The Ohio Supreme Court has affirmed one of the state’s appeals courts, paving the way for the widow of a former University of Notre Dame (ND) football player to continue a lawsuit in which she and her husband alleged that the NCAA and ND exhibited “reckless disregard” for player safety, and failed to protect him from concussions.
In so ruling, the state’s highest court agreed that the trial court erred in granting the defendants’ Civ.R. 12(B)(6) motion to dismiss the plaintiffs’ negligence, constructive fraud, and fraudulent concealment claims. The lower court should have accepted “their factual allegations as true and (made) all reasonable inferences in their favor.” Further, it found that the defendants’ argument that the complaint was time-barred was meritless because the decedent’s injuries were not diagnosed, while he was living, meaning “he had no reason to know he had suffered a latent brain injury playing football. … The suit was filed within two years of the diagnosis” as required.
By way of background, Steven Schmitz was a former running back and receiver, who played football for Notre Dame (1974-78), a member institution of the NCAA. In December 2012, Schmitz was diagnosed by the Cleveland Clinic Neurology Department with chronic traumatic encephalopathy (CTE). At that time, Schmitz was 57 years old and “unemployable,” suffering from severe memory loss, cognitive decline, early onset Alzheimer’s disease, traumatic encephalopathy, and dementia.
In October 2014, Schmitz and his wife, Yvette Schmitz, filed the underlying lawsuit against ND and the NCAA, alleging that “ND, its football coaches, athletic directors, and trainers, and the NCAA failed to notify, educate, and protect the plaintiff Steve Schmitz (and others) regarding the debilitating long term dangers of concussions, concussion-related impacts, and sub-concussive impacts that result every day from amateur athletic competition in the form of football at the collegiate level.”
Further, they alleged that the defendants knew (or should have known) “college football players are at greater risk for chronic brain injury, illness, and disability both during their football careers and later in life.” Further, ND and the NCAA “orchestrated an approach to football practices and games” that (1) ignored the medical risks to Steve Schmitz; (2) aggravated and enhanced the medical risks to Steve Schmitz; (3) failed to educate Steve Schmitz of the link between concussive and sub-concussive impacts in amateur football and chronic neurological damage, illnesses, and decline; and (4) failed to implement or enforce any system that would reasonably have mitigated, prevented, or addressed concussive and sub-concussive impacts suffered by Steve Schmitz, according to the complaint. The complaint sets forth counts for negligence, fraud by concealment, constructive fraud, breach of express and implied contract, and loss of consortium.
In March 2015, the defendants moved to dismiss the plaintiffs’ amended complaint. Specifically, Notre Dame moved to dismiss the amended complaint on the grounds that the plaintiffs’ claims are time-barred. The NCAA moved to dismiss the claims on both statute of limitations grounds and failure to state a claim under Ohio or Indiana law. On Sept. 1, 2015, the trial court granted both Notre Dame’s and the NCAA’s motion to dismiss without opinion and dismissed the amended complaint with prejudice, leading to the appeal. After the appeals court overturned the ruling, the defendants appealed.
Attorneys of Record: (for appellants) Robert E. Derose, Neal J. Barkan, Barkan Meizlish Handelman Goodin Derose Wentz, L.L.P., Columbus, Ohio; Melanie J. Garner, David D. Langfitt, Locks Law Firm, Philadelphia, Pennsylvania; Richard S. Lewis, Hausfeld, L.L.P., Washington, D.C. (for appellees, NCAA) Frederick R. Nance, Sean L. McGrane, Squire Patton Boggs (US), L.L.P., Cleveland, Ohio. (for appellees, University of Notre Dame du Lac) Steven A. Friedman, Squire Patton Boggs (US) L.L.P., Cleveland, Ohio; Aaron Michael Healey, Matthew A. Kairis, Jones Day, Columbus, Ohio.
Steven Schmitz, et al. v. National Collegiate Athletic Association, et al.; SUPREME COURT OF OHIO; No. 2017-0098, 2018-Ohio-4391; 2018 Ohio LEXIS 2614; 10/31/18
The full opinion can be read here: https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2018/2018-Ohio-4391.pdf
