Hurt in a Hazing Ritual or Unsanctioned Drill? Assumption of Risk Has Limits (Cameron v. Univ. of Toledo)

Published March 27, 2018 · Ohio Appeals Courts

Every summer, teenagers report early to college and high-school programs eager to prove themselves to older teammates. Most of what happens is hard work. Some of it is not: "initiation" games and challenges run by upperclassmen, with no real purpose except to test the new kids, and sometimes with coaches standing nearby.

When one of those games goes wrong, the school's first defense is usually the same: the athlete chose to participate, so he "assumed the risk." On March 15, 2018, the Tenth District Court of Appeals told the University of Toledo that the defense has limits. Cameron v. Univ. of Toledo, 2018-Ohio-979 (10th Dist.).

What happened

Kyle Cameron was recruited as a high-school sophomore and offered a full football scholarship to the University of Toledo. In the summer of 2011, as an incoming freshman, he joined the team's summer conditioning program.

According to the court's opinion, after the afternoon conditioning sessions, the offensive linemen stayed behind for what players called "freshman Olympics." Upperclassmen directed the freshmen through a series of challenges, such as a wheelbarrow race, dance contests, crawling drills, and dunking a football over the crossbar of the goalposts. On July 12, 2011, Cameron jumped off a teammate's back to dunk the ball, fell backward, and landed on his head or neck. He began convulsing on the field. The team's head strength and conditioning coach was present when it happened. Cameron alleged that he suffered brain damage, could no longer play football, and lost his scholarship.

Because the University of Toledo is a state school, the case was tried in the Ohio Court of Claims, which hears lawsuits against the State and its institutions without a jury. You can read more about how those cases work on our page about claims against the government. After trial, the Court of Claims ruled for the university.

The hazing claim

Ohio has a civil hazing statute, R.C. 2307.44. It allows anyone subjected to hazing to sue for injuries, including pain and suffering, and it allows suit not only against the participants but also against a school and its employees who knew or should have known of the hazing and did not try to stop it. Importantly, the statute says the victim's negligence, consent, or assumption of the risk is not a defense.

The statute does give schools one specific defense: that the school was actively enforcing a policy against hazing when the injury happened. The Court of Claims found the university met that defense, and the Tenth District held that finding was supported by evidence at trial, even though the court noted significant evidence pointing the other way, including testimony that the freshmen had never seen the policy and that the coach present was not familiar with it. Because Cameron had sued only the university, that ended the hazing claim.

That part of the case is a reminder of how important it is to look at every potential defendant and every theory early. The negligence claim, however, is where the case turned.

Assumption of risk: what it is, and where it stops

Ohio recognizes three kinds of assumption of risk:

• Express assumption of risk, when a person signs a written release, as with the gym waivers I discussed in an earlier post.
• Implied assumption of risk, when a person knowingly accepts a known or obvious danger to his or her safety.
• Primary assumption of risk, the most powerful of the three, which applies to the inherent risks of a sport or recreational activity. If it applies, the defendant owes no duty to protect against those risks at all, and the claim fails unless the conduct was reckless or intentional.

Primary assumption of risk has erased large awards before. I wrote in 2011 about a $4.3 million award for a paralyzed inmate that was reversed because the injury came from an ordinary risk of tackle football.

The Court of Claims applied the same doctrine to Cameron. It reasoned that the freshman Olympics were team-building "football activities" and that Cameron chose to jump off a teammate's back.

The Tenth District disagreed. The doctrine covers only risks that are so much a part of an activity that they cannot be removed. The court rejected the idea that jumping off another player's back to dunk a football over a goalpost was "so inherent to the game of football or to team building that it cannot be eliminated." In other words, a stunt invented by upperclassmen is not football, and the risks of it are not risks a player accepts by joining the team.

The coaches owed a duty of care

The appeals court went further. The Court of Claims had found the coaches owed Cameron no duty. The Tenth District held that the head strength coach and the head athletic trainer did owe him a duty of care, based on three things: their employment contracts, which made the safety of student athletes part of their jobs; the ordinary duty a coach owes to athletes under his supervision; and foreseeability, because university witnesses testified the goalpost dunk was dangerous.

The court sent the case back to the Court of Claims to decide the scope of that duty, whether it was breached, and whether the university's failure to stop the activity was a proximate cause of Cameron's injuries. One judge dissented and would have affirmed the judgment for the university. The case is not over, and I will not predict how it ends. But the legal framework is now far better for the injured student than it was after trial.

Why this matters for families

Brain injuries like the one alleged here can change a young person's entire future: education, career, independence. I described how these injuries are diagnosed and proven in my post on concussions and traumatic brain injury. Cameron matters because it keeps "assumption of risk" in its proper lane:

• A sport's inherent risks are not the same as the risks of hazing, horseplay, or stunts. A tackle in a game is part of football. A dare run by older players is not.
• Adults in charge have responsibilities. When coaches and staff are present and allow a dangerous non-sport activity, the school can be accountable for failing to stop it.
• The hazing statute is a separate tool. Consent and assumption of risk are not defenses under R.C. 2307.44, and it reaches individuals and organizations as well as schools.

What this means for you

If your son or daughter was hurt during an initiation, team "tradition," or unsanctioned challenge, do not accept the school's word that it was simply part of the sport. Write down who organized it, which coaches or staff were present, and who else saw it. Save texts, group-chat messages, and social-media posts, which often disappear quickly. Claims against public universities and school districts have special rules and immunities, so getting advice early matters. Our personal injury practice can review what happened and identify every responsible party.