News

Cheering for Brittany L. Noffke v. Kevin Bakke

Posted on Dec 04, 2008

WISCONSIN SUPREME COURT

Wednesday, October 8, 2008

11 a.m.

06AP1886 Brittany L. Noffke v. Kevin Bakke

This is a review of a decision of the Wisconsin Court of Appeals, District IV (headquartered in Madison), which affirmed in part and reversed in part a ruling of the La Crosse County Circuit Court, Judge Dale Pasell presiding.

This case involves a high school cheerleader who was injured when she fell from the top of a formation during a practice. The Supreme Court is expected to interpret Wisconsin’s Recreational Immunity Law, which limits the liability of people who participate in contact sports, to determine whether the state Legislature intended to cover cheerleading under this law.

Here is the background: In 2004, the Holmen High School cheerleading squad was practicing a stunt during a pre-game warm-up in the high school Commons, an area without carpeting or mats. Brittany Noffke and Kevin Bakke were both relatively new to the squad. Noffke was on the top of the base and Bakke was supposed to spot her. Bakke mistakenly moved forward rather than back, and was in the wrong position to catch Noffke, who fell backward and hit her head on the floor. She was injured, and she sued the school, the school district, Bakke, and the defendants’ various insurers.

The circuit court granted summary judgment to the defendants, dismissing Noffke’s lawsuits. In dismissing the claim against Bakke, the judge reasoned that cheerleading is covered by the state Recreational Immunity Law, Wis. Stat. § 895.525 which gives participants in contact sports immunity from lawsuits arising from injuries suffered during the activity except in cases where the participant who causes the injury is found to have acted recklessly or with intent to injure. The judge found no evidence that Bakke’s actions were reckless or intended to harm Noffke. In dismissing Noffke’s claims against the school and the district, the judge reasoned that these entities enjoy governmental immunity under Wis. Stat. § 893.80 (4). The Court of Appeals affirmed the circuit court ruling that the school and the district could not be sued, but concluded that Noffke could proceed with her lawsuit against her teammate. The Court of Appeals reasoned that cheerleading is not a contact sport within the meaning of the statute because there is no opponent involved. Both Noffke and Bakke appealed to the Supreme Court, and the Court granted both petitions for review. In her petition, Noffke argues that the school and district should not be granted governmental immunity because the cheerleading coach's negligence in allowing inexperienced cheerleaders to try a stunt without safety equipment breached a ministerial duty. In his petition, Bakke argues that cheerleading is, in fact, a contact sport, and that the Recreational Immunity Law bars Noffke’s lawsuit against him.

The Court will decide if Noffke will be permitted to proceed with either, or both, of her claims.