A federal judge from the Western District of Pennsylvania has ruled several high school athletic officials are entitled to qualified immunity in a case in which they, and the school district they work for, were sued by the parents of a high school football player, who claimed the injuries he suffered at a football training camp were the result of “an unconstitutionally dangerous drill.”
Zachary Robert Dorley was a 140-pound incoming freshman participating in a one-on-one blocking drill. The players performed the drill without helmets or other pads. Dorley participated in the drill against Steven McElhinny, a student and football player then in the 11th grade, who allegedly then weighed approximately 240 pounds. McElhinny hit Dorley, knocking him through the air and causing his arm to break. Dorley claimed he had nine surgical procedures on his arm, and has allegedly suffered both physically and emotionally as a result of this episode.
The plaintiff claimed that McElhinny’s conduct was not only lauded by the other players and the coaches, but that the school district “set up the drill in such a way that much smaller, inexperienced underclassmen would be pitted against larger, stronger, more experienced upperclassmen.”
Dorley first filed his complaint in the Court of Common Pleas of Allegheny County, Pennsylvania. It was then removed to federal court. The counts in the complaint are as follows: Count I is for violation of bodily integrity under the Fourteenth Amendment’s Due Process Clause against the School District; Count II is a state-created danger claim under the Fourteenth Amendment’s Due Process Clause against the School District; Count III is a violation of bodily integrity claim against Joseph Rossi, James Sweeney, and William Yost; Count IV is a state-created danger claim against Rossi, Sweeney, and Yost; and Counts V and VI are state law tort claims against Steven McElhinny. The claim against then school district was dismissed without prejudice on September 4, 2015.
In its analysis, the court will address first the doctrine of qualified immunity as applied to the individual school district defendants, then the claims against the school district, and finally, the court will revisit the state law tort claims raised against the student defendant.
Qualified Immunity as to the School District Defendants
Early on in its analysis, the court expressed a reluctance to “put every high school football coach on notice … that they would be violating the Constitution if they designed a non-contact football drill that was actually full-contact where bigger students were matched against smaller students.” In the instant case, “there were no objective guidelines within the sport that would have necessarily tipped coaches off that they had (and when they had) created an unconstitutional risk of injury. To be sure, it is possible for high school football coaches to be liable for Constitutional violations under a state-created danger theory, but football necessarily involves some size and strength mismatches and that fact alone would not create such liability. And while a culture in which bigger students are encouraged, directly or indirectly, to ‘test’ or ‘toughen up’ smaller students by gratuitously tossing them around the field of play rests in large part on woefully outdated thinking, and would be reprehensible by any measure, in light of Spady (Spady v. Bethlehem Area School District, 800 F.3d 633 (3d Cir. 2015), cert. denied sub nom. Spady v. Rodgers, 136 S. Ct. 1162, 194 L. Ed. 2d 175 (2016)), the court cannot say that the unconstitutionality of such conduct emanating from that culture was in 2009 ‘beyond debate.’
“The Spady Court expressed its concern for students who are injured in organized physical activities at school, but nonetheless applied qualified immunity in a death by dry drowning context. Indeed, there is no question here that Zachary Dorley suffered severe injuries during the drill and if the coaches acted with the motives and knowledge as now pled, such conduct is beyond the pale. At this point in the process, the allegations in the amended complaint are just that—allegations. But if backed up by admissible evidence at trial, a rational jury could find the elements of a state-created danger constitutional violation fulfilled in that: (1) the harm to Zachary Dorley, perhaps while not specifically intended, was ‘foreseeable and fairly direct,” (2) that such covert scheming by adults “shocked the conscience,’ (3) that there was a pre-existing relationship between the coaches and players that would make smaller players ‘foreseeable’ victims, and (4) that the adult coaches would have affirmatively used their authority to create a risk of the harm pled. See Spady, 800 F.3d at 638 (quoting Kneipp v. Tedder, 95 F.3d 1199, 1208 (3d Cir. 1996)).
“But concluding that what has now been pled would be a Constitutional violation if proven does not resolve the matter. Spady, 800 F.3d at 637 n.4. Because this court is also duty-bound to apply the qualified immunity doctrine as it is now announced by the Supreme Court, the key issue here is not only whether this conduct would violate Dorley’s rights, but then whether as of the date of this episode, it was ‘beyond debate’ that this conduct was unconstitutional. And as applied to federal litigation in the trial courts, the Supreme Court seems to have made it quite clear that the qualified immunity doctrine gives would-be Constitutional tortfeasors a very wide berth, except in the refined circumstances in which a narrowly-crafted, precisely-defined, fact-specific right was so clearly recognized when the conduct occurred that every similarly-situated public official would have known that they were duty-bound to observe it.
“In this regard, the court believes that Spady is a game changer in the school activities/state-created danger context. As the Spady Court observed, colorable constitutional violations had previously been found in cases in which an adult educator directly engaged in conduct that was both egregious and intentionally and purposefully focused on causing physical harm to a student. See Spady, 800 F.3d at 641 (citing cases in which an adult struck a student with a blunt object, knocking out an eye, and in which an adult picked up a student by the throat and rammed his head into bleachers and a fuse box). The Spady Court then contrasted those situations, each involving what was in reality direct physical battery, with the array of cases (like Sciotto v. Marple Newtown Sch. Dist., 81 F. Supp. 2d 559 (E.D. Pa. 1999)), each of which (no matter the outcome) involved (as pled) grossly negligent or reckless conduct which created a real and appreciable risk of serious harm, but lacked an intent-to-injure component, and concluded that at least as of September 1, 2015 (the date Spady came down) the Constitutional rights at issue in Sciotto were not so ‘clearly established’ as to be ‘beyond debate.’ It is that rule of law that this court is bound to apply here.
“Particularly in light of Spady’s observations about the Sciotto line of cases, the court concludes that even if Dorley had a Constitutional right not to be subjected to football blocking drills against upperclassmen that were twice his size when he was suspecting the drills to be non-contact and when the coaches and the upperclassmen clandestinely knew otherwise, that right was not so clearly established … when this incident occurred in 2009 that it was ‘beyond debate.’ Therefore, the individual school district defendants are entitled to qualified immunity and the claims against them will be dismissed with prejudice.”
The court also dismissed “the new allegations” in the amended complaint against the school district, finding that, again, they failed to meet the “plausibility” pleading requirements. Thus, it dismissed that claim against the school district, with prejudice this time.
McElhinny was not so fortunate in trying to get the state law claim dismissed. “(W)hile he may concede that his launching Zachary Dorley ten yards downfield could be cause for a penalty, he maintains that it cannot be tortious conduct by definition,” wrote the court. “His arguments remain unavailing.
“Because the only remaining claims arise out of state law, the case is remanded forthwith to the Court of Common Pleas of Allegheny County.”
Zachary Robert Dorley v. South Fayette Township School District, et al; W.D. Pa.; Civil Action No. 2:15-cv-00214, 2016 U.S. Dist. LEXIS 71180; 6/1/16
Attorneys of Record: (for plaintiff) Jesse A. Drumm, Peter D. Friday, LEAD ATTORNEY, Friday & Cox LLC, Pittsburgh, PA. (for defendants) Joseph L. Luvara, LEAD ATTORNEY, Dickie, McCamey & Chilcote, Pittsburgh, PA; Linda V. Hernandez, LEAD ATTORNEY, Dickie McCamey, Pittsburgh, PA. Thomas A. McDonnell, LEAD ATTORNEY, Summers, McDonnell, Hudock, Guthrie & Skeel, Pittsburgh, PA.
