California Supreme Court Declines to Make Exception for ‘Double Concussion’ Case

Apr 14, 2017

The California Supreme Court has affirmed that a plaintiff waited too long to file a negligence claim against a school district in a case in which he alleged that the high school allowed him, after suffering a concussion, “to participate” in “full-contact football practice” even though he had not been cleared. As a result, he experienced “headaches, dizziness, and nausea.” A doctor then diagnosed him with “double concussion syndrome.”
Central to the high court’s ruling was the plaintiff’s failure to comply with the requirements of the California Government Claims Act, which sets forth certain timelines for filing a claim. Under the Act, a party presenting a claim for personal injury must present it to the board of the public entity within six months of the accrual of the cause of action. When a claim is untimely, the injured party may present a written application to the board for leave to present a late claim within a reasonable time not to exceed one year after the accrual of the cause of action.
The incident involving J.M., a 15—year—old student at Fountain Valley High School, occurred on Oct. 27, 2011. Despite being informed by the athletic trainer that J.M. may have suffered a concussion, the coach allowed him to practice. Four days later, or the date of accrual, the doctor issued the diagnosis.
J.M. did not present a claim to the District within six months of the date of accrual of his causes of action, as required by the Act. He retained counsel and, on Oct. 24, 2012, his counsel presented an application for leave to present a late claim. The district did not act upon the application, which was its right.
On Oct. 28, 2013, J.M., still represented by counsel, filed a petition with the superior court for an order relieving him from the claim requirement. The superior court denied J.M.’s petition as untimely because it was filed more than six months after the date on which his application to present a late claim was deemed to have been denied by the school district’s inaction. J.M. appealed. The appeals court affirmed. The plaintiff appealed again.
In a majority opinion, the court noted that the plaintiff presented “nothing in the way of legislative history to support (its position), and its logic is difficult to discern. Section 946.6(c)(2) gave J.M. a clear avenue to challenge the denial of his application (because he is a minor). His counsel simply failed to take advantage of it.”
The court continued: “As an alternative to his statutory arguments, J.M. asserts claims to equitable relief under the doctrines of estoppel and tolling.”
He based “his claim of estoppel on the district’s failure to send him written notice of its deemed denial of his late claim application.” However, the district “was not required to notify J.M. after his application had been pending for 45 days. Furthermore, J.M. does not argue the district intended that he rely on its inaction to his detriment, as would be required for estoppel to apply. As a matter of law, the only possible way for J.M. to have relied on the District’s failure to act was to recognize that his application was deemed denied.”
Further, the appeals court properly “rejected J.M.’s equitable tolling argument because he did not pursue an alternate remedy,” wrote the high court.
J.M., a Minor, etc. v. Huntington Beach Union High School District; S. Ct. Calif.; S230510, 2017 Cal. LEXIS 1609; 3/6/17
Attorneys of Record: (for plaintiff and appellant) Janet R. Gusdorff; Russell & Lazarus and Christopher E. Russell, of Gusdorff Law. (for defendant and respondent) Stephen M. Harber and Dominic A. Quiller, of McCune & Harber. Susan Knock Beck, of Thompson & Colegate. Gordon & Rees and Don Willenburg for Association of Southern California Defense Counsel and the Association of Defense Counsel of Northern California and Nevada as Amici Curiae on behalf of Defendant and Respondent.


Articles in Current Issue