Opinion
2019-01190JD
03-10-2023
SHAE EICHELE Plaintiff v. CLEVELAND STATE UNIVERSITY Defendant
Sent to S.C. Reporter 4/27/23
DECISION OF THE MAGISTRATE
ROBERT VAN SCHOYCK MAGISTRATE JUDGE
{¶1} This case arises from an incident in which plaintiff, a member of defendant's cheerleading team, injured her ankle during a team practice on January 10, 2018. Plaintiff's causes of action, enumerated as Counts One and Two of the complaint, are for "Negligent Hiring, Supervision, Retention and Training" and "Gross Negligence/Recklessness". The case was tried before the magistrate. For the reasons set forth below, judgment is recommended in favor of defendant.
SUMMARY OF TESTIMONY
{¶2} Plaintiff testified about how she became involved in gymnastics at a young age and was in a travel cheerleading group by the time she was about four years old. She recounted being in several cheerleading organizations in her youth and how she participated in competitive cheerleading beginning in third grade and into high school. Plaintiff also explained how she started coaching cheerleading and gymnastics starting at around age 13 or 14 and continued doing so for several years.
{¶3} Plaintiff acknowledged that in her experience injuries are a common and natural part of cheerleading. Plaintiff described suffering a left ankle injury late in 2011 while in the seventh grade when she came down from a lifted position, which resulted in a 2012 surgery performed by Dr. Gladys de Leon. Plaintiff stated that she returned to competitive cheerleading later in 2012. Plaintiff described reinjuring the ankle in 2015 when she tripped while landing a back tuck, leading to a second surgery with Dr. de Leon. Plaintiff stated that she regained full functionality in the ankle after the surgeries but admitted having intermittent pain, although she described it as normal pain associated with gymnastics and maintained she was able to do everything she had been able to before, such as running, jumping, and snowboarding.
{¶4} Plaintiff stated she was predominately a "flyer" in her competitive cheerleading programs, essentially meaning she would be at the top position in stunts, as opposed to the bases and spotters on the ground. Plaintiff explained that there is a range of difficulty with stunting and the degree of risk to the flyer goes up with more advanced stunts. Plaintiff stated that by the last couple of years of high school, she continued cheering with her high school team but scaled back her involvement in competitive cheerleading, in part to focus on academics but also to put less stress on her body.
{¶5} Upon graduating from high school in 2017, plaintiff explained, she enrolled with defendant and did not necessarily want to join the cheerleading team but decided to try out because she wanted to make friends. Plaintiff understood only low-level tumbling skills were required and she wanted to keep the risk and stress to her body at a low level. Plaintiff testified that she was selected for the team and had to complete corresponding paperwork, including an "Athlete Information, Consent, and Release", an "Exit Appraisal Agreement", and a medical "Pre-Participation Evaluation". (Defendant's Exhibits M, N.) In the medical form, plaintiff stated, she indicated that she had a bone, muscle, or joint injury that bothered her and that she regularly used a brace, orthotic, or other assistive device, explaining at trial that this referred to her left ankle, which would hurt or swell sometimes during strenuous activity, and with regard to assistive devices she had been instructed by Dr. de Leon after the 2012 injury to always tape the ankle. The physician who reviewed the medical form and evaluated her cleared her to participate with no restrictions, she stated.
{¶6} According to plaintiff, at the cheerleading tryout and a subsequent instructional camp she told the coach, Shelly Hanna, about her injury history and that she wanted to limit her participation in higher-impact drills, including avoiding or at least limiting any participation as a flyer in stunts. Plaintiff acknowledged that everyone had to participate in stunts at the tryout but stated that when the team formed into groups at the camp Hanna had her serve mostly as a base in stunts; she acknowledged being a flyer at the camp in at least one stunt, though, known as a basket toss. Plaintiff recalled that she never sat out any stunts or practices, but there were certain tumbling skills that were too impactful and so she would perform a substitute skill. Plaintiff recalled Hanna having her perform some skills in ways that were easier on her ankle, such as landing from a cartwheel on one ankle rather than two. Plaintiff testified that for each practice either she or Athletic Trainer Max Benton would tape her left ankle. According to plaintiff, she had a good relationship with Benton and thought he looked out for her best interests. She recalled Benton telling Hanna to not have her run at practices but did not otherwise recall him restricting her activities nor did she ask him for additional restrictions.
{¶7} While plaintiff primarily served as a base for the team, there were times that she served as a flyer, she acknowledged. Initially, plaintiff stated that she did so no more than five times but later said it happened up to ten times and identified several different stunts in which she was as a flyer including liberties, basket tosses, shoulder sits, and elevators. Plaintiff stated that the stunts in which she flew were "level one, very, very easy skills" that did not put her ankle at risk, although she stated that the elevator stunt, for example, involved having two bases hold her up in the air by her feet, and the liberty involved having the bases hold her up in the air by one ankle. Plaintiff testified that during a practice in December 2017 she fell on her back while attempting a basket toss and had to undergo x-rays, which came back negative; she attributed this fall to her own error. According to plaintiff, the instances of her flying went against her wishes to only serve as a base, but she wanted to be a 'good soldier' and agreed to do so.
{¶8} The injury from which this case arises occurred during a two-hour practice on the evening of January 18, 2018, plaintiff stated. Plaintiff recalled that when practice started Hanna said they were going to prepare a routine for a halftime performance at an upcoming basketball game, starting with tumbling skills that no one had done in a while and then they would do a rewind stunt. According to plaintiff, there is no stunt in cheerleading more advanced than the rewind and it had not been attempted during her time with the team. Plaintiff stated that she performed the rewind stunt once before, in 2015. Plaintiff described how it is performed with bases on the side and a spotter in the back and the flyer is launched into the air such that she rotates to perform a free flipping backflip before being caught by the bases.
{¶9} Plaintiff explained that throughout the season she was in a stunt group primarily comprised of Lindsay Arter and herself as base partners, Katie Turocy as the back spot, and Bree Kovalkevich as the flyer, but at this practice Hanna substituted Lexi Spraggins for Kovalkevich. The four of them had not previously trained together, plaintiff stated. In plaintiffs experience, she stated, a stunt group typically works together consistently over the course of a season and gets to know each other's abilities and tendencies, with each person having a primary function.
{¶10} According to plaintiff, the team did some tumbling skills to warm up, but they did not perform proper progressions for the rewind stunt, practicing only a "timer" drill together. In her experience, plaintiff stated, skill levels are mastered progressively, from simple to difficult, and a more difficult skill is not attempted until the appropriate lower-level skills have been mastered. Plaintiff testified that in the latter part of the two-hour practice the group worked on the rewind stunt, initially with Spraggins as the flyer. Plaintiff described Spraggins as less petite than Kovalkevich such that her being the flyer made the stunt more difficult. Plaintiff, serving as a base with Arter, stated that they caught Spraggins but not in the correct manner, so the attempts were considered to have failed. Thereafter, according to plaintiff, Hanna said "Shae, step in."
{¶11} Plaintiff testified that although she was hesitant, her teammates were looking at her and "[t]his seemed like a stunt that everyone wanted to do." Plaintiff stated that she went ahead and switched positions with Spraggins and the group then practiced the timer drill with her as the flyer to prepare for the rewind. Plaintiff recalled then telling Hanna that "if they drop me, this isn't going to end well for me", at which point Hanna grabbed the shoulders of the bases and said "girls, don't drop her." Plaintiff also stated that Hanna positioned additional spotters around the group, which plaintiff said was not unusual when trying new stunts. By plaintiff's account, however, Hanna "completely ignored my call * * * for any sort of help". The group made two unsuccessful attempts at the rewind stunt, each ending with plaintiff falling to the mat on her knees. After both of those attempts, Hanna said to try it again, and in plaintiff's recollection Hanna's tone was demanding. On the third attempt, the toes of plaintiff's left foot hit the mat and then her ankle rolled outward such that the ankle bone came down on the mat.
{¶12} Plaintiff stated that she was immediately in great pain and knew she had "blown out" her ankle because she had done it twice before. Plaintiff testified that she recalled Hanna tried to talk to her and said "say something so I can help you", but she did not want to talk to anyone so she put out her hand to signal this, then stood up on her right foot and hopped to the side of the gym. Plaintiff recalled telling teammates to get ice as well as scissors to remove the tape from her ankle. Plaintiff also recalled that Hanna wanted her to keep the ankle taped and to call for an ambulance but she removed the tape herself, stayed until the end of practice, and drove herself home.
{¶13} On January 15, 2018, plaintiff was seen by Dr. Mark Mendeszoon, a podiatrist who indicated she would probably need surgery that would include fusing the ankle but he wanted to get an MRI first, plaintiff stated. Plaintiff understood she would not be able to cheer anymore with an ankle fusion, so according to her she told Hanna via text message that she would no longer continue with the team, and on January 18, 2018, she visited with Benton and told him too that she would not return to the team. Plaintiff explained that she no longer has the text message she recalls sending to Hanna and has no documentary evidence as to when she quit the team.
{¶14} Because Dr. Mendeszoon was plaintiff's own podiatrist, she testified that Benton told her she needed to see a team doctor for defendant to determine if it would provide insurance coverage. Plaintiff stated that she accordingly saw Dr. James Rosneck, an orthopedic surgeon with the Cleveland Clinic, as instructed by Benton, and she also stated that she signed and returned all documents that defendant-through Benton or otherwise-asked her to sign. Plaintiff felt Dr. Rosneck did not adequately evaluate her ankle and it was a "pretty incompetent visit." From that time on, plaintiff stated, she treated only with Dr. Mendeszoon, who went ahead with surgery on March 14, 2018, and put her in a cast until May 2018. According to plaintiff, she followed the instructions of Dr. Mendeszoon and a physical therapist and was as active as she could be in trying to rehabilitate the ankle but continued experiencing unbearable pain and developed a limp. Plaintiff testified that Dr. Mendeszoon performed a second surgery in December 2018 to remove screws that had been placed for the fusion and see if that would alleviate her pain and improve her mobility, but the pain only worsened.
{¶15} Plaintiff stated that she went to see an orthopedic surgeon at University Hospital for a second opinion, and he referred her to a pain management specialist there, Dr. Salim Hayek, who diagnosed her with complex regional pain syndrome. Plaintiff discussed the treatments she has undergone with Dr. Hayek, starting with a ketamine infusion that was discontinued after a bad reaction, and then moving on to others, including pain-blocking shots. Plaintiff-who described having profound emotional distress over her situation-stated that she was willing to try anything to alleviate her pain, and in November 2021 she had a dorsal root ganglion stimulator surgically implanted in her back, which she can adjust to alleviate pain as needed but she had not had much opportunity to use it yet at the time of trial.
{¶16} In short, plaintiff stated, she has been in constant pain since January 2018 and her pain level never goes below a seven on a scale of one to ten. Plaintiff identified certain activities she can no longer perform, including running, cycling, jumping, diving, squatting, and deadlifting, and she cannot hike due to the uneven terrain, but she remains as active as she can and goes to a gym every night. Defendant questioned plaintiff about photographs of her in various places as well as a video of her at a trade show, and she explained how, in her view, they were consistent with her claimed physical limitations. Along those lines, on rebuttal plaintiff called as witnesses Kent Luciano and Rich Gent, who each testified to their personal observations of her.
{¶17} Holly Eichele, plaintiffs mother, testified about plaintiff's history in gymnastics, cheerleading, and other athletic pursuits. From her recollection, plaintiff had some concerns about Hanna as a coach but had not expressed any fear of injury, and she had observed plaintiff cheering on the sidelines at basketball games and being lifted onto the shoulders of other cheerleaders. She stated that plaintiff recovered fully and had no limitations after the 2012 and 2015 surgeries but she has observed plaintiff have a far more difficult path, both physically and emotionally, after the January 2018 injury and subsequent surgeries despite being a tough, hard-working person.
{¶18} William Eichele, plaintiffs father, testified he was with her at the January 15, 2018 appointment with Dr. Mendeszoon and that afterward they decided she would quit the team and discussed how to communicate this to Hanna, and he helped her write a text message that she sent to Hanna that evening or the next day. He also talked about his observations of and interactions with plaintiff since the injury, including the significant impact her ankle issues have had on her well-being.
{¶19} Connor Gawry, plaintiffs boyfriend, discussed the differences he has observed in her physical abilities before and after the 2018 injury, which he said changed her life in a major way. Gawry recalled her resuming her normal activities without limitation after the 2015 injury and surgery and enjoying a variety of physical activities, but he stated that she now cannot do many of those things, and although she still goes to the gym regularly she cannot do all the weightlifting exercises she used to. Gawry talked about the physical pain he has seen her in, as well as the emotional suffering he has seen.
{¶20} Richele "Shelly" Hanna, whose surname was Prest during the events underlying this case, testified that she was defendant's cheerleading coach 2015 to 2021. Hanna explained it was a part-time job, and her primary employment was with Varsity Brands, a leading provider of cheerleading camps and apparel. Hanna described how, with a background in gymnastics, she began cheerleading in the eighth grade and continued through four years of high school and cheered competitively in a club program during her last two years of high school. Hanna stated that in 2003 she matriculated at Kent State University and attended cheerleading tryouts with 60 to 100 students, and though she was not selected that time she was selected the next year and went on to cheer there for five years. Hanna stated she cheered at football and basketball games and was part of a nationally competitive team.
{¶21} In terms of coaching, Hanna started coaching at the North Coast All-Stars club program at age 15, teaching tumbling and classes for young children, she stated. During her first two years of college, Hanna taught at high school camps put on by North Coast, she stated. Hanna related she then worked for Universal Cheerleaders Association (UCA) from 2006 to 2011, through which she taught at high school and college camps throughout the United States and several other countries. Hanna explained how stunting was taught in the camps, with safety principles being taught at the outset of every stunt class, including how to catch a 'top girl' or flyer. Hanna passed a test to earn a safety certification she held throughout her time with UCA ending in 2011, although she did not renew it beyond then and defendant did not require her to be certified. Hanna stated she went on to coach club cheerleading in Cincinnati for a year before going to work for Varsity Brands.
{¶22} Hanna testified about how she came to be hired by defendant-including being interviewed in-person by athletic department administrators about her background and experience-and she discussed her responsibilities, which, in addition to putting together a team and coaching at practices and appearances, included purchasing apparel, fundraising, and communicating with the athletic department, including her supervisor Brandon Longmeier. Hanna testified about documents distributed to team members at the beginning of the season outlining expectations and policies; when asked about a provision stating that in all situations coaches make the final decision, she explained that this was directed toward ensuring team members reliably came to team events, which had been a problem when she took over as coach. (Plaintiffs Exhibits 3, 4; Defendant's Exhibit O.) Hanna was also asked about her familiarity with certain cheerleading safety manuals and explained that because of her training and experience in cheerleading and teaching cheerleading she did not rely on them. Hanna testified that through defendant she received training and certification in first aid and CPR, and she recounted attending conferences for cheerleading coaches.
{¶23} Each summer Hanna ran tryouts to select the team and had the team attend a camp, she stated, recalling that after plaintiff joined in 2017, together with Youngstown State University's team they attended a three-day camp run by UCA and worked on sideline cheers, the fight song, and stunts. Practices were held in the auxiliary gym of defendant's Wolstein Center, Hanna stated, on safety mats that were about two inches thick. Athletic Trainer Max Benton assisted the team, Hanna stated, taping ankles and wrists for cheerleaders before practice, overseeing injury rehabilitation, and setting up annual physical exams. At practices, before working on skills the team warmed up, ran laps, and performed plyometrics and stretches, according to Hanna, who explained that she used the same routine at each practice of having the team, after warming up, do the same progressions together, starting with easier skills and moving progressively up to more difficult skills and stunts, and if they struggled with a skill they would work on it and not go past. Hanna stated that at practices she discussed any upcoming appearance the team was scheduled to make and what they planned to do there, including whether anyone had a class that would prevent them from attending. Hanna contrasted practices with game days, saying practice is the time to learn and grow, whereas at games the team only did stunts that were performed successfully in practice.
{¶24} Hanna explained how the rewind stunt is performed and that she had experience teaching it at college cheerleading camps. The rewind stunt is an advanced-level stunt in college cheerleading, according to Hanna, and high school teams in Ohio are not allowed to perform it. All stunts carry some risk, Hanna testified, the degree of risk varying with the degree of difficulty. Hanna had some memory of the team performing rewind stunts in a halftime appearance at a basketball game but did not remember the year or years when that happened. Hanna recounted that the team gave halftime performances during basketball games each February and stated that at the practice in question the team may have been learning the rewind stunt for such a performance.
{¶25} The team was well into its season when the rewind stunt was attempted for the first time at the practice on January 10, 2018, Hanna stated, and over the course of the season team members completed progressions through many different skills that led up to the rewind. Hanna testified that she saw the team three times a week for practice and did not feel it necessary to keep a written list of the progressions that they went through nor was she aware of others in the field keeping such a record, though she admitted this would be a best practice, but she described being deliberate and consistent about having the team work through progressions. Although Hanna could not specifically identify all the progressions team members would have gone through, she stated that she would have known at the time and was confident that through the consistent way she worked the team through progressions they would have hit all the necessary progressions.
{¶26} Hanna stated that when she had plaintiff switch from being a base in the stunt to being the flyer, she thought the stunt would 'hit' more successfully than it had with Lexi Spraggins as the flyer. Hanna explained that while it is ideal in theory to keep groups of performers together at all times, the practical reality is that college cheerleaders often have to miss gameday appearances due to their class schedules, so the groups cannot always remain the same; consequently during practices she liked to switch stunt partners in and out so that they were more versatile and learned multiple roles, like being a base and a flyer. Hanna stated that plaintiff did not tell her that she did not want to do the rewind stunt that day nor did she have any recollection of plaintiff saying it would not end well. As Hanna described, she was standing at the front of the mat and would have been able to hear. Hanna stated that she has never forced a cheerleader to perform a stunt and specifically denied demanding, forcing, or saying that plaintiff had to be the flyer in the rewind stunt. According to Hanna, she simply "had her do it." Hanna testified that she has never had a cheerleader tell her that they did not want to participate in a particular stunt, but that she would not dismiss someone from the team for doing so, and if plaintiff had said she did not want to be the flyer in the stunt she would have asked why and had a conversation about it. Hanna agreed it would be wrong to force an unwilling participant to perform the stunt.
{¶27} Hanna testified that she and plaintiff spoke earlier in the season about plaintiffs history of left ankle surgeries and corresponding concerns about tumbling and stunting, including not wanting to be a flyer. As a result, Hanna stated, during practices she took care to limit the impact on plaintiffs ankle, for example, not having her do some of the higher-impact tumbling or having her come out of a stunt in a lower-impact way. Hanna stated that there is a risk of injury in doing anything in cheerleading, especially in learning new skills, and having plaintiff be the flyer in the rewind stunt increased the level of risk. Hanna agreed a coach should not place a cheerleader at an increased risk of injury beyond the normal risk associated with the sport.
{¶28} Hanna did not specifically recall telling the two bases in the rewind stunt not to drop plaintiff but testified that she has said things like that because of the importance of keeping flyers from hitting the floor. Hanna also did not specifically recall calling over other team members to serve as extra spotters but said it was something she commonly did when new skills were practiced. Hanna testified that she observed the stunt and that from her recollection when plaintiff finished rotating, the bases caught her feet but not well enough, as her feet slipped through their hands and hit the floor. Hanna could not recall exactly how plaintiffs feet landed but understood she hurt her ankle when landing. Hanna did not recall plaintiff saying anything to her, nor could she remember anything she said to plaintiff, and she stated that no one called 911.
{¶29} Hanna testified that she had no reason to think when plaintiff came down from the rewind stunt that she would stop cheerleading. Hanna stated that she knew plaintiff had some meetings with the athletic trainer, which she said was the normal course for an injured team member. As Hanna recalled, plaintiff attended a couple of practices afterward but eventually stopped coming. Hanna had no recollection of plaintiff telling her she was quitting the team and did not know when it was that plaintiff quit.
{¶30} Lindsay Arter testified that she was a cheerleader with defendant from 2016 to 2020 and had been cheerleading since the sixth grade. Arter described going through a group tryout led by Hanna and getting medical clearance to join the team. As a team member, Arter stated, she had regular contact with Athletic Trainer Max Benton and another trainer who worked with the women's basketball team. Benton made himself easily accessible, according to Arter, giving out his phone number and email address and having his office across from the auxiliary gym where they practiced. Arter testified that Assistant Athletic Director Brandon Longmeier also introduced himself to the team a couple of times and made clear that he was available if anyone had concerns.
{¶31} Arter described the practice schedule and how practices began with a warm up, followed by tumbling and then stunts, and she explained how skills progressions worked. Not everyone joined the team having stunting experience and in general stunting was a weakness for the team, according to Arter, so the practices early in the season were devoted to very basic skills. As Arter testified, Hanna attended every practice and had a hands-on style, sometimes serving as a base herself in stunts, and she was approachable if a team member had a problem or concern. Arter discussed safety instructions Hanna gave the team on how to prevent injury and said she never saw Hanna force a member to do something against their will.
{¶32} Arter explained that during the 2017-2018 season she primarily served as a base in stunts but changed positions occasionally, such as if a teammate were absent. Arter also explained how spotters were added sometimes, like when a new stunt was being practiced, and sometimes she acted as a spotter. According to Arter, she typically practiced in a four-person stunt group that included plaintiff but the composition of the groups was somewhat fluid and it was important for cheerleaders to learn different roles because teammates commonly had to miss events and have someone fill in for them.
Arter became familiar with plaintiff during their time as teammates and knew from the beginning that plaintiff had undergone some repair of her left ankle, she stated. Arter recalled that plaintiff had good gymnastics skills though, and she recalled seeing plaintiff do some tumbling and serve as a flyer in a couple of different stunts in practice. Arter could not recall plaintiff ever saying outright that she did not want to be a flyer.
{¶33} Arter said her memory of the January 10, 2018 practice was foggy but she recalled the team was practicing for a special annual performance. Arter, who had been on the team a year longer than plaintiff, was not sure if she had been part of a rewind stunt with the team previously but said she had never attempted it with this stunt group. Arter recalled warming up for the stunt with a drill in which the flyer was rocked upward without being thrown in the air. Arter thought Lexi Spraggins was probably the flyer initially and could not recall how plaintiff came to step in, nor did she have any recollection of plaintiff saying she did not want to do the stunt nor that it would not end well for her. Arter had no recollection of Hanna demanding that plaintiff be the flyer and said that in her tenure with the team she never saw Hanna force or demand anyone do a stunt against their will, and instead in her experience Hanna would listen if a team member was adamant about not wanting to do something. In any event, Arter testified that plaintiff stepped in as the flyer and the group attempted the rewind stunt a couple of times with her unsuccessfully, and when they attempted it again plaintiff was either caught and released or went straight to the mat, though not at a high velocity, and was injured. While Arter did not remember what happened afterward at the practice, she recalled plaintiff came to a couple of practices later but eventually stopped.
{¶34} Scott Garrett testified that he became defendant's Athletic Director in April 2019. He went over his experience working in college athletics at several institutions and described his role with defendant, overseeing all sports activities as well as other programs, including cheer. The cheer program is a support group of volunteer non-varsity athletes that appear mostly at men's and women's basketball games to energize crowds and provide spirit, Garrett explained, and the program is not considered an NCAA sport but is supported by the athletic department. The cheer coach reports administratively to the assistant athletic director for marketing and fan engagement, Garrett stated. Garrett did not know what qualifications were required for the position when Hanna was hired, as it was before his time, but stated that a bachelor's or associate degree and experience as a participant or coach are required now.
{¶35} According to Garrett, defendant has general safety procedures managed by the sports medicine staff applicable to all activities within the athletic department by which athletes undergo pre-participation physical exams and then continue to be monitored by athletic trainers. The cheer coach is not required to hold a cheerleading safety certification, Garrett stated, and he was not aware of the NCAA having safety rules for a non-varsity program, but he stated that he still expects safety mechanisms to be in place and he expects all department employees to follow NCAA administrative rules, such as those concerning recruiting or gambling. Garrett allowed that a coach should not knowingly put a student-athlete at risk beyond that inherent to the sport. Garrett did not know if performance evaluations were done for the cheer coach before he became Athletic Director and he said the department has not done them for any employees on a formal cycle during his time, due at least in part to the COVID-19 pandemic.
{¶36} Brandon Longmeier testified that he has worked for defendant since 2013 and during the time in question was the Assistant Athletic Director of Marketing and Promotions. In that role, Longmeier stated, he mainly worked on promoting defendant's varsity sports but also oversaw the pep band and cheer team, whose coach reported to him. Longmeier stated that he viewed the cheerleaders as ambassadors of defendant, and although the program was not a varsity sport he wanted them to feel they were part of the athletic community. Longmeier described how Athletic Trainer Max Benton and his colleagues provided their services to the team and attended as many practices as possible. Longmeier stated that he got to know the cheerleaders through his oversight of the program, as he and another administrator had a walk-through each season to let the cheerleaders know where their offices were and that they could come speak to him if they needed anything. According to Longmeier, since the cheer coach is a part-time job he was the point of contact at times, and he talked about how his office was above the auxiliary gym where the team practices and he stopped by occasionally to see who was there and what they were working on. Longmeier testified that he saw plaintiff at practices and chatted with her but she never raised any concerns with him.
{¶37} When the cheerleaders graduated, he would have a discussion with them that was like an exit interview to talk, among other things, about their experience in the cheer program and athletic department and how cheerleaders in the future could be better served. Longmeier stated that it was a responsibility of his to make sure cheerleaders were representative of the university and felt comfortable, agreeing that defendant should provide its cheerleaders a safe atmosphere, and he stated that the coach was in the best position to look out for their safety and was indeed responsible for doing so, and he relied on the coach or athletic trainer to bring any safety concerns to his attention. Longmeier testified that he did not furnish safety rules or guidelines to the team or coach, nor require the coach to draft any written safety rules, but he noted that there were written rules about how athletic training staff must clear athletes to participate. (Plaintiffs Exhibit 4.)
{¶38} Speaking about how Hanna was hired, Longmeier stated that he was on a three-person committee that interviewed her at least once over the phone, if not again in person. From Longmeier's recollection, Hanna applied through defendant's standard human resources hiring process and would have submitted a resume. Longmeier recalled that Hanna was recommended by the previous cheer coach and he knew of her experience as a cheerleader at Kent State University as well as teaching cheer camps and working in the cheer community. Longmeier had no recollection of defendant requiring the candidates for the job to hold any cheerleading safety certification and he testified that he did not ask Hanna during the interview about whether she was familiar with certain cheerleading safety guidelines or manuals. Longmeier stated, though, that his expectation was that the coach would be familiar with cheerleading safety concepts and he felt that Hanna had that knowledge through her background and experience. Longmeier testified that he did not conduct formal performance evaluations for Hanna but would verbally discuss the state of the program with her from time to time, especially around the end of the basketball season, which basically was also the end of the cheerleading season, and in this way he informally evaluated her work.
{¶39} Max Benton stated that since 2014 he has been Associate Head Athletic Trainer for defendant. Benton, who has state and national athletic training licenses, discussed his background in the field, explaining that while earning a degree in kinesiology at the University of Colorado he assisted in several sports including cheerleading and worked with the Denver Broncos and Colorado Rockies. Benton stated that he went on to spend six years as assistant athletic trainer for the Denver Nuggets and twelve years as head athletic trainer for the Cleveland Cavaliers, and he has provided athletic training to both the United States Olympic Committee and Cleveland-area high school and junior high students through Southwest General Health Center.
{¶40} In his role with defendant, Benton explained, he is responsible for recognizing, preventing, and treating injuries. As an example, Benton stated that if an athlete sprains an ankle or has a concussion he is the first provider to evaluate and care for them and then relays information to team physicians. Benton testified that he is mainly responsible for the men's basketball team but assists with the cheer team when he is available and has assisted cheerleaders with a variety of injuries or conditions; he also stated that there are other trainers, but in the event none are around athletes are instructed to call 911 or go to the emergency room if needed. While cheerleading is not an NCAA sport for defendant, it is supported by the athletic department, Benton explained, and defendant provides medical coverage to cheerleaders for properly reported injuries. Before participating, cheerleaders are examined by a physician through the Cleveland Clinic Sports Health department and must be cleared by the physician to participate, he stated. Benton testified that he meets the cheerleaders when they come in for that exam and tries to attend the first team meeting so they know who he is and how to reach him, including through a dedicated mobile app.
{¶41} Benton testified that he first met plaintiff during the team's physical exams in the summer of 2017, at which a team physician from the Cleveland Clinic cleared her without restriction. (Defendant's Ex. N, p. 24.) Benton recalled that plaintiff had a prior injury and defendant needed the surgical records to share with the team physician. Benton identified a record from another exam plaintiff had in September 2017 with a team orthopedic surgeon, Dr. Kate Heinlein, who among other things noted plaintiff had worsening ankle pain, but that plaintiff "may cheer as pain allows" (Id., p. 20), and in his recollection that is what plaintiff did, trying things out if she felt up to it.
{¶42} Benton recalled that plaintiff was on an informal ankle strengthening exercise program and that he provided her with ankle braces or that one of his colleagues did so if he was not around. Benton, who felt that he came to know plaintiff well, testified that she went back and forth about whether she wanted to perform flying stunts. At times, Benton stated, plaintiff said her ankle felt good and she wanted to try more things, and sometimes she said it did not feel good and she did not want to try new things. If plaintiff had told him she was categorically unwilling to be a flyer, he would have notified the coach, Benton stated. Benton recalled entering the gym once and unexpectedly seeing plaintiff performing a flying stunt, and when he asked her and Hanna what was going on plaintiff said she felt she was getting stronger and wanted to try it; he told her that if she felt good, to go ahead and try, according to him. As Benton acknowledged, he did not take written notes recording what plaintiff told him about being a flyer. Benton explained that he takes notes to the best of his ability, capturing the spirit of what is going on. Benton discussed several records of his interactions with plaintiff, both in formal notes and in records from the mobile app through which team members communicated with him. (Defendant's Exhibits N, I.) Benton also identified records from other providers, including plaintiffs visit with Cleveland Clinic orthopedic surgeon Dr. James Rosneck in December 2017, reportedly after falling from a stunt and reporting neck and back pain, tingling, and numbness. (Defendant's Exhibit N, p. 7.)
{¶43} Benton testified that he was out of town with the men's basketball team at the time of plaintiff's injury on January 10, 2018, but she called him afterward and he made a note and told her he would find out when a team physician would be on campus next to see her, as defendant tries to coordinate care for athletes if an injury happens in a game or practice. As Benton later documented, he arranged for plaintiff to see a primary care physician, Dr. Morgan Oberle, at the Wolstein Center on January 18, 2018, and he noted plaintiff was also seen by her own podiatrist, Dr. Mendeszoon, on January 15, 2018. (Plaintiff's Exhibit 6, p. 13; Defendant's Exhibit N, p. 3.) Benton related that Dr. Oberle referred plaintiff to Dr. Rosneck. Dr. Rosneck recommended resting the ankle to see if it improved, and if it did not improve then an MRI might be ordered, according to Benton. Benton recalled talking to one of plaintiff's parents about the visit with Dr. Rosneck, answering some questions they had. Benton stated that, to the extent plaintiff and her parents wanted her to get the care of her choosing, defendant wanted her to be able to make her own decisions about her health care.
{¶44} Plaintiff was still a member of the team at this time as far as Benton knew, he stated. Benton recalled plaintiff going back and forth about quitting but showing up for some games in uniform while wearing a boot. Benton could not say when plaintiff quit or otherwise left the team but stated that defendant continued to treat her as if she were a team member and she continued communicating with him for assistance with things like getting orthotics. Benton explained how defendant has all athletes sign an Exit Appraisal Agreement, agreeing they are required to undergo "an exit medical appraisal" within two weeks "following the completion of his or her final season of intercollegiate athletics or upon the decision to discontinue athletics at CSU." (Plaintiffs Exhibit 6, p. 67; Defendant's Exhibit K.) Benton also identified an "Exit Physical Form" that athletes are supposed to complete in connection with the "exit medical appraisal", but he stated that there is no such completed form in plaintiffs medical file, which is where any completed copy would be kept. (Defendant's Exhibit L.) Benton stated that his role in the exit process is to notify the coach and communicate to the athlete the date and time of their exit appraisal appointment with a physician. According to Benton, plaintiff never underwent an exit physical or exit medical appraisal, terms that are used interchangeably, and the visits Benton arranged with Drs. Oberle and Rosneck were for the diagnosis and care of plaintiff's injury rather than to serve as an exit physical.
{¶45} Gerald S. George, Ph.D. testified via deposition as an expert witness for plaintiff. (Plaintiff's Exhibit 14.) Dr. George, Professor Emeritus in the University of Louisiana School of Kinesiology, described his background in gymnastics and earning his doctoral degree in biomechanics in 1970, his involvement in developing national safety certification programs for gymnastics and cheerleading organizations, editing safety manuals and publishing books and articles, and other experience and professional recognition in the areas of gymnastics, acrobatics, and cheerleading. Dr. George explained that because cheerleading involves lifting oneself or others it is an "acro sport" with essentially the same principals as gymnastics, and he has testified as an expert in legal matters related to cheerleading and gymnastics since the early 1980s.
The objections on pages 31, 39-41, 53, & 55-56 are OVERRULED; the objection on page 59 is SUSTAINED.
{¶46} Summarizing what he understood to have happened, Dr. George said that plaintiff was part of a group attempting to do a rewind stunt during a practice "being held at, like in the lobby of an auxiliary gym * * * and apparently something went wrong and [plaintiff] sustained injury to her left ankle." From Dr. George's description, the rewind stunt is a relatively high-risk, advanced maneuver, so proper measures must be taken by a coach to ensure a reasonable margin of safety, even though one cannot ensure safety. In terms of preventing injury, meaning what can be done to make an activity reasonably safe, Dr. George identified three areas of focus-the physical environment must be conducive to the activity (i.e., proper matting, lighting), performers must be ready to safely attempt the maneuver, and there must be adequate supervision for the circumstances. While Dr. George found no problem with the environment where the injury occurred, in his opinion neither the performers' readiness nor the supervision was adequate. Dr. George opined that "all four of the cheerleaders involved, lacked an adequate level of performer readiness to safely attempt this partner stunt maneuver." Explaining this, Dr. George-who earlier stated that the only cheerleader's deposition he reviewed was plaintiff's-stated that "when you match the testimony of these cheerleaders and their backgrounds and what they did not - what was they admitted that they did not do to the task, which is a rewind, * * * it can be readily established that, that they were recklessly exposed to, to serious injury."
{¶47} In any event, Dr. George continued to explain that it is reckless to perform the rewind stunt without going through proper progressions, for while there are inherent risks associated with any maneuver the risk is unreasonably high when the performers do not train as a specifically defined group and progress from simple to complex task mastery over a period of time, successfully executing at the various stages. In this case, Dr. George stated, it went beyond the inherent risk of the stunt to have four teammates perform it when they had not worked and demonstrated the competency to throw and catch as necessary for the rewind stunt. In contrast, Dr. George stated, performers who train as a specifically defined group learn each other's strengths, weaknesses, and tendencies so they can anticipate problems, but that awareness is lost when a new performer joins the group. Dr. George also testified that he saw no testimony tending to show that the bases in this group were taught how to spot, starting from basic skills and progressing up. According to Dr. George, plaintiff never should have been asked or told to serve as a flyer in the rewind stunt under these circumstances. And Dr. George, stating that he understood plaintiff told Hanna she did not want to serve as the flyer in the stunt, testified that when a performer expresses anxiety or doubt-particularly about a high-risk skill, this should be taken as an indication the skill is too advanced for the performer's present ability. Lack of performer readiness was a direct causal link to plaintiffs injury, Dr. George opined.
{¶48} Dr. George allowed on cross-examination that "certainly in cheerleading and the learning process is performers will miss stunts and, and fall and not complete the stunts". And he agreed with a quote of his that he was asked about, that "[s]potting is not 100 percent failsafe, even under the very best of conditions. The window of foreseeability is never fully opened and the element of risk is forever present." But in his opinion the "additional risk from lack of working together in a specifically defined group, lack of going through progressions, lack of not wanting to do it or feeling confident about doing it, particularly in the light of the difficulty and complexity of the maneuver, those were risks created above and beyond the inherent risk."
{¶49} Regarding the supervision of the stunt, Dr. George opined that Hanna was not qualified to coach an advanced maneuver like the rewind stunt. In his opinion, a qualified coach would not have switched "a base to a flyer, particularly one who didn't want to be a flyer, to try to solve a problem in a high-risk skill that was occurring already." He further opined that a qualified coach would "stop the maneuver if it's not going right, break it down into more simplistic parts, analyze where the missing component is, do more basic lead-up maneuvers with this group over a period of time" and not attempt the stunt again until the performers demonstrated "proficiency at each of the progressional stages". In Dr. George's opinion, Hanna also showed a lack of familiarity in her deposition with cheer terminology and national cheer organizations and safety manuals, which to him further evidenced her lack of qualification. A university has an obligation to ensure that the coaches it hires for any sport have the knowledge, training, and experience commensurate with the level of programming, Dr. George stated, and he explained why in his opinion defendant's hiring, training, and supervisory plan fell significantly below industry standards. Dr. George acknowledged that he has never been a cheerleader or cheerleading coach, nor hired a cheerleading coach.
{¶50} Nicholas Langenderfer testified as an expert witness for defendant.Testifying as an expert for the first time, Langenderfer discussed his experience as a cheerleader at the University of Toledo, where he earned an undergraduate degree and MBA. Langenderfer stated that he cheered there for four years and performed as a base in stunts. After graduating in 2009, Langenderfer stated, he remained with the team as a volunteer coach and in 2010 was hired as an assistant coach, later becoming head coach and remaining in that role until January 1, 2022. As a coach, Langenderfer stated, he obtained and renewed a safety certification from the American Association of Cheerleading Coaches and Administrators (AACCA) and had specialized training on concussions and CPR. Langenderfer testified that he was not necessarily required to be AACCA-safety certified but he saw it as a standard practice. Langenderfer was asked about the AACCA safety manual, and while he had seen it before he did not necessarily use it because he was familiar with the rules and typically just looked for any changes to the rules. Cheerleading is not an NCAA varsity sport at the University of Toledo, but its cheerleaders receive scholarships and participate in competitive events, Langenderfer stated. Langenderfer's position as coach was part-time, he stated, and he reported to the athletic department.
Following Langenderfer's testimony, plaintiff moved to strike it on the basis that his opinions were not expressed in terms of probability. The parties were asked to address the issue in their post-trial briefs. Upon review, the motion is DENIED. The motion, made after Langenderfer concluded testifying (including on cross-examination) and left the proceeding, was untimely under Evid.R. 103(A)(1). See Hyams v. Cleveland Clinic Found., 2012-Ohio-3945, 976 N.E.2d 297, ¶ 17 (8th Dist.). Further, the minimal opinion testimony by Langenderfer was expressed with sufficient certainty that it cannot be seen as mere speculation. See Claris, Ltd. v. Hotel Dev. Servs., LLC, 2018-Ohio-2602, 104 N.E.3d 1076, ¶ 33 (10th Dist.). Regardless, even if his testimony were excluded it would not alter the magistrate's decision.
{¶51} At the University of Toledo, the athletic department training room required all cheerleaders to undergo an annual physical exam, Langenderfer stated, and athletic trainers did not regularly come to practices but were available to help with injury prevention or deal with injuries. Langenderfer testified that his team normally practiced in the evening and began with running laps around the gym followed by stretching, and then everyone got in a circle and did some partner stunts on mats to warm up, and usually they then split into two squads akin to varsity and junior varsity levels. To keep participants safe, stunts are taught through a progression of skills, from low skill to high skill, that cannot be skipped, Langenderfer explained, and he gave some examples. Langenderfer explained that he did not always have his cheerleaders practice with the same group or same partners, citing the need for teammates to be able to fill in for one another at appearances when some were absent due to their class schedules, and because he found it helpful to have newer members be able to step in and learn from more experienced members in practice.
{¶52} Langenderfer discussed what he understood about the circumstances of the January 10, 2018 practice and plaintiff's injury and stated that in his review of the case he did not find any safety concern. Langenderfer testified that practice is where skills are improved and it is common at practices for stunts to drop. Langenderfer explained that he regularly let cheerleaders with an injury or other physical issue sit out certain skills in practice, but relied on them to let him know if they were unable to participate. According to Langenderfer, at times he also had flyers express that they did not want to participate in trying a new or difficult stunt, in which case he tried to give them the confidence to do so, for example by doing some more drills or adding spotters. Langenderfer stated that if he asked a cheerleader to perform a skill he expected that they try it, or at least give feedback on how they could help that skill.
{¶53} Mark J. Mendeszoon, D.P.M., testified via deposition as a treating physician and expert witness. (Plaintiffs Exhibit 24.) Dr. Mendeszoon stated that he is licensed to practice podiatric medicine in Ohio and two other states, is board-certified in podiatric medicine, and holds additional certifications through the American Board of Podiatric Surgery. Dr. Mendeszoon testified that he evaluated plaintiff on January 15, 2018, and it appeared she had suffered an acute injury that would require surgery but he wanted an MRI for confirmation. Dr. Mendeszoon explained how plaintiff had undergone two surgeries by Dr. de Leon for injuries to the ankle in 2012 and 2015, the first being a modified Broström procedure to repair torn ligaments and the second a more aggressive internal brace procedure, which is generally the next step if a Broström fails. Dr. Mendeszoon stated that someone who undergoes those procedures will never completely return to normal and will have some chronic instability or pain issues, and that indeed plaintiff reported preexisting pain and instability when she came to see him.
The objections on pages 26, 36, and 40-41, 74-76 are OVERRULED; the objection on page 60 is SUSTAINED.
{¶54} According to Dr. Mendeszoon, after the failure of both the Broström and internal brace procedures, the last-ditch effort to stabilize an ankle is a reconstructive Watson-Jones procedure, which he characterized as a salvage procedure typically for patients with no good ligaments. Dr. Mendeszoon described how he performed the procedure on plaintiff and how she had a series of two casts afterward. When the first cast was removed, Dr. Mendeszoon explained, the stitches were removed and a second cast was placed to hold the ankle in the correct position and allow time for consolidation of the reconstructed ligaments, and physical therapy followed. Dr. Mendeszoon stated that post-operatively plaintiff developed significant adhesions and scar tissue which affected her biomechanics when walking and caused pain and she had a reaction to the nonabsorbable stitches. After physical therapy and localized scar therapy failed to alleviate the issues, Dr. Mendeszoon explained, he operated a second time to remove the stitches, adhesions, and scar tissue. In Dr. Mendeszoon's opinion, the impact to the ankle from the 2018 injury caused the previous surgical repair to fail and necessitated both surgeries that he performed. Dr. Mendeszoon opined that plaintiff will have permanent loss of functionality in the ankle from the limited subtalar joint motion associated with the fusion and is at risk of developing arthritis.
{¶55} Salim M. Hayek, M.D. testified via deposition as a treating physician and expert witness. (Plaintiff's Exhibit 108.) Dr. Hayek stated that he practices as a pain medicine specialist, with board certifications in anesthesiology and pain management, and is licensed to practice medicine in Ohio. Dr. Hayek testified that plaintiff has moderate to severe complex regional pain syndrome (CRPS) of the left foot and ankle and he described what CRPS is and how it is a chronic condition. Dr. Hayek explained how he has treated plaintiff through physical therapy, medication, occasional interventional procedures including ketamine infusion, sympathetic blocks, and finally implanting a dorsal root ganglion spinal cord stimulator device. Dr. Hayek opined that plaintiff's CRPS became more persistent after the 2018 injury but suspects she already had a milder form of it from her prior injuries and/or surgeries and it was exacerbated by the 2018 injury and/or subsequent surgeries. In Dr. Hayek's opinion, the diagnosis, care, and treatment that he has rendered for plaintiff are causally related to the 2018 injury.
The objections on pages 21-23, 29-30, 32, 41, 42, 43, 45, 47, 50 are OVERRULED; the objection on page 18 is SUSTAINED.
{¶56} Maryanne S. Cline, R.N. and David W. Boyd, Ph.D. testified via deposition.(Plaintiff's Exhibits 18, 107.) Cline, a life care planner, calculated a total cost for the care that plaintiff will need over the course of her lifetime, as recommended by her physicians, and Cline explained her methodology for preparing this cost projection. An economist, Boyd estimated the present value of Cline's cost projection.
For Cline, the objections on pages 36, 38 are OVERRULED; the objections on pages 40, 42-46, 48, 50, 57, 61 are SUSTAINED; and, the motion to strike on page 62 is DENIED. For Boyd, the objections on pages 19, 20 (line 1), 21, 25 (line 23), 26 are OVERRULED; the objections on pages 18, 20 (line 9), 22-24, 25 (line 15) are SUSTAINED; and, the motion to strike on page 26 is DENIED.
{¶57} Gerard Papp, D.O. testified as an expert witness for defendant. Dr. Papp, who stated he is licensed to practice medicine in Ohio and is board certified in orthopedic surgery, explained that he practiced orthopedics for many years and in later years practiced pain management before retiring from seeing patients in 2021. Dr. Papp detailed his review of the case, including an independent medical evaluation of plaintiff. Among other things, Dr. Papp opined that the 2018 injury was "of minor consequence" in the overall history of ankle injuries and surgeries and that the fusion procedure was inappropriate for someone plaintiff's age without first exhausting more conservative measures. He also opined that plaintiff does not meet the criteria for CRPS.
{¶58} Douglas Anderson, Esq. testified as an expert witness for defendant, explaining that he practices in the field of insurance regulation with the Squire Patton Boggs law firm and from time to time serves as an expert witness in personal injury matters, opining as to what insurance coverage a person has or will probably have in the future. In short, Anderson opined that the things plaintiff will likely need in the future according to Cline's life care plan, such as physical therapy, office visits, infusions, drugs, and equipment, will likely be covered by insurance.
LAW & ANALYSIS Waiver
{¶59} As a threshold matter, defendant argues that plaintiff waived her claims pursuant to the Exit Appraisal Agreement. "Waiver is a voluntary relinquishment of a known right and is generally applicable to all personal rights and privileges, whether contractual, statutory, or constitutional." Glidden Co. v. Lumbermens Mut. Cas. Co., 112 Ohio St.3d 470, 2006-Ohio-6553, 861 N.E.2d 109, ¶ 49. "[T]he law does not favor releases from liability for future tortious conduct, which will be narrowly construed." Geczi v. Lifetime Fitness, 2012-Ohio-2948, 973 N.E.2d 801, ¶ 10 (10th Dist.). "But clear and unambiguous contract clauses relieving a party from liability for its own negligence are generally upheld in Ohio." Id. at ¶ 11.
{¶60} The magistrate finds that in connection with joining the team plaintiff signed a copy of the Exit Appraisal Agreement, which stated:
Student-Athletes who have exhausted their athletic eligibility or who will no longer be a participant in CSU Athletics are REQUIRED to have an exit medical appraisal performed by the CSU Sports Medicine Staff within TWO (2) weeks following the completion of his or her final season of intercollegiate athletics or upon the decision to discontinue athletics at CSU. Failure to complete the exit medical appraisal will automatically waive Cleveland State University from any medical or financial liability. (Emphasis sic.) (Defendant's Exhibit K.)
{¶61} Plaintiff contends that she quit cheerleading on or about January 15, 2018, after seeing Dr. Mendeszoon. On the other hand, multiple witnesses stated that plaintiff came to practices or games for some time later and they were not clear when she quit. Regardless, at some point plaintiff discontinued her participation with the team and/or completed her final season. Whenever that occurred, plaintiff could not complete an exit medical appraisal on her own. Rather, the athletic training department arranged all medical appointments. Plaintiff attended any medical appointments that defendant arranged for her, including appointments with two different doctors in January 2018, and if no such appointment was considered to have been an exit medical appraisal, this means defendant never arranged one. As evidence that plaintiff never had an exit medical appraisal, defendant-which bears the burden of proving the waiver defense-points to there being no completed "Cleveland State University Exit Physical Form" in her athlete file. The Exit Appraisal Agreement, however, did not reference the Exit Physical Form, much less require an athlete to complete and return a copy of the Exit Physical Form. And plaintiff established that she completed and returned any documents furnished to her by defendant, meaning that defendant did not provide her with an Exit Physical Form. Defendant failed to prove that plaintiff waived her claims.
"Gross Negligence/Recklessness"
{¶62} "[T]o establish actionable negligence, one seeking recovery must show the existence of a duty, the breach of the duty, and injury resulting proximately therefrom." Strother v. Hutchinson, 67 Ohio St.2d 282, 285, 423 N.E.2d 467 (1981). "Ohio law recognizes three categories of assumption of the risk as defenses to a negligence claim: express, primary, and implied or secondary." Schnetz v. Ohio Dept. of Rehab. & Corr., 195 Ohio App.3d 207, 2011-Ohio-3927, 959 N.E.2d 554, ¶ 21 (10th Dist.).
{¶63} "Under the doctrine of primary assumption of the risk, 'a plaintiff who voluntarily engages in a recreational activity or sporting event assumes the inherent risks of that activity and cannot recover for injuries sustained in engaging in the activity unless the defendant acted recklessly or intentionally in causing the injuries.'" Al-Jahmi v. Ohio Athletic Comm., 10th Dist. Franklin No. 20AP-321, 2022-Ohio-2296, ¶ 64, quoting Morgan v. Ohio Conference of the United Church of Christ, 10th Dist. Franklin No. 11AP-405, 2012-Ohio-453, ¶ 13. "The rationale is that certain activities present risks so inherent that the possibility of injury is unavoidable." Maiorana v. Walt Disney Co., 2021-Ohio-4530, 182 N.E.3d 521, ¶ 33 (10th Dist.). "Because a successful primary assumption of risk defense means that the duty element of negligence is not established as a matter of law, the defense prevents the plaintiff from even making a prima facie case." Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 431-432, 659 N.E.2d 1232 (1996).
{¶64} "To be covered under the [primary-assumption-of-the-risk] doctrine, the risk must be one that is so inherent to the sport or activity that it cannot be eliminated.'" Horvath v. Ish, 134 Ohio St.3d 48, 2012-Ohio-5333, 979 N.E.2d 1246, ¶ 19, quoting Konesky v. Wood Cty Agricultural Soc, 164 Ohio App.3d 839, 2005-Ohio-7009, 844 N.E.2d 408, ¶ 19 (6th Dist). "Where the risk at issue is not inherent, then a negligence standard applies." Id. "Whether to apply the defense of primary assumption of the risk presents an issue of law for the court to determine." Peterson v. Martyn, 10th Dist. Franklin No. 17AP-39, 2018-Ohio-2905, ¶ 31. "To succeed on a primary assumption of risk defense, it must be shown that (1) the danger is ordinary to the activity, (2) it is common knowledge that the danger exists, and (3) the injury occurs as a result of the danger during the course of the activity." Id. at ¶ 32. Courts have recognized cheerleading as a sport or activity to which the primary assumption of the risk doctrine may apply. See Crace v. Kent State Univ., 185 Ohio App.3d 534, 2009-Ohio-6898, 924 N.E.2d 906, ¶ 36 (10th Dist.); Wolfe v. AmeriCheer, Inc., 10th Dist. Franklin No. 11AP-550, 2012-Ohio-941, ¶ 14; Brown v. Harris, 2d Dist. Montgomery No. 27069, 2017-Ohio-2607, ¶ 21; O'Neill v. Univ. of Akron, Ct. of Cl. No. 2006-06795, 2009-Ohio-5456, ¶ 12.
{¶65} The magistrate finds plaintiff was voluntarily engaged in the recreational sport or activity of cheerleading on January 10, 2018, when her left ankle was injured while practicing the rewind stunt. The risk of injury is inherent in cheerleading; the risk may be reasonably managed but cannot be eliminated. The magistrate therefore concludes that the primary assumption of the risk doctrine applies and defendant owed no duty to protect plaintiff from the inherent risk of injury related to a fall or high-impact landing from the rewind stunt. Accordingly, plaintiff cannot recover for her injury unless it resulted from reckless or intentional conduct on the part of defendant. See Al-Jahmi at ¶ 64. There is no suggestion nor credible evidence that the injury was intentionally caused; rather, plaintiff argues it resulted from recklessness.
{¶66} "'Recklessness is a high standard.'" Lemaster v. Grove City Christian School, 10th Dist. Franklin No. 16AP-587, 2017-Ohio-8459, ¶ 10, quoting Lovegrove v. Stapleton, 2015-Ohio-1669, 32 N.E.3d 1001, ¶ 34 (2d Dist.). "Reckless conduct is characterized by the conscious disregard of or indifference to a known or obvious risk of harm to another that is unreasonable under the circumstances and is substantially greater than negligent conduct." Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, paragraph four of the syllabus. "Thus, an actor's conduct may be considered reckless when the actor '"does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another,"' but also '"that such risk is substantially greater than that which is necessary to make his conduct negligent."'" Al-Jahmi at ¶ 100, quoting Marchetti v. Kalish, 53 Ohio St.3d 95, 96, 559 N.E.2d 699, fn. 2 (1990), quoting 2 Restatement of the Law 2d, Torts, Section 500 (1965). "While negligence consists of 'mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergence,' reckless misconduct 'requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man.'" Id., quoting Marchetti at 100, fn. 3, quoting Restatement of Torts 2d at 590, Section 500, Comment g.
{¶67} Upon careful consideration of the evidence, the magistrate finds it was not shown that plaintiff's injury resulted from recklessness attributable to defendant, through Hanna or otherwise. Plaintiff argues that Hanna knew about her history of left ankle injuries and that she did not want to be a flyer in stunts yet recklessly 'ordered' her to be the flyer in the rewind stunt. Plaintiff had a significant history of left ankle injuries, the first resulting in a 2012 surgery to repair torn ligaments, and after a 2015 reinjury and failure of the surgical repair she underwent a more aggressive internal brace operation. Even if plaintiff resumed her normal activities after those injuries and operations, she had some chronic pain and instability. And as Dr. Mendeszoon explained, a patient with this history is in a position where, if the internal brace operation fails, they face a last-resort surgery involving the fusion of the ankle joint. Despite this, plaintiff chose to participate in cheerleading for defendant.
{¶68} Earlier in the season plaintiff had some discussion with Hanna about her left ankle being compromised and how she wanted to limit the amount of impact to the ankle to reduce the risk of reinjury, including by at least limiting if not refraining from flying. Consistent with that, Hanna exercised care and honored plaintiff's wishes such that in certain situations plaintiff was able to take measures to protect her ankle, like performing alternate, lower-impact skills from what the rest of the team did during a practice, and plaintiff mostly acted as a base in stunts. Whatever discussion plaintiff and Hanna had about flying earlier in the season, though, the evidence shows that plaintiff willingly performed as a flyer from time to time. Plaintiff was a flyer in several stunts throughout her time with the team, doing so as early as the camp the team attended at the outset of the season. While plaintiff minimizes the extent to which she was a flyer, stating that it was only in low-risk or low-level skills, in December 2017 she practiced flying in a stunt from which she fell and injured her back and had to see an orthopedist and undergo x-rays, and in all stunts where she was a flyer there was some risk of injury. Plaintiff had no medical restriction against flying, she was working to strengthen her ankle, and she willingly performed as her pain and abilities permitted.
{¶69} Rather than 'order' plaintiff to be the flyer in the stunt, Hanna-having seen the stunt fail with Lexi Spraggins as the flyer and thinking it would be more likely to succeed with plaintiff in that role-simply said for plaintiff (who was familiar with the stunt from having previously performed it) to 'step in' and swap positions with Spraggins. Plaintiff also felt in going forward with the stunt that her teammates wanted to do it and were looking to her. Just as plaintiff had willingly been a flyer at times over the course of the season, risking injury like the back injury she suffered while flying the month prior, she did so on this occasion too. Even if plaintiff made a comment to the effect that if the bases dropped her it would not end well, she did not say that she did not want to be the flyer, nor should Hanna have understood her to be opposed. Notably, in explaining his opinions Dr. George understood that plaintiff told Hanna she did not want to be the flyer in the stunt and Hanna still directed her to do so, but the evidence demonstrates otherwise, that plaintiff willingly went ahead with the stunt as a flyer and was not compelled to do so by Hanna. Hanna-who was a hands-on coach and was actively supervising the stunt in accordance with the rule in defendant's Cheerleading Policies and Procedures that said stunting was only to be done in the presence of the coach-also took the precaution of bringing in additional spotters and reinforcing to the bases that they were not to drop plaintiff. As Dr. George noted in his report, an additional spotter is sometimes employed as an added measure of safety during the rewind stunt. Indeed, Hanna regularly added spotters when a new skill was being learned and did so here, exercising care for the cheerleaders' safety.
{¶70} Whereas plaintiffs arguments about her history of ankle injuries and wanting to limit her flying are more particular to her, she also argues more generally that having anyone be a flyer in the rewind stunt was reckless because the group was not skilled enough to safely attempt it. As a safety measure, defendant's athletic department required all athletes, including cheerleaders, to be cleared for participation by medical professionals. Following that standard process, as a condition of joining the team plaintiff was examined by medical professionals from the Cleveland Clinic who cleared her to participate without restriction. In September 2017, an orthopedist with the Cleveland Clinic who evaluated plaintiffs case for defendant similarly cleared her to 'cheer as pain allows'. Defendant provided to the cheerleaders an accomplished athletic trainer with top-level experience, Max Benton, who regularly assisted with injury prevention and management as well as arranging medical care and treatment as needed. Benton too placed no restrictions on plaintiff other than specifying that she be excused from running during practices. Defendant made clear to cheerleaders that they could go to the trainer or athletic department administrators with any concerns.
{¶71} By the time of the accident on January 10, 2018, the team had been together for several months and was well into its season, which basically spanned the basketball season that ended with the NCAA March Madness tournament. After selecting the team in July 2017 Hanna had the members attend a three-day instructional camp where they worked on stunts and other skills. Hanna held practices on a regular schedule in a gym with safety mats on the floor, and as Dr. George acknowledged (after initially stating, in error, that the practice was in the lobby of the gym) there were no safety concerns with the physical environment where the injury occurred.
{¶72} After having an athletic trainer tape ankles or wrists as needed-including plaintiff regularly getting her left ankle taped-the cheerleaders would warm up and stretch at the beginning of each practice. Then Hanna had the team get into stunts, starting with easier skills and progressing toward more difficult skills. Although Dr. George opined that the team lacked the adequate level of performer readiness to safely attempt the rewind stunt, the evidence demonstrates that the team had progressed through various skills over the course of several months leading up to the practice where they attempted the rewind stunt. Plaintiff points to the fact that Hanna did not keep records of the progressions the team had gone through, but Hanna was not aware of college cheer teams keeping such records nor did Dr. George testify that she should have done so. And Hanna-who had previous experience teaching the rewind stunt-described following a consistent routine of skill progression such that she would have known at the time where the team stood without having to keep a written record. It was shown, though, that after the team was selected and medically cleared, they started practicing easier skills and over the course of many practices over several months progressively worked up to more difficult skills. It was also Hanna's routine at each practice to have the team work up from easier to more difficult skills, and consistent with that the team did not directly proceed to the rewind stunt during the January 10, 2018 practice. While it was not established specifically what all the team did at that practice before the rewind stunt, for one thing it was established that they performed a basket toss, which is an appropriate skill for working toward the rewind stunt.
{¶73} Dr. George, who was never a cheerleader or cheer coach, advanced a theory that cheerleaders must practice in the same defined group and go through all progressions together such that Hanna should not have substituted Lexi Spraggins in place of Bree Kovalkevich, but the evidence is that in reality college cheerleaders are not necessarily able to attend every appearance due to their class schedules, so to prepare the team for these absences and be more versatile they would not always practice with the same group. Moreover, the cheerleaders had been practicing and performing as a team for several months and would switch groups occasionally and those who testified at least had several years of experience cheerleading.
{¶74} The rewind stunt is an advanced-level stunt that carries a higher risk to cheerleaders compared to less advanced stunts, but as with all stunts safety cannot be guaranteed. The evidence tends to show that there was a consistent and deliberate routine over the course of the season through which the team progressed through its skills such that it was adequately trained before attempting the rewind stunt. The greater weight of the evidence demonstrates that Hanna's conduct did not meet the high standard of recklessness.
"Negligent Hiring, Supervision, Retention and Training"
{¶75} For this cause of action, plaintiff seeks to hold defendant liable in negligence. See Ford v. Brooks, 10th Dist. Franklin No. 11AP-664, 2012-Ohio-943, ¶ 22 ("The elements of negligent hiring and supervision are as follows: (1) the existence of an employment relationship; (2) the employee's incompetence; (3) the employer's actual or constructive knowledge of such incompetence; (4) the employee's act causing the plaintiff's injuries; and (5) the employer's negligence in hiring or supervising the employee as the proximate cause of the plaintiff's injuries.").
{¶76} As stated before, the doctrine of primary assumption of the risk applies in this case. Where applicable, the doctrine extends to participants and non-participants alike, including "to relieve liability of owners, operators, and sponsors of recreational activities." Ochall v. McNamer, 2016-Ohio-8493, 79 N.E.3d 1215, ¶ 35 (10th Dist). The Tenth District Court of Appeals has "rejected [the] argument that primary assumption of the risk could not relieve a university of liability for negligence based on the conduct of one of its coaches in a cheerleading practice." Morgan v. Kent State Univ., 2016-Ohio-3303, 54 N.E.3d 1284, ¶ 20 (10th Dist.). And the Tenth District Court of Appeals has specifically rejected the argument "that a claim of negligent supervision is an exception to the doctrine of primary assumption of the risk * * *." Schnetz, 195 Ohio App.3d 207, 2011-Ohio-3927, 959 N.E.2d 554, at ¶ 47; see also Main v. Gym X-Treme, 10th Dist. Franklin No. 11AP-643, 2012-Ohio-1315, ¶ 15 ("negligent supervision is not an exception to the doctrine of primary assumption of the risk."). "The defendant's conduct is relevant only if it rises to reckless or intentional conduct." Main at ¶ 11.
{¶77} The magistrate concludes that the doctrine of primary assumption of the risk bars plaintiff from recovering on a theory of negligent hiring, supervision, retention or training. Treating defendant differently for purposes of this cause of action unnecessarily focuses upon the extent of defendant's involvement and classification without regard for the inherent risk of cheerleading. See Crace, 185 Ohio App.3d 534, 2009-Ohio-6898, 924 N.E.2d 906, at ¶ 25. For argument's sake, even if the doctrine does not bar plaintiff from recovering under this theory, it was not shown that Hanna was "individually liable for a tort or guilty of a wrong" as necessary to sustain such a claim. Ford at ¶ 22.
CONCLUSION
{¶78} Based on the foregoing, the magistrate, though not without sympathy for plaintiff, finds that she did not prove her claims by a preponderance of the evidence. Accordingly, judgment is recommended in favor of defendant.
{¶79} A party may file written objections to the magistrate's decision within 14 days of the filing of the decision, whether or not the court has adopted the decision during that 14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files objections, any other party may also file objections not later than ten days after the first objections are filed. A party shall not assign as error on appeal the court's adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically objects to that factual finding or legal conclusion within 14 days of the filing of the decision, as required by Civ.R. 53(D)(3)(b).