By David P. Hodge
On July 21, 2017, Patrick Clancy participated in a pre-season soccer practice for his high school team, Monticello High School outside of Charlottesville, Virginia. During and after practice, Clancy became severely ill and demonstrated signs of heat-related illness (HRI). At 8:00am on that day when practice began, the temperature was over 80 degrees, having previously reached as high as 97 degrees the day before. Monticello practiced on a synthetic turf field, which according to the Penn State Center for Sports Surface Research can reach temperatures as much as 60 degrees higher than the air temperature. As a result, the heat index at the end of that day’s practice reached between 124 and 139 degrees Fahrenheit, which is deemed as “extreme danger” by the National Weather Service (NWS).
The day of the incident marked practice number seven for the Monticello team and practice number four for Clancy as he had missed three earlier practices. One main goal for these pre-season practices was to acclimate players’ bodies to the heat, which typically takes 10-14 days, according to the National Federation of High School Associations (NFHS). Because it was pre-season, players were running during practice almost constantly and treated the practices as pseudo-tryouts. Toward the end of practice on that day, Clancy became visibly ill and stopped sweating, a sign of dehydration and exertional heat illness. Clancy’s brother, also a member of the team, drove him home after practice. Clancy could not walk or talk, and his mother attempted to cool his body by putting him in a cold shower. Clancy turned blue and began to vomit, at which point his mother rushed him to the hospital, where he received an IV and had his body temperature cooled. Doctors determined that Clancy suffered from exertional heat illness, leading to permanent injury and disability. For likely the rest of his life, he must take precautions to not become overheated. His family has incurred significant medical bills and filed two claims against both the coach and athletic director.
Standard of Care for Coaches
In any negligence case, the conduct of a defendant will be measured against the standard of care owed to the aggrieved party. The standard of care for soccer coaches stems from a variety of areas, including recommendations from several agencies, including the National Athletic Trainers’ Association (NATA), the Virginia High School League (VHSL), the United States Soccer Federation (USFL), the National Federation of High School Associations (NFHS), and the Synthetic Turf Council (STC). Included in those duties are altering practice locations or occurrences when the heat index becomes excessive, having fluids readily available for participants during practices and contests, and structuring periodic breaks in practice to allow participants to cool off. Pierson did not do any of these. The athletes were told to bring their own water, did not receive any breaks in practice to cool off, and did not have any shade available to potentially cool off. Another group of standards include establishing a hydration protocol specific to soccer, educating players on that protocol and on the dangers of heat illness, and actively monitoring players’ fluid intake. The complaint alleges that defendants did not have any protocol in place, nor did they monitor any players’ fluid intake.
Finally, a standard of care is owed with regards to the implementation of an Emergency Action Plan (EAP), having a certified athletic trainer present at practice along with first aid equipment, and having both a Wet Bulb Thermometer to assess humidity and an infrared thermometer to assess field-level temperatures. Neither thermometer was present at practice, nor was an athletic trainer or first aid kit. The school did not have an EAP in place for soccer.
These standard of care principles also arguably applied to the athletic director of the high school, Matthew Pearman. Pearman should have known that the field-temperature on an artificial surface would be extremely high on that day of practice, and he should have known that the school was not going to provide water coolers, shade, an EAP, an athletic trainer, or any type of thermometer.
Counts Brought Forth by Plaintiffs
The Clancys brought forth two counts against both Pierson and Pearman. The first count of negligence argued that both defendants fell below the standard of care of coaches and athletic directors. The second count of gross negligence argued that the defendants did not even demonstrate scant care for the health and well-being of the plaintiff Clancy. The plaintiffs demand judgement of the defendants in the amount of $1 million dollars.
Case Law — Simple Negligence
There is a history of cases in the Commonwealth of Virginia that will help understand topics in this case, namely sovereign immunity. As decided in City of Virginia Beach v. Carmichael Dev. Co., 259 Va. 493, 499, 527 S.E.2d 778, 781 (2000), sovereign immunity is “a rule of social policy, which protects the state from burdensome interference with the performance of its governmental functions and preserves its control over state funds, property, and instrumentalities.”
There has been confusion on to whom sovereign immunity applies. The court in Messina v. Burden, 228 Va. 301, 307, 321 S.E.2d 657, 660 (1984) stated that in Virginia, the immunity enjoyed by governmental employees is not independent of the immunity enjoyed by the Commonwealth itself and that “the State can only act through individuals.” Therefore, employees are logically an extension of the Commonwealth. This principle has been granted in past cases involving the negligent acts of employees. In Lawhorne v. Harlan, 214 Va. 405, 200 S.E.2d 569 (1973), the court ruled that doctors at a state medical center, which is afforded immunity, are also granted immunity from liability for negligence in the performance of duties for their employer. In Lentz v. Morris, 236 Va. 78, (Va. 1988), a high school gym teacher who failed to properly supervise a student was granted sovereign immunity. In Banks v. Sellers, 224 Va. 168, 294 S.E.2d 862 (1982), a high school principal was entitled to sovereign immunity under similar circumstances.
However, there have been distinctions made between the governmental agencies themselves and their employees with to whom sovereign immunity applies. In Crabbe v. School Board and Albrite, 209 Va. 356, 164 S.E.2d 639 (1968), the court ruled that the school board was immune and not liable for a student’s injury, but the teacher, in his own individual capacity, was not immune for his negligent supervision. Short v. Griffitts, 220 Va. 53, 255 S.E.2d 479 (1979) followed the decision in Crabbe in stating that a high school athletic director, basketball coach, and grounds supervisor were not entitled to the immunity the school board was when a student fell on broken glass while running on an outdoor track.
The analysis of the function of the employee is thus important. The court must determine whether the acts of a high school employee are of interest to the Commonwealth, thus falling under the immunity given to governmental agencies. Further, as in the decision in Lawhorne, the scope of actions must be analyzed. In that case, the court decided that the defendant was acting within the scope of employment which extended the hospital’s immunity to him. Immunity was also given to the defendants in Burnam v. West, 681 F. Supp. 1169, 1172 (E.D. Va. 1988) where a teacher was acting under the direction of their principal.
Gross Negligence
In this case, the plaintiffs are also suing the coach and athletic director for gross negligence. Two principles apply here: whether or not gross negligence can be proven and whether or not sovereign immunity will be applied to the defendants. To the second point of discussion, Virginia case law is somewhat clear that sovereign immunity will not be granted to an employee that commits gross negligence (Elder v. Holland, 208 Va. 15, 155 S.E.2d 369, 1967).
At the end of the soccer practice on July 21, 2017, defendant Pierson noticed that plaintiff Clancy was out of water and ridiculed him in front of his teammates for only bringing one two-liter bottle, even though Pearson instructed each athlete to bring exactly that amount. Pearson was also quoted as saying “Your mother must love Ryan [Clancy’s brother] more.” Adding this intentional mockery on top of the already stated lack of standard care provides the plaintiffs their argument for gross negligence.
Conclusion
The court in this case will have several distinctions to make regarding the level of negligence of the coach and athletic director, as well as whether or not the defendants should be afforded the same sovereign immunity that likely applies to the high school itself.
David P. Hodge is an Instructor of Sport Business at Buena Vista University and is currently a Ph.D. student at Troy University. David currently resides in Storm Lake, IA.
