Legal Q&A

Case study: No evidence of negligence in "powder puff" football injury

Darrow v. South Huntington School District

This case study involves a "powder puff" football injury. Even though it occurred at a high school, the legal principles described regarding supervision and assumption of risk are equally applicable to other recreational sports settings.

Supreme Court of the State of New York, Suffolk County

May 14, 2007

[Note: Opinion of the court has been edited and citations omitted.]

This action arises out of a negligent supervision claim against the District by Gail Darrow on behalf of her minor daughter Tara Lynn Darrow, who sustained personal injuries on October 12, 2004 during her voluntary participation in a homecoming event known as the "powder puff" football game.

Darrow alleges that the District was negligent in failing to properly and safely supervise the powder puff girl's football event and in failing to provide adequate personnel and equipment to insure the safety of the participants.

Defendant now moves for summary judgment on the grounds the District did not breach its duty to provide adequate supervision, Darrow's injuries were not proximately related to any alleged lack of supervision by the defendant district, and notwithstanding any alleged lack of supervision, the defendant is entitled to dismissal under the assumption of risk doctrine.

Facts of the case
Tara Lynn Darrow was born on March 31, 1987, and was a senior and member of the varsity tennis team at Walt Whitman High School on the date of the accident. She testified that the accident occurred during the powder puff football game traditionally held in connection with homecoming weekend. She had participated in this event the previous year. Darrow explained it was a "two-hand touch" game; the different positions included a "hiker," a quarterback, a running back, receivers, and blockers.

Offensive players were allowed to impede the progress of defensive players, but intentional shoving or pushing was prohibited. Each team had a captain and the girls would decide amongst themselves who would play each position. Additionally, each team had a member of the faculty who served as the coach. Assistant principal Jonathan Varlamos was assigned to the senior team. Darrow testified the coach would "supervise and hype the team up and keep everyone off the field." Two referees were present on the field and other school officials were present to supervise. Darrow attended a voluntary practice a few days prior to the game.

On the date of the accident, Darrow testified the game began around 7:00-7:30 p.m. The weather was sunny, a little cool, and not raining. She testified the football field was somewhat dewy as it usually gets at night. Some people had slipped, without injury, prior to Darrow's accident.

Darrow testified that her accident happened very quickly and she could only recall very little. She testified that she attempted to avoid the block of an opposing player, but that player pushed her shoulder into Darrow and she fell to the ground. Neither Darrow nor any of the other players were wearing cleats.

The school's physical education teacher, Eric Caballero, who was a referee, testified he had been employed by the school as a physical education teacher for the District for two years prior to Darrow's accident. He was also employed by the District as the junior varsity soccer coach and was currently the assistant men's basketball coach at SUNY Farmingdale. He had been asked by Ms. AnnMarie Bunce, the director of the general student organization ("GSO") at Walt Whitman High School, to referee. Cabellero testified that this was the second year he served as a referee for the game. He noted he was not aware of any injuries the previous year.

According to Caballero, his responsibilities as referee included counting the number of players on the field, placing the ball, and ensuring safe play. He testified he had discussed the rules of the game and scoring system with Bunce prior to the game. Caballero testified the event was to be a "one-hand touch" game, meaning that if the ball carrier was touched by a player on the other team with one hand, the play would be ruled dead. As a result of that rule, the game was intended to be essentially "non-contact." However, if the referee(s) determined that a player used unauthorized contact, a penalty would be assessed. In addition to the two referees, Caballero testified the school's administrative staff, the athletic trainer, and other personnel acting as chaperones were present during the game. According to Caballero, the football field was lit, the grass itself was slightly damp, but the playing surface was level. He did not recall anyone getting hurt during the game, including Darrow, or calling any penalties for illegal contact.

The school's GSO adviser/teacher, AnnMarie Bunce, testified that she was responsible for running the 2004 homecoming activities, including the powder puff football game. She has been a teacher in the District for nineteen years and adviser to the GSO for three. Prior to the game, she had a mandatory meeting for all girls who wished to play during which the game was explained, rules distributed, and captains were selected. If a player could not attend the meeting, she was required to meet with her individually. She testified that she, assistant principals Jonathan Varlamos and Jerry Lesperance, school principal Mr. Polansky, the deans of discipline, and other teachers and security were all present at the game. Bunce did not witness the accident. She testified the game was stopped because a girl was "down," presumably Darrow.

Assistant principal Jonathan Varlamos acted as an honorary coach for the game. Prior to the game, Varlamos was provided with the rules by Ms. Bunce and the two of them discussed some of the specifics the day before. Although Ms. Bunce requested that ten teachers serve as chaperones for the game, Varlamos secured twelve. He testified it was a beautiful fall evening and no penalties were called on either team. Although he did not see the actual play where Darrow was injured, Varlamos recalled seeing a young lady (now known to him as Darrow) sitting on the bench with the trainer during the third quarter. The trainer indicated she would be "okay."

Supervision duty
Although schools are under a duty to adequately supervise the students in their charge and will he held liable for foreseeable injuries proximately related to the absence of adequate supervision, they are not insurers of the safety of their students, for they cannot be reasonably expected to continuously supervise and control all of the students' movements and activities. To find that a school breached its duty to provide adequate supervision in the context of injuries caused by the acts of fellow students, a plaintiff must show that the school had sufficiently specific knowledge or notice of the dangerous conduct which caused injury, that is, that the third-party acts could reasonably have been anticipated.

An injury caused by the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act. Moreover, where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, the school's lack of supervision cannot be the proximate cause of the injury, and summary judgment must be granted in its favor.

Further, while students voluntarily participating in an interscholastic sport are deemed to have assumed the risks of those injuries that are known, apparent or reasonably foreseeable consequences of their participation, assumption of the risk is not an absolute defense, as schools are still obligated to exercise ordinary reasonable care to protect students from unassumed, concealed or unreasonably increased risks. Likewise, participants in interscholastic sport may not be held to have consented to injurious acts from other athletes which are reckless or intentional.

Sudden injury
Defendant School District has demonstrated that it neither had sufficient specific knowledge of the dangerous conduct which caused Darrow's injuries or that its actions were the proximate cause of those injuries.

The accident occurred when there was sudden and spontaneous contact between Darrow and a fellow student, not because of inadequate supervision by any of the District personnel present. Clearly, there were numerous teachers, chaperones and supervisory personnel present at the game, including two experienced staff members serving as referees, and two serving as coaches. A meeting was held with the participants prior to the game explaining the rules of the game. The playing field was properly lit and maintained.

Furthermore, even assuming arguendo that the school did breach its supervisory duty, the conduct that caused Darrow's injuries was so sudden and spontaneous, and occurred in so short a span of time, that even the most intense supervision could not have prevented it. The evidence establishes a sudden and unfortunate contact in the middle of the field during one play by two competing students. Each student essentially tried to get around the other and came into contact. Therefore, the school's alleged lack of supervision cannot be said to be the proximate cause of the injury.

In opposition, Darrow argued that it was not a lack of supervision during the game that led to the injury, but a lack of proper oversight before the game and lack of proper attention to setting safety parameters; specifically, defendants' refusal to allow students to wear cleats during the game given the damp field conditions and failing to properly instruct the students on proper techniques.

Darrow has never claimed she fell because she lost her footing or that cleats would have prevented her fall. Darrow, in the exercise of her discretion, participated in a voluntary sporting event, aware of the risks inherent in the game, having participated the year before. The game was meticulously planned, organized and supervised by the District. The occurrence of an accident during the normal course of an extra-curricular "one-hand touch" football game is not proof of negligence.

Accordingly, defendant School District's motion for summary judgment dismissing Darrow's complaint is granted.

Dr. James C. Kozlowski is an Associate Professor in the School of Recreation, Health, and Tourism at George Mason University. He is a licensed attorney who has written and lectured extensively on the legal and legislative aspects of parks and recreation administration in general and the issue of recreational injury liability in particular.

If you have questions about this case study or any other law-related questions, contact Dr. Kozlowski at jkozlows@gmu.edu. If your topic is selected to appear in a future column, your name and institution will not be published. Keep in mind that any information in Legal Q&A is general in nature and should not be construed as legal advice or a legal opinion in a particular situation or jurisdiction. Any such questions should be directed to local counsel.