The Supreme Court of Nebraska has affirmed a lower court’s finding that a high school coaching staff acted appropriately after a football player suffered a head injury and that the school district should not be held liable for the more serious brain injury the player suffered in a practice four days later.
The plaintiff, Brent Cerny, was a student-athlete on the Cedar Bluff High School football team. In the fall of 1995, while playing in a game, Cerny struck his head on the ground, causing an injury.
Although he was dizzy and disoriented, he stayed in a few plays before taking himself out of the game. Cerny returned to the game in the third quarter. Four days later, during practice, Cerny suffered a serious brain injury in practice, which led to the complaint.
Among other things, the plaintiff alleged that the district, acting through its coaches, was negligent for “failing to adequately examine [Cerny] following his initial concussion . . . to determine the need for immediate qualified medical attention” and “allowing [Cerny] to return to play . . . without authorization from qualified medical personnel and without verifying it was safe to do so.”
A bench trial was held from June 28 to 30, 1999. That fall, the district court entered judgment in favor of the district and dismissed the plaintiff’s petition.
Cerny appealed the district court’s decision. The appeals court concluded that the lower court “erred in determining the applicable standard of care and in discounting certain expert witnesses’ testimony when determining whether the coaches met the standard of care.” Deeming the errors prejudicial to Cerny, the appeals court reversed the decision and remanded the case for a new trial.
In the second trial, held in the spring of 2002, the district court delineated the “conduct required of a reasonably prudent person holding a Nebraska teaching certificate with a coaching endorsement under the circumstances of this case.” The conduct, when a player has sustained a possible head injury, is as follows:
(1) The coach must be familiar with the features of a concussion;
(2) The coach must evaluate the player who appears to have suffered a head injury for the symptoms of a concussion,
(3) The evaluation must be repeated at intervals before the player can be permitted to reenter a game, and
(4) The coach must make a determination based upon the evaluation as to the seriousness of the injury and determine whether it is appropriate to let the player reenter the game or to remove the player from all contact pending a medical examination.
Using the above guidelines, the district court concluded that the “the conduct of the coaches in this matter comported with the standard of care required of reasonable, prudent persons holding a Nebraska teaching certificate with a coach’s endorsement.”
Again, the plaintiff appealed.
The Supreme Court examined the plaintiff’s arguments one-by-one.
First, he claimed that the district court erred in considering the testimony of the defendant’s expert witness, which helped to define the acceptable conduct. The appeals court wrote that such decisions regarding experts are better left to the fact finder. “It is not the function of this court to second guess the district court’s decision with regard to the weight given to an expert’s testimony or to reweigh that evidence in this appeal.”
Second, the plaintiff argued that the judge erred in determining that the coaches acted appropriately in re-inserting Cerny in the game.
In considering this argument, the high court wrote: “The district court found that when Cerny removed himself from the game, he told Bowman that he was fuzzy and had tingling in his neck. The district court found that Bowman talked to Cerny continuously for 5 to 6 minutes and observed that Cerny did not have a vacant stare, responded normally to conversation, did not appear to be disoriented or confused, and did not complain of nausea, headache, or blurred vision. The district court also found that the record demonstrated that Bowman observed and talked to Cerny approximately 15 minutes after his initial evaluation and that during this second observation, Bowman noted that Cerny was oriented, breathing normally, speaking coherently, and not complaining of headache, dizziness, vision problems, or nausea. The district court also found that Bowman observed Cerny on the sidelines during the third quarter and that Bowman noted that Cerny appeared to be ‘100% normal’; that his responses were appropriate; that he did not seem confused or disoriented; that his speech was not incoherent or slurred; that his emotions were appropriate; that he did not complain of dizziness, unsteadiness, nausea, or headache; and that he told the coach he felt ‘fine. Based upon the foregoing, the district court found that Bowman evaluated Cerny for symptoms of a concussion and that Cerny was evaluated at intervals. Further, the district court found that Cerny was properly allowed to reenter the game.”
Thus, the court affirmed the lower court’s ruling. Cerny v. Cedar Bluffs Junior/Senior Public School, Saunders County District No. 107, No. S-03-085
S.Ct.Neb., 5/7/04
Attorneys of Record: (for plaintiff) Larry C. Johnson, of Johnson & Welch, P.C. (for defendant) Stephen S. Gealy and Timothy E. Clarke, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P..
