Opinion
I.C. No. TA-13609
Filed 29 September 1999.
This case was reviewed by the Full Commission on 19 October 1998 upon the appeal of defendant from the Decision and Order by Deputy Commissioner Richard B. Ford filed 2 February 1998. Deputy Commissioner Ford initially heard this matter on 24 February 1997. The Full Commission panel originally consisted of Commissioners Riggsbee, Bolch and Scott. During Commissioner Scott's illness, Chairman Bunn was substituted as the third member of the Full Commission panel, and the parties were so notified. As Chairman Bunn has retired from the Commission, Commissioner Scott has rejoined the panel.
Plaintiff: Anderson Anderson, Attorneys, Raleigh, N.C.; Michael J. Anderson appearing.
Defendant: The Honorable Michael F. Easley, Attorney General of the State of North Carolina, Raleigh, N.C.; Carol Barnhill, Associate Attorney General, appearing.
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Upon review of the competent evidence of record with respect to the errors assigned, the Full Commission finds good ground to reconsider the evidence. Having reconsidered the evidence of record, the Full Commission reverses the Decision and Order of the Deputy Commissioner and enters the following Decision and Order.
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The Full Commission finds as fact and concludes as matters of law the following, which were entered into by the parties at the hearing on 24 February 1997 as:
STIPULATIONS
1. William Friday, Christopher C. Fordham, III, Mary Sullivan, Don Boulton, John Swafford were employees of the University of North Carolina at Chapel Hill and the State of North Carolina on 15 January 1985.
2. John Graham, Jay Tobin, Warren Bane, and Pat Murphy were students at the said university in the years 1984 and 1985 and on the junior varsity cheerleading squad.
3. Plaintiff's Exhibits 1, 2 and 3 and Defendant's Exhibit 1 are stipulated into the record, being 300 pages of medical records, video tape recording of deposition of Dr. John A. Messenheimer, video tape recording of deposition of Dr. Marc A. Rabinoff, and video tape recording of deposition of Lance Wagers, respectively.
4. The following deposition transcripts with respect to which all Motions and Objections have been duly considered under the applicable law and rules of evidence:
a. Deposition of Marc A. Rabinoff, Ed.D. dated 17 March 1995.
b. Deposition of John A. Messenheimer, M.D. dated 21 September 1995.
c. Deposition of Mary Sullivan dated 19 November 1993.
d. Deposition of Robert Lee Stallings dated 16 April 1994.
e. Deposition of Donald A. Boulton dated 13 March 1997.
f. Deposition of Lance Wagers dated 11 September 1996.
5. In the event the issues are found in favor of plaintiff and against defendant, the damages will be in the maximum amount of $100,000.00.
6. At the hearing on 24 February 1997, the parties introduced the following exhibits which have been admitted into the record:
a. Plaintiff's Exhibit 4, marked P4, consisting of a memorandum dated 3 October 1980.
b. Plaintiff's Exhibit 5, marked P5, consisting of a letter dated 29 April 1981.
c. Plaintiff's Exhibit 6, marked P6, consisting of a news article from the N.C.A.A.
d. Plaintiff's Exhibit 7, marked P7, consisting of an article from Better Homes and Gardens.
e. Plaintiff's Exhibit 8, marked P8, consisting of a letter dated 26 August 1983.
f. Plaintiff's Exhibits 9 through 17, marked P9 through P17, consisting of various documents dealing with budgetary matters and cheerleader matters to all of which defendant objects with the exception of P9, P14 and P15.
g. Defendant's Exhibit 2, marked D2, consisting of various documents dated from 25 August 1981 to 25 October 1983.
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Based upon the competent evidence adduced from the record, the Full Commission makes the following:
FINDINGS OF FACT
1. On 15 January 1985 and prior thereto, defendant sponsored student cheerleading squads. These squads, varsity and junior varsity, were maintained through its Vice-Chancellor, Dean of Student Affairs and Associate Vice-Chancellor of Student Affairs, employees of defendant. The cheerleading squads appeared on behalf of defendant at sports, athletic and other entertainment and promotional events. Defendant supplied uniforms, a place for practice, travel funds, and an administrator who was in charge of travel arrangements, practice dates, and supervision.
2. As of 15 January 1985, plaintiff was a member of the junior varsity cheerleading squad. At the direction and under the supervision of defendant, members of the junior varsity squad were not allowed to be seen drinking alcoholic beverages in public, were to maintain certain grade point averages, and were given academic credits in the physical education program for their participation on the cheerleading squad at defendant's athletic and promotional events.
3. On the evening of 15 January 1985, the junior varsity cheerleaders were practicing on the hardwood floor of Carmichael Gymnasium on defendant's campus. Plaintiff and her squad were performing a 2 1/2-tier pyramid stunt, in which plaintiff was held on the hand of a male cheerleader at the top of the pyramid while he stood on the shoulders of two other cheerleaders who were standing on the hardwood floor of the gymnasium. The pyramid became unsteady and plaintiff fell from a height of approximately thirteen feet, through the arms of a spotter, who failed to break her fall. Plaintiff hit her head on the hardwood floor, sustaining a closed-head injury with permanent brain damage and serious bodily injury.
4. Plaintiff had not been the cheerleader on top of the 2-tier pyramid stunt prior to early December 1984. She was selected for that position by other members of the squad only after the person previously in the position was injured in a fall.
5. In December 1984, prior to the holiday break, the squad practiced the pyramid stunt with plaintiff in the top position. After returning from break, plaintiff and the squad resumed practicing the pyramid, with plaintiff on top, during the first two weeks of January 1985.
6. At the hearing before Deputy Commissioner Ford, both Mr. John Graham and Mr. Jay Tobin testified regarding the number of spotters used by the squad at the time of the incident in question. While Mr. Graham's testimony was equivocal, Mr. Tobin, who was co-head of the squad, was clear in his testimony that there were three spotters being used when the squad attempted the pyramid in question on 15 January 1985. The undersigned give greater weight to the testimony of Mr. Tobin on this issue.
7. Defendant provided protective floor covering mats to the junior varsity cheerleading squad, and the mates were used by the team during routine practices at the Fetzer Gym facility. However, as plaintiff and the other team members were aware, the squad did not use mats when it practiced prior to games at Carmichael gymnasium.
8. Although the Atlantic Coast Conference (ACC) had banned pyramids greater than two persons high in May 1983, this prohibition was rescinded in October 1983 when the conference determined that it should not regulate cheerleading at its schools. Furthermore, on 15 January 1985, there were no conference or National Collegiate Athletic Association (NCAA) rules which required that 2-tier pyramids be performed or practiced only in the presence and under the supervision of a coach.
9. Defendant did not owe plaintiff a duty to provide coaching or faculty supervision to monitor the activities and stunts of the cheerleading squad, nor did defendant owe plaintiff a duty to prohibit 2-tier pyramid stunts. This absence of an affirmative duty is not only reasonable in terms of defendant's responsibilities, but also serves to protect student autonomy.
10. Plaintiff failed to produce sufficient evidence that any named employee of defendant breached any duty owed to her or was negligent.
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Based upon the foregoing findings of fact, the Full Commission makes the following:
CONCLUSION OF LAW
Defendants' named employees did not breach any legal duty owed to plaintiff, nor did they commit any acts of negligence which proximately resulted in plaintiff's injuries; therefore, plaintiff is not eligible to recover under the Act. G.S. 143-291.
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Based upon the foregoing findings of fact and conclusions of law, the Full Commission reverses the Decision and Order of the Deputy Commissioner and enters the following:
ORDER
1. Plaintiff's claim is hereby denied.
2. Each side shall pay its own costs.
This the ___ day of August 1999.
S/_____________ RENEE C. RIGGSBEE COMMISSIONER
CONCURRING:
S/_____________ CHRISTOPHER SCOTT COMMISSIONER
DISSENTING:
S/_____________ THOMAS J. BOLCH COMMISSIONER
Cheerleading and football at the University of North Carolina have come a long way since the days of Kay Kyser and "Choo Choo" Charlie Justice. Football and basketball at Carolina have graduated from varsity sports to big-time money-making industries.
Cheerleading is one of the necessary auxiliaries of these multi-million-dollar industries. And just as junior varsity sports is often a training ground for varsity sports, junior varsity cheerleading is often a training ground for varsity cheerleading.
A different analysis than that made by the majority is therefore appropriate.
Just as the Supreme Court of North Carolina took another look at the doctrine of charitable immunity in Rabon vs. Hospital, 269 N.C. 1, 152 S.E.2d 485 (1967), finding that few hospital charities were true charities any longer, I believe it is time for our Courts to take another look at the status of big-time varsity sports and the persons who make the monetary success of those sports possible. In Rabon, one of the reasons the Supreme Court eliminated charitable immunity was that "charitable" hospitals had become money-making institutions supported by patient dollars and tax dollars. The money-making nature of big-time varsity sports leads me to the conclusion that these enterprises should pay for their human wreckage. I am well aware that the Industrial Commission is not the Supreme Court but I do not believe that I am the only one who draws a parallel between "charitable" hospitals and "varsity" sports.
In the case before the Industrial Commission the University undertook the sponsorship of a junior varsity cheerleading squad, including providing a faculty person as an advisor or overseer. The University did not have to provide an overseer. However, once it did so it was under a duty to choose a capable overseer. By having an overseer, members of the JV cheerleading squad were put under a false sense of security. Without an overseer, they would be responsible for their own safety. With an overseer, the overseer was the person so responsible.
Here, the overseer chosen by the University was not trained in cheerleading or the safety of cheerleading.
This tort claim arose out of an accident occurring on 15 January 1985, in Carmichael Auditorium, where plaintiff, a UNC cheerleader on the junior varsity (JV) team, was performing a pyramid stunt. The stunt was called a 2/1 chair which is a pyramid which has two base persons with one person standing on the shoulders of the two base persons on the ground, and then the top person of the pyramid is pitched up to the top and sits on the hand of an extended arm of one of the base persons who is on the second level. Jay Tobin and Warren Bane of the JV team formed the base of the pyramid.
Plaintiff was "popped" up by John Graham to sit on the hand of Pat Murphy who was standing on the shoulders of Jay and Warren. The pyramid became unstable, falling backwards. Pat pushed Plaintiff forward. John Graham, a designated spotter, caught plaintiff under her legs and the small of her back, but he did not catch her shoulders and plaintiff hit her head on the floor. Plaintiff sustained severe head injuries as a result of the fall.
The record evidence showed that the JV team used protective mats at their regular practices in Fetzer Gym but that they chose not to use these mats at the time of plaintiff's fall when they were practicing in Carmichael Auditorium. During the weeks prior to her January 15, 1985 fall, plaintiff had previously practiced being the top person on the 2/1 pyramid.
Although there was not a cheerleading coach assigned to work with the JV team at the time of the accident, there was an administrative advisor, Mary Sullivan, assigned to the cheerleaders. In addition, Robert Stallings, an experienced varsity cheerleader, was available to the JV squad and often assisted in their practices. Ms Sullivan had little training in cheerleading and no training in teaching cheerleading techniques or cheerleading coaching. She had no coaching experience, but she had advisor experience at the University of Louisville which had a qualified full time cheerleading coach.
Ms. Sullivan offered no help to the junior varsity teams in the way of guidance for cheers, dance or stunts. She gave no direction or advice to the team. She only helped with administrative functions. She did not attend junior varsity cheerleading practices and may have attended one game.
Sometimes Rob Stallings, the varsity team's representative to the junior varsity team, would offer encouragement, but he had no responsibility for teaching safety and cheering techniques. No university representative monitored practice, safety equipment use, weight training, the stunts they tried, or the progress the individuals or team made.
The cheerleader file produced by the University showed that as early as October 3, 1980, James Cansler, Associate Vice Chancellor for Student Affairs, discussed the dangers of cheerleading as performed at UNC with Mr. Boulton, the person in charge of the cheerleading team at UNC at the time in question.
He pointed out that the cheerleaders were representatives of the University, selected by a university sanctioned process, wore uniforms provided by the University, at that time were coached by a University paid coach and wore University uniforms. He argued that the University should not ". . . sponsor a dangerous activity and permit and encourage students to participate in it for the University's benefit only to disavow responsibility for injuries resulting from students' participation."
He suggested that a commission be appointed to evaluate whether cheerleader routines "are safe enough to permit their continued use."
In 1981, the Director, Department of Student Life sent a letter to Mr. Boulton stating that he had "growing anxiety about the safety of some of [the cheerleading] routines." An article from the National Collegiate Athletic Association dated March 31, 1981 that was in Dean Boulton's file said that the Southeastern Conference is recommending that pyramids higher than two levels be prohibited because of the dangers of pyramids higher than two levels. A letter to Dean Boulton shows that the cheerleaders wanted a qualified coach. Dean Boulton was notified that the Atlantic Coast Conference had banned higher than two level pyramids.
Dean Boulton's file showed that Wake Forest University permitted pyramids ". . . if the cheerleaders are skilled performers, if they are well coached, and if mats are required." Finally, on October 25, 1983 and in response to the ACC's removal of the ban, Dean Schroeder was asked to ". . . take charge of any future decisions with regard to the safety and well-being of our cheerleaders." With the exception of the last letter, all of this correspondence occurred before Robin attended Chapel Hill.
Dr. Rabinoff is an expert in gymnastics as it applies to cheerleading. He has worked with cheerleading squads in terms of gymnastics skills.
In Dr. Rabinoff's opinion, the University of North Carolina at Chapel Hill, on January 15, 1985 should have had a cheerleading coach, mats available for the pyramid from which Robin fell and she should have had two spotters who knew how to spot, and had a coach available. He testified that the defendant departed from the standard of care for universities similar in size, location and community as UNC and with the cheerleading development, training and experience that the J.V. team had by permitting this pyramid on January 15, 1985 because of the "lack of training of the participants, lack of coaching expertise on the part of the cheerleading coach, lack of safety assurances within the practices. . . . specifically to the use of mats."
He further testified that departure from the standard of care caused Robin's injury.
The defendant's negligence in ignoring warnings of danger for five years before plaintiff's injury and its violation the standard of care caused plaintiff's injury. The University should have warned the team about the danger and controversy surrounding these pyramids. Plaintiff relied on the University to provide guidance.
My vote is to affirm the decision of the Deputy Commissioner and award damages.
This 25th day of August, 1999.
S/_____________ THOMAS J. BOLCH COMMISSIONER