By Jackie Wernz, Partner, Franczek Radelet
A Cook County trial court judge has dismissed a lawsuit alleging that the Illinois High School Association (“IHSA”) did not fulfill its duties to a class of student athletes to adequately protect them from concussions. The lawsuit was the first class action lawsuit against an organization like the IHSA, which is a private, not-for-profit organization that regulates athletics and activities for over 800 member high schools in Illinois. The court accepted the IHSA’s arguments that the remedies sought in the lawsuit, which it recognized could cripple high school football, were not warranted in the case. The case did not address any liability by public schools, potentially leaving open the door for future actions by injured players against school districts for student concussions.
The lawsuit was filed by a former Illinois student who was injured while playing high school football in South Elgin, Illinois. The former player filed the suit on behalf of a class of other Illinois student athletes injured by concussions. The plaintiff sought to require the IHSA to follow certain measures he believed would correct alleged shortcomings in protecting student athletes from concussions, as well as establishment of a fund to provide for medical monitoring for injured players.
The IHSA moved to dismiss the lawsuit at an early stage, before any discovery or a trial occurred. The primary basis for the dismissal was that plaintiff improperly sought to have the court substitute its judgment for that of the Illinois legislature. The legislature delegated to the IHSA the authority to determine the measures for minimizing the risk of concussions in Illinois’ student-athletes. The court held that in addition to the fact that it believed “that IHSA has acted to protect student athletes in the State,” requiring IHSA to impose specific safety measures on the IHSA in light of the legislative designation of that discretion to IHSA would be an improper imposition of policy and enactment of legislation by a court—powers that are reserved for the legislature.
Although the court deemed that holding to be sufficient to dismiss the entire case, the court made findings supporting dismissal on a number of alternative theories argued by the IHSA. The court dismissed plaintiff’s negligence claim, which alleged that IHSA violated a duty to supervise, regulate, monitor and provide reasonable and appropriate rules to minimize the risk of injury to Illinois’ high school football players by failing to enact the specific procedures plaintiff sought, because there is no precedent in Illinois for a claim against a governmental entity for failure to promulgate laws or otherwise act. Moreover, the court found that the plaintiff had not, and could not, allege that IHSA actually caused any specific injury to any class members, as opposed to more generally endangering them, as required to adequately plead a negligence claim.
The court also found that dismissal was warranted because a “Contact Sports Exception” in Illinois law applies to the IHSA. The exception recognizes that there are inherent risks in participating in contact sports and that imposing too strict a standard of liability could have a chilling effect on the sport. Accordingly, with respect to injuries sustained in activities that fall under the exception, the plaintiff must show that the defendant acted with intent to cause the injury or that the defendant engaged in conduct totally outside the range of ordinary activity, not just that the defendant failed to use reasonable care. The court held that the exception applies to claims against the IHSA for injuries sustained in football, noting that “imposing broader liability on this defendant would certainly change the sport of football and potentially harm it or cause it to be abandoned.” The court found that the plaintiff had not, and could not, allege that the IHSA had engaged in such conduct on the facts of the case.
Finally, the court found that the student had assumed the risk of any injury he suffered while playing football, and so could not seek to hold the IHSA liable for those injuries. The student and his parent signed an “Athletic Permit” that stated that he was aware of the risks of physical injury and agreed to assume the full risk of any injury that occurred. The court found that the student expressly assumed the risk and did not timely disaffirm the Athletic Permit after the turned 18, and so it was valid and binding against him even though he was a minor at the time he signed it.
The court granted the motion to dismiss with prejudice, meaning that the plaintiff cannot re-file the lawsuit to try to remedy deficiencies in his complaint. The plaintiff may, however, appeal the trial court’s decision to the Illinois Appellate and Supreme Courts. Notably, the court applied Illinois law in dismissing the action, and its opinion recognized that some precedent in other states might support some of the plaintiff’s claims where Illinois case law does not. Nonetheless, this first-of-its-kind decision will almost certainly be relied on by parties in any future lawsuits in other states. The court was not asked to consider any claims against the students’ schools, so did not rule on any issues related to school district liability. Whether or not student athlete concussion advocates continue to press lawsuits against organizations like the IHSA or turn their sights to public schools remains to be seen, though with the significant amount of focus on concussions it seems unlikely that this case will be the last time a court weighs in on these important liability issues.
Jackie Wernz is a Partner at the Chicago law firm Franczek Radelet, where she represents public schools in nearly all aspects of their work. She has experience existing clients with a wide range of school athletics issues, including counseling on the recent concussion legislation in Illinois and representing schools in lawsuits and administrative proceedings involving athletics.
