Is Cheerleading a Physical Contact Recreational Activity?
April 28, 2011
A Wisconsin Court Answers this Question
Katharine M. Nohr, Esq.
Nohr Sports Risk Management, LLC
You may have heard about the appellate decision that was issued on January 27, 2009, Noffke v. Bakke, 2009 WL 173491 (Wis.), in which the Supreme Court of Wisconsin addressed the question of whether cheerleading involves physical contact under a Wisconsin statute. The following summary provides the key facts and legal analysis so that you will know how this case fits into your own risk management planning.
Brittany Noffke, a high school varsity basketball cheerleader, fell backward, striking her head on a tile floor while practicing a cheerleading stunt without protective mats. Noffke was the “flyer” in the stunt, which required her to stand on the shoulders of other cheerleaders who formed the “base” for the stunt. Kevin Bakke, another cheerleader had the position of “post”, which assists the flyer in getting into position on the base, initially supporting most of the flyer’s weight so that her feet may be secured on the base’s shoulders, and also served as a spotter. Noffke was injured when Bakke let go of her without moving to the front to prevent her from falling. The cheerleading coach was busy supervising another group of cheerleaders and so was not there to assist in preventing Noffke’s fall.
Noffke filed a lawsuit against Bakke, alleging negligence for failing to properly spot her and against the school district, alleging that it was negligent by failing to require the use of mats and for failing to provide a second spotter. Defendants Bakke and the school district both filed motions for summary judgment, asserting immunity from liability under Wisconsin statutes. The lower court granted their motions, providing both defendants immunity. Ultimately, the matter reached the Supreme Court of Wisconsin, which addressed the following questions and ruling as follows:
- Is Bakke immune from the negligence suit brought by cheerleader Noffke?
Answer: Yes. “Bakke is immune from liability because he was participating in a recreational activity that includes physical contact between persons in a sport involving amateur teams.” - Was Bakke’s behavior reckless?
Answer: No. - Was the school district immune for the alleged negligence of the cheerleading coach?
Answer: Yes. “The school district is immune because no ministerial duty was violated by the cheerleading coach and there was no known or compelling danger that gave rise to a ministerial duty.”
This case is unique because of the court’s conclusion that cheerleading includes physical contact, which one would generally associate with football, hockey, boxing or other such sports. The Wisconsin statute in question, stated as follows:
A participant in a recreational activity that includes physical contact between persons in a sport involving amateur teams, including teams in recreational, municipal, high school and college leagues, may be liable for injury inflicted on another participant during and as part of that sport in a tort action only if the participant who caused the injury acted recklessly or with intent to cause injury.
14 Wisconsin Stat. section 895.525(4m)(a) (emphasis added).
In discussing the applicability of the statute the court’s primary issue was “whether cheerleading involves physical contact between persons”. Naturally, cheerleaders touch each other during the course of performing and practicing cheers. The court consulted the dictionary definitions of “contact” and “physical” in its analysis, concluding that “cheerleading involves a significant amount of physical contact between cheerleaders that at times results in a forceful interaction between the participants.” The Supreme Court of Wisconsin concluded that “cheerleaders are immune from negligence actions because they participate in a recreational activity that includes physical contact between persons in a sport involving amateur teams.” The Court then suggested that the Wisconsin legislature review the statute as it “may apply to such school team sports as golf, swimming and tennis.”
Does your state have a statute similar to that in Wisconsin? Naturally, this Wisconsin case will not serve as precedence in jurisdictions other than Wisconsin. However, it can be used by attorneys in states with similarly worded statutes and for factually similar circumstances, in taking the position that cheerleading and other recreational activities involving physical contact fall within the statute, granting immunity to other participants where the action that caused injury was merely negligent rather than reckless.