By Alan Goldberger
On October 28, 2004 a high school football game at Alamo Stadium in San Antonio, Texas was the scene of a tragic accident that had nothing to do with blocking or tackling. Game official Charles Harpole was working the game, between Fox Tech and Brackenridge high schools as Head Linesman in a crew of 5 officials. Harpole was running down the Brackenridge sideline during a punt return. A Brackenridge assistant coach named Terry English took a few steps, clipboard in hand, into a six-foot wide “belt” between his team’s bench area and the sideline of the field. Unfortunately, Coach English stepped directly in the path of Head Linesman Harpole, triggering a violent collision as Harpole, his eyes on the field, literally ran head-long into the coach. Both men were rendered unconscious.
The official regained consciousness, but had to leave the game. Coach English did not fare so well. He suffered a Level III brain injury as a result of the collision and was rendered permanently disabled. He was unable to return to his faculty position at Brackenridge high and has sustained extraordinary medical expenses.
Two years later — the day before the statute of limitation would have expired, the workers’ compensation insurance carrier responsible for Coach English’s substantial medical expenses brought a lawsuit in subrogation against Mr. Harpole, against the other four officials who worked that game, and the Texas Association of Sports Officials (TASO). The lawsuit sought recovery from the officials and the TASO of the medical expenses the insurance company paid on behalf of Coach English.
Midwest Employers Casualty Insurance Company, of St. Louis, Missouri claimed in the
lawsuit that official Harpole was “running at full speed, without looking where he was going” and therefore was guilty of negligence. Midwest also charged that the other 4 officials on the field at the time of the accident were also negligent because they permitted the Brackenridge coaches to congregate in the area restricted for officials. The lawsuit also alleged that TASO was liable for the conduct of the officials.
In Midwest’s view, Head Linesman Harpole was negligent for running aggressively, at high speeds and not looking where he was going. The insurer also took all five officials
to task for not verbally outlining rules and inherent risks regarding high school football to coaches who are charged with conducting the football programs at their school.
The insurance carrier for the National Federation Officials Association engaged attorneys to represent Harpole and the crew of officials. The insurance company for the TASO engaged attorneys to represent the association. Through their attorneys, the officials countersued Midwest, claiming that suing the officials was frivolous in that neither Harpole nor his crew members were legally responsible for Coach English’s injuries.
Several defense motions and 14 depositions later, the five referees asked the court to grant a “summary judgment” dismissing Midwest’s suit as legally insufficient. The motion was granted, as the Court found that the officials did not violate any legal duty to Coach English, which caused his injuries. Midwest retained new local counsel and appealed the dismissal to the trial court. That motion was denied and the claims against TASO were severed as was the counterclaim. This set the stage for appellate review by the Fourth Court of Appeals, San Antonio Division.
At the request of the officials’ attorneys, the National Association of Sports Officials filed an “amicus curiae” – or “friend of the court” – brief on behalf of the officials. In its brief, NASO pointed out to Texas’ Fourth Court of Appeals that … the issue of legal duty is neither particularly esoteric nor obtuse, but rather demonstrably simple and obvious to anyone who has ever attended or participated in a sporting event: referees need to concentrate on the student athletes while the ball is “alive” – i.e. while the ball is in play in a football game. Simply stated, referees need to gauge their movement predicated on
whether their positioning on or about the playing surface places them at the most advantageous angle to observe play. Only in this way are game officials able to rule on technical matters including, but not limited to, (1) permissible playing techniques and maneuvers – including legal and illegal maneuvers by players that might yield an advantage not intended by the rules; (2) scoring plays; (3) equipment violations; (4) fouls and other infractions (especially those infractions implicating player safety); (5) substitutions; (6) timing issues (starting and stopping the game clock, administering time out and intermission periods); and (7) penalty enforcement. Imposing liability on game officials such as Referees in the case sub judice would be an unprecedented perversion of traditional tort law principles that is without any justification and serves no rational purpose.
Making referees and other game officials liable in tort to plaintiffs whose own careless actions in the vicinity of the playing surface cause their injuries is unconscionable and unwarranted.
Officials are responsible for watching the players’ interactions, the football, and the incidents of contact between opponents, as well as determining whether a player is in possession of the ball at any given time during the game, whether a pass or fumble is caught or recovered, and whether any one or more of dozens of rules infraction is committed on any particular play. In addition thereto, the dictates as to equipment, facilities, uniforms, and playing times are contained in a 200-page rule book – all of which came under the direct jurisdiction of Harpole and his four partners working the game in suit.
In the amicus brief, NASO emphasized to the court that, at the time of this tragic collision involving official Harpole and coach English, the official was doing exactly what he should have been doing – running down the sideline following the play to officiate the game. NASO also pointed out to the court that sideline collisions in football games have been the subject of numerous reported lawsuits that have met with little, if any, success. NASO also pointed out that, if anyone should be aware of both the rules and the dangers of standing near a football sideline, coaches such as Coach English should have been so aware.
In NASO’s amicus brief, the court was advised that: It is incumbent upon coaches to simply stay out of the way of game officials – period. Any football coach knows full well that players and officials often find themselves on the “out of bounds” side of the sideline – and sometimes well out of bounds. When players travel out of bounds, officials go with them….Officials need to be where they can observe players actions and interactions with opponents at all times during the game…..Officials need to have free range to call the game.
Without officials having the latitude to get where they need to go without fear of a lawsuit every time bodily contact occurs because onlookers have placed themselves in harm’s way, interscholastic sports could not exist.
On June 24, 2009, the appellate court issued a decision: The court adopted NASO’s reasoning in stating: “The fact is that Harpole was where he was supposed to be, doing exactly what his job required.”
In holding there was no duty owed by game officials to avoid colliding with the coach under these circumstances, the court also found that Harpole and other officials did attempt to keep coaches out of the restricted area adjacent to the sidelines.
And, given the speed at which high school football is played, the ensuing collisions with non-players in the area adjacent to the playing surface can be violent and can cause, as here, serious injuries. Thus, persons who choose to stand near the sideline of a high school football field during a game, and especially coaches and other team personnel, are on constructive notice that they are in a place where violent collisions sometimes occur.
As such, negligence is not presumed when such persons are injured. Any football coach knows full well that players and officials often find themselves on the “out of bounds” side of the sideline – and sometimes well out of bounds. When players travel out of bounds, officials go with them. Without officials having the latitude to get where they need to go without fear of a lawsuit every time bodily contact occurs because onlookers have placed themselves in harm’s way, interscholastic sports could not exist.
At the end of the day, football coaches — and others – whose business takes them to the sidelines of a high school football game must understand that very large high school boys who play football and are equipped with substantial equipment strapped or otherwise affixed to their persons very often run, stumble, trip or fall out of bounds. And, officials need to patrol the sidelines to make sure that safety rules are enforced. Coaches, therefore need to stay out of the way when the football game goes out of bounds. They cannot look to the courts to compensate them for a sideline collision, no matter how serious the injury.
Alan Goldberger is the name partner of Goldberger & Goldberger. He can be reached at alan@RefLaw.com
