Appeals Court Rebuffs PIAA in Concussion Case

Oct 27, 2017

The Commonwealth Court of Pennsylvania has rejected the appeal of the Pennsylvania Interscholastic Athletic Association, Inc. (PIAA), which had sought to overturn a trial court’s decision to deny its motion to dismiss a negligence lawsuit brought by several former student- athletes.
The plaintiffs – Jonathan Hites, Kaela Zingaro, and Samuel Teolis, on behalf of minor Domenic Teolis, individually and on behalf of those similarly situated — sought to recover damages arising from concussion-related injuries inflicted during their participation in PIAA-regulated sports.
The plaintiffs allege that the PIAA violated state law by not:
requiring concussion baseline tests;
tracking and reporting concussions;
requiring qualified medical personnel be present at all PIAA-sanctioned practices and events;
removing athletes with apparent concussions from practices and games;
taking measures to educate school personnel on how to provide proper medical responses to suspected concussions; and
providing resources for student-athletes in seeking professional medical care at the time of a concussion, during treatment or for post-injury monitoring.
The four issues raised in the motion to dismiss and considered in the instant appeal are: (1) whether the claims are non-justiciable due to the effect of the Safety in Youth Sports Act (SYSA); (2) whether the plaintiffs are barred from recovery as a matter of law, because of the “inherent risk/no duty” rule; (3) whether the plaintiffs are unable to establish the requisite “duty” as an element of their negligence cause of action because the “duty” may not be imposed on the PIAA as a matter of public policy; and, (4) whether the plaintiffs failed to aver facts to show the requisite causation.
On the first point, the court found that “no error is apparent in the trial court’s decision to overrule the PIAA’s preliminary objection to the plaintiffs’ negligence claims … based on the enactment of the SYSA.
The SYSA is not intended to shield schools or their employees, according to the court. “While the SYSA adds certain responsibilities to school entities and school employees, it does not purport to alter any immunity which may currently exist for them. See M.U. v. Downingtown High Sch. East, 103 F. Supp. 3d 612 (E.D. Pa. 2015). … In sum, there is no indication that the General Assembly, through enactment of the SYSA, intended to eliminate civil suits such as the suit filed by the plaintiffs here against the PIAA.”
The court next turned to the PIAA’s argument that the plaintiffs’ negligence claims must be dismissed in their entirety, pursuant to the “inherent risk/no duty rule,” because the alleged injuries were inherent to the activities in which they occurred.
“The PIAA asserts (that) each of the injuries was the direct result of head trauma occurring in the course of practices or games,” the court wrote. “Importantly, the PIAA contends, the complaint is replete with allegations that show head trauma is a common and well-known risk in youth sports. Equally clear from the complaint, the PIAA argues, is the allegation that the risk of secondary head injury is common and expected in youth sports and such injuries are a prevalent occurrence closely related to the inherent risk of primary injury. The PIAA asserts the complaint’s allegations support a conclusion that primary and secondary injuries are inherent risks associated with playing contact sports.
“Nevertheless, as the trial court explained, the plaintiffs asserted (that) the occurrence of head trauma is the risk that is accepted by participating in the subject contact sports, not the risk created as a result of PIAA’s alleged failure to create, implement and enforce proper protocols; failure to provide for proper baseline testing; failure to train and educate personnel; and other alleged pre- and post-concussion negligent conduct; and that the latter are not common, frequent and expected risks of participating in contact sports, and, therefore, are excepted from operation of the inherent risk/no duty rule that would relieve (the) PIAA from a duty of care.”
The third argument on the PIAA’s contention that the plaintiffs were pushing it too far, and in effect making public policy.
“The PIAA argues (that the) plaintiffs seek to require the PIAA to not only set rules and guidelines, but to monitor, enforce and judge those charged with implementation of the rules and guidelines, as well as those already imposed on others by the SYSA,” wrote the court. “Considered collectively, the PIAA contends, these obligations would force the PIAA to act as a medical governing body, overseeing decisions and qualifications of doctors, trainers, and other medical professionals involving thousands of participants in thousands of sporting events. The PIAA maintains this is not in the public’s best interest.
“The PIAA argues the SYSA speaks to Pennsylvania’s public policy by expressly placing all relevant duties on persons or entities other than the PIAA, including Commonwealth agencies, schools, coaches, game officials, and medical professionals. It asserts this policy decision is fitting when considered in the context of the relationship of the PIAA to the issues involved. Given the number of sports, competitions, and practices involved, the PIAA could never provide firsthand oversight of all events. Thus, it maintains, placing the ultimate responsibility for these issues on the myriad of people directly involved in these activities provides more practical, effective, and immediate protection of student-athletes and properly avoids placing undue burdens on the PIAA.
“The PIAA further contends courts confirm the power and duty of schools to determine whether a student may initially participate in interscholastic athletics or is permitted to continue to participate after an injury and uphold schools’ decisions to bar students from participation for medical reasons. The PIAA argues it has no authority to supersede these decisions, and it does not attempt to do so. Indeed, it asserts, these decisions are expressly reserved for schools and trained medical professionals.”
The PIAA also presented several additional arguments to support its position.
The court, however, noted that the “public should be interested in adopting practical measures to enhance the safety of participation in interscholastic contact sports.” Further, making a definitive decision regarding the plaintiff’s argument on this point is better made after “findings of fact” and “development of an evidentiary record.”
Finally, the PIAA argued that the plaintiffs “failed to adequately plead proximate cause,” or in this case that “a wrongful act” by the defendant “was a substantial factor in bringing about the plaintiff’s harm.” Eckroth v. Pa. Elec., Inc., 2010 PA Super 235, 12 A.3d 422, 427 (Pa. Super. 2010)
“Importantly, there is no allegation that any alleged act or failure to act by the PIAA would have prevented the injuries from occurring,” wrote the court. “Indeed, the PIAA argues, the only injuries alleged are those that normally flow from head trauma, which is clearly an inherent risk of contact sports.
“Further, the PIAA contends, the plaintiffs have not averred the PIAA’s alleged failure to act in a particular way proximately caused any specific injuries. The PIAA maintains this is understandable in light of the multitude of factors necessarily involved in each case. Each instance will necessarily have different injuries, involve a different sport, a different school, a different athletic trainer, and a different physician for the student. The PIAA argues decisions of coaching staffs, principals, school boards, and others all intervene to cause or potentially cause student-athletes’ injuries.
“The PIAA further asserts, to the extent the plaintiffs’ position is that the PIAA somehow exacerbated their injuries, the plaintiffs failed to plead facts showing the relationship between the PIAA’s conduct and the specific injuries. Again, it contends, the only injuries specifically and factually identified are those that normally arise from initial head trauma. The PIAA maintains it cannot be disputed that, but for the initial head trauma alleged, no injury would have occurred. Yet, the PIAA argues, there is no specific allegation of how the PIAA’s conduct resulted in additional injuries or what those injuries are, let alone allegations showing the PIAA’s conduct was a substantial factor in causing the injuries.
“Stated another way, the PIAA asserts, it is impossible to determine from the complaint what injuries or portions of injuries suffered by the plaintiffs are even alleged to have been proximately caused by PIAA. Instead, all injuries are lumped together, and the PIAA is left to speculate. The PIAA maintains that the plaintiffs cannot know if any injuries were caused by the alleged breaches remaining in the complaint. Instead, they merely speculate generally, without any supporting factual allegations, that the PIAA is at fault.”
The court continued:
“The PIAA argues the fact that each plaintiff was promptly treated at a hospital minimizes any alleged impact of the PIAA and calls into question whether any action by the PIAA could have been a substantial factor in causing the harm at issue. If an athlete is cleared to return to play by medical professionals, the PIAA asserts, it is difficult to understand how the PIAA’s alleged breaches could have somehow been a substantial factor in injuries resulting after the athletes were cleared to return. To the extent the plaintiffs allege they were improperly returned to play and the PIAA is somehow liable for any adverse consequences based on the decision to return to play, the PIAA maintains, the plaintiffs necessarily seek to require the PIAA to override state law and the decisions of professional healthcare providers. The PIAA argues that from a policy standpoint this is improper. Such a duty cannot and should not be imposed on the PIAA and is further evidence that the plaintiffs lack a causal link between the actions or inactions of the PIAA and the alleged injuries here.”
Central to the court’s ruling on this point was the threshold articulated in case law.
“Our Supreme Court ‘defines legal or proximate’ cause as that point at which legal responsibility should attach to the defendant as a matter of fairness because the plaintiff has demonstrated (in addition to cause-in-fact) that the defendant’s act was a substantial factor or a substantial cause, as opposed to an ‘insignificant cause’ or a negligible cause, in bringing about the plaintiff’s harm. Ford v. Jeffries, 474 Pa. 588, 379 A.2d 111, 114 (Pa. 1977). The determination of [legal or proximate cause] simply involves the making of a judgment as to whether the defendant’s conduct although a cause in the but for sense is so insignificant that no ordinary mind would think of it as a cause for which a defendant should be held responsible. Reott v. Asia Trend, Inc., 618 Pa. 228, 55 A.3d 1088, 1103 (Pa. 2012).13
“Accepting as true the Complaint’s averments, and all reasonable inferences deducible from the averments, the trial court determined Plaintiffs adequately alleged proximate cause regarding the PIAA’s alleged failure to: (1) require and enforce proper screening, baseline testing and interpretation prior to a student-athlete’s participation in a sport and proper use of baseline testing for both immediate diagnosis of concussion and return-to-play decisions; (2) fully educate athletic departments and trainers regarding concussion diagnosis and protocols; (3) provide consistent and ongoing warning of long-term risks; (4) create, implement and enforce immediate diagnosis protocols through the use of trained medical personnel, immediate access to baseline testing, and comprehensive “sideline” testing for head trauma (direct or indirect) for continuation of practice or play; and, (5) create, implement and enforce proper return-to-activity protocols after a concussion diagnosis through medically-supported stepwise concussion protocols implemented by medical professionals trained in concussions.
“Our review of the complaint supports the trial court’s determination that, at this early stage of the proceedings, the plaintiffs aver sufficient facts to show the PIAA’s pre- and post-concussion acts or omissions were a substantial factor in bringing about the harm allegedly suffered by the plaintiffs. Therefore, as to the allegations set forth above, no error is apparent in the trial court’s rejection of the PIAA’s assertion that Plaintiffs failed to adequately allege proximate cause.”
Jonathan Hites, Kaela Zingaro, Samuel Teolis on Behalf of Minor Domenic Teolis, Individually and on behalf of those similarly situated v. Pennsylvania Interscholastic Athletic Association, Inc.; Common. Ct. Pa.; No. 8 C.D. 2017, 2017 Pa. Commw. Unpub. LEXIS 784; 10/10/17


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