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Hinterberger v. Iroquois School Dist.

United States District Court, W.D. Pennsylvania

September 26, 2012

Heather HINTERBERGER, Plaintiff,
IROQUOIS SCHOOL DISTRICT and Sally Loftus, Defendants.

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Thomas V. Myers, Nichols & Myers, PC, Marissa Savastana Watts, T. Warren Jones, MacDonald, Illig, Jones & Britton, Erie, PA, for Plaintiff.

Richard A. Lanzillo, Knox, McLaughlin, Gornall & Sennett, Erie, PA, for Defendants.


McLAUGHLIN, SEAN J., District Judge.

In March of 2004, Plaintiff Heather Hinterberger was seriously injured while attempting

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a stunt as a member of the Iroquois High School cheerleading squad. She later filed a civil action in the Erie County Court of Common Pleas against her cheerleading coach, Sally Loftus, and the Iroquois School District. On November 17, 2008, the case was removed from the court of common pleas to this Court.

At this procedural juncture, Hinterberger's sole remaining cause of action against the Defendants is a claim under 42 U.S.C. § 1983 based on the alleged violation of her federal substantive due process rights. This Court's subject matter jurisdiction is premised upon 28 U.S.C. §§ 1331, 1343, and 1441(a).

Presently pending before me in the above-captioned case is a renewed motion by the Defendants for summary judgment. For the reasons set forth below, the motion will be granted in part and denied in part.


Plaintiff suffered a serious closed head injury on March 3, 2004 while attempting to perform a cheerleading stunt known as a " twist down cradle." At the time, the Plaintiff was a freshman at Iroquois High School (" IHS" ), and she had been a member of the cheerleading squad for approximately six months. The incident occurred in the Lawrence Park Elementary School Large Group Instruction (" LGI" ) room, where the squad often practiced.

Cheerleaders perform cheers, dances, stunts and pyramids. When stunts are performed, there are normally three or four cheerleaders acting as the " base" and one cheerleader acting as the " flyer." The flyer is the member who is elevated into the air by the base and performs the pose, twist, cradle or other maneuver. Those cheerleaders acting as the base are the ones who hold, elevate, and catch the flyer during the stunt. Plaintiff was a flyer with the IHS cheerleading squad at the time of the incident giving rise to this lawsuit.

In addition to the flyer and the " bases," the IHS cheerleading squad typically used members of the squad to act as " spotters" when practicing new and un-mastered stunts. Spotters are intended to enhance safety by encircling the bases and the flyer. The idea is that, if a stunt goes awry and the bases appear unable to steady or catch the flyer, the spotters are positioned so as to step in and attempt to do so. To this end, the spotters on the IHS squad were instructed to keep their attention focused on the flyer if she appeared to be falling away from the base. Spotters were further instructed to maneuver themselves between the flyer and the floor if the flyer appeared to be falling.

While a member of the IHS cheerleading squad, Plaintiff participated in both regular and competition cheerleading. Both squads were comprised of identical members with the exception of one individual. Both squads performed the same cheers and routines.

Plaintiff was injured on March 3, 2004 while practicing a " twist down cradle" — a stunt which was being introduced to the squad for the first time on that day.[2] At

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the time, Plaintiff was acting as the squad's flyer, a position she had had no experience with prior to trying out for the IHS cheerleading squad in the 8th grade.

The twist down cradle is considered an " intermediate level" stunt for high school cheerleading and, at the time of the incident in question, was commonly used in high school cheerleading competitions. The IHS cheerleaders had in fact observed the maneuver being performed by numerous other squads at a cheerleading competition held in July 2003 in Darien Lake, New York. Following this event, several of the IHS squad members asked Defendant Loftus to allow them to add the move to their own routine.

Despite these requests, Loftus did not allow her squad to attempt the twist down cradle until their practice on March 3, 2004, some seven months after the Darien Lake competition, because she did not feel the squad was ready to add the maneuver to its routine prior to that point. In the meantime, Loftus arranged to have a cheerleader from another program who was experienced in the twist-down cradle attend the March 3, 2004 practice so that she could demonstrate the maneuver and assist in teaching the cheerleaders the proper technique.

Specifically, Loftus called upon Jessica James, a flyer form the McDowell High School cheerleading program, to help demonstrate and instruct the IHS squad on proper twist down cradle technique. Miss James had participated as the flyer in both regular and competition cheerleading at McDowell and acted as the Assistant Coach for a local middle school cheerleading program. According to Plaintiffs expert, William Brazier, the McDowell cheerleading program is recognized as being exceptionally well organized and well coached.

In accordance with Loftus's request, James attended the IHS cheerleading practice on March 3, 2004. After demonstrating the twist down cradle for the cheerleaders, James remained for the balance of the practice to help instruct the IHS squad regarding the maneuver.

The twist down cradle involves a four-person base comprised of two " sides," a " front" and a " back." The two " side" bases first elevate the flyer to the designated stationary level (depending on whether the stunt is being performed at the half-extension level or the full-extension level); they then thrust or " pop" the flyer upward and release her into the air. The flyer, once propelled upward and released into the air, performs one or more complete revolutions or twists of her body before landing in the arms of her base in a " cradle" or seated " pike" position with her legs together and extended straight out in front of her and her arms straight out from her sides at shoulder level. When performing this maneuver at the half-extension level, the flyer is elevated and made stationary in a position whereby she is standing upright on the hands of the side " bases" with her feet at the bases' shoulder level. When performing at the full-extension level, the flyer is elevated such that she stands upright on the side bases' hands with their arms fully extended upward and overhead before being released into the air. In either case, all of the twisting is done by the flyer; the job of the bases is to elevate and pop the flyer into the air so that she can perform the twist. The twist down cradle can be performed with the flyer executing one rotation or multiple rotations.

On the date in question, Plaintiff was not feeling well but did not inform Loftus of this fact and opted to participate in cheerleading practice. According to Plaintiff, she was aware that the twist-down cradle

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was going to be introduced at practice that day and she felt pressured to attend and attempt the stunt, since the squad was getting ready for a national competition in South Carolina and needed to add the move to their routine so that they could score more points.[3] However, she did not express these thoughts to Loftus.

After James had demonstrated the twist down cradle, Plaintiff and her bases performed the maneuver approximately a half-dozen times, while Loftus supervised and James observed. Each attempt was performed from the full-extension, rather than the half-extension, position. It was Plaintiff's first day trying the maneuver and at least one witness described her as having a " hard time" with it.

On each of Plaintiff's attempts to perform the twist down cradle— including her last, spotters surrounded the Plaintiff and her base. By one account, 6 to 8 spotters were utilized during these attempts.

Plaintiff does not personally recall what happened to her on her last attempt after the moment when she was elevated and waiting to be released upward. Although eyewitness accounts vary as to what exactly occurred when Plaintiff was popped for the last time by her base, there is no dispute that she flew over and outside the perimeter of her base and her spotters, striking first her left hip, then her left shoulder, then her head on the LGI room floor. As a result, Plaintiff suffered a severe closed head injury.

At the time that Plaintiff struck the floor, there was no matting in place. The only mats then available for the cheerleaders' use in the Lawrence Park Elementary School LGI room were vinyl tri-fold mats which had a tendency to slip or slide during stunting. These 6 x 8 feet mats were approximately 2 and 1/2 inches thick. They were not stored in the LGI room but were kept in a locked storage area inside the boy's locker room at the elementary school, which sometimes made access difficult.

On occasion, cheerleading practices would be held in the IHS gym with the use of wrestling mats, or outside the school. However, due to the number of PIAA-sanctioned athletic programs conducted by the Iroquois School District and the competing demands for gym space, the cheerleaders were often relegated to practicing in the Elementary School's LGI room. Although this room had high ceilings conducive to stunting, the floor was described as " very hard" and likely consisted of concrete covered by industrial grade carpeting with little or no padding. Cheerleading practices were held in this room under the direct supervision of Loftus and with the knowledge and permission of the High School's Athletic Director— James Vogt, the High School and Elementary School Principals, the School District's Superintendent, and the Iroquois School Board. The School District's administrative office, in which the Superintendent's office was located, was approximately ten feet down the hall from the LGI room.

Prior to Plaintiff's injury, Defendant Loftus had requested of Vogt that additional mats be provided for the cheerleaders' use. As Athletic Director, Vogt was Loftus' direct supervisor. Loftus specifically asked Vogt for better access to the existing mats and for better mats for stunting purposes. She explained that the

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existing mats were a hazard due to their tendency to slide when used for stunting practice and that they were not the type of mats that the squad needed in order to be successful in their stunting. In response, Vogt mentioned money as an issue and told Loftus to use what mats were available, as that is what had always been used. It does not appear that Vogt ever conveyed Loftus's requests for better mats, or her concerns over the existing mats, to the School Board. For that matter, the Plaintiff admits that the School Board never received a formal request from the school administration for the purchase of additional mats for cheerleaders' use in the LGI room prior to Plaintiff's injury.

Prior to March 3, 2004, there had been some incidents involving bruises, strains and sprains to various members of the IHS cheerleading squad, but nothing as severe as the injury Plaintiff sustained on March 3, 2004. Plaintiff had personally gone to the emergency room on two different occasions to seek treatment for what amounted to sprains and/or bruising to her wrist and shoulder. She was not admitted for treatment on either occasion. According to Plaintiff's mother, Pamela C. Hinterberger, these injuries were the result of Plaintiff being dropped during attempted stunts.

There is also evidence that Amanda Reitz, one of Plaintiff's fellow flyers on the squad, experienced minor injuries as the result of being dropped during stunting. On one particular occasion during the 2003-2004 school year, but prior to March 3, 2004, Reitz was participating as a flyer during the squad's performance at a basketball game. The game was played at another school's gym and no matting was provided. During the course of a stunt, one of Reitz's bases turned away, causing Reitz to fall on her back and strike her arm on a grid-like structure. The incident resulted in some bleeding and bruising, but Reitz continued to perform with her squad for the remainder of the game and did not seek medical attention. She took ibuprofen and recovered after a couple of days.

Reitz also recalled seeking medical treatment on one occasion due to " pulling something" in her back. Reitz believed her back problem was probably the result of being caught so much and falling. She described the mats used by the squad as " [not] exactly the thickest, so when you hit them, you didn't feel the greatest ..." (Reitz Depo., Ex. 2 to Defs.' Renewed Mot. for Summ. Judg. [75-6] at p. 9 of 22.) [4] Upon seeking medical treatment, she received a muscle relaxant and Tylenol 3 for her injury.

Reitz states that, on more than one occasion, she expressed to Loftus her concerns about practicing outside or in the LGI room without matting. Reitz's mother also had discussions with Loftus at some point prior to March 3, 2004 about the lack of sufficient matting. In response, Loftus advised that she had attempted to obtain better mats but had been turned down by Vogt. Reitz's concerns about her own safety resulted in her quitting the cheerleading squad just a couple of weeks prior to the national competition and just days before Plaintiff suffered her head injury. According to Reitz, she advised Loftus that she was not comfortable doing stunting without proper matting in place and that she was tired of getting injured. Reitz claims that this conversation occurred when the

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squad was practicing in the LGI room without mats.

According to another member of the IHS squad by the name of Faith Kindig, a group of the IHS cheerleaders, while walking to the March 3, 2004 practice, discussed their concern that mats would not be used at practice that day. There is no evidence to suggest that this concern was shared with Loftus on that date.

The Pennsylvania Interscholastic Athletic Association (PIAA) is the official body that issues rules concerning public high school sports in Pennsylvania. Its function is to " develop and enforce rules regulating interscholastic athletic competition," " [o]rganize, develop, and direct an interscholastic athletic program which will promote, protect, and conserve the health and physical welfare of all participants," and " [p]romote uniformity of standards in all interscholastic athletic competition." (PIAA Constitution, Article II.) Cheerleading is not an activity sanctioned by the Pennsylvania Interscholastic Athletic Association, as it is not recognized as a sport. Accordingly, neither the PIAA nor the Commonwealth of Pennsylvania have adopted any rules or regulations regarding the conduct of high school cheerleading practices, performances, or competitions. More specifically, neither the PIAA nor the Commonwealth of Pennsylvania have adopted any rules, regulations, or standards regarding (i) the use of mats at cheerleading practices, performances or competitions, (ii) surfaces appropriate for cheerleading, (iii) stunts that are permissible or impermissible, or (iv) the training or certification of high school cheerleading coaches.

Under Pennsylvania law, however, the IHS School Board was charged with responsibility for " prescribing, adopting and enforcing such reasonable rules and regulations as it may deem proper" for the " management, supervision, control or prohibition of exercises, athletics, or games of any kind ... and other activities related to the school program." 24 Pa.S.A. § 5-511. That same law empowers the board of school directors to " ... authorize any school employe or employes to manage, supervise and control the development and conduct of any of such activities," and " employ or assign any school employe to serve in any capacity in connection with any of such activities." Id. at § 5-511(c)(2) and (3).

Throughout the nation there exist a few private organizations which issue guidelines specifically for cheerleading, including the American Association of Cheerleading Coaches and Administrators (" AACCA" ) and the National Federation of High School Associations (" NFHS" ). These organizations have no regulatory authority in Pennsylvania. Some of the guidelines issued by the NFHS relative to sanctioned PIAA sports have been adopted by the PIAA; however, the adoption of these guidelines has been selective rather than wholesale. The PIAA has elected to adopt rules for certain sports and not others. Regarding some sports, the PIAA has adopted rules of the NFHS with modifications.

Both the NFHS and the AACCA issue guidelines for cheerleading on a yearly basis. The 2003-2004 version of the NFHS's " Spirit Rules Book" set forth various " Regulations for Coaches" including, in relevant part, the following:

1. Spirit squads should be placed under the direction of a knowledgeable coach.
2. The coach must be knowledgeable in first aid techniques and emergency procedures. Coaches must develop an emergency plan for dealing with injuries at practice, games, performances and competitions. Participants

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must be made aware of these procedures.
3. Coaches must remain up-to-date on all new techniques, progressions and safety regulations by frequently attending conferences, clinics and rules meetings. The coach should also belong to appropriate professional spirit organizations.

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9. All spirit activities must be held in a location suitable for spirit activities with the use of mats, free of obstructions, and away from excessive noise or distractions.

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11. Coaches should recognize a team's particular ability level and limit its activities accordingly. " Ability level" refers to the team's talents as a whole, and to individuals who should not be pressed to perform specific activities nor be limited by the ability level of the team.

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13. Coaches and participants must be trained in proper spotting techniques.
14. Proper progression, spotting techniques and matting must be used until stunts are mastered.

(See Ex. 1-B to Defs.' Renewed Mot. for Summ. Judg. [75-4] at p. 35.) In addition, Rule 2, § 1, Article 4 of the NFHS 2003-2004 Spirit Rules Book, pertaining to " General Risk Management," directs that: " Stunts (mounts, pyramids, tosses and tumbling) must be modified to be appropriate to the performing surface/area." (See Rule 2, § 1, Art. 4 at id., p. 9.)

According to Plaintiff's expert, William E. Brazier, the NFHS spirit rules " have been widely-accepted and used by high school cheerleading programs around the country since prior to Ms. Hinterberger's injury." (Ex. 17 to Pl.'s Br. in Opp. to Defs.' Mot. for Summ. Judg. [55-1] at p. 2.) It is Mr. Brazier's opinion that the Defendants should have, but failed to, adhere to the " regulations and/or guidelines" enumerated above. ( Id. at p. 1.)

The AACCA issued somewhat similar Cheerleading Safety Guidelines for students high school age and younger for the year 2003-2004. Included within the manual's " General Guidelines" are the following:

1. Cheerleading squads should be placed under the direction of a qualified and knowledgeable advisor or coach.
2. All practice sessions should be supervised by the coach and held in a location suitable for the activities of cheerleaders (i.e., use of appropriate mats, away from excessive noise and distractions, etc.).

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5. Professional training in proper spotting techniques should be mandatory for all squads.

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9. Tumbling, partner stunts, pyramids and jumps should be limited to appropriate surfaces.

(Ex. X to Def.'s Mot. for Summ. Judg. [40-6] at pp. 5-6.)

In addition to its annual safety guidelines, the AACCA periodically publishes a more in-depth cheerleading safety manual. The most recent version of this manual which would have applied at the time of Plaintiff's injury was published in 1997. This version included a set of ten (10) safety guidelines ...

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