By Jon Heshka
In March 2014, Johna Fiedler suffered a concussion while snowboarding. Her physician prohibited her from participating in physical education classes and any other activities, which would expose her to further concussions including contact from athletic balls. Fiedler’s mother conveyed this information to the school including its principal, physical education teacher, nurse and guidance counsellor. In June 2014, Fiedler claims she was forced to participate in a gym class, despite medical documentation on file with school district and multiple discussions with the teacher, and forced to choose between basketball and football. She chose basketball and during the class was hit in the back of the head by a basketball.
Fiedler sued the Stroudsburg Area School District, its superintendent, the principal of Stroudsburg Junior High School, and the physical education teacher and sought damages for, amongst other things, the following injuries: serious brain injuries, aggravation of pre-existing post-concussion syndrome, significant cognitive deficiencies, short-term memory deficiencies, severe anxiety, emotional distress, seizures, and epilepsy.
She relied upon the Fourteenth Amendment Due Process Clause and the Constitution of the Commonwealth of Pennsylvania to make several claims. Fiedler claimed her substantive and procedural due process rights were breached. It was claimed that the defendants’ actions and inactions demonstrated an adopted practice, custom or policy in deliberate indifference to her rights, health and safety.
The claimed violations included injury to her human dignity, injury to bodily integrity, creation of a danger and/or situating Fiedler in circumstances which would give rise to an increased risk of harm. She claimed that the defendants intentionally disregarded her obvious post-concussed vulnerable state and thus deprived her of her Fourteenth Amendment rights which has caused prolonged and potentially permanent injury, pain and suffering.
The United States District Court for the Middle District of Pennsylvania last month granted in part and denied in part a motion to dismiss by the defendants. The claims against the superintendent, principal and teacher in their official capacities were dismissed (Fiedler conceded to their dismissal). The court also dismissed the human dignity claim, the injury to bodily integrity claim and the state-created danger claim against the school district, the superintendent and the principal. It also dismissed claims for violation of the Pennsylvania Constitution.
The claim followed Mann v. Palmerton Area School District, 872 F.3d 165 (2017), a high school football case heard by the 3rd Circuit Court of Appeals which filed a precedential opinion holding that high school football players have a Fourteenth Amendment right to be protected from further injury after suffering a concussion injury on the field.
In November of 2011 Sheldon Mann, a football player for the Palmerton Area School District, experienced a hard hit during a practice session. While some players thought that Mann may have been exhibiting concussion-like symptoms, he was sent back into the practice session by his coach. After being returned to practice, Mann suffered another violent collision and was removed from the practice field. He would later be diagnosed with a traumatic brain injury and filed a lawsuit against the school and coach asserting that by requiring Mann to continue to practice after sustaining the first substantial blow, the coach had violated his constitutional right to bodily integrity under a state-created danger theory of liability.
Citing Phillips v. Cty. of Allegheny, 515 F.3d 224, 235 (3d Cir. 2008), the 3rd Circuit held that the first element of a state-created danger claim requires plaintiffs to establish that the harm sustained as a result of the defendant’s conduct was “foreseeable and fairly direct.” More specifically, this “require[s] a plaintiff to allege an awareness on the part of the state actors that rises to [the] level of actual knowledge or an awareness of risk that is sufficiently concrete to put the actors on notice of the harm.” Id. at 238.
The second element of the state-created danger test is that the Defendants acted with a degree of culpability that shocked the conscience and if the circumstances are such that the state actor has the benefit of deliberation, then all the plaintiff needs to show is deliberate indifference. Estate of Smith v. Marasco, 430 F.3d 140, 153 (3d Cir. 2005) (quoting Miller v. City of Philadelphia, 174 F.3d 368, 375 (3d Cir. 1999)).
The third element of a state-created danger claim requires proof that “a relationship between the state and the plaintiff exists such that the plaintiff was a foreseeable victim of the defendant’s acts.” Sanford v. Stiles, 456 F.3d 304 (3d Cir. 2006). The 3rd Circuit in Mann noted that the bar for proving this element is not terribly high.
The 3rd Circuit held in Mann that there exists a relationship between a student-athlete and coach at a state-sponsored school such that the coach may be held liable where the coach requires a player, showing signs of a concussion, to continue to be exposed to violent hits. It stated that “an injured student-athlete participating in a contact sport has a constitutional right to be protected from further harm, and that a state actor violates this right when the injured student-athlete is required to be exposed to a risk of harm by continuing to practice or compete.” Id at 172.
Fiedler alleged that she had previously sustained a concussion and was prohibited by her physician from participating in physical education classes involving risk of contact with athletic balls in order to avoid suffering further injuries — facts known by the teacher — so it was thus foreseeable that Fiedler would be struck in the head with a ball during gym class and sustain additional injuries. The teacher determined that it had “been long enough” and “forced” Fiedler to participate in gym class thereby demonstrating that she acted with deliberate indifference to Fiedler’s constitutional rights. The defendants did not challenge that Fiedler was a foreseeable victim.
Because Fiedler adequately stated a Fourteenth Amendment due process claim against the teacher for the alleged deprivation of bodily integrity on a state-created danger theory, she was granted permission to proceed with that claim. Fiedler was also given the opportunity to amend with respect to her Rehabilitation Act / Americans with Disabilities Act claim, her procedural due process claim, and her substantive due process claim against the school district, the superintendent and the principal.
Heshka is a sports law professor at Thompson Rivers University in Canada.
