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DEFENDANT’S School Liability – Defendant allegedly acts in grossly negligent manner in providing inadequately trained supervisors to cheerleader team – Team member with history of intentional messing up of stunts purposefully falls on top of plaintiff – Severe closed head injury.

Hudson County, NJ

The plaintiff 19-year-old sophomore, and member of the defendant’s cheerleading club, contended that the defendant college acted in a grossly negligent manner by failing to provide certified cheerleading coaches. On the night of the incident, the cheerleaders were warming up shortly before a home basketball game. In the routine, the plaintiff was the “back spotter” in a group of four cheerleaders. One cheerleader (called the “flier”) got lifted into the air and stood on the palms of two other cheerleaders (called the “bases”). When the flier was ready to come down, she fell backwards, in a “V” format, into the waiting arms of the plaintiff, the back spotter. The plaintiff related that the flier came down and landed on the plaintiff’s head, neck and shoulders.

The plaintiff argued that the flier was a difficult and moody cheerleader who frequently argued with the other cheerleaders and would intentionally mess up the stunt by falling down. The plaintiff maintained that the defendant’s failure to provide certified and qualified cheerleading coaches to the team was the proximate cause of her accident and injuries. The plaintiff alleged that the cheerleading team was run solely by the two captains, who themselves were college students. Practices, routines and stunts were conceived and implemented by the two cheerleading captains, not by any college administrator or coach. The plaintiff alleged that, if the defendant college had provided the cheerleading team with certified and qualified coaches, the cheerleaders would have received proper training and guidance on performing stunts.

The defendant college denied that they were required to provide certified or qualified coaches to the cheerleading club. The college alleged that plaintiff was a member of a “club,” and like all other clubs on campus, they are formed, run and governed solely by the students in each club, with virtually no involvement from college administrators. The college alleged that “clubs” are not governed by NCAA rules or regulations and, as such, there was no requirement to provide qualified coaches for the cheerleading team. The college did not retain a liability sports expert.

The plaintiff was knocked unconscious after the flier cheerleader landed on her head and neck. She was taken to the emergency room and diagnosed with a concussion. The brain CT-scan taken in the E.R. was normal. The plaintiff experienced headaches and migraines and began treating with several different neurologists. The prescription medications and treatment did not alleviate plaintiff’s migraines and headaches. She eventually sought treatment from a neurologist at Harvard University Medical Center in Cambridge, Massachusetts. The plaintiff also received neck and back treatment from two different chiropractors.

The defendant college asserted immunity under Charitable Immunity Act. The plaintiff argued that the immunity was inapplicable because of the statutory exception regarding conduct that is grossly negligence, willful or wanton. The defendant’s summary judgment motion under the Charitable Immunity Act was denied. The defendant’s interlocutory appeal to the Appellate Division was also denied. The case proceeded to trial, with plaintiff arguing that the conduct of the defendant in failing to provide certified and qualified cheerleading coaches to the team was conduct that rose to the level of gross negligence, willful or wanton.

At trial, plaintiff called four different cheerleaders, who all said the flier was always trying to ruin the stunts by falling down intentionally. The cheerleaders felt this particular cheerleader should have been thrown off the team before the date of accident because she was so disruptive and dangerous. The cheerleaders said the two college advisors were always present at practices and observed this cheerleader intentionally falling off the top of pyramid stunts. The plaintiff argued that the college advisors should have taken action to remove this flier from the team, or at least advised college athletic officials about this dangerous and disruptive cheerleader.

After a ________ hearing, the defendant’s motion to bar plaintiff’s sports expert was granted. The court agreed with the defendant that plaintiff’s sports exert was not qualified because he had no cheerleading experience, and that his conclusions were inadmissible net opinions. The plaintiff’s neurologist from Harvard testified that plaintiff’s headaches and migraines were permanent. The plaintiff’s chiropractor testified that plaintiff’s neck and back injuries were permanent. On the defendant’s motion, the court barred the chiropractor from discussing the cervical and lumbar MRI findings because he was not qualified to read MRIs. The defendant did not have the plaintiff examined by any defense IME experts. As such, the defendant called no medical experts at trial.Shortly before summations, the defendant college moved for a directed verdict and judgment, again arguing that the college has immunity under the Charitable Immunity Act and plaintiff’s proofs do not overcome the gross negligence/willful exception. The trial judge granted defendant’s directed verdict and dismissed plaintiff’s complaint with prejudice. The judge held that plaintiff’s proofs did not overcome the college’s charitable immunity.

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