The veteran offensive linemen on the University of Toledo’s football team conduct the “freshman Olympics” after summer training practices. In 2011, an incoming student participating in the dunking of a football over the goal post, jumped on another player’s back to reach the post, then fell, injured his neck, suffered brain damage, and ultimately lost his scholarship to the university.

The Ohio Court of Claims ruled the University of Toledo (UT) was not liable for Kyle Cameron’s injuries on the grounds that he “assumed the risk” of the dangerous activity he participated in, but the Tenth District Court of Appeals recently overturned the decision. It directed the Court of Claims to consider if the injury was caused by the school’s failure to stop the after-practice stunts.

The Tenth District’s 2-1 decision on March 15 remanded the case to the Court of Claims to reconsider its November 2016 decision in favor of UT. Cameron sued, claiming UT’s negligence led to his injuries and that UT violated Ohio’s anti-hazing law, R.C. 2307.44. The Tenth District unanimously affirmed the Court of Claims judgment that UT was actively enforcing its anti-hazing policy at the time of the incident and did not violate the law.

‘Olympics’ Take Place After Supervised Activities
Cameron was recruited by UT to play football and offered a full scholarship. He enrolled early in school, and in the summer of 2011 began conditioning with other UT football members under the direction of Rudy Wade, the head strength and conditioning coach. In the summer Wade oversaw weight training in the mornings and upperclassmen supervised the conditioning program in the afternoons. When the conditioning program concluded, all players departed the football field except for offensive-line players, who were expected to remain for the “freshman Olympics.”

Freshman-line players were directed by the upperclassmen to complete a series of activities, including wheelbarrow races, dance contests, and dunking a football over the crossbar. Cameron jumped from a teammate’s back to reach the goalpost. He dunked the ball then fell backward, landing on his head and neck. He began convulsing and seizing. Wade was present at the time and sent for the head athletic trainer who found Cameron unconscious on the field. He was taken by ambulance to a local hospital and later learned he suffered brain damage and was no longer able to play football.

Court Considers Claims
Cameron argued to the Tenth District that the Court of Claims wrongly ruled that UT did not violate the anti-hazing law. He also objected to the Court of Claims acceptance of UT’s affirmative defense that Cameron assumed the risk of the dangers of “football activities” when he participated in the post-practice contests.

A provision of R.C. 2307.44 permits students to hold a university liable for any hazing damages if the negligence of any university employee with knowledge of the hazing does not make an attempt to stop it. However, it also contains a clause that a school can raise an affirmative defense that it is not liable if the “institution was actively enforcing a policy against hazing at the time of the cause of action.”

Anti-hazing clauses were found in UT’s student handbook that all students receive, and in a handbook prepared and presented to all student athletes. The football team also had its own conduct manual, which included the school’s anti-hazing policy, and the policy was discussed with all incoming football players, the Tenth District explained. The appellate court ruled that “competent, credible evidence” was supplied during the court of claims trial to support the decision to rule in favor of the university.

The court of claims also accepted UT’s rebuttal to the negligence claims, finding Cameron’s claims were barred by the doctrine of “primary assumption of the risk.” Cameron argued that Wade, the athletic trainers, and the football coaches were negligent for not supervising the freshman Olympics and stopping the goal-post dunk, and not following required concussion-prevention plans, including requiring a helmet be worn.

University’s Defense Analyzed
Writing for the Tenth District, Judge Julia L. Dorrian explained there are three types of “assumption of the risk” defenses, including express assumption of the risk in which a person agrees to release liability. There also is implied assumption of the risk where a person consents to engaging in an activity where there are known and obvious safety risks. The third type is “primary,” in which a person voluntarily agrees to engage in recreational or sporting activities that have inherent risks and the person cannot sue to recover damages unless the activity provider “acted recklessly or intentionally in causing the injury.”

The opinion explains that a risky activity is one “that is inherently dangerous and from which the risks cannot be eliminated.”

Judge Dorrian wrote that Ohio applies the primary assumption to sporting activities, including not only those participating, but also those attending a sporting event. To apply the assumption-of-risk defense, a court must find three things: the danger is ordinary to the activity; it is common knowledge that the danger exists; and the injury occurred during the activity.

The Court of Claims ruling considered the freshman Olympics to be team-building activities, which made them part of “football activities,” as they served as a function of building camaraderie that is related to the success of the offensive line. The court found Cameron chose to jump off the back of another player and he assumed the risks of that choice.

The Tenth District disagreed. It found that the stunt was not so related to the game of football that it was a risk that could not be eliminated by UT. It concluded the university could not claim the defense.

Court Must Examine Role of Coaches, Staff
In remanding the case to the court of claims, the Tenth District directed the lower court to determine if the UT football staff had a duty to keep the players safe from potential injury during the unsupervised training sessions. Both the Court of Claims and the Tenth District noted there is little case law that clarifies what duty coaches owe their players to keep them safe. The Tenth District instructed the court of claims to focus on the foreseeability of the harm of allowing the goal post dunk, and it noted that Wade and two other staff members testified that they considered the dunk to be dangerous.

Judge Dorrian wrote the Court of Claims must determine whether Cameron’s injury is “the natural and probable consequence of the negligence alleged, namely the failure of the University to stop the activity in question.”

Judge Jennifer Brunner joined Judge Dorrian’s opinion. Judge William A. Klatt concurred with the rejection of the hazing charge, but dissented on the negligence claim, maintaining the court of claims accurately assessed the matter.

Cameron v. Univ. of Toledo, 2018-Ohio-0979.

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