Court Made Mistake in Not Weighing Student Athlete’s Role in His Own Death

Feb 27, 2009

An Indiana state appeals court has revered a trial court’s ruling because the judge mistakenly instructed a jury to disregard any role a 13-year-old student athlete may have had in his untimely death during a basketball practice.
The events leading up to the incident began on November 17, 2003, when 13-year-old Kodi Pipes blacked out and fell down during the beginning of his eighth grade basketball team practice at Clay Jr. High School. According to the court, “Kodi stood back up and walked to the sideline. The eighth grade basketball coach, Mike Ames, saw Kodi bent over with his hands on his legs and approached him to ask what was wrong. Kodi complained of dizziness, and Coach Ames asked the seventh grade basketball coach, Rodney Smith, to check on Kodi. Because Coach Smith was aware that Kodi had asthma, Coach Smith asked Kodi if he had used his inhaler. Kodi responded that he had, but that he did not feel that his asthma was the cause of his dizziness. Kodi’s further advised Coach Smith that he had not eaten that day. When Coach Smith told Coach Ames that Kodi had not eaten that day, Coach Ames prohibited Kodi from participating in practice, but allowed him to shoot free throws.
“After practice, Coach Ames waited with the players until they were all picked up as usual. Coach Ames went to the car with Kodi and spoke with Mother and her then-boyfriend, Aaron Erbert. Coach Ames told Mother that Kodi had felt dizzy during practice and stated that he had not eaten. Kodi agreed and Mother said they would make sure he got something to eat.”
The mother allegedly told Coach Ames that she did not want Kodi participating in practice until after he was checked out by a doctor. They further testified that Kodi complained about getting behind, and the mother modified her instruction to Coach Ames by stating that Kodi could walk through the plays but was not to participate in running or strenuous activity. They both stated that Coach Ames agreed to this restriction. Coach Ames testified that no conversation took place on restricting Kodi’s level of activity at practice.
The next day, Nov. 18, Kodi appeared to be fine, according to the court’s recap. The mother made phone calls to Kodi’s general practitioner and a neurologist. Kodi attended school without incident, and the mother made no further communications with the school nurse or Coach Ames regarding Kodi’s blackout at practice. The following day, Nov. 19, the grandfather drove Kodi to basketball practice. He testified that he asked Kodi if he knew the plan for practice, referring to his restriction, and that Kodi replied that he did.
Upon arriving at practice, Coach Ames asked him if he had eaten. Kodi responded that he had. Coach Ames assumed that Kodi was okay to practice and let him participate without restrictions. Toward the end of practice, Coach Ames had the players perform a running drill. Early in the drill, Kodi collapsed. Coach Ames went over to Kodi and determined he was not breathing and did not have a pulse. He performed CPR on Kodi alone until Ron Travis and Doug Gurkey arrived to help. The three men kept performing CPR until EMTs arrived; however, efforts to revive Kodi were unsuccessful. It was later determined that Kodi had died from a malignant type of heart rhythm abnormality known as ventricular fibrillation.
On August 25, 2006, Kodi’s parents filed a complaint alleging that Clay City Schools was liable for Kodi’s death under Indiana’s Child Wrongful Death Statute, Ind. Code § 34-23-2-1. On September 18, 2006, Clay City Schools filed its answers and asserted that it was not the proximate cause of Kodi’s death. On December 10 through 13, 2007, the case was tried to a jury. On December 13, 2007, the jury returned a verdict in favor of mother and father, awarding the mother $250,000 and awarding the father $175,000. That same day, the trial court entered an Order and Judgment on the verdict.
On January 10, 2008, Clay City Schools successfully filed a motion for remittitur. The trial court ordered the award to the mother be reduced to $176,470.57, and the award to Father to be reduced to $123,529.43. 2 That same day, the trial court denied Clay City Schools’ motion to correct errors.
Clay City Schools appealed. The defendant school district honed in on the trial court’s instruction to the jury that Indiana law contained a rebuttable presumption that children between the ages of seven and 14 could not be contributorily negligent. This, the district, argued, was a misstatement of Indiana law.
Specifically, the trial court’s final instruction number 20 instructed the jury that:
“In deciding whether Kodi Pipes was contributorily negligent, you should know that Indiana law recognizes a rebuttable presumption that children from the age of 7 to 14 years of age are rebuttably presumed to be incapable of [contributory] negligence.
“A ‘rebuttable presumption’ means that if you find Clay School Corporation has not presented evidence to show that Kodi Pipes’ own negligence contributed to his death, you should presume that Kodi Pipes was not contributorily negligent. If, on the other hand, you find that Clay School Corporation has presented evidence to show that Kodi Pipes was contributorily negligent then you should weigh that evidence against both the presumption that children between seven and 14 are rebuttally [sic] presumed to be incapable of contributory negligence, through their own negligence, to their injuries and any evidence that Kodi Pipes’ negligence did not contribute to his death in deciding the issue of whether Kodi Pipes was contributorily negligent.”
Citing a litany of case law, the appeals court ultimately concluded that “any jury instruction on the contributory negligence of a child between the age of seven and 14 should focus on the standard of care for children of that age group – not on any presumption either in favor of or against finding them liable for their acts.”
Clay City Consolidated School Corporation v Ronna Timberman and John Pipes II; Ct. App. Ind.; No. 11A04-0802-CV-96, 2008 Ind. App. LEXIS 2586; 12/2/08


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