By Oliver Canning
The Louisiana Fourth Circuit Court of Appeal recently upheld the dismissal of a lawsuit brought by former Tulane University swimmer Ashley Carollo, who claimed the school was responsible for injuries she sustained during a 2021 swim practice. Carollo alleged she suffered a traumatic brain injury (TBI), along with neck and spinal damage, due to Tulane’s gross negligence and breach of contract.
The incident occurred when an assistant coach instructed her to perform a backstroke drill “that involved landing on a yoga mat placed on the surface of the pool.” Despite expressing that she did not feel safe, Carollo ultimately participated and struck the yoga mat with her body, immediately experiencing concussion symptoms including severe head pain and disorientation. She reported the incident to her coaches but was told to continue practicing for nearly an hour before taking a bus back to campus, during which she claims she could “barely keep her eyes open.”
Upon returning to campus, Carollo met with an athletic trainer, reporting her symptoms and scoring significantly below baseline on a concussion test. A few days later, she was treated by Tulane medical staff, including Dr. Gregory Stewart, who allegedly told her she “had a brain in there” before clearing her to return to practice and refusing to discuss her MRI results further. Among her claims, Carollo asserts that this return to activity was premature and that Dr. Stewart failed to properly diagnose and treat her condition.
Carollo filed suit in February 2023—over a year after a different doctor, consulted in August 2021 following a second head injury, informed her that Tulane’s care had fallen below the standard of care. Tulane argued the claims were time-barred under the one-year statute of limitations for delictual (tort) actions under La. C.C. art. 3492 and that no valid contract had been breached. The trial court agreed, granting Tulane’s exceptions of prescription and no cause of action.
On appeal, Carollo contended that the Concussion Education Form she signed (in which athletes waive the right to pursue concussion claims against the university) constituted a valid contract under La. C.C. art. 1906, as it purportedly extinguished Tulane’s duty of care. She also argued that the doctrine of contra non valentem—which delays prescription for plaintiffs unaware of the facts underlying their claims or unable to act—should apply.
In response, Tulane maintained that the Concussion Education Form was not a valid contract and emphasized the high bar for invoking contra non valentem. The appellate court sided with Tulane, ruling that the form did not create, modify, or extinguish legal obligations and thus failed to meet the definition of a contract under La. C.C. art. 1906. The court also held that Carollo had not shown exceptional circumstances preventing her from filing suit after discovering Dr. Stewart’s substandard care and therefore could not rely on contra non valentem to extend the filing deadline.
While Carollo may pursue further appeal, Tulane prevails for now. The ruling by the Louisiana Fourth Circuit underscores the importance of timely filing and the limited applicability of the contra non valentem doctrine that suspends prescription—serving as a potential warning to future injured athletes who may consider legal action after receiving dissatisfactory care from their school.
