Appeals Court: Use of Oklahoma Drill May Have Been Gross Negligence

Mar 31, 2017

A Pennsylvania state appeals court has reversed a trial court, and given new life to the claims of two student-athletes, who sued their coaches and their college after suffering head and spinal injuries during football practice.
In so ruling, the panel of judges found that questions remain about whether the actions of the defendants constituted gross negligence and whether the waiver they had signed should act as a shield to gross negligence claims.
This case involves personal injuries suffered by Augustus Feleccia (Gus) and Justin T. Resch (Justin) on March 29, 2010, while they were participating in a tackling drill during the first day of spring contact football practice at Lackawanna College. The school is a non-profit junior college in northeastern Pennsylvania and a member of the National Junior College Athletic Association (NJCAA). Traditionally, the school employed two athletic trainers to support the football program. In June and July 2009, athletic trainers Daniel Dolphin and Scott Summers tendered their resignations to the school.
When Athletic Director Kim A. Mecca advertised the job openings, Kaitlin M. Coyne and Alexis D. Bonisese applied for the positions. The school hired them in August 2009. Although they had earned their Bachelor of Science degrees in athletic training in the spring 2009 from Marywood College, neither Coyne nor Bonisese was certified or licensed at any time relevant to the underlying action.
In August 2009, Coyne and Bonisese learned that they had not passed the Board of Certification, Inc. examination, and they informed Mecca. In response, Mecca retitled Coyne and Bonisese as “First Responders.” Neither Coyne nor Bonisese completed a new or amended job description, despite the inaccuracy about their qualifications on the original job description. In September 2009, the school hired a certified part-time trainer, Maureen Burke, but she did not attend football practices during the 2009-2010 academic year. All three women’s job descriptions were identical.
In September 2009, Shelby Yeager, a former professor of Coyne and Bonisese at Marywood College, expressed her concern that Coyne and Bonisese were impermissibly providing athletic training services. In an affidavit, Yeager stated that Coyne was “ill-equipped to handle the rigors of a contact sport (like football) as an athletic trainer on her own regardless of whether she managed to pass [the certification] exam and obtain her state license.” Mecca learned of Yeager’s concerns regarding the qualifications of Coyne and Bonisese. Similarly, Bryan Laurie, head concussion athletic trainer at SUNY New Paltz, provided an affidavit in March 2010 where he stated that he had supervised Bonisese as a student, that her performance was “below average/poor,” and that she was not qualified to act as a trainer.
Coyne and Bonisese were the only training staff working with the football players on March 29, 2010. The court further noted that a couple football players said that Coyne and Bonisese “represented themselves as trainers and that the coaching staff propagated that representation.”
The court noted that both Gus and Justin were experienced football players leading up to their time at the college, and were educated along the way about the proper tackling technique.
In anticipation of spring football tryouts in 2010, Gus and Justin were presented with, on March 22, 2010, a document titled “Lackawanna College Waiver of Liability and Hold Harmless Agreement.” The Waiver, in [relevant part], provides:
“In consideration for my participation in (sport), I hereby release, waive, discharge, and covenant not to sue Lackawanna College, its trustees, officers, agents, and 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, including death, that may be sustained by me, or to any property belonging to me, while participating in such athletic activity.

“It is my express intent that this Release and Hold Harmless Agreement shall bind my family, if I am alive, and my heirs, assigns, and personal representative, if I am deceased, and shall be deemed as a release, waiver, discharge, and covenant not to sue Lackawanna College, its trustees, officers, agents, and employees. I hereby further agree that this Waiver of Liability and Hold Harmless Agreement shall be construed in accordance with the laws of the Commonwealth of Pennsylvania.”
Both Gus and Justin admitted to knowing that by signing the waiver, they had agreed not to sue Lackawanna or its agents for any injuries incurred while playing football at Lackawanna, noted the court.
The Oklahoma Drill
On March 29, 2010, both [Gus and Justin] participated in a variation of the Oklahoma Drill at Lackawanna’s first fully-padded, full-contact tryout practice of the season. The plaintiffs’ expert neither defined the drill nor acknowledged its use in the sport of football. The defendants’ expert explained that the Oklahoma Drill is “a live contact drill that is usually performed in a confined space.” He opined that “there are many variations of the Oklahoma Drill,” including those used at Texas A&M University and Virginia Tech University. “Significantly,” both men had previously participated in a variation of the Oklahoma Drill either in high school or at Lackawanna, according to the court.
Ultimately, the men filed a complaint on May 4, 2012, advancing claims of negligence and negligence per se and requesting punitive damages. At the close of discovery, Lackawanna filed a motion for summary judgment.
In granting summary judgment to Lackawanna, the trial court relied primarily on the waiver and its belief that it satisfied a three-part test — it must not contravene public policy, it must be between persons relating entirely to their own private affairs and thirdly, each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion.
The plaintiffs argued on appeal that the court should have instead focused on whether the scope of the defendants’ conduct exceeded the parameters of the waiver; specifically, whether the defendants’ “failure to hire qualified personnel constitutes negligence, gross negligence or recklessness . . . should be left to the jury.”
This argument carried weight with the appeal’s court.
“Summary judgment was erroneously granted to the college based on a waiver,” according to the court. “Genuine issues of material fact existed regarding whether the scope of a waiver covered claims of gross negligence and reckless conduct.
“Although the waiver was properly deemed valid because it did not violate public policy, related to the private affairs of the parties, and was not a contract of adhesion, it could not release the college from its own reckless conduct as a matter of law. Moreover, it was unclear whether the failure of the college to have qualified medical personnel at the training practice constituted gross negligence or recklessness, as recklessness could not be waived in a pre-injury exculpatory release. “
Augustus Feleccia and Justin T. Resch v. Lackawanna College A/K/A Lackawanna Junior College et al.; Super. Ct. Pa.; No. 385 MDA 2016, 2017 PA Super 44; 2017 Pa. Super. LEXIS 117; 2/24/17
Attorneys of Record: (for appellants) Daniel J. Siegel, Havertown. (for appellees) Platte B. Moring, III, Center Valley.


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