In a case with potential national implications, a California judge has ruled that a teenage football player who was paralyzed by an on-field hit can proceed to trial against the Pop Warner organization and the coaches he alleges encouraged him to tackle in a dangerous, head-first manner.
The decision represents a blow to Pop Warner, which had argued that the lawsuit should be dismissed because the mother of Donnovan Hill signed a pre-participation waiver acknowledging that football is a sport that could cause serious injuries. Los Angeles Superior Court Judge Frederick Shaller rejected that defense, writing last Wednesday that the waiver does not cover gross negligence.
On Tuesday, Shaller held a hearing to give attorneys for Pop Warner and the coaches a chance to challenge his summary judgment ruling. He rejected their arguments and affirmed his decision, clearing the way for the lawsuit to head to trial on May 11.
The coaches face a claim of gross negligence for allegedly teaching Hill to tackle with his head. On his Lakewood, Calif., team, Hill, then 13, used that technique in the Southern California championship game in 2011, as he did in other games. He is now a quadriplegic, with minimal use of his arms.
Shaller also declined to absolve of responsibility the national office of Pop Warner, which touts itself as committed to safety but allowed Hill to be coached by volunteers with no training in the organization's preferred technique. Then-head coach Sal Hernandez, a barber, told Outside the Lines in 2013 that he completed the required training, but in a deposition he later admitted he never took the online modules. None of the administrators at the local, regional or national level noticed or took action against him.
"What's striking is how little Pop Warner does behind the scenes to meet its promises," said Rob Carey, lawyer for Hill and his mother, Crystal Dixon. "They're hosting a combat sport with little kids, and not doing anything they say they're doing to protect them. Nobody's enforcing the safety rules, nobody's checking on safety certification, and there's no process in place to identify inefficiencies in safety training. There are no penalties for non-compliance, and no structure to resolve problems. That's all on Pop Warner national. That's what they're supposed to do, provide systems that protect children."
"Cases like this are going to make governing bodies more attuned to promoting certification classes and refresher courses, and providing greater oversight than what Pop Warner showed here." Missouri professor Doug Abrams on Pop Warner trial
Lawyers representing Pop Warner and the coaches did not respond to requests for comment. In filings, they argue that Hill must show the coaches meant to cause the injuries or that their conduct was reckless.
Doug Abrams, a University of Missouri law professor, said the ruling is significant in that it holds a national youth sport organization accountable for a failure of process in protecting against serious injury at the community level.
"It should have the effect of encouraging more coaches to get trained," he said. "We don't live in the 1970s anymore, particularly in a sport like football where you have concussions. Cases like this are going to make governing bodies more attuned to promoting certification classes and refresher courses and providing greater oversight than what Pop Warner showed here. Sometimes it takes something like this to wake people up."
Abrams said the ruling will encourage Pop Warner to settle the suit. But Carey said the organization is "vastly underinsured," with just $2 million on its liability policy. Hill could ask for more than $10 million at trial because of his long-term medical care needs, Carey said, adding that if he wins a large jury award, Hill could potentially receive all assets of the national office of Pop Warner, the nation's oldest youth sports organization.
"Unless Pop Warner can figure out a funding mechanism, that'll be Donnovan's only remedy," he said.
Shaller's ruling adds to the troubles for Pop Warner, which has been beset by falling participation and legal challenges on multiple fronts. In February, a Wisconsin family whose son committed suicide at age 25 and was later found to have Chronic Traumatic Encephalopathy, a degenerative brain disease, sued Pop Warner for allegedly failing to warn players about, and protect them from, the dangers of head trauma.
Pop Warner also faces a class-action claim by Hill's mother, Dixon, on behalf of all parents in California who signed their child up for Pop Warner teams. Dixon claims Pop Warner made false statements about the relative safety of the sport. Carey said the organization hurt itself further by claiming on its website that, even after Hill was hurt, it has never had a catastrophic head or neck injury. Asked in his September 2015 deposition why his organization did that, Pop Warner executive director Jon Butler said, "There's no good answer other than you don't want to advertise the negative."
Pop Warner offers football and cheer programs for 325,000 youth ages 5 to 16, but rising legal costs and loss of membership fees are taking their toll on the organization. Since 2011, revenues have fallen from $5.7 million to $4.1 million, with annual profits turning to growing deficits, according to its federal 990 reports. The organization lost $127,886 in 2013, the most recent year on file.