When a Circuit Court issues a decision that is labeled “Precedential” it should get our attention. Thus I read with interest the decision of the Third Circuit involving an injured football player and a lawsuit against his coach.

The suit alleges that the kid was sent back into a practice after experiencing “a hard hit.”  There was another “hard hit” that resulted in the boy having a traumatic brain injury.  The parents sued the coach and the school district.

The court dismissed the claim against the district.  This was the easy part of the decision.  Case law is very clear that a school district is not legally responsible for every mistake made by every employee. The district would be liable only if the evidence showed that a school district policy or custom actually caused the injury.  That was not the case here, so the district’s Motion for Summary Judgment was granted.

The “precedential” aspect of this decision involves the suit against the coach.  The parent had a heavy burden of proof. Proof of negligence by the coach would not be sufficient. This was a federal court case based on the U.S. Constitution. Thus the parent would have to prove 1) that a constitutional right was at stake; 2)  the harm caused by the coach was foreseeable and fairly direct; 3) that the coach acted with a degree of culpability that “shocks the conscience;” 4) that the football player was a foreseeable victim of the coach’s actions, or at least a member of a discrete class of persons subjected to potential harm, as opposed to a member of the general public; and 5) that the coach affirmatively used his authority in a way that made the player more vulnerable to danger than otherwise.

If the parent successfully cleared all of those hurdles, he had one more: he had to show that the law about this was “clearly established” at the time of the student’s injury.

The court’s decision was based on the coach’s Motion for Summary Judgment—a pre-trial Motion for which the court is required to assume that the allegations in the complaint are true.  Based on that, the court held that the parent had alleged facts that would enable the case to clear all of those hurdles except the last one. The case against the coach was dismissed because the law about this was not “clearly established” in 2011 when the injury occurred.

That is good news for this coach, but a clear warning to coaches today.  A similar fact situation occurring today could lead to personal liability for the coach.  Here are the Key Quotes from the court’s decision:

If a jury concluded that [the coach] was aware of the first blow to [the player’s] head and observed signs of a concussion, the jury could conclude that [the coach] used his authority in a way that rendered [the player] more vulnerable to harm by sending him back into the practice session.

In summary, we hold that there exists a relationship between a student-athlete and coach at a state-sponsored school such that the coach may be held liable where the coach requires a player, showing signs of a concussion, to continue to be exposed to violent hits.  Stated otherwise, 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.

That holding is, in fact, “precedential.” It breaks new ground.  But let’s put it in perspective by making a few important observations.

1. The court is really stretching the concept of “constitutional rights” here.  We know that students have a constitutional right to bodily integrity and that a school employee violates this right by sexually assaulting a student.  But this was an accidental injury suffered in a voluntary activity that the student knew to be risky. I’m not aware of any other court holding that the constitution protects students from football injuries.
2. This holding is based on a legal theory known as the “state created danger” theory. The 5^th Circuit has not accepted this as a viable theory of liability. The court has also not expressly rejected the theory. So this theory could succeed in Texas, but it would have to be the case that convinces the 5^th Circuit that this is a viable theory.
3. The court spends little time explaining why the coach’s decision could be construed as “shocking the conscience.” It’s easy to see how a jury could conclude that the coach made a bad mistake, but “shocks the conscience” is a well known expression in federal court cases, and it usually refers only to intentional, deliberate acts of malice.  This is quite a stretch.
4. Then of course there is the fact that this is a 3^rd Circuit decision, not binding on the courts in Texas, which is in the 5^th
5. The case is going to get a lot of attention around the country. It should. It’s a sign of the times. We take concussions much more seriously now, and have come to understand that the running back  wobbling off the field a bit woozy may be more seriously injured than it appears. So get the word to your coaches. Be careful out there. And cautious.

The case is Mann v. Palmerton Area School District, decided by the 3^rd Circuit Court of Appeals on September 21, 2017.   We found it at 2017 WL 4172055.

DAWG BONE: ASK YOURSELF: HOW WOULD COACH TAYLOR HANDLE THIS?  CLEAR EYES, FULL HEARTS CAN’T MAKE THIS KIND OF MISTAKE