Wisconsin Lawyer
Vol. 82, No. 6, June 2009

• The Many Faces of Recreational Immunity 

he Wisconsin Supreme Court’s Jan. 27, 2009, ruling in Noffke v. Bakke¹ made nationwide headlines on everything from Fox News to ESPN. Part of the attention traced to Noffke’s unusual background: A 14-year-old cheerleader, hurt during cheerleading practice, filed suit against her high school, the school district, and a fellow cheerleader who was in the wrong place at the right time. National pundits focused on the court analysis as to whether cheerleading is a contact sport. The court ultimately held that it is and, therefore, that cheerleading participants are immune from negligence actions.

The notoriety of Noffke is only half the story because what truly was at issue was a novel, relatively young nuance in Wisconsin’s recreational immunity law. Indeed, despite the many questions answered by Noffke, the court left the door open for a new generation of recreational immunity cases and, perhaps, added another layer of confusion to a statute that when enacted was supposed to “decrease uncertainty” and “assure” that recreational activities in Wisconsin are alive and well. This article addresses the recreational immunity issue in Noffke and why questions remain. This new, post-Noffke world is no doubt subject to further debate.

The Cheerleader’s Tort

On Dec. 17, 2004, Brittany Noffke, a Holmen High School varsity-basketball cheerleader, was warming up in the high school commons for a basketball game. Brittany and two other cheerleaders were attempting to execute a two-person stack called a “post-to-hands” stunt. After a few failed attempts, Brittany safely ascended to the top of the stack. At this point, a third cheerleader – known as the post – was expected to move to the back of the stack and spot Brittany. That didn’t happen. The post froze. Brittany lost her balance and fell backward, striking her head on the floor and suffering a serious head injury.²

Brittany and her family filed a personal injury lawsuit in La Crosse County circuit court. They sued the school, the school district, and the cheerleader who allegedly negligently failed to spot Brittany during practice. The three defendants argued for dismissal under various forms of immunity. All three ultimately prevailed, although the claim against the cheerleader, Kevin Bakke, went on a roller-coaster ride through the courts in determining whether Bakke was immune from a negligence suit under the recreational immunity statute, Wis. Stat. section 895.525(4m)(a). Bakke’s immunity defense is addressed below.

The Recreational Immunity Statute

Section 895.525 provides immunity to participants in recreational activities. Paragraph (1) is particularly important because it identifies the law’s legislative purpose as the intent to decrease uncertainty and ensure the continued availability of recreational activities to the public:

“(1) Legislative Purpose. The legislature intends by this section to establish the responsibilities of participants in recreational activities in order to decrease uncertainty regarding the legal responsibility for deaths or injuries that result from participation in recreational activities and thereby to help assure the continued availability in this state of enterprises that offer recreational activities to the public.”

Seemingly consistent with the legislative purpose, the statute broadly defines recreational activity as “any activity undertaken for the purpose of exercise, relaxation or pleasure, including practice or instruction.”³ The statute lists 37 recreational activities, including such things as nature study, bird watching, sport shooting, and tobogganing. The word “cheerleading” is nowhere in the statute.

Out of this broad definition of recreational activity comes subsection (4m), that is, the subsection at issue in Noffke. The subsection is written differently. In fact, while the first part of section 895.525 addresses the assumption of risk and responsibilities of recreational participants, subsection (4m) is directed more to the liability of other participants in a team context.

Subsection (4m) was not part of the original Wis. Stat. section 895.525 but was created seven years after the section’s enactment in response to the Wisconsin Supreme Court’s decision in Lestina v. West Bend Mutual Insurance Co.⁴ In Lestina, the court considered the appropriate standard of care to apply to a claim brought by a soccer player injured by a player from the opposing team. The Lestina majority held that ordinary negligence was the appropriate standard of care governing the conduct of participants in “recreational team contact sports.”⁵ In dissent, Justice Wilcox argued that the majority’s ruling would chill participation in contact sports.⁶

The legislature apparently agreed with the Lestina dissent. In 1995, subsection (4m) was enacted, allowing recovery in a team-sport context only if the participant who causes the injury “acted recklessly or with the intent to cause injury.” The statute was specifically written to apply to both amateur and professional sports. The language concerning amateur sports, like the activity at issue in Noffke, is as follows:

“(4m)(a) Liability of Contact Sports Participants. (a) A participant in a recreational activity that includes physical contact between persons in a sport involving amateur teams, including teams in recreational, municipal, high school and college leagues, may be liable for an injury inflicted on another participant during and as part of that sport in a tort action only if the participant who caused the injury acted recklessly or with intent to cause injury.”

The meaning of the terms contact sports and physical contact became a key issue in Brittany Noffke’s case.

The Decisions

Nine years after subsection (4m) was adopted, Brittany Noffke’s case found its way into La Crosse County circuit court. Looking at Lestina and the plain language of section 895.525(4m), the circuit court concluded that the statute was unambiguous and barred the negligence claim against Bakke:

“And in this instance, the statute that they created is not, in my view, ambiguous. It asks a question of whether or not it includes physical contact between persons, whether or not it’s considered a sport, and looking at the statute itself and applying the statute to the facts in this case, it does appear that it was a recreational team activity. Cheerleading is a recreational team activity, … it does involve physical contact, …”⁷

The court of appeals disagreed, finding the statute ambiguous.⁸ According to the court of appeals, the phrase “physical contact between persons in a sport,” as used in the statute, was not self-defining and left debate as to how much contact was needed to be physical contact:

“Plainly, cheerleaders engage in stunts which involve physical contact with other participants, but is any physical contact sufficient under the statute? We conclude that the required ‘physical contact’ is ambiguous and, therefore, resort to extrinsic sources.”⁹

To interpret the statute, the court of appeals found aid in the title of subsection (4m). The title contains the phrase “contact sports,” and the court reasoned that normally such a term describes sports like football and hockey, in which opposing players make aggressive and sometimes injury-causing contact.¹⁰ The dictionary definition for contact sport confirmed the court’s perception that a contact sport needed to involve “physical contact between opponents,” something cheerleading does not.¹¹ Moreover, because cheerleading does not “involve physical contact between opponents,” the court of appeals concluded that cheerleading falls outside Wis. Stat. section 895.525(4m)(a) and thus that the statute provided no immunity to Bakke.

The supreme court disagreed. The supreme court also turned to the dictionary, to confirm the meaning of physical contact. Because the record in Noffke’s case was replete with pictures, rules, and stunts showing a significant amount of contact between cheerleaders that, at times, produced a forceful interaction, the supreme court had no trouble finding that cheerleading involved physical contact as that phrase is used in Wis. Stat. section 895.525(4m).¹²

Moreover, where the court of appeals placed emphasis on the title of subsection (4m), the supreme court did not. The supreme court found the title unpersuasive and unclear guidance as to the statute’s meaning. Instead, the supreme court cited Lestina, noting its importance and the distinction between aggressive sports and contact sports:

“We doubt the legislature passed a statute in the wake of Lestina and then only protected aggressive contact sports such as football, hockey, or boxing…. [T]he language of the statute does not restrict its application to only ‘aggressive’ sports such as football, hockey, or boxing. Rather, the statute encompasses any recreational activity that includes physical contact between persons in a sport involving amateur teams. If the legislature intended such a narrow construction, the legislature could have clearly placed such a restriction in the text of the statute.”¹³

Thus, while the court of appeals reasoned that Lestina supported its decision that subsection (4m) did not apply to cheerleading, the supreme court drew the opposite conclusion that, in light of Lestina, subsection (4m) did apply to cheerleading and, in this case, Bakke was immune from the negligence claim against him.

Looking Forward after Noffke 

Noffke raises some interesting new issues. The first concerns a court’s use of a dictionary for statutory interpretation. Here, each of the two appellate courts used the dictionary, reaching opposite conclusions,¹⁴ while the circuit court was able to interpret the meaning of Wis. Stat. section 895.524(4m) without even referencing the dictionary.

Chief Justice Abrahamson’s concurrence in Noffke discounted reliance on the dictionary. According to the concurrence, resorting to a dictionary is like the use of legislative history and “[t]he equivalent of entering a crowded cocktail party and looking over the heads of guests for one’s friends.”¹⁵This point is well-taken because the use of a dictionary can cloud what is otherwise an important, reasoned decision.

But the concurrence also does not address the true concern. As the Noffke majority and concurring opinions recognize, the dictionary has its place, with the question being how much reliance on the dictionary is too much reliance. In the case of Noffke, to rely on a dictionary in underscoring seminal, primary points in a decision seems to walk a fine line between construing a statute based on its plain language and construing a statute using other interpretive tools such as structure, purpose, and history.

In Wis. Stat. section 895.524(4m), the legislature could address this concern by, for instance, eliminating the word “contact” from the title of subsection (4m) or by clarifying that immunity is only available for contact sports like football. Certainly, the supreme court’s holding in Noffke should stand for what the legislature intended instead of a few lines from Merriam-Webster or the American Heritage Dictionary.

The second issue in Noffke is tied to the first: determining what a “sport” is for purposes of Wis. Stat. section 895.525(4m). Even the supreme court noted that the statute once again may be ripe for legislative review.¹⁶ For instance, if recreational immunity attaches to cheerleading, how does the statute apply to school team sports such as golf, swimming, or tennis? If cheerleading is a contact sport, are sedentary activities also covered by the statute? And where should the line be drawn between practice, preparation for practice, and nonpractice recreational activities?

In all likelihood, these questions may be answered in other immunity statutes and provisions. But if the supreme court’s conclusion in Noffke was in error and if cheerleading, in the eyes of the legislature, is not a recreational activity for purposes of immunity under section 895.525(4m), then the statute itself is as clear as mud.

Just as the legislature stepped up to address a hole in recreational immunity law left in the wake of Lestina, Noffke is yet another step in a debate that will (and should) continue.

Endnotes

Wisconsin Lawyer