The Ohio Court of Claims has denied a motion for summary judgment from defendant Bowling Green State University (BGSU) in a concussion negligence lawsuit brought by former football player Cody Silk.
Specifically, the court found that genuine issues of material fact existed as to whether BGSU’s conduct in handling Silk’s football concussions was “wanton or reckless.” The court’s decision was made upon a motion for reconsideration, filed by Silk’s current attorneys at Hagens Berman, and reverses an earlier decision.
The lawsuit against BGSU, originally filed in 2012 by David M. Cook and Scott M. Heenan of Cook and Logothetic LLC, and Donald A. Migliori of Motley Rice LLC, alleged that the university failed to protect Silk from multiple concussions and their known effects and improperly revoked his academic scholarship.
Silk initially named BGSU, head football Coach David Clawson, head athletic trainer Douglas Boersma, assistant athletic trainer Annette Davidson, and equipment manager Joe Sharp as defendants. Shortly after the complaint was filed, the judge excluded all the defendants, except BGSU.
Because of the school’s actions, which allegedly contributed to “multiple concussions,” Silk suffered from short-term memory loss and other symptoms, according to the complaint. These conditions caused him to struggle in school and were allegedly a factor in the defendant’s decision to revoke his scholarship.
As a high school football player at Warren De La Salle in Michigan, Silk earned All-Catholic League honors and was ranked among the top 50 players in the state of Michigan by the Detroit Free Press. The offensive lineman signed his national letter of intent to play for Clawson and began his collegiate career in August of 2010.
Silk alleged that he suffered at least three concussions between the beginning of summer practice and Oct. 19, 2010, and was officially medically disqualified from playing for the team on Nov. 3, 2010. The plaintiff alleged that he was susceptible to the concussions because he was improperly fitted with a helmet, which led to “permanent neurological damage.”
Silk returned to BGSU for classes in January of 2011. But “the impairments Cody experienced with cognition and short term memory prevented him from retaining the material,” according to the complaint. He withdrew from classes in April 2011. His athletic scholarship was cancelled in January 2012, and an appeal of that decision was denied two months later.
In his complaint, Silk alleged, among other things, negligence, breach of contract, and that “the individual defendants acted with malicious purpose, in bad faith, or in a wanton or reckless manner.”
Further, “BGSU used Cody’s damaged neurological and mental state to revoke his athletic scholarship, and prematurely terminate his academic career at BGSU, and in doing so breached the terms of the scholarship grant-in-aid given to him.”
The court’s original decision to grant partial summary judgment to BGSU centered on a release that Silk signed with the university in 2010. Bowling Green’s “Release, Consent to Treatment, and Indemnification Agreement” was reportedly designed to release the university from all injuries associated with Silk’s participation in football.
In reconsidering that decision, the court found that Silk demonstrated “issues of material fact regarding the scope and effectiveness of the ‘release.’ Specifically, whether the facts alleged in the complaint and testified to by plaintiff in his deposition fall within the scope of the release or amount to wanton or reckless conduct.” Steve Berman of Hagens Berman was also effective in arguing that “the release was invalid and contrary to public policy given the disparate relationship between the player and school.”
The plaintiff will now consider filing an amended complaint.
“We believe the court has made the right decision both for Cody and for all of the voiceless student-athletes facing the life-altering effects of concussions,” said Steve Berman, attorney representing National Collegiate Athletic Association (NCAA) football players. “By returning Cody to play, BGSU and its football staff failed to take basic actions to treat Cody’s injuries despite their duty to do so.”
