Heads Up and Watch Out! Potential Liability for Traumatic Brain Injury Pursuant to the Safety in Youth Sports Act

Defense Digest, Vol. 23, No. 4, December 2017

By Jon E. Cross, Esq.

When a high school student-athlete suffers a concussion and is then permitted to return to play before the concussion heals, the parents of the injured player may bring a civil lawsuit against the player’s coaches and the school district. Typically, when a parent initiates such a lawsuit, it may be based on common law negligence, with allegations that the coach failed to notice the incident or prematurely permitted the student to return to play. In addition, a claim may be asserted under the Fourteenth Amendment’s Due Process Clause, alleging the coach created a danger to the bodily integrity or physical safety of the student.

In addition to these traditional claims of liability, some have suggested that liability may also arise under similar state statutes when a student-athlete suffers a concussion. The first such statute, the Zackery Lystedt Law, was enacted in Washington State in 2009. By 2014, all fifty states and the District of Columbia had enacted some form of youth sports concussion legislation. Pennsylvania’s version, the Safety in Youth Sports Act, 24 P.S. §§ 5321-5323, was passed in 2012.

The purpose of the Act is to reduce the risk of further injury or death to youth athletes who suffer a head injury. The Act is directed at interscholastic athletics, which the School Code defines as a public school, school district, nonpublic school, or private school in the Commonwealth other than a private or nonpublic school that elects not to become a member of the Pennsylvania Interscholastic Athletic Association. 24 P.S. § 16-1602-A. The Act covers games, practices and athletic events sponored by or associated with the school entity. 24 P.S. § 5323. The Act states in relevant part:

(c) Removal from Play. A student who, as determined by a game official, coach from the student’s team, certified athletic trainer, licensed physician, licensed physical therapist or other official designated by the student’s school entity, exhibits signs or symptoms of a concussion or traumatic brain injury while participating in an athletic activity shall be removed by the coach from participation at that time.

(d) Return to Play. The coach shall not return a student to participation until the student is evaluated and cleared for return to participation in writing by an appropriate medical professional….

(e) Training Course. Once each school year, a coach shall complete the concussion management certification training….

(i) Civil Liability.

(1) Except as provided under paragraph (2), nothing in this act shall be construed to create, establish, expand, reduce, contract or eliminate any civil liability on the part of any school entity or school employee.

(2) Any coach acting in accordance with subsections (c) and (d) shall be immune from any civil liability.

24 P.S. § 5323.

Given the unusual language in subsection (i)(1), that the Act is not intended to either “create” or “reduce” civil liability, Pennsylvania’s courts have struggled with assessing what impact, if any, the Act has on the existing rules of civil liability. This question was first addressed in M.U. v. Downingtown High School East, 103 F. Supp. 3d 612 (E.D.Pa. 2015). During a soccer game, M.U. collided with another player while attempting to head the ball. Despite alleged signs that she was injured, the coach allowed M.U. to play the rest of the game, during which she collided with other players and headed the ball several times. M.U.’s suit alleged traditional claims for common law negligence and violation of the Fourteenth Amendment’s Due Process Clause. In particular, the lawsuit claimed that her coach negligently failed to remove her from the game and that the school district failed to implement proper policies regarding concussion evaluation, which violated M.U.’s constitutional rights.

Although the Safety in Youth Sports Act had not been pled as a basis for liability, counsel for M.U. used the opportunity of oral argument to urge the court to look to the Act for the proper standard of care for protecting student athletes from concussions. M.U.’s counsel also argued that violations of the Act should both overcome the governmental immunity that is commonly asserted by school districts and satisfy the high standard—willful indifference—required for Fourteenth Amendment claims. The court ultimately applied immunity and found that M.U. had not met the willful indifference standard, but it stated that a plaintiff “could possibly argue” that a coach’s “failure to abide by the Safety in Youth Sports Act constitutes negligence per se under state tort law.” This cryptic statement breathed life into the argument that negligence per se could result if coaches and schools do not follow the procedures of the Act.

In 2017, another federal district court located in Pennsylvania addressed the Act in R.B. v. Enterline, 2017 U.S. Dist. Lexis 89998 (M.D. Pa. June 12, 2017). In that case, the plaintiff was a cheerleader who fell to the ground and hit her head. R.B. sued her coach for negligence. The coach raised governmental immunity under the Pennsylvania Political Subdivision Tort Claim Act as a defense. In response, like her counterpart in M.U., the plaintiff argued that the Act abrogates immunity. The court rejected this argument and granted immunity to the coach. However, it did not address whether the Act creates its own cause of action.

Unlike the Pennsylvania courts, the Supreme Court in Washington opined that a wrongful death lawsuit brought by a high school football player’s estate could proceed under Washington’s Zackery Lystedt Law, which contains language similar to that of Pennsylvania’s Safety in Youth Sports Act. In Swank v. Valley Christian School, 398 P.2d 1108 (Wash. 2017), the court held that “the Lystedt law includes an implied cause of action” relevant to a claim against a high school football coach.

More recently, in Mann v. Palmerton Area School District, ___ F. 3d. ___, 2017 U.S. App. Lexis 18261 (3d.Cir. Sep. 21, 2017), the Third Circuit in Pennsylvania found a school district not liable for traumatic brain injuries suffered by a football player during a practice in 2011 because there was no evidence the coaches deliberately exposed the injured player to the continuing risk of harm. However, in reaching its conclusion of no liability, the court stated, “It is also significant that the Pennsylvania General Assembly did not pass legislation (the Safety in Youth Sports Act), that mandated training for coaches to prevent concussions, until November 9, 2011, and the legislation did not even go into effect until July of 2012.”

A few weeks later, the Commonwealth Court of Pennsylvania addressed the Act in an opinion that affirmed a trial court decision that overruled preliminary objections that had been filed against the plaintiffs. See, Hites et al. v. Pennsylvania Interscholastic Athletic Association, Inc., 2017 Pa. Commw. Unpub. Lexis 784 (Pa.Commw.Ct. Oct. 10, 2017). Among other things, the plaintiffs asserted that the Act describes minimum standards of care for interscholastic athletics. The trial court stated that the Act must be considered when evaluating whether a duty should be imposed on the Pennsylvania Interscholastic Athletic Association. The Commonwealth Court acknowledged the immunity clause but stated that, while the Act imposes certain responsibilities upon school entities and school employees, it does not eliminate civil lawsuits, such as the lawsuit filed against the Pennsylvania Interscholastic Athletic Association. The Commonwealth Court affirmed the order of the trial court, and the case was remanded for further trial proceedings.

These cases suggest confusion about whether youth sports concussion laws create new civil liability for coaches and school districts and, if so, whether such liability will overcome traditional defenses, like governmental immunity and the high standard for Fourteenth Amendment claims. M.U. and R.B. ruled for the defendants and applied the traditional defenses, but M.U. suggested that the Safety in Youth Sports Act “possibly” creates new liability, and R.B. left the question unanswered. On the other hand, Swank held that the Lystedt Law creates an “implied” cause of action. Certainly, high schools and coaches need to follow the strict protocols set forth in the Act. Additionally, until the existing state of confusion is resolved and the courts reach a consensus, schools, coaches and insurance carriers should be aware of the potential for increased civil liability.

*Jon, special counsel in our Philadelphia, Pennsylvania office, can be reached at 215.575.2750 or jecross@mdwcg.com.

_{Defense Digest, Vol. 23, No. 4, December 2017. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2017 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}