By Mark Walsh
September 22, 2017
A federal appeals court has ruled that coaches or other school personnel may be liable when they expose student-athletes to further harm by having them return to play after a suspected concussion.
The unanimous decision by a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, is significant amid the growing concern about concussions in football and other youth sports.
But that holding did not help revive the legal claims of a Pennsylvania high school football player who experienced two separate "helmet to helmet" hits during a practice and later suffered traumatic brain injury.
The appeals court said it was not clearly established as of late 2011 that a coach violates a student's constitutional right to be free from state-imposed bodily harm by requiring the student to continue to play after showing signs of a concussion.
"No case has been called to our attention where a state-created danger was established after a student-athlete was required to continue to compete after sustaining a substantial hit, the results of which were observed by the coach and could potentially signal a head injury, yet where the student-athlete told the coach that he was fine to continue to play, all of which is the evidence in this case," the 3rd Circuit panel said in its September 21 decision in Mann v. Palmerton Area School District.
Sheldon Mann was a 17-year-old junior at Palmerton Area High School in November 2011 when he was hit and likely experienced what court papers call a "shoulder stinger," when his head went one way and his shoulder another.
At least one teammate testified later that the initial hit left Mann dizzy and stumbling, a sign of a likely concussion. Under protocols in use then, as well as today, such a potentially concussive hit call for a player to not return to play until at least being given a concussion check.
Head coach Chris Walkowiak claims in court papers that he did not see the initial hit to Mann. He asked Mann after the hit if he was all right, to which Mann replied, "I'm fine," court papers say.
About 20 plays later during the practice, Mann suffered another big hit to his upper body, and this time he left the field. As a result, Mann suffered the traumatic brain injury that includes slowed motor activity, altered sleep patterns, auditory hallucinations; recurrent headaches and head pain, nausea, dizziness, episodic aggressive behaviors, impaired peripheral vision, seizure activity, and other symptoms, court papers say.
Mann and his parents sued Walkowiak under the 14th Amendment's due process clause, based on the so-called state-created danger theory of liability. They also sued the Palmerton district, claiming its policies and customs failed to assure that injured student-athletes were medically cleared to resume participation in the sport, failed to enforce and enact proper concussion policies, and failed to train the coaches on a safety protocol for head injuries.
A federal district court granted summary judgment to both defendants.
The 3rd Circuit panel, in its ruling this week, held that a coach at a public school may be held liable where the coach requires a player who shows signs of a concussion "to continue to be exposed to violent hits."
"We hold that an injured student-athlete participating in a contact sport has a constitutional right to be protected from further harm, and that a state actor violates this right when the injured student-athlete is required to be exposed to a risk of harm by continuing to practice or compete," U.S. Circuit Judge Thomas I. Vanaskie wrote for the panel.
However, the court went on to hold that the right it described was not clearly established in 2011, and thus the coach was immune from liability.
As to the municipal-liability claim against the school district, the court rejected the Manns' claims that coaches in the district were not adequately trained on recognizing concussions.
"In this case there is no evidence of a pattern of recurring head injuries in the Palmerton Area football program," the court said. Also, it was significant that the Pennsylvania legislature did not pass a measure requiring that coaches undergo training to recognize concussions until November 2011, with that measure not taking effect until the next year.
"Under these circumstances, there is no basis for concluding that a policy or custom of Palmerton Area [school district] or its failure to provide more intense concussion training to its coaches caused a violation of Sheldon's constitutional rights," the court said.