A federal judge from the Eastern District of Pennsylvania dismissed the lawsuit of a high school student athlete, in a case that tested the limits to which public high school coaches, administrators and school districts can be held liable for concussions sustained by student athletes during interscholastic competition.
In so ruling, the court found that the defendants’ conduct did not abridge the plaintiff’s Constitutional rights. In addition, the defendants are immune from state tort liability under Pennsylvania’s Tort Claims Act. However, the plaintiff may file an amended complaint with regard to some aspects of her claim.
The plaintiff, now 17 and identified as M.U. in the federal lawsuit, suffered the concussion during a preseason soccer scrimmage at Downingtown High School East in Philadelphia on August 20, 2012. As an incoming freshman, plaintiff collided with another player while going for a header. M.U. claimed that she felt her neck snap back from the impact, and that she fell to the ground. M.U. alleged that she heard the opposing coach … saying that M.U. should be taken out of the game. One of M.U.’s teammates allegedly told Reed that M.U. had been hit in the head and needed to come out of the game to be evaluated. Reed did not remove M.U. from the game. Rather, M.U. stayed in for the rest of the game, during which time she had collisions with other players and headed the ball several more times. M.U. began to experience headaches on the bus ride home from the scrimmage.
The next day, she was dizzy and had black spots in her field of vision. The day after that, she felt physically unable to play soccer and went to see the athletic trainer. M.U.’s mother picked her up from the trainer’s office and took her to the hospital where doctors confirmed that M.U. had a traumatic brain injury, according to the complaint.
As a result of the alleged concussions, she missed most of her freshman year and continued to suffer headaches, fatigue, anxiety, and other symptoms up until her lawsuit was filed in 2014.
M.U. and her parents filed a lawsuit, naming the following defendants — Downingtown High School East (DSHE), Downingtown Area School District (DASD), DSHE Coach Craig Reed, and Total Soccer, a private company with which the coach was affiliated.
The suit contained four counts. Count One, brought pursuant to 42 U.S.C. § 1983, asserts a violation of M.U.’s due process right to bodily integrity against DASD, DHSE, and Reed. This cause of action is premised on the state-created danger theory of § 1983 liability. Count Two alleges negligence against DASD, DHSE, Reed, and Total Soccer. Count Three asserts recklessness against Reed and Total Soccer. Count Four, brought by M.U.’s parents individually, seeks recovery of medical costs incurred on their daughter’s behalf against all defendants.
The defendants moved to dismiss, pursuant to Federal Rules of Civil Procedure 12(b)(6).
The court turned first to the applicability of the state-created danger theory in Count One.
“As currently applied in the Third Circuit, plaintiffs are required to satisfy four elements to state a viable claim under the state-created danger theory:
First, the plaintiff must show that the harm ultimately caused to the plaintiff was foreseeable and fairly direct. Mark v. Borough of Hatboro, 51 F.3d 1137, 1152 (3d Cir. 1995)
Second, the plaintiff must show that the state actor acted in a manner that shocks the conscience. See Miller v. City of Phila., 174 F.3d 368, 375 (3d Cir. 1999)
Third, there must be some relationship between the state and the plaintiff. Mark, 51 F.3d at 1152.
Fourth, the plaintiff must show that “the state actor used its authority to create an opportunity which otherwise would not have existed for the specific harm to occur.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 908 (3d Cir. 1997)
“While these four elements of a claim under the state-created danger theory of § 1983 liability are well established in this Circuit, their application in the context of high school sports is a relatively recent phenomenon,” wrote the court.
“For example, in Alt v. Shirey, No. 11-cv-0468, 2012 U.S. Dist. LEXIS 26882, 2012 WL 726579, at *12 (W.D. Pa. Feb. 7, 2012), report and recommendation adopted, 2012 U.S. Dist. LEXIS 27346, 2012 WL 726593 (W.D. Pa. Mar. 1, 2012), the court found that the plaintiff had stated a claim under the state-created danger theory for injuries suffered while playing high school football. There, during two separate games, Zachary Alt sustained hits to the head and experienced a ringing sensation in the ears and a temporary loss of hearing. 2012 U.S. Dist. LEXIS 26882, [WL] at *1. Although these hits occurred within the view of coaches and trainers, Alt was not evaluated for a concussion. Id. In a subsequent game, Alt was again involved in a helmet-to-helmet hit with an opposing player. 2012 U.S. Dist. LEXIS 26882, [WL] at *2. He was ‘clearly disoriented, but was able to jog off the playing field in a laborious fashion.’ Id. He then ‘aimlessly walked the length of his team’s sideline.’ Id. His teammates observed his erratic behavior and ‘immediately recognized that something was awry . . . .’ Id. Despite all of this, one of Alt’s coaches put Alt back in the game with specific instructions to ‘deliver a substantial hit to the opposition’s middle linebacker . . . .’ Id. This instruction was Alt’s last memory of the game. Id. A subsequent examination showed that Alt had sustained a substantial closed head injury that resulted in ‘numerous physical, emotional, and cognitive injuries . . . .’ 2012 U.S. Dist. LEXIS 26882, [WL] at *3. The court found that Alt sufficiently pled a § 1983 claim under the state-created danger theory on these facts. 2012 U.S. Dist. LEXIS 26882, [WL] at *12.
“Likewise, the court found a sufficiently pled state-created danger claim in Mann v. Palmerton Area Sch. Dist., 33 F. Supp. 3d 530, 539 (M.D. Pa. 2014). There, plaintiff Sheldon Mann was hit by a teammate running at him at full speed during a high school football practice. Id. at 534. After the hit, Mann ‘reported feelings of numbness and/or disorientation to the coaching staff, and [his] behavior was erratic.’ Id. Nevertheless, the coaches told Mann to continue with the practice without evaluating him or performing any concussion testing. Id. Later in the practice, Mann was hit again by a teammate running at full speed. Id. After the second hit, Mann was ‘confused, dazed, unable to continue practice, and he experienced physical manifestations of his injury like dry heaving.’ Id. Mann later was diagnosed with traumatic brain injury that resulted in a number of serious and permanent cognitive deficiencies. Id. at 535. The court found that these facts were sufficient to survive a motion to dismiss with regard to a state-created danger claim. Id. at 539.”
Other courts, however, have found claims under the state-created danger theory in the high school sports context to be insufficiently pled, noted the court.
This was the finding in the instant case with regard to defendant Reed. “M.U. fails to allege facts sufficient to satisfy the second and fourth elements of her state-created danger claim… . It is particularly relevant that M.U. does not allege that she made any subjective complaints or displayed any objective signs that she had suffered a concussion during the game. She does not allege that she was clearly disoriented or displaying erratic behavior as did the plaintiff in Alt. Nor does she allege that she ‘experienced physical manifestations’ of her injury such as dry heaving, as did the plaintiff in Mann. She does not allege that she complained to Reed or anyone else at the time or that she asked to come out of the game. M.U.’s only allegation to show that she was in physical distress is that she ‘was crying because she knew she had hit her head.’” It did dismiss the claim without prejudice so that M.U. could amend the complaint if she chose to.
The court’s decision process on the other arguments can be viewed here.
M.U., a minor, by her parents, Theresa and Thomas Urban v. Downingtown High School East et al.; E.D. Pa.; CIVIL ACTION NO. 14-04877, 2015 U.S. Dist. LEXIS 54765; 4/27/15
Attorneys of Record: (for plaintiffs) Aaron J. Freiwald, Lead Attorney, Layser & Freiwald PC, Philadelphia, PA; Laura E. Nowicki, Layser and Freiwald, Philadelphia, PA. (for defendants) Joseph P. Connor, Connor Weber & Oberlies, PC, Paoli, PA.
Theodore M. Schaer, Zarwin Baum Devito Kaplan Schaer & Toddy, P.C., Philadelphia, PA.
