sports and assume the risk for simple negligence, while still allowing a cause of action against ‘thugs’ who act recklessly or intentionally.”
Left unresolved in the opinion is whether it will apply to sports in which contact is not an integral part of the sport, but which nevertheless involve risk of contact.
The court wrote, “We encourage the legislature to … consider our interpretation … and how the statute may apply to such school team sports as golf, swimming, or tennis.”
River Falls attorney Tracy N. Tool, who represented Noffke, said the decision could apply to sports such as swimming and skiing.
“Even though they are not traditional ‘contact sports,’ they could be included if there is an inherent risk of contact,” Tool said.