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Christopher Cotillo v. William Duncan, et al., No. 2859, September Term, 2005

_________________________________________________________________ TORTS-NEGLIGENCE-ASSUMPTION OF THE RISK Appellant was injured while attempting to bench press 530 pounds in a powerlifting competition. The injury occurred when appellant's attempted lift failed, and the bar fell on him. Appellant alleged that the bar fell because the persons located at opposite ends of the bar (spotters), who were there for the purpose of intervening in the event of danger, failed to intervene because they were instructed not to do so unless signaled. Appellant brought negligence claims, and appellees asserted assumption of the risk. The circuit court entered summary judgment in favor of appellees on that ground. A sports participant assumes all risks normally incident to the sport. Held that the inappropriate instructions to the spotters created an enhanced risk not normally incident to the sport, and thus, appellant did not assume the risk as a matter of law.

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2859 September Term, 2005

CHRISTOPHER COTILLO

v.

WILLIAM DUNCAN ET AL.

Murphy, C.J. Eyler, James R., Getty, James S. (Ret., specially assigned), JJ.

Opinion by Eyler, James R., J.

Filed: December 6, 2006

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2859 September Term, 2005

CHRISTOPHER COTILLO

v.

WILLIAM DUNCAN ET AL.

Murphy, C.J. Eyler, James R., Getty, James S. (Ret., specially assigned), JJ.

Opinion by Eyler, James R., J.

Filed:

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 In granting appellees' motions, the

all based on negligence.

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 Thus, we

entered as to some claims but not as to all claims. shall affirm in part and reverse in part.

Factual Background1 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 sponsor2 of Patuxent High School's weightlifting club, and APA president, Scott Taylor ("Taylor"). The Meet was hosted

We shall summarize the evidence presented by the parties. Because this case was decided on motions for summary judgment, for purposes of disposition, we shall view the evidence in the light most favorable to appellant. Duncan was also employed in a salaried position as a science teacher at Patuxent High School. -12

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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 [a]ppellant'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 local3 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. 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 Both Smith

"to keep their hands close [to the bar] but they couldn't touch the bar because that would disqualify the lift." Duncan stated

Duncan testified during his deposition that Taylor resides in Florida, so, because of proximity, Duncan was responsible for "setting up the facility."
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Side spotters stand on opposite ends of the bar. -2-

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 There are no

criteria or specific requirements for the spotters.

The "hand off" person assists the lifter by taking the bar off of the rack and handing it to the lifter before the lift and replacing the bar in the rack after the lift. -3-

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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 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 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

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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

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spotting in a competition.

He told 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. second lifts were uneventful. The first and

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 At that time, Smith's hands Smith said that he was

about midway up and then stopped.

were "[a]bout two inches" under the bar.

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. judge said something, it was too late. By the time the

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. weightlifting since eighth grade. He stated that he had been Bair was taught how to spot in

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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 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

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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

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attempts.

After his second lift, and before his third attempt, He testified at deposition that he He also testified that he

appellant reviewed the video.

observed nothing out of the ordinary.

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. 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. at the World Games in Sweden in 1999. He won a gold medal From 1994

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

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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 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,

The APA and Board filed third party complaints against Karin's Xtreme Power, LLC, the seller of the shirt, alleging that the shirt was defective when sold, in design, manufacture and warning, and the tear in the shirt contributed to appellant's injury. Later, APA and the Board voluntarily dismissed the complaints. Appellant stated that he was able to bench approximately 450 to 460 pounds raw, and with the shirt on, he was able to bench about 600 pounds. -107

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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

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