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Date: 11-29-2018
Case Style:
Alice Mayall v. USA Water Polo, Inc.
Case Number: 16-56389
Judge: William A. Fletcher
Court: United States Court of Appeals for the Ninth Circuit on appeal from the Central District of California (Los Angeles County)
Plaintiff's Attorney: Elizabeth Anne Fegan and Steve W. Berman
Defendant's Attorney: Steven Jeff Renick and Jeffrey M. Lenkov
Description:
Alice Mayall brought this putative class action against
USA Water Polo as a representative of her minor daughter,
alleging negligence, breach of voluntary undertaking, and
gross negligence. The gravamen of Mayall’s complaint is
that USA Water Polo failed to implement concussionmanagement
and return-to-play protocols for its youth water
polo league. The Second Amended Complaint (“SAC”)
alleges that H.C., Mayall’s daughter, was returned to play as
a goalie in a youth water polo tournament after being hit in
the face by the ball and while manifesting concussion
symptoms. After she was returned to play, H.C. received
additional hits to the head. As a result, she suffered from
severely debilitating post-concussion syndrome. The district
court dismissed the suit under Federal Rule of Civil
MAYALL V. USA WATER POLO 5
Procedure 12(b)(6) for failure to state a claim under
California law.
We have jurisdiction under 28 U.S.C. § 1291. We reverse
and remand.
I. Background
According to the SAC, H.C. was a “healthy, highachieving,
straight-A honors student and multi-sport athlete”
who played for a water polo team under the governance of
USA Water Polo. On February 15, 2014, when H.C. was
either fifteen or sixteen, she was injured while playing goalie
during an annual three-day “WinterFest” tournament
organized and managed by USA Water Polo. H.C. “was hit
hard in the face by a shot which led to a concussion.” The
game continued while “H.C. swam to the side of the goal and
spoke with her coach . . . .” The coach, who was “lacking any
concussion management training, qualifications, and
education from USA Water Polo,” asked “a couple
questions.” Even though she was “dazed,” H.C. was returned
to play for the remainder of the game. Later that day, H.C.
played in more games and took more shots to the head,
exacerbating her initial injury. The additional shots to the
head were witnessed by the referee and by H.C.’s coach.
H.C. was never evaluated by a medical professional during
the tournament.
Two days later, H.C. suffered from headaches, sleepiness,
and fatigue so severe that she was unable to attend school.
For the next two weeks, H.C. experienced excessive sleeping,
dizziness, intolerance to movement, extreme sensitivity to
light, headaches, decreased appetite, and nausea. On
March 4, 2014, Mayall took H.C. to a doctor, who diagnosed
MAYALL 6 V. USA WATER POLO
her with post-concussion syndrome. On March 12, the doctor
recommended a consultation with a neurologist. The
neurologist confirmed the diagnosis.
H.C.’s symptoms persisted, and she was unable to return
to school. H.C. took part in a “home-and-hospital
instructional program” for the remainder of the 2013–2014
school year. H.C.’s academic ability was severely degraded.
Her neuropsychologist noted that H.C. demonstrated “a
deficit in her ability to hold information in her mind or
complete tasks, and was functioning in a low-average range
in memory and controlled attention.” At the time of filing the
SAC, H.C. continued to suffer from persistent postconcussion
syndrome, characterized by excessive sleeping,
chronic headaches, and limited physical stamina. Because of
her symptoms, H.C. was unable to attend public school.
The SAC alleges that USA Water Polo is the “ ‘national
governing body for the sport of water polo in the United
States’ ” (quoting from USA Water Polo bylaws). “USA
Water Polo is the sanctioning authority for more than
500 Member Clubs and more than 400 tournaments are
conducted nationwide each year[.]” “USA Water Polo
requires all players and participants to follow the policies,
bylaws, rules of conduct, and regulations it has enacted.”
USA Water Polo’s “Policies and Guidelines” state that USA
Water Polo is “committed to creating a healthy and safe
environment for all of our members.” “[A]s acknowledged
by USA Water Polo’s CEO, Christopher Ramsey, USA Water
Polo’s corporate documents support the obligation that USA
Water Polo is responsible for health and safety issues.”
The SAC alleges that scientific studies show that there are
substantial neurological risks in allowing athletes to return to
MAYALL V. USA WATER POLO 7
play before they have completely recovered from a
concussion. One study cited by the SAC concludes that
“returning an athlete to participation before complete
recovery may greatly increase the risk of lingering, longterm,
or even catastrophic neurologic sequelae.” The SAC
alleges, “As of 2002, consensus had been reached in the
medical and scientific community for the cornerstones of the
management and treatment of concussions.” Reflecting this
consensus, an international group of experts has agreed on
post-concussion “return-to-play” protocols, the most recent
of which is the “Zurich II Protocol,” published in 2012. With
respect to children and adolescents , the Zurich II Protocol
provides:
Because of the different physiological
response and longer recovery after concussion
and specific risks (eg, diffuse cerebral
swelling) related to head impact during
childhood and adolescence, a more
conservative RTP [return-to-play] approach is
recommended. It is appropriate to extend the
amount of time of asymptomatic rest and/or
length of the graded exertion in children and
adolescents. It is not appropriate for a child
or adolescent athlete with concussion to RTP
on the same day as the injury, regardless of
the level of athletic performance.
In 2011, three years prior to H.C.’s injury, USA Water
Polo had developed a detailed “USA Water Polo Concussion
Policy” for athletic trainers for USA Water Polo’s national
team. However, USA Water Polo did not require, or even
recommend, that its Concussion Policy be followed by other
water polo teams under its governance. The SAC alleges it
MAYALL 8 V. USA WATER POLO
ignored repeated requests—even pleas—to implement a
concussion protocol for its other teams.
Between 2011 and 2014, USA Water Polo received
numerous emails reporting incidents in which young athletes
suffered concussions and requesting implementation of a
concussion policy for all water polo events. For example, in
August 2011, officials at Fullerton College “alerted USA
Water Polo about a player who was injured during a USA
Water Polo-sanctioned game” and “requested any USA Water
Polo concussion guidelines[.]” USA Water Polo’s Director
of Club and Member Programs, Claudia Dodson,
acknowledged that there was no concussion policy applicable
to the college. Professor Peter Snyder, the Head Swim Coach
at Fullerton, then sent another email regarding the incident,
encouraging USA Water Polo to implement a concussionmanagement
and return-to-play protocol. After USA Water
Polo responded by sending Snyder the national team’s policy,
Snyder pointed out that the policy “was only applicable to an
extremely small portion of the USA Water Polo
membership,” and “implored” USA Water Polo to implement
a protocol for all levels of play. But USA Water Polo took no
action.
The SAC alleges that at the time of H.C.’s injury in 2014
and during the class period, USA Water Polo had no
concussion-management policy or return-to-play protocol for
its youth water polo teams. However, USA Water Polo did
have “Rules Governing Conduct” applicable to all coaches,
referees and athletes, not limited to those associated with the
national team. “[B]uried in the fine print” of the Rules was
a provision stating that USA Water Polo coaches were
“expected to demonstrate good sportsmanship,” including
“avoiding . . . encouraging or permitting an athlete to return
MAYALL V. USA WATER POLO 9
to play pre-maturely following a serious injury (e.g., a
concussion) and without the clearance of a medical
professional.”
The SAC alleges three causes of action under California
law: negligence; breach of voluntary undertaking; and gross
negligence. The district court granted a motion to dismiss
under Rule 12(b)(6), holding that (1) the SAC fails to allege
a duty owed to H.C. by USA Water Polo and therefore fails
to allege actionable negligence; (2) the SAC insufficiently
alleges that a task or duty was “specifically” undertaken by
USA Water Polo, and that USA Water Polo had increased the
risk of harm to H.C.; and (3) the SAC fails to allege gross
negligence because it fails to allege a duty owed to H.C. by
USA Water Polo, and it fails to allege an “extreme departure
from ordinary standards of conduct.”
We reverse and remand for further proceedings.
II. Standard of Review
“We review de novo the district court’s grant of a motion
to dismiss under Rule 12(b)(6), accepting all factual
allegations in the complaint as true and construing them in
the light most favorable to the nonmoving party.” Fields v.
Twitter, Inc., 881 F.3d 739, 743 (9th Cir. 2018) (quotation
omitted).
III. Discussion
A. Negligence
To prevail in a negligence claim under California law, a
plaintiff must plead the existence of a duty, a breach of that
MAYALL 10 V. USA WATER POLO
duty, and damages proximately caused by the breach. See
Beacon Residential Cmty. Ass’n. v. Skidmore, Owings &
Merrill LLP, 327 P.3d 850, 853 (Cal. 2014) (quoting United
States Liab. Ins. Co. v. Haidinger-Hayes, Inc, 463 P.2d 770,
774 (Cal. 1970)); see also Friedman v. Merck & Co., 107 Cal.
App. 4th 454, 463 (Cal. Ct. App. 2003).
The SAC alleges that USA Water Polo had a “duty to
Plaintiff . . . to prohibit same day return to play after a
concussion, head blow or the exhibition of concussion
symptoms, as well as to prohibit premature return to play
before a player has fully recovered from a concussion, is
asymptomatic after proceeding through a stepwise return to
play protocol, and is cleared by a physician.” The SAC
further alleges that USA Water Polo breached that duty “by
failing to implement any policies, rules or regulations” to
prohibit such “return to play.” Finally, the SAC alleges that
H.C. was harmed by USA Water Polo’s breach of the alleged
duty.
1. “Primary Assumption of Risk” Doctrine
California Civil Code § 1714(a) provides, “Everyone is
responsible . . . for an injury occasioned to another by his or
her want of ordinary care or skill in the management of his or
her property or person [.]” Section 1714(a) establishes a
“general duty of each person to exercise, in his or her
activities, reasonable care for the safety of others.” Cabral v.
Ralphs Grocery Co., 248 P.3d 1170, 1172 (Cal. 2011).
Liability under § 1714(a) is the general rule. “[I]n the
absence of a statutory provision establishing an exception to
the general rule of Civil Code section 1714, courts should
create one only where ‘clearly supported by public policy.’ ”
Id. at 1174 (quoting Rowland v. Christian, 443 P.2d 561, 564
MAYALL V. USA WATER POLO 11
(Cal. 1968). Public policy considerations include “the
foreseeability of harm to the plaintiff, the degree of certainty
that the plaintiff suffered injury, the closeness of the
connection between the defendant’s conduct and the injury
suffered, the moral blame attached to the defendant’s
conduct, the policy of preventing future harm, the extent of
the burden to the defendant and consequences to the
community of imposing a duty to exercise care with resulting
liability for breach, and the availability, cost, and prevalence
of insurance for the risk involved.” Rowland, 443 P.2d at
564.
Under California’s “primary assumption of risk” doctrine,
a person or entity does not owe a duty of care under § 1714(a)
where “conditions or conduct that otherwise might be viewed
as dangerous . . . are an integral part of the sport itself.”
Knight v. Jewett, 834 P.2d 696, 708 (Cal. 1992). The general
rule under § 1714(a) with respect to sports is that liability
exists if a defendant acts (or fails to act) in a way that
increases the risk beyond that “inherent in the sport.”
“Although defendants generally have no legal duty to
eliminate (or protect a plaintiff against) risks inherent in the
sport itself, it is well established that defendants generally do
have a duty to use due care not to increase the risks to a
participant over and above those inherent in the sport.” Id.
Mayall does not argue that USA Water Polo is liable
under § 1714(a) for the injury incurred when H.C. was hit in
the head the first time. Rather, she argues that USA Water
Polo is liable for injuries suffered when H.C. was hit in the
head again, after she was returned to play. USA Water Polo
argues that such secondary head injuries are inherent in the
sport of water polo and that it is therefore not liable under
§ 1714(a). The question before us is thus whether, under
MAYALL 12 V. USA WATER POLO
California law, secondary head injuries such as those suffered
by H.C. are “inherent in the sport” of water polo. The district
court held that they are inherent, and that USA Water Polo
therefore did not owe a duty of care to H.C. We disagree,
based on a review of California case law.
Knight is the principal California case. Plaintiff was
injured by another player during an informal game of touch
football. The California Supreme Court denied recovery
under its primary assumption of risk doctrine and offered a
number of examples to illustrate the concept of “inherent in
the sport”:
[A]lthough moguls on a ski run pose a risk of
harm to skiers that might not exist were these
configurations removed, the challenge and
risks posed by the moguls are part of the sport
of skiing, and a ski resort has no duty to
eliminate them. . . . [A]lthough a ski resort
has no duty to remove moguls from a ski run,
it clearly does have a duty to use due care to
maintain its tow ropes in a safe, working
condition so as not to expose skiers to an
increased risk of harm. . . . [T]he latter type
of risk, posed by a ski resort’s negligence,
clearly is not a risk (inherent in the sport) that
is assumed by a participant. . . . [I]n a game of
baseball a player generally cannot recover if
he or she is hit and injured by a carelessly
thrown ball[.] . . . [I]n a game of basketball,
recovery is not permitted for an injury caused
by a carelessly extended elbow.
Id.
MAYALL V. USA WATER POLO 13
The Court in Knight contrasted its example of a carelessly
thrown ball with the facts in Ratcliff v. San Diego Baseball
Club, 81 P.2d 625 (Cal. Ct. App. 1938), where a California
Court of Appeal had held the owner of a baseball stadium
liable for injuries suffered from a thrown bat. In approving
the result reached in that case, the Court referred to the “duty
of the stadium owner to provide a reasonably safe stadium
with regard to the relatively common (but particularly
dangerous) hazard of a thrown bat.” Id. at 709. The Court
faulted the stadium owner “for its failure to provide the
patron ‘protection from flying bats, at least in the area where
the greatest danger exists and where such an occurrence is
reasonably to be expected.’ ” Id. (quoting Ratcliff, 81 P.2d at
626).
The reasoning and result in Ratcliff support Mayall.
Injury from a flying bat at a baseball game and from returning
to play in a water polo game after an initial head injury can be
minimized or eliminated. The court in Ratcliff acknowledged
that the stadium owner could not have protected all patrons
from flying bats, but held that the owner at least had a duty
where “the greatest danger exists” and was “reasonably to be
expected.” Ratcliff, 81 P.2d at 626. Similarly, while a water
polo coach or sponsoring organization may be unable to
protect a player from an initial blow to the head, the player
can be protected from a secondary injury from a repeated
blow, where “the greatest danger exists” and was “reasonably
to be expected.” Such secondary injury “increase[s] the risks
to a participant over and above those inherent in the sport.”
Knight, 834 P.2d at 708. Such secondary injury is not
“inevitable or unavoidable.” Campbell v. Derylo, 89 Cal.
Reptr. 2d 519, 524 (Cal. Ct. App. 1999).
MAYALL 14 V. USA WATER POLO
A comparison of Kahn v. East Side Union High School,
75 P.3d 30 (Cal. 2003), with Avila v. Citrus Community
College District, 131 P.3d 383 (Cal. 2006), provides further
support. In Kahn, a fourteen-year-old girl broke her neck
attempting to perform a racing dive into a shallow pool while
practicing for a swim meet. The California Supreme Court
wrote that “the object to be served by the doctrine of primary
assumption of risk in the sports setting is to avoid recognizing
a duty of care when to do so would tend to alter the nature of
an active sport or chill vigorous participation in the activity.”
Id. at 43. According to plaintiff’s evidence, the defendant
swim coach had not trained her to perform such a dive and
had pressured her into performing it. The Court held that the
assumption-of-risk doctrine did not apply. Reversing a
summary judgment for the defendant coach, the Court wrote,
“Plaintiff’s evidence supports the conclusion that the
maneuver of diving into a shallow racing pool, if not done
correctly, poses a significant risk of extremely serious injury,
and that there is a well-established mode of instruction for
teaching a student to perform this maneuver safely.” Id.
at 33. According to plaintiff’s evidence, the defendant
“engag[ed] in conduct that was reckless in that it was totally
outside the range of ordinary activity involved in teaching or
coaching the sport of competitive swimming.” Id. at 48. See
also Galardi v. Seahorse Riding Club, 20 Cal. Rptr. 2d 270
(Cal. Ct. App. 1993) (holding a horseback riding instructor
liable for increasing the risk during a training activity).
In Avila v. Citrus Community College District, 131 P.3d
383 (Cal. 2006), in contrast, plaintiff was a community
college baseball player. He alleged that he had been hit by a
“beanball” thrown by the pitcher for the opposing team from
Citrus College, in retaliation for a previously hit Citrus
College batter. Applying the primary assumption of risk
MAYALL V. USA WATER POLO 15
doctrine, the California Supreme Court held that Citrus
College did not owe plaintiff a duty of care to protect against
beanballs: “Being hit by a pitch is an inherent risk of
baseball. The dangers of being hit by a pitch, often thrown at
speeds approaching 100 miles per hour, are apparent and well
known: being hit can result in serious injury or, on rare tragic
occasions, death.” Id. at 393 (internal citations omitted).
The case before us resembles Kahn more closely than
Avila. H.C.’s coach knew that she had been hit in the head,
had time to evaluate her, and knew or should have known that
returning her to play had the potential of significantly
exacerbating her injury. As in Kahn, where the injury did not
result from a risk inherent in competitive swimming, the
secondary injury suffered by H.C. did not result from an
inherent risk in water polo. And unlike in Avila, where the
injury resulted from a one-time blow to the head, the
secondary injury suffered by H.C. occurred after the initial
blow.
Finally, the case before us is remarkably similar to
Wattenbarger v. Cincinnati Reds, Inc., 33 Cal. Rptr. 2d. 732
(Cal. Ct. App. 1994). A seventeen-year-old high school
baseball player suffered an arm injury while pitching during
a tryout for the Cincinnati Reds, a major league baseball
team. On his third pitch, the plaintiff felt his arm “ ‘pop’ but
experienced no particular pain.” Id. at 734. He stepped off
the mound and told Reds personnel that his arm had popped.
“Receiving no response, plaintiff returned to the mound and
threw another pitch. He immediately experienced severe pain
in his arm and quit pitching.” Id. The defendant team
contended that plaintiff’s arm injury was inherent in the game
of baseball. The California Court of Appeal disagreed. It
wrote that the “pop” experienced during the third pitch was
MAYALL 16 V. USA WATER POLO
inherent, but that the injury during the fourth pitch was not.
The Court wrote:
Had plaintiff stopped after his third pitch . . . ,
we would have no difficulty finding primary
assumption of risk a bar to recovery. . . .
However, the incident did not end with the
third pitch. Viewed in the light most
favorable to plaintiffs, the evidence
establishes defendants initially directed
plaintiff to pitch and then permitted him to
continue after he informed them his arm had
“popped.” It is reasonable to infer that when
plaintiff, a 17-year-old, informed the Reds’
personnel that his arm had “popped,” he was
seeking guidance as to how to proceed.
Hearing nothing to countermand the original
instruction to pitch, and obviously anxious to
please and impress the scouts, plaintiff threw
another pitch, thereby causing further injury.
Id. at 736–37.
The court’s holding in Wattanberger rests on the primarysecondary
distinction that is at the core of Mayall’s case. The
first injury (the “pop”) was inherent in the game of baseball.
The secondary injury, suffered after the plaintiff was allowed
to continue pitching after experiencing the “pop,” was not
inherent. Because it was foreseeable to Reds personnel that
“further use of the injured member” posed an increased risk
compared with the risk before the “pop,” the court held that
the secondary injury was not an “integral part of the sport
itself.” Knight, 834 P.2d. at 708. Similarly, Mayall concedes
that H.C.’s first injury, incurred when she was hit in the face
MAYALL V. USA WATER POLO 17
during the first game, was inherent in the game of water polo.
However, the secondary injury, incurred when H.C. was hit
in the head again after being returned to play, was not
inherent in the game. “[D]azed” from the initial blow, H.C.
swam to the side of the pool to speak with her coach, but, like
the pitcher in Wattenberger, she received no guidance or
instruction that would have removed her from play. As the
Court of Appeal wrote in Wattenberger, “It requires no depth
of analysis to recognize that when one injures himself, further
use of the injured member will likely exacerbate the
condition.” Wattenberger, 33 Cal. Rptr. 2d at 738.
We recognize that the California Supreme Court
cautioned in Knight that § 1714(a) does not impose a duty of
care that would “alter fundamentally the nature of the sport.”
Knight, 834 P.2d at 710. Citing Knight, the Court of Appeal
wrote in Ferrari v. Grand Canyon Dories, 38 Cal. Rptr.2d 65,
67 (Cal. Ct. App. 1995), “The overriding consideration in the
application of primary assumption of risk is to avoid
imposing a duty which might chill vigorous participation in
the implicated activity and thereby alter its fundamental
nature.” However, USA Water Polo has, by its own actions,
made clear that using a detailed concussion-management and
return-to-play protocol does not alter the fundamental nature
of water polo. As noted above, the SAC alleges that USA
Water Polo has imposed on its national team a “USA Water
Polo Concussion Policy,” under which players who have
suffered concussions are protected from further injury. Given
its policy for the national team, USA Water Polo can hardly
contend that a comparably detailed concussion-management
policy and return-to-play protocol for its youth-league players
would fundamentally alter the nature of water polo.
MAYALL 18 V. USA WATER POLO
2. Fulfilling the Duty of Care
USA Water Polo argues in its brief that if it did owe a
duty of care to H.C., the “existence” of its “Rules Governing
Coaches’ Conduct,” applicable to all USA Water Polo teams,
fulfilled that duty. We disagree.
The Rules Governing Coaches’ Conduct are contained in
a six-page, single-spaced document. The Rules cover
conduct under a number of different headings:
“sportsmanship,” “violent behavior,” “recruiting,”
“registration,” “incident reports,” “drugs and alcohol,”
“relationship with athletes,” “background screening,” “CPR
and first aid screening,” “reporting rules violations,” and
“enforcement.” There is no heading labeled “athlete safety”
or “concussion protocol.” The language applicable to
concussions comes under the heading “sportsmanship.” The
Rules provide as follows:
Sportsmanship
Coach members of USA Water Polo are
expected to demonstrate good sportsmanship.
This includes, but is not limited to, avoiding
the following conduct:
1. Hazing, bullying, harassing or taunting:
. . .
2. Physically or emotionally abusing:
(a) an athlete, (b) coach, (c) a referee or
(d) any person participating in, or
conducting, USA Water Polo sanctioned
events.
MAYALL V. USA WATER POLO 19
. . .
b. The term “physical abuse” means:
(i) contact or non-contact conduct that
results in, or reasonably threaten[s] to,
cause physical harm . . . or (ii) any act
or conduct described as physical abuse
or misconduct under any federal or
state law (e.g. child abuse, child
neglect, assault). . . . Examples of
physical abuse include, without
limitation, behaviours such as: . . .
(vii) encouraging or permitting an
athlete to return to play pre-maturely
following a serious injury (e.g., a
concussion) and without the clearance
of a medical professional.
(Bolding in original; italics added.)
The USA Water Polo Concussion Policy applicable to the
national team, as well as the Zurich II Protocol, are
substantially different from the Rules of Conduct. The
Concussion Policy is a one-page single-spaced document,
promulgated and applied to the national team in 2011, three
years before H.C.’s injury. The Policy addresses only head
injuries. It provides:
Once a player has been identified as
suffering a concussion or mild traumatic brain
injury (MTBI) by a medical professional or a
coach or team manager recognizes the
following:
MAYALL 20 V. USA WATER POLO
Any injury that may result in a bad
headache, altered levels of alertness, or
unconsciousness and/or affecting memory,
judgment, reflexes, speech, balance,
coordination, and sleep patterns.
The following Protocol should be
followed:
1. Initial evaluation by an ATC, EMT,
DC, D.O., or MD following the SCAT 2
protocol (see attached).
2. The team physician should be notified
immediately and return to play is
prohibited on the same day and will be
determined by the team physician or
physician responsible for the athlete.
Protocol is as per SCAT 2
recommendations as well. The athlete
will be followed periodically by the
physician to access [sic] return to play.
3. The physician will notify the coach
after each evaluation as to athlete’s
condition pending the athlete’s consent to
share medical information.
(Italics and underlining in original.) “SCAT 2” is shorthand
for Sport Concussion Assessment Tool 2. SCAT 2 is a
detailed four-page questionnaire designed to assess the
seriousness of a head injury. On its first page are twenty-two
criteria such as “headache,” “dizziness,” and “confusion,”
with assessments rated on a scale of 0 to 6 for each of the
MAYALL V. USA WATER POLO 21
criteria. SCAT 2 at 1. At the bottom of the first page,
SCAT 2 states in bold print: “Any athlete with a suspected
concussion should be REMOVED FROM PLAY,
medically assessed, monitored for deterioration (i.e.,
should not be left alone) and should not drive a motor
vehicle.” Id.
The Zurich II Protocol was published in 2012, one year
after USA Water Polo promulgated its Water Polo
Concussion Policy and applied it to the national team. The
Protocol is a twelve-page single-spaced document devoted
entirely to concussions in sporting activities. Among other
things, the Protocol provides detailed guidance for detecting
and treating concussions. It provides:
On-field or sideline evaluation of acute
concussion
When a player shows ANY features of a
concussion:
A. The player should be evaluated by a
physician or other licensed healthcare
provider onsite using standard emergency
management principles and particular
attention should be given to excluding a
cervical spine injury.
B. The appropriate disposition of the
player must be determined by the treating
healthcare provider in a timely manner. If
no healthcare provider is available, the
player should be safely removed from
MAYALL 22 V. USA WATER POLO
practice or play and urgent referral to a
physician arranged.
C. Once the first aid issues are addressed,
an assessment of the concussive injury
should be made using the SCAT3 or other
sideline assessment tools.
D. The player should not be left alone
following the injury and serial monitoring
for deterioration is essential over the
initial few hours following injury.
E. A player with diagnosed concussion
should not be allowed to RTP [Return to
Play] on the day of injury.
(Bolding in original.) The Protocol attaches copies of
SCAT 2, SCAT 3 and Child SCAT 3, as appendices.
The differences between the Rules Governing Coaches’
Conduct, on the one hand, and the Water Polo Concussion
Policy and the Zurich II Protocol, on the other, are striking.
First, the Rules cover a large variety of topics, ranging far
beyond concussions. Second, the Rules are merely hortatory,
saying what the coaches are “expected” to do. Third, the
language in the Rules referring to concussions is, as stated in
the SAC, “buried in the fine print.” Fourth, the language
referring to concussions comes under the misleading heading
of “sportsmanship.” Fifth, the language comes under the
additionally misleading heading of “physical abuse,” defined
as “(i) contact or non-contact conduct that results in, or
reasonably threaten[s] to, cause physical harm . . . or (ii) any
act or conduct . . . [such as] child abuse, child neglect,
MAYALL V. USA WATER POLO 23
assault.” Sixth, the language is provided only as the seventh
example of such “physical abuse.” Finally, the language is
vague, advising coaches against allowing an athlete to return
to play following a “serious injury,” and providing a
concussion only as an example of such an injury.
In stark contrast, the USA Water Polo Concussion Policy
and the Zurich II Protocol are single-topic documents
addressing only head injuries. They are mandatory rather
than hortatory. Their instructions are detailed and clear,
instructing coaches and others precisely what to do to in order
to assess the seriousness of a blow to the head, and in order
to protect athletes who may have suffered a concussion.
Finally, they make clear the seriousness of a suspected
concussion, with SCAT 2 telling coaches in bold print, “Any
athlete with a suspected concussion should be REMOVED
FROM PLAY, medically assessed, monitored for
deterioration[.]”
The SAC alleges that the USA Water Polo Concussion
Policy and the Zurich II Protocol instruct coaches and other
officials as to the accepted standard of care for athletes who
may have suffered concussions during an athletic contest. It
further alleges that the Rules Governing Coaches’ Conduct
fall short of providing such instruction, and that the existence
of the Rules does not satisfy USA Water Polo’s duty of care.
Based on the above comparison, we agree and conclude that
the existence of the Rules does not satisfy the duty of care.
B. Voluntary Undertaking
Under California law, a voluntary undertaking claim
requires a showing that (1) an actor undertook to render
services to another; (2) the services rendered were of a kind
MAYALL 24 V. USA WATER POLO
the actor should have recognized as necessary for the
protection of third persons; (3) the actor failed to exercise
reasonable care in the performance of the undertaking; (4) the
failure to exercise reasonable care resulted in physical harm
to the third persons; and (5) either (a) the actor’s carelessness
increased the risk of such harm, or (b) the undertaking was to
perform a duty owed by the other to the third persons, or
(c) the harm was suffered because of the reliance of the other
or the third persons upon the undertaking. See Artiglio v.
Corning Inc., 957 P.2d 1313, 1318 (Cal. 1998).
The SAC alleges that USA Water Polo voluntarily
undertook the duty of ensuring that “proper safety precautions
have been taken to protect the personal welfare of . . .
athletes,” and committed itself to “creating a healthy and safe
environment of all of [its] members.” The SAC, citing USA
Water Polo’s national team concussion protocol, further
alleges that USA Water Polo “realize[d] that rules regarding
concussion management and return to play were necessary for
the protection of H.C. and the Class so as not to increase the
risk of prolonging concussion injuries.” The SAC alleges that
by failing to establish a concussion-management and returnto-
play protocol for its youth water polo league, USA Water
Polo failed to exercise reasonable care in the performance of
its undertaking—ensuring a healthy and safe environment for
its players—resulting in H.C.’s concussion and other head
injuries to members of the purported Class.
USA Water Polo argues that the SAC insufficiently
alleges a duty “specifically” undertaken by USA Water Polo.
According to USA Water Polo, the duty it undertook to
“create a healthy and safe environment” was insufficient to
trigger liability. But the SAC does not just allege a general
undertaking by USA Water Polo to promote health and
MAYALL V. USA WATER POLO 25
safety. Rather, it alleges that USA Water Polo undertook a
specific responsibility to establish and enforce rules to ensure
the safety of athletes in its youth water polo league. Indeed,
the SAC alleges that USA Water Polo “regulates every aspect
of water polo, including the enactment of rules regarding
player safety and health,” and that USA Water Polo’s own
bylaws “require it to ensure proper safety precautions have
been taken to protect the personal welfare of the athletes” at
its events.
Citing Nalwa v. Cedar Fair, L.P., 290 P.3d 1158 (Cal.
2012), USA Water Polo further argues that its actions do not
support a voluntary undertaking claim. In Nalwa, the
plaintiff sued an amusement park owner for negligence after
she fractured her wrist while riding a bumper car. Id. at 1160.
Plaintiff argued that defendant’s efforts to minimize head on
collisions between bumper cars demonstrated that defendant
owed her a duty to eliminate such collisions. Id. The
California Supreme Court rejected this argument, explaining
that “not every rule imposed by an organizer or agreed to by
participants in a recreational activity reflects a legal duty
enforceable in tort.” Id. at 1163. The Court went on to
explain that an operator might still “violate its ‘duty to use
due care not to increase the risks to a participant over and
above those inherent’ in the activity . . . by failing to provide
routine safety measures.” Id. In the case before us, the SAC
alleges that USA Water Polo failed to use its authority to
provide routine and important safety measures, including a
concussion-management and return-to-play protocol that
protects players. USA Water Polo thereby increased the risk
of secondary concussions to players who improperly returned
to play, a risk that USA Water Polo could eliminate through
the implementation of concussion-management protocols
already used by its national team.
MAYALL 26 V. USA WATER POLO
Finally, USA Water Polo argues that Mayall’s voluntary
undertaking claim fails because the SAC fails to allege that
H.C. relied on USA Water Polo. California law makes clear
that reliance is only one of several ways in which a plaintiff
claiming voluntary undertaking may allege an actionable
harm. A plaintiff may also support a voluntary undertaking
claim by alleging (1) that an “actor’s carelessness increased
the risk of . . . harm,” or (2) “the undertaking was to perform
a duty owed by the other to the third persons[.]” Artiglio,
957 P.2d at 1318. Here, the SAC alleges that USA Water
Polo increased the risk of harm to H.C. by failing to adopt
consensus return-to-play protocols which in turn increased
the risk that players would suffer secondary concussions. As
the SAC alleges, USA Water Polo is “the rule-making
authority” for water polo in the United States “with the selfproclaimed
responsibility for player safety and health” and it
therefore “has a duty to not increase the risk of injuries.” The
failure of USA Water Polo to promulgate safety rules that
would have protected H.C. is sufficient to support a voluntary
undertaking claim.
C. Gross Negligence
California law defines “gross negligence” as “either a
‘want of even scant care’ or ‘an extreme departure from the
ordinary standard of conduct.’” City of Santa Barbara v.
Superior Court, 161 P.3d 1095, 1099 (Cal. 2007). The SAC
alleges that the USA Water Polo’s “extreme departure from
the ordinary standard of conduct” constituted gross
negligence.
The SAC alleges that USA Water Polo repeatedly ignored
the known risk of secondary injuries, and repeatedly ignored
requests that it implement a concussion-management and
MAYALL V. USA WATER POLO 27
return-to-play protocol. The SAC alleges that the risks of
repeat concussions had been well known for many years, and
that a consensus for return-to-play protocols for dealing with
athlete concussions has been well-established since 2002.
The SAC alleges that as early as September 2010, USA
Water Polo’s insurer had “emailed USA Water Polo to
discuss state concussion and return to play laws that would
impact USA Water Polo,” concluding that “[g]iven the
serious nature of the risk, we expect that this issue will
continue to receive national attention and will maintain
momentum until the prevention, recognition and management
of concussions in youth sports has been adequately
addressed.” The SAC alleges that as early as 2011, parents
and educators were raising concerns with USA Water Polo
about the need for a concussion protocol. Rather than
formulate and implement a protocol for its youth athletes,
USA Water Polo did nothing. Even as a number of state
legislatures began to pass laws codifying return-to-play
protocols for dealing with concussions, USA Water Polo
continued to do nothing. Finally, USA Water Polo failed to
implement a known protocol for its youth participants despite
formulating and implementing such a protocol for its adult
athletes on the national team.
These allegations, taken as true, demonstrate that USA
Water Polo was well-aware of the severe risk of repeat
concussions and of the need to implement a policy to remove
players from play after suffering a head injury. USA Water
Polo’s inaction in the face of substantial evidence of risk of
harm, constitutes “an extreme departure from the ordinary
standard of conduct,” and amounts to gross negligence under
California law.
MAYALL 28 V. USA WATER POLO
Outcome: For the foregoing reasons, we hold the SAC pleads
sufficient facts to support claims upon which relief can be
granted under California law for negligence, voluntary
undertaking, and gross negligence.
REVERSED and REMANDED.
Plaintiff's Experts:
Defendant's Experts:
Comments: