The following article was written by Benjamin Haynes, Esq.
Beverly Morgan is a 66-year-old woman residing in Lincoln, Nebraska. She recently brought a lawsuit through attorney Robert Kinsey against the Bo Pelini Foundation (Bo Pelini is the Head Football Coach at the University of Nebraska). Morgan also named Tim Beck as a defendant. Tim is the offensive coordinator for the University of Nebraska football team. Morgan is alleging that the Foundation, and Beck specifically, acted negligently because Beck failed to warn participants of the dangers of a football drill and never saw that she received on-site medical treatment.
Beverly was a participant in the “Football 101” clinic, which is held at Memorial Stadium on the University of Nebraska’s Campus. Football 101 is a clinic held by coach Bo Pelini and his foundation. The clinic is designed to give fans the “ultimate Husker Football experience.” On the Husker website, the advertisement for the clinic stated, “For just $85 fans can join the University of Nebraska Football staff in a day filled with the ultimate personal Husker Football experience.”
Beverly was participating in a drill called “the gauntlet,” which is where a participant is given a football and challenged to run through the lines of women holding the blocking pads. Beverly started running through the women and was allegedly struck so hard that she hit her head on the training center floor, causing her baseball cap and earrings to fly off. Plaintiff alleges that she immediately had a headache and was carried over to the side where staff was to check on her. Plaintiff alleges that nobody came to check on her. Plaintiff further alleges that since this incident, her speech pattern has worsened; she has experienced memory loss; suffered vision blurriness; and also has experienced tremors. Worst of all, Plaintiff alleges that she has suffered traumatic brain injury. Therefore, Plaintiff is seeking $92,500 in medical costs and punitive damages.
A few questions will arise as the Defendants prepare their answers: 1) Was there a waiver signed by Beverly before participating? 2) Did Beverly assume the risk of the injury as part of the football activity? 3) As a business invitee, was Beverly entitled to medical care in a timely manner from the members of the foundation?
Was there a waiver signed by Beverly?
Before any type of event involving physical activity is conducted, the entity providing the event will usually require participants to sign a waiver prior to the participant being permitted to participate in the physical activity. Waivers are drafted to protect entities from being sued for negligence in the future. However, gross negligence is not covered under waivers. “The waivers while perhaps applicable to instances of ordinary negligence, could not operate to relieve Lakeside or Precor from gross negligence or willful and wanton misconduct.” Podraza v. New Century Physicians of Neb., 280 Neb. 678, 789 N.W.2d 260 (2010). Therefore, under Nebraska law, waivers may cover an entity from liability of regular negligence, but waivers will not protect an entity from liability when the negligence reaches the level of being grossly negligent. Plaintiff, in our instant case, has alleged gross negligence on behalf of the defendants.
Under Nebraska law, in order for negligence to rise to the level of gross negligence, it must be “great and excessive negligence, or negligence in very high degree, or negligence which indicates absence of slight care in performance of duty. R.R.S.1943, § 39-740. Further, “existence of gross negligence must be ascertained from facts of each particular case, and in case of doubt evidence must be resolved in favor of its existence, in which event question is for jury.” Robinson v. Hammes, 173 Neb. 692, 114 N.W.2d 730.
Therefore, the Plaintiff must show that the negligence by the Foundation and the assistant coach in not warning the Plaintiff of the dangers of the drill rises to the level of an excessive degree of negligence. Here, the Defendants will probably argue that no negligence on their part occurred, because they were overseeing the drills. Further, the Defendants could also argue that even if the court finds negligence occurred, it does not rise to the level of gross negligence, and therefore would be barred if the Foundation did in fact require the participants to sign waivers.
Did Beverly assume the risk of injury as part of the football activity?
Before the defense of assumption of risk is submissible to a jury, the evidence must show that the plaintiff (1) knew of the specific danger, (2) understood the danger, and (3) voluntarily exposed himself or herself to the danger that proximately caused the damage. Pleiss v. Barnes, 260 Neb. 770, 619 N.W.2d 825 (2000). See, also, Neb.Rev.Stat. § 25-21,185.12
Beverly states in her Complaint that she “was unfamiliar with football other than being a Cornhusker fan.” Therefore, Beverly will claim that she did not assume the risk, because she was unaware of the specific dangers involved and could not understand the danger.
The Defendants will argue that even though Beverly might have been unfamiliar with football in general, she was third or fourth in line before participating in the drill. Therefore, the Defendants will state that Beverly saw the participants in front of her and was aware of what the activity entailed. It was obvious that the participant would run through and get hit by the pads, establishing physical impact. Therefore, the Defendants will try to preclude the negligence claims based on the defense that Beverly assumed the risk of danger.
As a business invitee, was Beverly entitled to medical care in a timely manner from the members of the Foundation?
An invitee is a person who goes on the premises of another in answer to the express or implied invitation of the owner or occupant on the business of the owner or occupant for their mutual advantage. Young v. Eriksen Constr. Co., 250 Neb. 798, 553 N.W.2d 143 (1996); McIntosh v. Omaha Public Schools, 249 Neb. 529, 544 N.W.2d 502 (1996)
Here, the Foundation expressly invited Beverly onto the premises in order to participate in the camp. There is no doubt that Beverly was a business invitee.
The owner or occupant of property owes to an invitee or business visitor the duty of exercising reasonable or ordinary care for his or her safety and is liable for injury resulting from breach of such duty. An invitee is entitled to the highest level of protection imposed under premises liability law. The owner or occupant of property owes to an invitee or business visitor the duty of exercising reasonable or ordinary care for his or her safety. Haag v. Bongers, 256 Neb. 170, 589 N.W.2d 318 (1999).
Here, Beverly is going to argue that once she was injured, the Foundation failed to exercise reasonable and ordinary care for her safety when they did not check up on her. She will try to argue that the injury worsened because treatment was not immediately given and that she was owed that amount of reasonable care being a business invitee.
The Defendants will contend that they did not owe her medical treatment because their negligence did not cause the injury, and therefore they did not have a duty to treat her. Further, the Defendants will argue that “there is no duty on the part of an invitor owner to protect the invitee against hazards which are known to the invitee or are so apparent that he may reasonably be expected to discover them and protect himself.” Bruyninga v. Nuss, supra 216 Neb. at 803, 346 N.W.2d at 247. Therefore, Defendants will argue that since they are not entitled to protect Beverly to the known hazard, they did not owe her medical treatment either.
Factually, the Defendants might argue that they did tend to Beverly after she was brought to the sideline. Beverly states in her Complaint that she had suffered memory loss, and therefore, maybe Beverly forgot that members of the foundation actually did treat her while on the sideline.
In conclusion, if a waiver was signed by Beverly, then Beverly carries a heavy burden of showing that the Defendants acted with gross negligence in failing to warn her of the possible dangers of the drill. Further, even if the court does find that the level of negligence is gross, the Defendants will state that Beverly assumed the risk of the danger and therefore the law precludes her recovery on the negligence claim. Beverly also has the burden to show that as a business invitee she was entitled to medical treatment once injured because the Foundation owed her reasonable care.
The Clinic has since been suspended, and wisely so. While a lot of good came from the clinic, in that it raised $100,000 for cancer research and treatment for the foundation, having 66-year-old women participate in contact football drills with pads is probably not the brightest of ideas.