By Brian G. Remondino, Esq., Dylan F. Henry, Esq., and Kimberly L. Sachs, Esq.
A recent Pennsylvania Supreme Court decision has the possibility of expanding athletic programs’ duty of care to student-athletes and limiting the protection provided by waivers of liability. In Feleccia v. Lackawanna College, student-athletes injured during a football practice sued Lackawanna College because the two individuals who were hired to serve as athletic trainers did not have the required state licenses. 2019 WL 3917069 (Pa. 2019). This article highlights three major takeaways from Feleccia that schools, athletic programs, and their attorneys should keep in mind when navigating the duties of care they owe to their student-athletes.
THE CASE
Lackawanna Hires Unlicensed “Athletic Trainers”
In the past, Lackawanna Junior College employed two athletic trainers to support its football program. However, in summer 2009, both athletic trainers resigned. Kaitlin M. Coyne and Alexis D. Bonisese—recent graduates who had obtained Bachelor of Science degrees in Athletic Training—applied for the open positions. Although neither candidate was officially licensed as an athletic trainer, Lackawanna hired them both. Under Pennsylvania law, to use the title “athletic trainer,” an individual must pass a national certification exam and be licensed pursuant to the Medical Practices Act.
Thereafter, Lackawanna learned that Coyne and Bonisese failed the national certification exam. Rather than terminating Coyne and Bonisese, however, Lackawanna retitled their positions from “athletic trainers” to “first responders.” Despite this re-labeling, Coyne and Bonisese continued to carry out the same duties, including providing medical treatment to student-athletes.
Two Student-Athletes Join the Football Team and Execute Waivers of Liability and Consent Forms
In March 2010, Augustus Feleccia and Justin T. Resch tried out for and made Lackawanna’s football team. Both student-athletes signed various documents in order to play for the team, including a waiver of liability and a consent form. In pertinent part, the waiver of liability stated that
[i]n consideration for my participation in [football], I hereby release, waive, discharge and covenant not to sue Lackawanna College . . . [and its] employees from any and all liability, claims, demands, actions, and causes of action whatsoever arising out of or related to any loss, damage, or injury . . . that may be sustained by me . . . while participating in such athletic activity.
The consent form stated that “I do hereby off[er] my voluntary consent to receive emergency medical services in the event of an injury during an athletic event provided by the athletic trainer, team physician or hospital staff.” (emphasis added).
The Student-Athletes Suffer Injuries and Sue for Negligence
On the first day of spring football practice, both student-athletes suffered injuries while participating in a tackling drill. Resch suffered a T-7 vertebral fracture. Coyne attended to him before he was transported to the hospital in an ambulance. Later that day, Feleccia suffered a “stinger” in his right shoulder, experiencing numbness, tingling, and a loss of mobility. Bonisese attended to him and cleared him to continue practice “if he was feeling better.” Feleccia returned to practice, and while attempting to make another tackle with his right shoulder, he suffered a traumatic injury to his brachial plexus.
Thereafter, Feleccia and Resch filed suit against Lackawanna, its athletic director, Coyne, and Bonisese, among others, asserting claims for damages caused by negligence. The complaint also sought punitive damages, alleging that the defendants acted “willfully, wantonly and/or recklessly.”
The Trial Court Rules in Favor of Lackawanna
The defendants asked the court to dismiss the case as a matter of law, relying primarily on the waivers of liability that Feleccia and Resch signed. The trial court granted defendants’ motion for summary judgment, ruling that the waivers of liability protected the defendants from negligence claims. The trial court also ruled—with little discussion—that the claims for punitive damages failed.
The Superior Court Reverses
On appeal, the Superior Court reversed.[1] Among other things, the Superior Court held that Lackawanna’s waiver of liability was not specific enough to protect Lackawanna from general negligence claims because it did not use the term “negligence.” The rule under Pennsylvania law before Feleccia was that liability waivers cannot waive liability for reckless conduct. In Feleccia, the Superior Court added to that rule, and held that liability waivers cannot preclude liability for “grossly negligent” conduct as well. Finally, the Superior Court held that, as part of athletic programs’ general duties of care to student-athletes, they are “required to have qualified medical personnel available” at athletic events.
The Pennsylvania Supreme Court Refines the Ruling
To the extent it created a new common law duty of care requiring athletic programs to have qualified medical personnel available at every practice and every game, the Pennsylvania Supreme Court reversed the Superior Court decision. The Supreme Court did so because the Superior Court did not analyze the factors necessary for creating a new common law duty of care.[2]
The Supreme Court held that it did not need to create a new duty of care. This case involves duties of care that already exist under the law, e.g., the defendants put the student-athletes at risk through their own affirmative conduct. The Court explained that the defendants’ conduct of requiring the student-athletes to sign the consent to treatment by an “athletic trainer, team physician or hospital staff” and holding Coyne and Bonisese out as athletic trainers despite knowledge that they lacked the statutorily required licenses created a “special relationship” with the student-athletes and increased the risk of harm posed to them. Because of this, the defendants had a duty to exercise reasonable care to protect them, including to provide qualified medical care.
As for the waivers of liability, the Court held that the waivers signed by the student-athletes were valid and sufficiently clear to bar claims of ordinary negligence even though the term “negligence” did not appear in the language. The Court affirmed, however, the Superior Court’s ruling that releases can never waive claims for “gross negligence.” The Court explained that “allowing a release of gross negligence claims would incentivize conduct that jeopardizes the signer’s health, safety and welfare to an unacceptable degree.”
The Supreme Court sent the case back to the trial court so that it could determine whether the defendants actually breached their duty to provide qualified medical care, whether such a breach constituted gross negligence or recklessness beyond the scope of the waivers of liability, and whether such a breach caused the student-athletes’ injuries.
Takeaways
So what does Feleccia mean for schools and their athletic programs going forward?
First, schools may take some comfort in the fact that the Supreme Court did not outright create a new general duty of care requiring them to have licensed athletic trainers available at every practice and every game. However, although the majority kicked the question down the field for another day, one justice, in his opinion argued that the Supreme Court should have created such a general duty of care, and laid the groundwork for any plaintiff who may rely on this legal theory in the future. Therefore, schools in Pennsylvania should be prepared to face such an argument and should take note that a general duty of care requiring qualified medical personnel at every sporting event may soon be enforced as the norm.
Second, as pointed out by the Chief Justice, “gross negligence” is an “amorphous concept” that is difficult to define. The majority attempted to bat away the Chief Justice’s concerns, defining gross negligence as “an extreme departure from the standard of care, beyond that required to establish ordinary negligence[.]” However, what constitutes “extreme?” What goes beyond “ordinary negligence?” Going forward, negligence plaintiffs faced with a waiver defense can be expected to argue that they are entitled to have a jury decide whether the defendant’s negligence was, in fact, “gross.” Until litigants and trial courts receive thorough and detailed guidance as to the types of facts that must be pled to allege gross negligence, schools and their athletic programs are likely to see an uptick in litigation, and they may be surprised to learn that waivers of liability signed by their student-athletes do not protect them as much as they once thought.
Finally, although not a new concept, this case serves as a reminder that a school’s own affirmative conduct can expose it to additional liability. The Supreme Court used the consent form Lackawanna required its student-athletes to sign—which included a specific reference to “athletic trainers”—as part of its analysis in determining that Lackawanna had an affirmative duty to provide qualified medical personnel at all athletic events. This form—which Lackawanna used in an attempt to limit liability—ended up being the source of it. Thus, it demonstrates the attention and care schools must give when crafting their legal documents.
Dylan Henry and Kim Sachs are associates in Montgomery McCracken’s Litigation Department and members of the firm’s catastrophic sports injury defense team. The team represents universities, schools, athletic trainers, and other sports programs and staff in a variety of sports-related and head injury litigation, which include claims for negligence (e.g., failure to warn, premature return to play), products liability, breach of contract, and professional malpractice, and advises clients on complying with various rules, regulations, and laws, and maintaining policies in compliance with best practices and industry standards.
Brian G. Remondino is an associate in Montgomery McCracken’s Litigation Department and member of the firm’s Commercial Litigation and White Collar and Government Investigations teams.
[1] Feleccia v. Lackawanna College, 156 A.3d 1200 (Pa. Super. Ct. 2017).
[2] Feleccia, 2019 WL 3917069, at *7—8 (citing Althaus ex rel. Althaus v. Cohen, 756 A.2d 1166, 1169 (Pa. 2000)). The Althaus factors include: (1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution.” 756 A.2d at 1169.
