Third Circuit Affirms Lower Court, Denying Relief to Parents of Concussed Football Player

Oct 13, 2017

The 3rd U.S. Circuit Court of Appeals has denied the appeal of the parents of high school football player, who sued the school district and the coach after he suffered a traumatic brain injury during practice.
In so ruling, the panel of judges noted that at the time there was no law in place that would hold the district and coach accountable for a decision to re-insert a player in practice before he or she was medically ready.
The decision comes on the heels of a 2016 decision by a federal judge from the Middle District of Pennsylvania, who granted the motion to dismiss brought by the Palmerton Area School District and employee Christopher Walkowiak. The district court found that the parents, Kenneth and Rose Mann, failed to provide sufficient evidence to support their claim that the defendants violated their son’s Constitutional rights as well as protections afforded by the “state-created danger” theory of liability. In addition, it found that the Walkowiak was entitled to qualified immunity.
The son in the case was Sheldon Mann, a student at Palmerton Area High School, where he participated in the school’s football program beginning in July of 2008.
On November 1, 2011 Mann was participating in football practice at the high school when he was hit by a teammate running full speed toward him. After the hit, he reported feelings of numbness and/or disorientation to the coaching staff, and his behavior became erratic. Immediately after the incident, the coaches told Mann to continue practicing, according to the complaint. They also allegedly failed to perform a medical evaluation, concussion test, or send him to the athletic trainer.
Later, during the same football practice, Mann was hit again, causing him to be confused, dazed, and unable to continue practice. Mann was taken to the school’s trainer thereafter, but could not provide complete information to the trainer regarding the two hits he sustained, according to the complaint.
The court noted that at the time of the incident, the district was using a series of policies and procedures outlined in its 2011-2012 Athletic Handbook (Handbook) to inform the coaches and parents about the district’s policies, procedures, rules and regulations, and general guidelines relating to its athletic program. The Handbook outlines several policies requiring, inter alia, the exclusion of any player from play who has suffered injury or illness until that player is pronounced physically fit by a physician. The Handbook also details the duties and responsibilities of various employees in the athletic program, including the head coach, who is required to inform the athletic trainer of any injuries that occur during practices or games. Additionally, the Handbook contains a separate section dedicated to the proper handling of injured players. The procedures outlined in this section prohibit injured athletes from returning to practice or competition without first being cleared by the athletic trainer. The Handbook does not include any policies or guidelines that specifically address concussions or other head injuries. The district also adopted OAA Orthopaedic Specialists’ concussion policies, though deposition testimony shows that it is unclear if these policies were written out at the time of Sheldon’s incident. It is undisputed that one year after Sheldon’s incident, however, the district had a written concussion policy in place.
The Claim
Specifically, the plaintiffs claimed that Sheldon’s rights were violated as a result of Coach Walkowiak’s “exercise of authority in telling Sheldon to continue participating in football practice after sustaining a hit and exhibiting signs of a concussion.” They also claimed that “Sheldon’s rights were violated as a result of the district’s practice of failing to medically clear student athletes, failing to enforce and enact proper concussion policies, and failing to train the coaches on a safety protocol for head injuries.” On February 1, 2016, the defendants moved for summary judgment, arguing that there is insufficient evidence in the record to establish a state-created danger claim against Walkowiak and a municipal liability claim against the district. The defendants also argued that even if there were sufficient evidence to establish a state-created danger claim, Walkowiak would be entitled to qualified immunity.
In its analysis, the district court relied heavily on case law: “A government official’s conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right. Hinterberger v. Iroquois Sch. Dist., 548 F. Epp’s 50, 52 (3d Cir. 2013) (citing Ashcroft v. al-Kidd, 563 U.S. 731, 131 S. Ct. 2074, 2083, 179 L. Ed. 2d 1149 (2011)). In determining whether a right has been clearly established, the court must define the right with the appropriate level of specificity. Sharp v. Johnson, 669 F.3d 144, 159 (3d Cir. 2012).
“The viability of a state-created danger claim is well-settled. Hinterberger, 548 F. App’x at 52. However, no published opinion of the Third Circuit has found that a state-created danger arises when coaches fail to take certain precautions in athletic practice or in any analogous situation. Id. at 53. In Hinterberger v. Iroquois School District, a cheerleader suffered a severe closed head injury after attempting the ‘twist down cradle,’ a new stunt introduced by her coach at practice in a room without adequate matting. In analyzing whether the coach was entitled to qualified immunity, the Third Circuit explained that although district court opinions ‘may be relevant to the determination of when a right was clearly established for qualified immunity analysis,’ they ‘do not establish the law of the circuit, and are not even binding on other district courts within the district.’ Id. Noting that the district court below relied on district court opinions to find that a right was clearly established, the Third Circuit reversed, and concluded that those cases alone did not place the defendant coach on notice that her actions amounted to a constitutional violation. Id. at 53-54. The Third Circuit emphasized that cases from other courts of appeals also did not support the plaintiff’s claim that her alleged constitutional right was clearly established, and cited to various cases that disagreed as to the applicability of the state-created danger doctrine in the context of schools. Id. at 54 (citing cases). See, e.g., Priester v. Lowndes Cty., 354 F.3d 414, 422 (5th Cir. 2004) (noting that the Fifth Circuit had not adopted a theory of state-created danger and otherwise found no liability for injury sustained to student during football practice). Fully recognizing the tragic nature of the plaintiff’s injury and ‘the fact that more might have been done to prevent it,’ the Third Circuit concluded that the alleged constitutional right was not clearly established at the time of her accident. Hinterberger, 548 F. App’x at 54. The critical portion of the Third Circuit’s analysis in reversing the district court and concluding that the defendant coach was entitled to qualified immunity from suit is directly applicable here:
‘The plaintiff does not cite, and we have not found, any precedential circuit court decisions finding a state-created danger in the context of a school athletic practice. We thus conclude that the plaintiff’s alleged right was not clearly established at the time of her accident.’” Id.
The court administering the instant opinion found the analysis in Hinterberger “instructive.” Further to that point, “because Sheldon’s alleged right was not clearly established at the time of his injury, Walkowiak is entitled to qualified immunity.”
Turning to the school district, the court noted that it “cannot be held vicariously liable for the Constitutional violations committed” by its employees. Monell v. N.Y. City Dep’t of Soc. Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). “Rather, for liability to attach, the plaintiffs must show that the violation of their rights was caused by a policy, custom, or practice of the municipality. … Here, the plaintiffs assert that the district is liable based both on municipal policies and customs that caused Sheldon’s injuries.”
The court found no such policy or custom. “The evidence shows that shortly after Sheldon’s injuries in November 2011, the defendants began discussing how to address concussions and what protocols should be put in place.”
Additionally, the court noted that the plaintiffs “have also failed to establish causation because even if the School District did have a concussion policy or protocol in place, it likely would not have had any effect on the situation because the plaintiffs have pointed to no evidence that Walkowiak actually believed that Sheldon was suffering from concussive symptoms. Accordingly, the plaintiffs have failed to adduce sufficient evidence for their municipal liability claim.”
The Appeal
On appeal, then panel of judges pointed out that there is considerable dispute about the circumstances, or whether Walkowiak knew Mann was injured when he could keep practicing.
Furthermore, while conceding that “an injured student-athlete participating in a contact sport has a constitutional right to be protected from further harm,” the panel noted that there is a “difficult question of whether this right was clearly established in November of 2011.
“We are aware of no appellate case decided prior to November of 2011 that held that a coach violates a student’s constitutional rights by requiring the student to continue to play” in circumstances comparable to the instant case.
Furthermore, it noted that there is no evidence of a “recurring pattern” of head injuries in the school district, or that Walkowiak deliberately exposed injured players to harm.
“Given the state of the law in 2011, it cannot be said that Walkowiak was ‘plainly incompetent’ in sending Sheldon in to continue to practice after he saw Sheldon rolling on his shoulder and being told by Sheldon, ‘I’m fine’,” the panel wrote. “Nor is there any basis for concluding that he knowingly violated Sheldon’s constitutional rights.”


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