Court Rules School District Is Shielded by Immunity in Concussion Case

Oct 11, 2019

Court Rules School District Is Shielded by Immunity in Concussion Case
A federal judge from the Southern District of Georgia has found that a school district is entitled to immunity in a lawsuit in which it was sued by a high school football player who suffered a concussion in a 2016 game and then remained in the game, suffering additional “blows to the head.” While the legal victory was absolute for the district, the court delivered a mixed ruling to the coach, who was also named in the suit, finding that while he was entitled to qualified immunity for the §1983 claim against him that he is not entitled to official immunity on the state law claims brought against him in his individual capacity.
The impetus for the lawsuit were the injuries sustained by plaintiff Tyler Bowen as a member of Telfair County High School’s football team. While playing in a football game on Sept. 9, 2016, Tyler suffered a concussion. The football team’s coach and Telfair County High School employee, Matthew Burleson, allowed Tyler to continue playing after Tyler exhibited symptoms of a concussion, according to the complaint. Tyler then suffered more blows to the head during the game. A doctor later diagnosed Tyler with a concussion, his symptoms including cognitive impairment, memory alteration, mood swings, diminished academic ability, and reduced ability to complete everyday activities.
Bowen sued in state court naming Matthew Burleson and Telfair County School District (TCSD) as two defendants among others. The plaintiff alleged negligence and intentional tort claims in addition to a 42 U.S.C. § 1983 claim. The case was removed to the federal court on Oct. 31, 2018. Defendants Matthew Burleson and TCSD subsequently moved for judgment on the pleadings under Federal Rule of Civil Procedure 12(c).
The court noted that the defendants’ motion is based on three arguments: 1) Matthew Burleson has qualified immunity for the § 1983 claim against him; 2) TCSD has sovereign immunity under the Georgia Constitution for the state law claims against it; and 3) Burleson has official immunity under the Georgia Constitution for the state law claims against him in his individual capacity.
“Qualified immunity offers complete protection to government officials acting in their discretionary capacity when sued in their individual capacities so long as their conduct does not violate clearly established law,” wrote the court, citing Harlow v. Fitzgerald, 457 U.S. 800, 815-18, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). “An official act within his or her discretionary authority when the ‘objective circumstances . . . compel the conclusion that his actions were undertaken pursuant to the performance of his duties and within the scope of his authority.’ Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991). Burleson was acting within his discretionary authority here; there is nothing in the complaint alleging that Burleson was acting outside his authority, and the plaintiff alleges Burleson was an employee of TCSD acting within the scope of his employment at the time of the alleged injury.
“To overcome qualified immunity a plaintiff must demonstrate: (1) that the official’s conduct violated a statutory or constitutional right and (2) the right was clearly established at the time of the challenged conduct. Randall v. Scott, 610 F.3d 701, 715 (11th Cir. 2010); see also Pearson v. Callahan, 555 U.S. 223, 232-36, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009) (holding that courts have discretion to conduct the two-part analysis in whichever order is appropriate given the situation).
“(The plaintiff) incorrectly assert that Pearson no longer requires a plaintiff to satisfy both parts of the analysis. Instead, Pearson does away only with the Saucier rule, which was the requirement that courts conduct their analysis of the two parts in order. Pearson, 555 U.S. at 236-42 (explaining why the ordering requirement in Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001) is sometimes cumbersome when applied at the trial level). Therefore, if the plaintiff has not pleaded facts to satisfy both parts of the analysis, his § 1983 claim will fail.”
With this hurdle in mind, the plaintiff set out to show his “substantive due process rights to physical safety, bodily integrity, and freedom from unreasonable risk of harm under the Fourteenth Amendment.”
The court relied heavily on Davis v. Carter, 555 F.3d 979, 982 (11th Cir. 2009), which held that “conduct by a government actor will rise to the level of a substantive due process violation only if the act can be characterized as arbitrary or conscience-shocking in a constitutional sense.”
It added that in Davis v. Carter, “the Eleventh Circuit considered whether a football coach’s conduct at a training session constituted a violation of a student’s substantive due process rights. 555 F.3d at 980-81. There, the defendant coach failed to provide water to the student, ignored the student’s complaints that he was dehydrated, and continued to subject the student to drills even though he had collapsed. Id. The student died the morning following the training session, allegedly as a result of the coach’s conduct. Id. at 981. In reversing the district court and granting the coach’s motion to dismiss, the Eleventh Circuit ruled that the coach’s deliberate indifference to the student did not shock the conscience. Id. at 984.”
In the instant case, (the plaintiff alleges in his complaint) that “defendants Burleson and TCSD were negligent and, in the alternative, acted intentionally with ‘actual malice’ to injure the plaintiff. The factual underpinnings for these claims are essentially that Burleson knew or should have known that Tyler Bowen was concussed and prevented him from reentering the game. (Id.) The plaintiff also adds-without elaboration that Burleson ‘acted with actual malice and intent to cause injury to Tyler Bowen.’ (Id. at ¶¶ 32-33.)
“… To conclude, (the plaintiff’s) well-pleaded facts set forth at most a negligence claim which does not constitute a conscience-shocking violation of his substantive due process rights. Accordingly, defendant Burleson is entitled to qualified immunity as to the § 1983 claim against him. See Davis, 555 F.3d at 984.”
Turning to the TCSD’s Sovereign Immunity defense, the court wrote that the Georgia Constitution as amended in 1991 to provide sovereign immunity to the ‘state and all of its departments and agencies.’ Ga. Const, art. 1, § 2, para. 9(e). “Plaintiffs asserting a waiver of sovereign immunity bear the burden of establishing the waiver. Bd. of Regents of Univ. Sys. of Ga. v. Daniels, 264 Ga. 328, 446 S.E.2d 735, 736 (Ga. 1996). Here, (the plaintiff bases his) waiver argument on two sections of the Georgia Code: §§ 20-2-991 and 36-33-1. (The plaintiff contends) that these sections waive Georgia school districts’ immunity to the extent there is insurance available to pay out judgments against the district.” The court found the argument flawed because the case cited by the plaintiff applied to a corporation, not a municipality, thus denying the waiver.
Lastly, the court considered the plaintiff’s state negligence and intentional tort claims against Burleson, who claimed he is entitled to official immunity on both claims.
“Unless the General Assembly provides otherwise, state employees are subject to tort suits in only two situations: when injuries are caused by their negligent performance of ministerial duties, and when injuries flow from their official functions carried out with actual malice or actual intent to injure. Ga. Const, art. 1, § 2, para. 9(d),” according to the court. “In other words, a public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or intent to injure. The rationale for this immunity is to preserve the public employee’s independence . . . and prevent a review of his or her judgment in hindsight. Murphy v. Bajjani, 282 Ga. 197, 647 S.E.2d 54, 56-57 (Ga. 2007) (quoting Cameron v. Lang, 274 Ga. 122, 549 S.E.2d 341, 344 (Ga. 2001)). Thus, with respect to (the plaintiff’s) negligence claim, the court must consider whether the defendant’s acts were ministerial. As to (the plaintiff’s) intentional tort claim, the court must consider whether the defendant acted with actual malice.”
The Supreme Court of Georgia defines a ministerial act as “simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty.” Murphy, 647 S.E.2d at 57. The federal judge added that “the opposite of a ministerial act is a discretionary act. A discretionary act is one that requires deliberation and judgment, an examination of facts to reach a conclusion, and action not directed by a specific duty. Id.”
The plaintiff alleged that Burleson “acted negligently in five ways:
In failing to obtain the knowledge that would prevent or minimize the risk of head injury to football players, specifically Tyler Bowen;
In failing to implement programs, policies and procedures to prevent or minimize the risk of head injury to football players, specifically Tyler Bowen;
In failing to recognize that Tyler Bowen had symptoms suggestive of a concussion during the Sept. 9, 2016 football game;
In allowing Tyler Bowen to continue playing in the Sept. 9, 2016 football game despite Tyler having exhibited symptoms suggestive of a concussion; and
In failing to perform his ministerial duties established by [TCSD] policies, Meadows policies, Georgia High School Association . . . policies, and Georgia Law in regards [sic] to concussions and preventing catastrophic injuries post-concussion.
“The conduct alleged in sub-paragraphs (a) through (d) is discretionary; these sub-paragraphs all involve an examination of facts, judgment, and action not directed by a specific duty. For this reason, the allegations in sub-paragraphs (a) through (d) cannot support a claim against Defendant Burleson because he is entitled to official immunity. The conduct in the final sub-paragraph, however, is ministerial. In Austin v. Clark, 294 Ga. 773, 755 S.E.2d 796, 799 (Ga. 2014), the Supreme Court of Georgia reversed the trial court’s decision to dismiss a plaintiff’s case as one alleging negligence in the course of a discretionary duty. There, the plaintiff was injured when she tripped on a school sidewalk, alleging that the defendants negligently performed ministerial duties related to maintaining the sidewalk. Id. at 798. Although the complaint contained no description of the defendants’ duties, the court noted the possibility that future discovery would reveal a “detailed laundry list of discrete tasks each individual was required to perform” to ensure the sidewalk was properly maintained. Id. at 799. It did not matter that plaintiff’s complaint lacked reference to any procedures regarding sidewalk maintenance; dismissal at the pleading stage was not appropriate. Id.”
In the instant case, the plaintiff alleged that “Defendant Burleson failed to perform ministerial duties specified in policies for concussion prevention and care. This meets the ‘facial plausibility’ pleading standard set out in Iqbal; there is sufficient factual content to allow the court to ‘draw the reasonable inference that the defendant is liable for the misconduct alleged.’ 556 U.S. at 678 (citing Twombly, 550 U.S. at 556, 570). In other words, the plaintiff’s complaint pleads enough facts for the court to make the reasonable inference that Burleson did not follow a set of specific policies for the prevention and treatment of concussions. Accordingly, to the extent that (the plaintiff states) a claim of negligence in failing to follow specific policies, Defendant Burleson is not entitled to official immunity.”
Jeffrey Bowen et al. v. Telfair County School District et al.; S.D. Ga.; CV 618-112; 9/17/19
Attorneys of Record: (for plaintiffs) James E. Kurhajian, LEAD ATTORNEY, Dustin W. Hamilton Dozier Law Firm LLC, Savannah, GA USA.
(for defendants) Hieu M. Nguyen, Phillip L. Hartley, LEAD ATTORNEYS, Harben, Hartley & Hawkins, LLP, Gainesville, GA USA; David N. Nelson, LEAD ATTORNEY, Chambless, Higdon, Richardson, Katz & Griggs, LLP, Macon, GA USA.


Articles in Current Issue