Noffke Ex Rel. Swenson v. Bakke
315 Wis. 2d 350, 760 N.W.2d 156, 2009 WI 10 (2009)
Rule of Law:
Participants in recreational sports involving physical contact are immune from negligence liability unless they act recklessly, and school districts are immune from liability for discretionary acts of employees unless a ministerial duty is violated or a known and compelling danger exists.
Facts:
- On December 17, 2004, Brittany Noffke was a varsity basketball cheerleader practicing in the Holmen High School Commons.
- Noffke and two other cheerleaders attempted a 'post-to-hands' stunt without using mats.
- Noffke acted as the 'flyer' (top person) and Kevin Bakke acted as the 'post' (support/spotter).
- Bakke was supposed to move behind the base to spot Noffke but instead moved to the front.
- Noffke fell backward, and because Bakke was not in position, she struck her head on the tile floor and was injured.
- The cheerleading coach was approximately ten feet away supervising a different group of cheerleaders at the time of the fall.
Procedural Posture:
- Noffke sued Bakke and the School District in the La Crosse County Circuit Court.
- The Circuit Court granted summary judgment in favor of both Bakke and the School District, finding them both immune.
- Noffke appealed to the Wisconsin Court of Appeals.
- The Court of Appeals affirmed the immunity for the School District but reversed the immunity for Bakke, ruling cheerleading was not a contact sport.
- Both Bakke and Noffke petitioned the Supreme Court of Wisconsin for review.
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Issue:
Does the statutory immunity for participants in contact sports apply to cheerleaders, and is a school district immune from liability regarding a coach's supervision of cheerleading stunts?
Opinions:
Majority - Justice Annette Kingsland Ziegler
Yes, cheerleaders are immune from negligence liability, and the school district is immune regarding the coach's actions. The Court interpreted Wis. Stat. § 895.525(4m)(a), which provides immunity for participants in a 'recreational activity that includes physical contact between persons in a sport involving amateur teams.' Relying on dictionary definitions and the spirit rules of the National Federation of State High School Associations, the Court found that cheerleading involves significant physical contact (tossing, catching, supporting) and constitutes a sport involving amateur teams. The Court rejected the argument that the statute applies only to aggressive sports like football or requires formal competition. Regarding Bakke's conduct, the Court held he was not reckless because his actions constituted mere inadvertence or lack of skill, not a conscious disregard for safety. Finally, the Court held the school district was immune under Wis. Stat. § 893.80(4) because the coach's decisions regarding mats and spotting were discretionary, not ministerial, and the situation did not present a 'known and compelling danger' that would remove that discretion.
Concurring - Chief Justice Shirley S. Abrahamson
Yes, the cheerleaders are immune, but the analysis should focus on legislative intent rather than dictionary definitions. The Chief Justice argued that dictionaries are ambiguous regarding whether cheerleading is a 'sport' or involves 'teams' in the traditional competitive sense. However, because the legislature's express purpose for the statute was to decrease uncertainty regarding legal responsibility in recreational activities, the statute should be construed broadly. Interpreting the statute to cover high school cheerleaders furthers this purpose, whereas requiring formal competition would create uncertainty where a squad might be immune during a competition but liable during a game or practice.
Analysis:
This decision significantly broadens the scope of 'contact sports' immunity in Wisconsin. By ruling that 'physical contact' need not be aggressive (like tackling) but merely inherent to the activity (like lifting or catching), the Court extended protection to participants in activities like cheerleading. This prevents negligence lawsuits between teammates for accidental injuries during practice. The ruling also reinforces a high barrier for overcoming municipal immunity; plaintiffs must show a violation of an absolute, specific 'ministerial duty' or a danger so obvious and extreme that it leaves no room for discretion. The decision emphasizes that errors in judgment or skill by student-athletes do not rise to the level of recklessness required to pierce statutory immunity.
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