## Facts

- H.C., a minor, played goalie on a youth water polo team governed by USA Water Polo, Inc., which organized a three-day youth tournament.
- During tournament play, H.C. was hit in the face by a shot and sustained a concussion; after a brief exchange, her coach returned her to play the rest of the game.
- H.C. later played additional games the same day, took additional head impacts, and was not evaluated by a medical professional during the tournament.
- Two days later, H.C. developed severe symptoms and was diagnosed with debilitating post-concussion syndrome, causing significant interruption to school and daily functioning.
- The complaint alleged USA Water Polo had a detailed concussion policy for national team trainers but did not require or recommend comparable protocols for youth teams, instead relying on a short, general coaching-conduct paragraph that only broadly discouraged returning injured players to play.
- The complaint further alleged USA Water Polo knew of concussion risks, provided no concussion-management training to youth coaches, and ignored requests from parents to implement youth concussion-management and return-to-play protocols.
- The district court dismissed negligence, negligent undertaking (Restatement (Second) of Torts § 323), and gross negligence claims under Rule 12(b)(6) for lack of a cognizable duty due to California’s primary assumption of risk doctrine.

## Issues

1. Whether California’s primary assumption of risk doctrine eliminated any duty by USA Water Polo to protect youth players from secondary concussion injuries after an initial concussion.
2. Whether USA Water Polo’s alleged partial concussion-related policies and rules plausibly created a duty under a negligent-undertaking theory by increasing risk or inducing reliance.
3. Whether the alleged conduct plausibly amounted to gross negligence under California law.

## Decision

- The Ninth Circuit reversed the dismissal and remanded.
- The court held the complaint plausibly alleged a duty of care because secondary head injuries from returning a concussed athlete to play are not inherent risks integral to water polo under California’s primary assumption of risk doctrine.
- The court held the negligent-undertaking claim was adequately pleaded because USA Water Polo allegedly undertook some role in concussion safety and increased the risk by failing to implement effective, available youth protocols.
- The court held the gross negligence claim was plausibly alleged given asserted knowledge of the risk, availability of protocols, lack of training, and repeated inaction despite requests.

## Legal Principles

- Under California’s primary assumption of risk doctrine, sports organizers generally owe no duty to protect participants from risks inherent in the sport, but they do owe a duty not to increase risks beyond those inherent in the activity.
- A risk of secondary concussion injury from returning a concussed player to play without proper evaluation and management is not, at the pleading stage, an inherent risk integral to water polo.
- Under Restatement (Second) of Torts § 323, a defendant who undertakes to render services for another’s protection may be liable if the undertaking increases the risk of harm or if harm results from reliance on the undertaking.
- Gross negligence under California law requires allegations showing a want of even scant care or an extreme departure from the ordinary standard of conduct; knowledge of serious risks and refusal to implement available safety measures can satisfy plausibility at the motion-to-dismiss stage.

## Conclusion

The Ninth Circuit reinstated negligence, negligent-undertaking, and gross negligence claims against a national sports governing body based on alleged failure to implement youth concussion protocols, holding that primary assumption of risk did not bar a duty to address avoidable secondary concussion harm and that the pleadings supported undertaking-based and gross negligence theories.


Mayall ex rel. H.C. v. USA Water Polo, Inc., 909 F.3d 1055 (9th Cir. 2018)