The Supreme Court of Pennsylvania has declined to hear an appeal by the NCAA, meaning a lawsuit brought by the parents of a student-athlete, who died from sickle cell trait (SCT) while playing basketball, can continue.
The decision lets stand an appeals court’s decision to reverse a lower court, which had dismissed the claim, holding that the NCAA could have only “increased the risk of harm” for the student-athlete through “an affirmative act.” The appeals court concluded that a failure to act may also impute liability.
By way of background, Jack Hill, Sr. and Cheryl Hill, individually and as co-administrators of the estate of Jack Hill, Jr., alleged that, on Sept. 9, 2011, their son was participating in a late-night, high-intensity basketball practice, when he complained of feeling ill and collapsed to the floor. He was unresponsive. They further alleged that “neither the coaches nor the training staff offered Hill immediate medical care, such as CPR.” They alleged that Hill was eventually transported to the Grove City Medical Center, where he was found to be in respiratory and cardiac arrest, and where he subsequently passed away. An autopsy revealed marked red blood cell sickling in his lungs and liver, and that hemoglobin electrophoresis disclosed the presence of SCT.
In their subsequent lawsuit, they alleged that Slippery Rock University (SRU), the SRU Health Center, and Nurse Bateman were negligent for not testing for or requiring testing on Hill or other athletes for SCT prior to allowing him/them to participate in athletic activities, and for failing to educate Hill and other athletes about the dangers of SCT. They alleged said parties were negligent for failing to respond to Hill’s collapse by providing immediate medical care, and for failing to adequately train and supervise its staff on proper CPR administration, AED use, and other emergency first aid procedures.
Of relevance, they also alleged that the NCAA was negligent for failing to require Division II schools, such as SRU, to screen their athletes for SCT prior to their participation in athletic activities.
They sued in state court, alleging negligence, wrongful death, and survival action.
On Sept. 5, 2014, the NCAA filed an objection, arguing that it did not owe Hill “any legally recognized duty. The NCAA further argued that the complaint lacked specificity as regards the source of any duty that it allegedly owed to him. Finally, the NCAA argued that the ‘no-duty’ rule precludes any basis for liability between the NCAA and the (plaintiffs).”
The trial court agreed in part, finding that the plaintiffs “failed to sufficiently plead liability on the part of the NCAA.” The plaintiffs appealed. Their argument centered on the following: The NCAA owed a duty of care to Hill because he was a student at Slippery Rock University. Hill completed a pre-participation athletic physical. The medical questionnaire asked if Hill had SCT. Hill was unaware that he had SCT. The plaintiffs claimed that despite inquiring as to whether Hill had SCT, at no point did anyone require or request a blood test to check for these diseases. They asserted that despite the pre-participation physical questionnaire, no one informed Hill of the dangers of SCT.
They further noted that the NCAA “regulates athletic participation rules for its student-athletes” and that in a 2007 NCAA Consensus Statement it recommended “testing for SCT in all student-athletes.” The plaintiffs also noted that the NCAA “mandated SCT testing for athletes at Division I schools in August of 2010, but failed to require SCT testing for Division II schools, such as Slippery Rock until August of 2012,” after Hill’s death.
The appeals court seemed to agree.
“The incomplete medical clearance may have led Hill to believe that he was physically fit for basketball. Therefore, (the plaintiffs) sufficiently alleged that the initiation of medical and physical evaluations, which did not include SCT testing for Division II schools, increased Hill’s risk of harm.”
The appeals court added that the plaintiffs “have succinctly averred that the then-existing NCAA Division II participation protocols allowed a young man with SCT to participate in a high-intensity workout. Had the NCAA’s protocols tested for SCT at Division II schools, Hill may not have suffered the event that caused his death. Thus, (the plaintiffs) claimed that the inadequate pre-participation physical, which allowed Hill to play basketball, increased his risk of harm. (The plaintiffs) alleged that this increased risk of harm could have been prevented if the NCAA discharged its duty and required SCT testing.
“In Pennsylvania, an increased risk of harm can occur through a failure to act, or a ‘sin of omission.’ Indeed, in addressing increased risk of harm under Section 323 of the Restatement, the Pennsylvania Supreme Court stated as follows:
Once a plaintiff has demonstrated that defendant’s acts or omissions, in a situation to which Section 323(a) applies, have increased the risk of harm to another, such evidence furnishes a basis for the fact-finder to go further and find that such increased risk was in turn a substantial factor in bringing about the resultant harm; the necessary proximate cause will have been made out if the jury sees fit to find cause in fact. Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280, 1288 (Pa. 1978)
“Moreover, in Hamil, the court noted the effect of Section 323(a) was to relax the degree of certainty ordinarily required of a plaintiff’s evidence in order to make a case for the jury. Id.
“In this case, (the plaintiffs) pled that the NCAA had a duty to protect its student-athletes from SCT, and it is evident that (the plaintiffs) also pled that the NCAA, in failing to discharge that duty, increased the risk of harm to Hill. Ultimately, the fact finder could reasonably conclude that the NCAA’s decision to test for SCT at Division I schools as part of its protocols, while forgoing such testing at Division II schools, was an error of omission and a failure in its duty, thereby increasing the risk of harm to Hill.”
Details from earlier opinion are below.
Jack Hill, Sr. and Cheryl Hill, Individually, and as Co-Administrators of The Estate of Jack Hill, Jr., v. Slippery Rock University; Slippery Rock University McLachlan Student Health Center; Laura A. Bateman, CRNP; the National Collegiate Athletic Association; Super. Ct. Pa.; No. 180 WDA 2015, 2016 PA Super 96; 2016 Pa. Super. LEXIS 252; 5/3/16
Attorneys of Record: (for plaintiff) Charles L. Becker, Philadelphia. (for NCAA) Lewis W. Schlossberg, Philadelphia.