By Michael S. Carroll & Steven H. Wieczorek
On February 26, 2018, attorneys representing Destin Julian filed a lawsuit in the Michigan Eastern District Court, for incidents that occurred while he played football for Hamady High School in Flint, Michigan in 2015-2016. The lawsuit alleges that Julian’s former coach and current Westwood Heights Schools Athletic Director, Gary Lee, failed to follow the appropriate concussion protocols set forth by the Michigan High School Athletic Association (MHSAA) when Julian took a hard hit to his head and allegedly suffered a concussion while participating in football activities. It is also alleged that Lee perpetuated and advanced a culture in which injuries to student-athletes who participated in football activities were ignored, discounted, and/or otherwise disregarded. The lawsuit blames Lee for fostering an environment in which Hamady football players were discouraged from disclosing injuries or seeking medical help. Lee allegedly publicly berated and embarrassed players who spoke of injuries and used denigrating language directed at players in order to enforce this culture.
The incidents in question stem from a series of events which took place in October of 2015. During one specific football practice, Julian, then a junior on the varsity football team, was involved in helmet-to-helmet contact with another player. Because of the contact, Julian was visibly shaken; his subsequent actions, as described by teammates, were synonymous with an individual who has sustained a concussive event, including memory loss, black staring, and loss of balance and coordination. The lawsuit alleges that Lee failed to instruct Julian to seek immediate medical attention or follow up treatment from a family doctor and failed inform any administrators, educators, or the student’s parents of the hit or concussion-like symptoms. Furthermore, Lee knew, or should have known, that Julian had possibly suffered a concussion in practice and prevented him from playing in games or practicing until a medical professional cleared him to return. The lawsuit calls Lee’s conduct objectively unreasonable.
MHSAA concussion protocol states that any athlete who exhibits signs, symptoms, or behaviors consistent with a concussion (such as loss of consciousness, headache, dizziness, confusion, or balance problems) shall be immediately removed from the contest and shall not return to play until cleared by an appropriate health care professional. Prior to returning to physical activity (practice or competition), the student and parent (if a minor student) must complete the Post-Concussion Consent Form, which accompanies the written unconditional clearance of an M.D., D.O., P.A or N.P. Subsequent violations of this protocol would render the player ineligible and subject the offending team to probation and/or game forfeiture according to policy.
In this matter, it is alleged that Lee held Julian out for one practice the following day, but, allowed Julian to play in the team’s next football game two days after the first incident and without invoking any return-to-play protocol. Julian suffered another blow to the head during game play, which once again left him unsteady on his feet and required assistance to help him to the sideline. Julian was unable to swallow any water and subsequently suffered a seizure and passed out before being taken to Hurley Medical Center, where he stayed for two days. When Julian regained consciousness, he did not remember getting hit or the ride to the hospital. He was diagnosed with a post-traumatic seizure and a concussion. The suit states that Julian continued to experience sporadic seizures over the next several months until April of 2016. He also experienced re-occurring episodes in which his limbs and head would shake, and he heard hostile voices. He experienced changes in his personality, difficulty in school, sleepiness, and difficulty concentrating over the next several months, leading to concerns regarding the potential long-term effects from his injuries.
The lawsuit alleges that hard or violent head-first collisions between players were a regular occurrence with the Hamady football team, and that collisions regularly resulted in players being knocked unconscious on the field or exhibiting signs of brain trauma or concussion-like symptoms. Players experiencing such symptoms did not receive medical treatment or testing to determine the existence or severity of a concussion. Instead, Lee and other assistant coaches fostered and advanced an attitude of “go hard, hit hard.” Coaches also discouraged players from seeking medical assistance when injured and berated students into not reporting injuries by calling them “sissies” and telling them to “play through the pain,” further perpetuating this hostile sporting environment. The lawsuit names both Lee and the Westwood Heights School District (WHSD) as defendants, claiming that WHSD educators and administrators were aware of the environment fostered by Lee with the football team that caused players to participate in football activities, despite being physically unable to do so.
Count I: Substantive Due Process Violation of the 14th Amendment – 42 U.S.C. § 1983 (State Created Danger)
The suit states that Lee had a duty to protect Julian from dangers of harm that were known to him and created by him. He failed in this duty by committing affirmative acts that created or increased the risk that Julia was subjected to, thus leading to his injuries. By his own actions, Lee fostered and advanced a culture that increased these risks. This constituted a “state-created danger” in violation of Julian’s constitutional rights under the Due Process Clause of the Fourteenth Amendment of the United States Constitution to personal security and bodily integrity, and to be free from state actions that deprive a person of life, liberty, or property without due process of law.
Count II: Substantive Due Process Violation of the 14th Amendment – 42 U.S.C. § 1983 (Deliberate Indifference)
Lee acted with deliberate indifference to the health and safety of Julian when he knew and disregarded a substantial risk of serious hard by failing to evaluate Julian for head-related injuries, despite having knowledge that he had suffered a violent hit to the head and exhibited signs of a concussion. Additionally, Lee failed to notify any health care personnel regarding Julian’s condition and failed to follow proper procedures (as outlines by the MHSAA) in place for the recognition, evaluation, and treatment of head trauma. The suit notes that Lee had ample time to consider his actions with respect to Julian’s condition and did not have to make a hurried judgment call. His actions were objectively unreasonable and constitute a violation of Julian’s constitutional rights under the Due Process Clause of the 14th Amendment, as his conduct was malicious, deliberate, intentional, and undertaken with a total disregard of the known risk that Julian faced.
Count III: Municipal/Supervisory Liability – 42 U.S.C. § 1983
WHSD owed Julian a duty to properly hire, supervise, monitor, and train its employees so as not to violate constitutional protections afforded to students. At the time of the incidents that led to the suit, Lee was an employee of a public school district, acting as a public school athletic director and coach, and was acting within the scope of his employment and under the color of state law. As such, WHSD is liable for Julian’s’ constitutional rights violations on the part of Lee. Lee was not only the head football coach, but also the Athletic Director and therefore had a supervisory role and decision-making authority to enact policies, procedures, and regulations related to the health and safety of student-athletes, specifically injuries related to concussions. Both WHSD and Lee were deliberately indifferent to Julian’s constitutional rights by failing to supervise WHSD personnel when they had knowledge of repeated instances of ignoring and/or downplaying injuries suffered by students during football activities. As such, both WHSD and Lee are liable to Julian under federal law for injuries suffered, including severe physical, psychological, and emotional injuries.
Count IV: Gross Negligence/Willful and Wonton Conduct
WHSD and Lee owed a duty to Julian to act in a reasonable manner and with reasonable care to avoid creating or increasing the likelihood of injury. Lee was grossly negligent and acted in a willful or wanton manner toward Julian when he pushed Julian to continue participation in football activities following his initial violent collision with another player, a collision that left Julian exhibiting clear signs of a concussion. Lee’s conduct was the proximate cause of Julian’s injuries following the second violent collision. Being further injured was a reasonably foreseeable result of Lee’s gross negligence.
The lawsuit is seeking $75,000 plus costs, interest, and attorney fees, as well as punitive and/or exemplary damages.
Michael S. Carroll is an Associate Professor of Sport Management at Troy University specializing in research related to sport law and risk management in sport and recreation.
Steven H. Wieczorek is a doctoral student at Troy University specializing in athletic administration and the head men’s soccer coach at Spring Hill College.
