Hammond v. Board of Educ. of Carroll County

• Decision Date: 01 September 1993
• Docket Number: No. 1306,1306
• Citation: 639 A.2d 223,100 Md.App. 60
• Parties: , 90 Ed. Law Rep. 256 TAWANA HAMMOND, et al. v. BOARD OF EDUCATION OF CARROLL COUNTY, Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 60

100 Md.App. 60

639 A.2d 223, 90 Ed. Law Rep. 256

TAWANA HAMMOND, et al. v. BOARD OF EDUCATION OF CARROLL COUNTY, Maryland.

No. 1306, Sept. Term, 1993.

Court of Special Appeals of Maryland.

April 7, 1994.

William D. Kurtz and Neil J. Bixler (Verderaime & DuBois, P.A., Baltimore, Daniel H. Green and Davis, Murphy, Weisse & Green, Eldersburg, on the brief), for appellants.

Edmund J. O'Meally and George L. Huber, Jr. (William J. Kobokovich, Jr., Huber & Lutche, P.A., and Blum, Yumkas, Mailman, Gutman & Denick, P.A., on the brief), Baltimore, for appellee.

Argued before WILNER, C.J., and GARRITY and MOTZ, JJ.

MOTZ, Judge.

On August 25, 1989, appellant, Tawana Hammond, the first female high school football player in Carroll County history, was injured in her team's initial scrimmage. Three years later, Tawana and her mother, appellant Peggy Hammond (collectively, the Hammonds) filed suit in the Circuit Court for Carroll County against appellee, the Board of Education of Carroll County (the Board), seeking $1.25 million in compensatory damages. The Hammonds asserted (1) that the high school authorities negligently failed to warn them of the potential risk of injury inherent in playing football and (2) that if they had been so warned Tawana would not have chosen to play football and her mother would not have permitted her to do so. ¹ After the parties conducted discovery, the Board moved for summary judgment, which the circuit court (Beck, J.) granted.

The record reveals that the underlying material facts are not disputed. Sixteen-year-old Tawana tried out for the Francis Scott Key High School varsity football team in the summer of 1989, prior to the beginning of her junior year in high school. Although Tawana had previously participated in a number of track events and played softball and soccer, she had never engaged in any contact sports. Tawana had watched football on television since she was six years old but did not become interested in football until her freshman year in high school; she had never observed any "really serious" injuries in these televised games, only a "twisted ankle or something." She saw a half dozen high school games during her freshman and sophomore years and saw no players hurt at those games. Tawana knew football was a "physical contact sport" and determined she wanted to play it because "[i]t was different."

In order for a student to play sports at Francis Scott Key High School, the student and the student's parent must sign a document entitled "Francis Scott Key High School Athletic Regulations and Permission Form." Both Tawana and her father, John Hammond (not a party herein), signed this form on June 18, 1989. The permission form states that the student has read the school handbook and regulations and agrees to abide by them and that the parent has read them and "consents" to the child's participation in the sport. One sentence in the permission form specifically states that "[w]e do our very best to avoid accidents, but we realize that in the normal course of events, some occur." In deposition, Tawana testified that she read the permission form and, in particular, this sentence before she started playing football and understood that she "could get a broken leg, [or] broken arm" as a result of playing varsity, tackle football.

The permission form also requires that "[e]ach participating athlete must have a special examination" by the family physician and "must be found physically fit" and "must also have parent/guardian permission to participate." Tawana submitted the required "Carroll County Public Schools Athletic Participation Health Examination Form" signed by her doctor on July 31, 1989; in it her doctor certified that she was "physically able" to compete in a list of sports, including football. Moreover, on that same date Tawana's mother, a certified nurse's aide, whose older son played football at Francis Scott Key High School until "he sprained his leg," signed the participation form. On that form, Ms. Hammond gave her "consent" for Tawana to play the several sports listed, including football. Ms. Hammond acknowledged in deposition that "injury was [her] biggest fear" for Tawana, i.e., "like [a] broken leg, [or] broken arms," but that she never communicated her fears to Tawana and believed Tawana "should be allowed to do whatever it was she wanted to do."

Throughout the summer of 1989, Tawana participated in the team's weight lifting program along with the other varsity football players. She was happy with the progress that she was making in her strength training and had no concerns or fears that she would not be physically strong enough to compete on the playing field. Practice began in August. On the first day of practice, which involved some contact drills, Tawana, along with the rest of the team, was instructed by the head coach, not to tackle, block or "do anything" with the neck because "you could get a neck injury." After the first practice, a meeting was conducted for the parents of the players. Tawana and both of her parents attended that meeting, at which an official gave a presentation discussing the possibility of serious injury to the neck if the head were used for blocking or tackling.

As practices continued, Tawana had no difficulty in keeping up physically with the other players on the team. On August 25, 1989, Tawana, along with the rest of the Francis Scott Key High School varsity football team, travelled to Anne Arundel County for the team's first practice scrimmage. Prior to the scrimmage, Tawana was interviewed by a television reporter and stated that "[p]laying football is a tough sport. I do have to admit that." During the scrimmage, while carrying the ball, Tawana was tackled by a rival player and sustained multiple internal injuries including a ruptured spleen. Her spleen and part of her pancreas were removed, and she was hospitalized for some time.

On August 13, 1992, Tawana and her mother filed this suit. The circuit court granted summary judgment to the Board, concluding that (a) it had no duty to warn "of the risk of serious, disabling and catastrophic injury associated with playing on a high-school-varsity, tackle, football team;" (b) if there was a duty to warn the Hammonds it was satisfied; and (c) Tawana and her mother assumed the risk of injury as a matter of law.

On appeal, Tawana and her mother raise three questions:

1. Did the lower court err when it held, as a matter of law, that based on the appellants' training, intelligence, and experience the appellee owed no duty to warn the appellants of the risks of serious, disabling, and catastrophic injuries involved in participating in interscholastic high school football?

2. Did the lower court err when it held, as a matter of law, that the appellee fulfilled its duty to warn the appellants of the nature and extent of serious injury involved in participating in interscholastic high school football?

3. Did the lower court err in ruling, as a matter of law, that the appellants had assumed the risk of the appellant Tawana Hammond's injuries when there was sufficient other evidence presented which created an issue of triable fact as to each appellant?

The central theory espoused by the Hammonds, that the school board had a duty to warn them of the severe injuries that might result from voluntarily ² participating on a varsity high school tackle football team, is one that, as far as we can determine, has never been adopted by any court in this country.

There are, to be sure, numerous cases in which minors injured while playing in school sporting events have sued school officials (or others similarly situated) asserting that the officials' negligence caused the participant's injuries. See e.g., Albers v. Independent Sch. Dist. No. 302 of Lewis County, 94 Idaho 342, 487 P.2d 936 (1971); Leahy v. School Bd. of Hernando County, 450 So.2d 883 (Fla.Dist.Ct.App.1984); Hale v. Davies, 80 Ga.App. 126, 70 S.E.2d 923 (1952); Kluka v. Livingston Parish Sch. Bd., 433 So.2d 302 (La.Ct.App.), cert. denied, 440 So.2d 728 (La.1983); Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 543 N.Y.S.2d 29, 541 N.E.2d 29 (1989); Tepper v. City of New Rochelle Sch. Dist., 143 A.D.2d 133, 531 N.Y.S.2d 367 (1988); Barrett v. Phillips, 29 N.C.App. 220, 223 S.E.2d 918 (1976); Whipple v. Salvation Army, 261 Or. 453, 495 P.2d 739 (1972) (in banc); Vendrell v. School Dist. No. 26C, 233 Or. 1, 376 P.2d 406 (1962) (in banc); Rutter v. Northeastern Beaver County Sch. Dist., 496 Pa. 590, 437 A.2d 1198 (1981); Brackman v. Adrian, 63 Tenn.App. 346, 472 S.W.2d 735 (1971). In none of these cases, however, have the plaintiffs successfully asserted that the school officials were negligent because of some failure to warn the plaintiffs of the possible dangers involved in voluntarily participating in the contact sport. In the past, plaintiffs have made claims of negligence because of asserted inadequate or improper supervision, Benitez, Rutter, Whipple, Albers, Leahy, Barrett, Brackman, inadequate instruction or training, Rutter, Whipple, Vendrell, Leahy, Brackman, Hale, and inadequate equipment, Rutter, Whipple, Albers, Leahy, Brackman, Vendrell, but the parties have not cited and we have not uncovered any case in which a plaintiff, in circumstances similar to the Hammonds, has successfully made a negligence claim based on a failure to warn of possible physical injury.

Perhaps this is because permeating the sports injury cases is the recognition that "[p]hysical contact in ... an athletic contest is foreseeable and expected." Albers, 487 P.2d at 939. The "general rule is that participants in an athletic contest accept the normal physical contact of the particular sport." Id. Absent evidence of "mental deficiency," and there is no claim that Tawana is not at least of average intelligence, minors are held to "sufficiently appreciate[ ] the dangers inherent in the game of football," Whipple, 495 P.2d...