By John Heshka
In March 2014, Johna Fiedler suffered a concussion while snowboarding. Her physician prohibited her participation 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 school officials that included the principal, a physical education teacher, nurse and guidance counselor. In June 2014, Fiedler claims she was forced to participate in a gym class, despite medical documentation on file with the 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 is suing the Stroudsburg Area School District, its superintendent, the principal of Stroudsburg Junior High School, and the physical education teacher and is seeking damages for, among 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 relies upon the Fourteenth Amendment due process clause and the constitution of the Commonwealth of Pennsylvania to make several claims. Fiedler claims her substantive and procedural due process rights were breached. It’s 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 include 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 claims 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 claim follows 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 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 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 held 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’s case has the potential to have profound implications in concussion cases. Whereas the 3rd Circuit held that it was not so plainly obvious at the time of Mann’s concussion that requiring a student-athlete, fully clothed in protective gear, to continue to participate in practice after sustaining a violent hit and exhibiting concussion symptoms implicated the student-athlete’s constitutional rights. “The touchstone of qualified immunity analysis is whether there was “sufficient precedent at the time of action, factually similar to the plaintiff’s allegations, to put [the] defendant on notice that his or her conduct is constitutionally prohibited.” Mammaro v. New Jersey Div. of Child Prot. & Permanency, 814 F.3d 164, 169 (3d Cir. 2016) (quoting McLaughlin v. Watson, 271 F.3d 566, 572 (3d Cir. 2001)).
The precedent was set in Mann and the reverberations and repercussions have yet to be felt.
None of the defendants have yet to file a defense.
John Heshka is a sports law professor at Thompson Rivers University in Canada.