It’s the Law: Assuming the risk of sports

When my daughter was 7 years old, she looked at me with puppy dog eyes and said, “Papa, will you coach my soccer team?”
I was doomed. Until then, I had successfully hidden in the bushes as the recruiters beat them seeking coaches for youth sports, but I couldn’t hide from those eyes. Worse, someone had discovered that, before becoming a lawyer, I was on the physical education faculty at Fresno State University.
“Ah ha!” they said, “A professional coach! Dude, your life for the next dozen years is over!”
The penetration of sports in our valleys is really quite impressive. About 1,000 children play fall soccer. Another 600 or so play baseball. Softball participation is just shy of 500. Basketball amounts to another several hundred. Then there’s football, lacrosse, equestrian events, gymnastics, school sports and adult leagues. That doesn’t even begin to include unorganized sports, such as skateboarding, surfing, biking and endless recreational pursuits.
With all that activity, I’ve seen a fair number of people hurt. Indeed, I’ve coached techniques that carry with them a fair amount of risk.
We have all seen the liability waivers that are virtually ubiquitous with any recreational or sporting activity. Rumor persisted that those waivers were of no use, and if someone actually got hurt while participating, even a beginning lawyer could extract millions from the poor recreational program running the league.
So, you might ask, are the waivers of any use? Up until a few years ago, the answer was nearly always yes. Now, however, the answer is, “Usually.”
In 2007, the California Supreme Court declared that waivers were no protection to those who were “grossly” negligent, which is defined as “an extreme departure from the ordinary standard of conduct.” This type of conduct is to be separated from ordinary negligence, which is “the failure to provide care that any reasonable person would know is required.”
The court made a policy decision. Although the justices might not have said it explicitly, their decision supposedly provides an incentive for people to pay at least minimal attention to what they are doing. Skeptics will say that an utter dunderhead is not likely to stop dundering simply because he knows that he could be held liable. Even if that is true, the decision provides something else: insurance coverage for the victims of the dunderheads.
Related to a waiver of liability is “assumption of the risk.” Greatly simplified, assumption of the risk means that if you play in a sport or a recreational activity, you assume all the risk of injury that is inherent in that activity. It is a broader protection than a written waiver and arises automatically in all sports and recreational situations.
As with most laws, there are complications and exceptions. The best known is if the risk of an activity is increased beyond what is normal. An example was a ski resort that planted a pole in the middle of a ski run.
Although it is always dangerous to summarize the law, due to all its permutations, the general rule is that written waivers and assumption of the risk prevent liability in sports and recreation except in situations of gross negligence or if the usual risk of the activity is increased.
How about if I get hurt coaching? During one scrimmage, one of my soccer players kicked the ball at me, and it made contact with an, ahem, sensitive location.
As I lay moaning, the girls had vastly different reactions. The majority giggled. One ran to comfort me, and one told me to get up and be a man so we could keep playing the game. That was the problem — my manhood had been compromised.
Manhood or not, getting smacked where you live is a risk inherent to the sport. The only relief I can hope for is that all of the girls will have sympathy the next time they emasculate me.
• Gary Redenbacher of Scotts Valley is an attorney in private practice. Contact him at [email protected].