Cotillo v. Duncan

Opinion by EYLER, JAMES R., J. Christopher Cotillo, appellant, appeals from the grant of summary judgment by the Circuit Court for Calvert County in favor of the American Powerlifting Association (“APA”), William Duncan (“Duncan”), and the Board of Education of Calvert County (“Board”), appellees. Appellant’s claims against appellees were all based on negligence. In granting appellees’ motions, the court found that appellant assumed the risk of injury, and thus, appellant’s claims were barred as a matter of law. Appellant contends that the court erred in granting appellees’ motions because assumption of the risk is a disputed material fact.

We conclude that summary judgment was properly entered as to some claims but not as to all claims. Thus, we shall affirm in part and reverse in part. ³⁴ Factual Background 1 and Procedural History On November 8, 2003, appellant was injured while attempting to bench press 530 pounds in the 2003 Southern Maryland Open Bench Press & Deadlift Meet (the “Meet”), a powerlifting competition sanctioned by the APA, and organized by Duncan, the faculty sponsor 2 of Patuxent High School’s weightlifting club, and APA president, Scott Taylor (“Taylor”). The Meet was hosted by Patuxent High School in Calvert County, which operates under the jurisdiction of the Board. Appellant’s injuries, including a shattered jaw, occurred on his third lift attempt, when, according to appellant, the “ ‘spotters’ failed to grab [ajppellant’s lift bar when he was unable to successfully complete the attempted bench press lift,” and the 530 pound barbell (“bar”) fell, striking him in the jaw.

According to appellant, Duncan and Taylor were both responsible for organizing the event. As the local 3 organizer of the event, Duncan’s responsibilities included obtaining the spotters to assist at the Meet. Duncan obtained Chris Smith (“Smith”) and Chris Bair (“Bair”), Patuxent High School students, to act as “side spotters” 4 during the competition. Both Smith and Bair had spotted for Duncan in the gym before.

Duncan testified at his deposition that, on the morning of the Meet, he spoke with the spotters for “a few minutes” about “how things work in a competition.” He stated that he told them “to keep their hands close [to the bar] but they ³⁵ couldn’t touch the bar because that would disqualify the lift.” Duncan stated that he was the “hand off’ 5 person for appellant’s lifts. During appellant’s third lift attempt, Duncan handed off the bar to appellant and moved out of the judge’s line of vision so that she could have an unhindered view of the lift. During the bar’s descent to appellant’s chest, Duncan heard a tearing sound. Duncan recalled that when appellant began to press the bar up, “his elbows flew like this and the bar came down, and at that point I reached out and I grabbed the bar.” Taylor testified at his deposition that both he and Duncan briefed the spotters before the meet as to “how to do it correctly.” He said that he also instructed the lifters as to the “rules of performance” and told them that they were entitled to have their own spotters for the Meet.

Taylor stated that he generally encourages lifters to use their own spotters, who are familiar with their techniques, because spotting is “mind reading,” and having spotters who are familiar with the lifter “decreases the likelihood of anything ... happening.” Taylor stated that it was Duncan’s job to get spotters for the Meet for those who did not have their own spotters, and Duncan told Taylor that he would get members of the high school powerlifting team to spot at the Meet. Taylor did not give Duncan any criteria or specific requirements for the spotters. There are no APA requirements regarding spotters that work at competitions. Taylor stated, however, that he would prefer spotters who have had experience around powerlifting.

Taylor was aware that Duncan had briefed the spotters before the Meet, but Taylor also briefed them, explaining to them safety aspects during the performance of a lift. He stated that he told the spotters to be “near the bar at least within six inches or so in case anything happens like what happened with [appellant] they get in there as fast as possible. At the same time they cannot touch the bar because it will ³⁶ cause a disqualification for the lifter’s lift----[because] [i]t’s considered ... assisting of the lift.” He also instructed them that “if the lifter hesitates in the middle [of the lift] but there’s no downward motion, don’t just go in and grab it, that’s when you wait, it’s a referee discretion thing, they tell you to take the bar. However, if the lifter hesitates and they’re on their way down, obviously you don’t have to wait for the referee.” He explained to the spotters that they should stay close to the bar because an accident can happen quickly, but also that they should not be so close to the bar that they accidentally touch it and disqualify the lift.

Taylor said that at one point during the competition, with respect to a competitor other than appellant, and before appellant’s accident, he observed one of the two spotters stepping “too far back away from the bar,” and Taylor told him that he had to stay closer to the bar. Taylor saw appellant’s third lift attempt. In this regard, he stated that appellant “was given the command [to press], you could hear something rip, started coming up, I am just guessing four, six inches, it happened so fast. The bar started coming back and as it was coming back his wrists went like this (indicating) and everything was down.

The spotters stepped in, grabbed the bar, but 530 pounds velocity you’re going to get a downward motion no matter how big, how strong you are and that’s where that happened (indicating).” Smith testified at his deposition that at the time of the Meet he was fifteen years-old, approximately five feet eight or ten inches tall and 180 pounds, and he could bench press approximately 200 pounds. He had been weightlifting for approximately seven months prior to the Meet, and had been taught how to spot a bench press, although he had never spotted in a weightlifting competition before. Smith stated that sometime in the week before the competition, Duncan explained to him how to spot in the competition. Duncan also went to the gym with Smith during the “whole week” before the competition to show him “how to spot” and to “make sure” Smith knew what he was doing.

On the morning of the Meet, Duncan practiced with Smith and Bair, and spoke with them for five or ten minutes about the rules of spotting in a competition. He told ³⁷ them that they could not touch the bar until the judge indicated to do so or else the lifter would be disqualified. Smith said that when he spotted people in the gym, it did not matter if he touched the bar. Smith testified that he, Bair, and Duncan spotted appellant during his lift attempts at the competition.

The first and second lifts were uneventful. Smith stated that, during the third lift attempt, “the dude was lifting like 550, he was lifting a lot of weight, so Mr. Duncan said make sure you stay under the bar, but he was always saying make sure you don’t touch the bar until [the judge] said so, or [appellant] would be disqualified.” Smith testified that appellant lifted the bar about midway up and then stopped. At that time, Smith’s hands were “[a]bout two inches” under the bar. Smith said that he was going to grab the bar, and he had an instinct to grab the bar about four seconds before he actually did grab the bar, but the judge did not tell them to, and he was afraid that appellant would be disqualified if he touched the bar.

By the time the judge said something, it was too late. Smith had never spotted anybody bench-pressing in excess of 500 pounds before. Bair testified at his deposition that at the time of the Meet he was in ninth grade, fourteen years-old, approximately six feet tall, and weighed 260 pounds. He stated that he had been weightlifting since eighth grade.

Bair was taught how to spot in the school gym where he weightlifted. Before the incident, however, he had never spotted anyone lifting over 500 pounds and had never spotted anyone in a competition before. Bair stated that he had never taken any classes in weightlifting, never read any books or articles on weightlifting or spotting, and had never taken any classes about spotting. At some point in the week before the competition, Bair had a conversation with Duncan about how to spot.

Duncan showed Bair where to hold his hands, telling him they should be “no more than six inches away from the bar at all times, always keeping them underneath.... [with his] fingers ... laced so you get a better grip and it is hard to break through ³⁸ it, the bar, in case it dropped.” Duncan also explained to Bair when to touch the bar and what would happen if he touched the bar when he was not supposed to. Bair had never spotted anybody “[o]n the sides” before and had never spotted anybody lacing his fingers together. Duncan also had Bair practice by “getting used to the feel of the bar and picking it up, and if it dropped, how it would feel.” On the morning of the competition, Duncan repeated the instructions that he had given Bair in the gym, and “wanted us to go over it” to “make sure we were doing it right.” Duncan told Bair and Smith that “the only time we should touch the bar is when [the judge] told us____” Specifically, Bair stated that Duncan “told us that what we should do is ... if we feel like we need to help, is to put our hands under there and not to touch it until the judge tells us to ... but keep it as close as we can and be ready for anything, because if he did, ended up not needing help and we were wrong, then they would get upset and we would get in trouble.” During the Meet, Smith and Bair spotted for lifters other than appellant. Prior to appellant’s accident, Smith and Bair had to assist one or two of the other lifters with the bar.

Smith stated that the people they helped were “struggling and as soon as the judge saw that they were struggling, she told us to go ahead and pick up the bar for them.” Bair stated that appellant’s first two lifts were uneventful. With respect to the third lift attempt, Bair testified that appellant “had no trouble bringing [the bar] down. And he brought it up and he started having trouble, and that is when I started sliding my hands closer. And then the judge said grab it, and when we went to grab it, it was too late, and he dropped it all of a sudden, and we got there and picked it up as fast as we could.” Bair said that he had an instinct to grab the bar “a couple seconds” prior to the time that he actually did grab it, but he did not because the judge told them not to touch the bar unless she instructed them to do so.

Emily Roberts, a friend of appellant’s, videotaped the Meet for appellant on her digital camera. She filmed all three lift ³⁹ attempts. After his second lift, and before his third attempt, appellant reviewed the video. He testified at deposition that he observed nothing out of the ordinary.

He also testified that he had no difficulty with any of the spotters during his first two lifts. Appellant testified at deposition that he had been powerlifting competitively since approximately 1994. From 1994 through 1999, appellant competed in between 15 and 20 competitions at the local, national, and international levels, and won awards at most of the competitions. He won a gold medal at the World Games in Sweden in 1999.

Appellant was aware that there are certain risks associated with the sport of powerlifting such as pulled or strained muscles. He stated that if a powerlifter “was failing on a lift and there were no spotters and [the powerlifter] couldn’t stop the weight ... it could be a dangerous situation.” He said, however, that he had never seen anyone injured while doing a bench press, and had only once seen someone drop the bar on his chest while bench pressing. He couldn’t remember if the individual had spotters, but didn’t believe that he did. On appellant’s third lift attempt, he was trying to break a record by lifting 530 pounds.

To this end, he was wearing a “Karin’s Xtreme Power” double denim bench shirt, a shirt that is designed to allow a person to lift a significant amount more weight than he could lift without the shirt. 6 Appellant had worn this type of shirt before in competition and had experienced “blow outs,” where the shirt rips from neck to sternum, twice before, but both times the spotters were able to grab the bar before it fell. Appellant said that “[w]hen the shirt blows you no longer have the shirt assisting you in the lift,” and without that assistance, the powerlifter is essentially left doing a raw bench press of approximately 150 pounds more than he ⁴⁰ can usually do raw. 7 To keep the weight “from coming down and crashing on top” of the powerlifter in this situation, spotters are necessary. Appellant stated that, generally, when he wore the shirt in the gym for training, “[c]ertain guys had to be in [the gym] to spot” him because he was lifting heavy weight and he wanted to be sure that whoever was spotting him could stop the weight if the need arose. Appellant stated that before the Meet, Duncan told him that the spotters at the Meet “were members of the Patuxent High School powerlifting team____” Appellant believes that the shirt tore slightly, but did not blow out, during his third lift attempt.

He stated he did not know the shirt had torn until after his lift attempt had failed, and he did not know why the attempt had failed. Appellant described his third lift attempt as follows. Q. Let’s talk about the third lift in particular. Where were the spotters positioned from the time that you sat down till the time that the bar fell?

A. Well, to the best of my knowledge, I mean I’m concentrating on the lift, I had one at each side and I had Bill [Duncan] lifting off and at the head of me. And, you know, I’m not trying to be smart or anything but you keep saying the bar fell and the bar never fell, I had a hold of the bar the whole time. Q. Tell me what happened. Just take me step by step through the lift starting from when you sat down till the accident.

A. I was given — I lifted the bar off with [Duncan’s] assistance, I was told to start the lift. I came down to my chest, paused it on my chest, he told me to lift. As I’m lifting I’m coming up and I got to about here, and I got to a sticking point where I couldn’t press anymore, and from the best I can remember the bar started coming back down. And I ⁴¹ heard crunching which was my teeth, I felt the bar hit my chin and then it was picked up off of me.... * * * Q. How far up from your chest did you get the bar before you stalled out?

A. To the best of my knowledge and what I can remember ... I got it about halfway, I would say about here [indicating approximately six to ten inches off of his chest]. * * * Q. Do you know why the bar fell towards your face? [Counsel for Karin’s Xtreme Powerwear]: Objection. I think he testified earlier the bar didn’t fall. Q. Do you know why the bar went down towards your face?

A. No. Q. When the bar came towards your face at what point did the gentleman [sic] on either side of the bar, the spotters, at what point did they first touch the bar? A. I have no idea. You know, I’m trying to get the weight up. As the bar is coming down for a split second I’m thinking they’re going to grab the bar and the next thing I know I’m eating it____ Q. Now, in this incident in the APA lift when you got hurt you’ve shown us, you’ve demonstrated on your body, that you had gotten the bar approximately anywhere from six to ten inches, according to the estimates around the table, off of your chest and you couldn’t get it any higher; is that correct?

A. Yes. Q. All right. Did you say anything at that point? A. No. Q. Did you ask for any assistance at that point?

A. You pretty much can’t ask. I mean you’re pushing heavy weight. You can’t. No, I did not. ⁴² Q. It’s impossible — what you’re saying when you say you can’t, it’s not that you’re not allowed to, you’re just not able to; is that what you’re saying?

A. Well, I mean I’m still fighting the weight. Even though it’s coming down on me I’m still thinking I can try to get it, get it and I’m still fighting it, and the next thing you know it’s on top of me. Q. Now, would you describe the incident as it happened from that point on, when you got it to the maximum elevation to the point where it struck your chin would you describe that as something that happened gradually or very quickly. A. Quickly.

Q. It was almost instantaneous, wasn’t it? A. Yes. Well, I mean I was — it didn’t fall, you know, I’m still fighting it, so as it’s coming down I’m still fighting it. So it was quick but it wasn’t like it was free falling.

Appellant testified that either the night before or the day of the Meet, he filled out a registration form and paid an entry fee. Appellant had signed documents containing release or waiver language at competitions in the past. Specifically, before he competed in the 2000 Southeastern Police and Fire Championships, which was not an APA sponsored event, he signed a release of liability, assuming “all risks in the games including, specifically (but not exclusively) the dangers of any malfunction of equipment, etc____” Appellant did not remember this type of waiver language being on the form that he filled out before the APA Meet. 8 ⁴³ Appellant testified that before the Meet, he read the APA powerlifting rules. The rules provide, inter alia, that contact of the bar by the spotters between the referee’s signals is a cause for disqualification of a bench press.

Pursuant to APA rule VI.7., a spotter “shall not touch the lifter or the bar during the actual [lift] attempt. The only exception to this rule is if the lifter is in jeopardy and likely to result in injury, either at the request of the lifter, the center referee, or when it is very obvious to the spotter ... that the lifter will most likely be injured if the lift is to continue.” Furthermore, “if the lifter is deprived of an attempt by an error of a spotter, and through no fault of his own, he will be granted another attempt if he wishes.” Mark Chaillet (“Chaillet”), appellant’s expert, is the president of the International Powerlifting Association (“IPA”), a professional powerlifting association similar to the APA. Chaillet, a powerlifter for over 25 years, has trained others in the sport of powerlifting and in spotting. During deposition, Chaillet testified that it is the practice of the IPA to instruct the spotters not to touch the bar “[o]nly in specific instances where the bar does not drop or where the athlete is not endangered.” By affidavit, Chaillet attested that he had reviewed the video of the incident and concluded that the “spotters did not conform to accepted safety practices in spotting [appellant] and that, had they been properly trained and utilized the appropriate safety method in spotting, the injury to [appellant] would not have occurred as the spotters would have been able to control the bar prior to it impacting [appellant].” Chaillet stated that in all of his “years and experience in training and powerlifting,” he had “never ⁴⁴ encountered a situation where the designated spotters failed to prevent a bar from injuring a lifter during an unsuccessful lift.” Furthermore, at his deposition, Chaillet testified that in his opinion the spotters “were too far away from the bar to do any good,” and that their positioning was “pretty much the same ... in all three lifts.” Chaillet conceded that the spotters prevented appellant from being killed.

Allan Siegel (“Siegel”), appellees’ expert, and a powerlifter for more than 26 years, testified at deposition that, based on what he saw in the video, it was his opinion that the spotters did their job correctly. He stated that in his opinion, “they reacted as quickly ... as they humanly could have.” Siegel stated that on appellant’s third lift, the bar did not go up — i.e., perpendicular to appellant’s body — as it was supposed to, and as the spotters would have anticipated it to go, but rather “came back towards the face,” making it impossible for a spotter to stop it from falling. He said that in a situation like that, “you’re still talking of a human reaction time in a matter of a second or two____ It happens that quick (clapping hands).” Siegel stated that he has trained spotters for meets, and in doing so would instruct them that their “job is the safety of the lifter, and if at any time you see the bar going down, grab it. Don’t wait for a referee to tell you.

If you grabbed it too soon, we can award the lifter another attempt. But you’re there for their safety.” By affidavit, Siegel attested that based on his review of the depositions of Smith, Bair, Duncan, and Taylor, and the video of the incident, “the spotters were adequately selected, trained, and supervised. Although they were under 16 years of age, their size, experience in the weight room, and training from Bill Duncan and Scott Taylor made them valid candidates to spot at the [Meet].” Furthermore, Siegel.stated that Duncan’s “alleged statement to the spotters that they not grab the bar until the judges said so must be taken in context with the rules of bench press competitions, the APA’s rules, and Scott Taylor’s instruction that they could grab the bar if it ⁴⁵ started to go down. Taken in context with all other rules and information given to the spotters and competitors, Duncan’s alleged statement was correct in that it was meant to protect lifters from unnecessary disqualified lifts.

Spotters generally are not permitted to grab a bar that is still rising or has stopped (without downward movement) because that will disqualify the lift.” Siegel concluded that the video showed that appellant’s third lift attempt was appropriately spotted and the spotters responded as quickly as they could, saving appellant’s life. We shall review the procedural history only to the extent relevant to the issues before us. In his complaint, appellant alleged that Duncan was negligent in failing to properly position himself as a spotter and in failing to properly position the other spotters and, generally, in failing to take appropriate safety precautions. Appellant further alleged that Duncan was acting as an agent of the APA and the Board.

Appellees filed motions for summary judgment asserting, in part, assumption of