Tort liability in high school sport.

Everything you ought to know about sports-related

litigation
Ever since the case of Vendrell v School Dist. No. 26C,
Malheur Co. - the earliest court case involving the coach's
responsibilities in interscholastic contests (Lenich, 1987) -
sports-related litigation has made a dramatic impact on
the high school scene.
Richard Borkowski, Director of Physical Education and
Athletics at the Episcopal Academy in Merion, PA, refers to this phenomenon as the "lottery
mentality," with the litigants attempting to win big money through the courts.
It will clearly behoove everyone involved in interscholastic sports to understand the nuances of tort
liability and its relationship to the coaching profession.
A tort is defined as a legal injury or wrong committed upon a person or property. The three
categories of torts are intentional torts, strict liability torts, and, most common, negligence torts
(Shoop, 1990).
Two historical cases of intentional tons are: Rutledge v. Arizona Board of Regents, 660 F. 2d 1345
(9th Cir. 1981) and Hogenson v. Williams, 542 S.W. 2d 456 (Tex. Civ. App. 1976).
Rutledge, a punter on the Arizona State football team, claimed that Coach Frank Kush took his
helmeted head between his hands, shook it from side to side, yelled obscenities, and then struck him
in the mouth with his fist. Rutledge sued Kush for assault and battery, demotion, harassment,
embarrassment, defamation, and deprivation of his scholarship. The state court of Arizona ruled for
Kush.
On appeal to the Ninth Circuit Court of Appeals, the court dismissed the assault and battery
complaint because it had already been litigated in state court. The complaint based on the
deprivation of scholarship was dismissed because Rutledge was held to have no right to maintain his
position on the team. The court also held that his intercollegiate participation was not a protectable
property right (Berry and Wong, 1986).
In the Hogenson case, an assault charge was brought against a junior high school football coach
who, displeased with a seventh grader's blocking, grabbed him by the facemask and flung him to the
ground. The player suffered a severe cervical sprain. The jury found for the defendant, but on
appeal, the case was reversed and remanded.
The case produced an interesting interpretation: While teachers or coaches can use necessary force
to gain compliance to commands and to punish students for prohibited behavior, they cannot use
force because they are displeased with student performance (Berry and Wong, 1986).
NEGLIGENCE: THE MAIN CHARGE
As previously stated, negligence is the most common tort suit filed against coaches. Negligence
occurs when a coach fails to act as a reasonable and prudent person would act in a similar situation
(Nygaard, 1985).
An important element in determining negligence is failing to anticipate and eliminate unreasonable
risks of injuries that a reasonably prudent person would have anticipated and eliminated (Lenich,
1987). This has been termed the doctrine of "foreseeability."
To determine negligence in the case of a coach, four basic questions will be asked:
1. Do you owe the players a duty?
2. Was the duty breached?
3. Was your breach of duty responsible for the player's injuries?
4. What is the extent of the actual injury or damage?
For negligence to be established, all four of these questions must be answered in the affirmative
(Nygaard, 1985).
In the coaching profession, it can be assumed that, yes, we do owe the players a duty. Generally, the
pivotal question becomes whether or not the duty was breached (negligence).
To determine negligence, three general areas are examined: proper instruction, proper supervision,
and proper maintenance. The courts have broken down the coaches' duties into seven subdivisions
of the three general areas: sound planning, inherent risks (proper instruction); adequate
supervision, matching and equating opponents, evaluating athletes' disabilities (proper supervision);
safe playing environment (proper maintenance), and emergency first-aid procedures (Nygaard,
1985).
These critical areas can be addressed through several court cases that have specific application to
both extracurricular coaching and physical education classes. Most of the interscholastic cases cited
will deal with football - no great surprise because of the nature of the game and the large
settlements evolving from injury sustained in it.
PROPER INSTRUCTION
Two cases which address the issue of proper instruction in two specific areas - sound planning and
inherent risk - include Larson v. Indep. School Dist. No. 314 and Braham and Thompson v. Seattle
School Dist. No. 1.
In the Larson case, an eighth-grader broke his neck while attempting to perform a head spring. The
plaintiff showed that there was no reasonable progression of instruction in the preliminary
gymnastics exercises leading up to the running head spring as outlined in the curriculum guide, and
therefore the instructor was negligent (Lenich, 1987).
The Thompson case addressed the issue of warning the players of the inherent risk associated with
football. Thompson, a 15-year-old running back, caught a pass on the sideline and attempted to
lower his head and run through an approaching tackler. The tragic consequence was a severed
spinal cord and quadriplegia.
In the court case which followed, it was shown that the coach had informed his players to keep their
head up when they are running. He did not, however, tell them how to meet a tackler and did not
warn them of the dangers of making initial contact with the head.
The jury ruled that the coach was negligent because he had not warned the player of the inherent
risks and awarded the plaintiff 6.4 million dollars, which was later reduced to 4 million dollars
before appeal (Lenich, 1987).
One area that has never, or seldom, been discussed but which I believe could be the basis of future
litigation, is the source of the techniques taught to athletes by their coaches.
To a large degree, a "trickle down" theory can be observed in athletics, particularly in recent rule
changes.
In basketball, the professionals introduced a three-point shot that was picked up by the colleges and
then the high schools.
In professional football, the offensive linemen have been allowed to use their hands in pass
protection for years. The rule then trickled down to the colleges and high schools.
Coaching techniques have trickled down in the same fashion as rule changes. College coaches often
look to the pros for new ideas in technique and strategy, high school coaches seek information from
college coaches, and junior and youth coaches go to the high school coach.
During my football career in southwestern Pennsylvania, I was influenced by the coaching
philosophy of the legendary Woody Hayes. The one phrase of his that burned into my mind was
"nose on the numbers" - driving the helmet into the opponent's numbers.
At the time, many of us recognized the lack of commonsense in that approach, but, in our effort to
please our coaches, we never questioned it. (Upon retrospect, I realized just how dangerous that
technique could be.)
Although the National Federation changed the rule since that time, I am not quite sure that
everyone is aware of it. Just a few years ago, I attended a clinic at one of the premier college football
powers, and I was shocked to hear an inside linebacker coach say that he had changed his technique
in meeting a block from the opposing guard. Instead of the traditional shoulder-forearm technique,
he was teaching "hats and hands;" that is, meeting the guard head to head with the "hat" (helmet)
and hands.
He explained that the new technique enabled his linebacker to play off the block in either direction
with equal facility. I was particularly distressed that "hat" came first in his phrasing. It would have
been bad enough if he had said hands and hats.
Much to my chagrin the numerous high school coaches were actually writing this down as if it were
the word from a deity above!
PROPER SUPERVISION
Along with the general duties associated with supervision, one which is specifically asked of coaches
is to match and equate opponents in a common-sense manner (Nygaard, 1985). Most of the time we
think of this as matching by size; not pairing a 100-lb. player and a 180-lb. player for a tackling drill.
What must also be considered is experience. The freshman 119-lb. wrestler is generally not an
acceptable practice opponent for the senior 119-lb. State Champion.
In the case of Brooks v. Bd. of Educ., a seventh-grader was injured in a gym class during a game of
line soccer. The suit claimed that a physical mismatch was created by the negligent pairing of the
students. The court ruled for the plaintiff, saying that the pairing for such a "hazardous" game
should have been more closely supervised (Lenich, 1987).
In Pirkle v. Oakdale Union Grammar School Dist., a student injured in a school-sponsored touch
football game between seventh and eight-graders was unsuccessful in seeking damages. The court
ruled that touch football is not an inherently dangerous game.
Another aspect of these cases that must be recognized is that when dealing with juries, the
determination of danger and hazard is quite subjective (Lenich, 1987).
While a football coach cannot match players for games, he can attempt to ensure proper matching in
his practice drills. Otherwise, he will be opening the door for litigation.
PROPER MAINTENANCE
Coaches are required to provide a safe playing environment for practices and games, including both
the site and the equipment. The case of Leahy v. School Bd. of Hernando Co. could have been
avoided had a little commonsense been exercised in the choice of site and equipment.
Leahy, a high school football player, was not issued a helmet for practice because his head could not
be properly fitted. He was, however, permitted to participate. During a "non-contact" agility drill, he
bumped heads with a helmeted opponent, shattering his teeth. The court ruled for the plaintiff.
The case of Tieman v. Ind. School Dist. No. 740 is interesting because of the rationale used as a
defense and its subsequent rejection.
A girl was injured while vaulting over a pommel horse whose handles had been removed, leaving the
holes exposed. The student caught a finger in one of the exposed holes, lost her balance, fell, and
was injured.
The instructor argued that leaving the holes exposed was common practice. The court rejected this
argument, stating that "common practice" does not legitimize it as prudent conduct (Lenich, 1987).
The ease with which the risk could have been eliminated by either plugging or taping over the holes
played an important part in the court's decision.
EMERGENCY FIRST-AID
Emergency first-aid procedures pertain to all educational personnel, but particularly so to coaches,
as the incidence of injury in athletics is much greater than it is in the classroom. Which means that
the coach must be well-prepared and extremely careful in dealing with injury situations.
Two areas are cited in the emergency first-aid area: The appropriateness of the care and the timely
implementation of care.
In Welch v. Dunismur Joint Union H.S. Dist., the central issue was improper medical assistance. A
football player was injured while being tackled. The coach, suspecting a neck injury, asked the
player to move his fingers and to grip the coach's hands, which the player could do. The player was
then moved by eight teammates to the sideline, at which point he could no longer move his hands or
feet.
Medical testimony indicated that the improper moving of the player (not using a stretcher) was a
contributing factor to the quadriplegia (Kaiser, 1986).
Mogabad v. Orleans Parish School Board is the case most often cited in this areas area of
negligence. During football practice, the plaintiff staggered to the sideline and became faint. Upon
arrival at the school, the player was given a warm shower and covered with a blanket.
His mother was summoned about two and one-half hours after he first showed signs of heat
exhaustion. About a half hour after the physician arrived, the boy was rushed to the hospital where
he died the next morning.
The two issues addressed were improper first-aid care and the lack of timeliness of the care (Kaiser,
1986).
Coaches are often forced to deal with an injured player without qualified medical personnel being
immediately available. Coaches who attempt to diagnose beyond their scope of experience are
putting themselves at risk.
The best course of action is to provide the quickest and best first-aid available until a licensed
physician arrives.
Conclusion. In this day of litigation and contingency fees, it is vitally important for coaches to be
aware of the extent of their responsibilities and how to safeguard themselves from legal action.
The one word I continue to encounter is "commonsense." Coaches must use it in designing their
programs and dealing with athletes. It will greatly improve their chances of avoiding tort liability
suits.
BIBLIOGRAPHY
* Herb Appenzeller (1985): Sports and Law: Contemporary Issues, Charlottesville, VA: The Michie
Co.
* James A. Baley and David L. Matthews (1984): Law and Liability In Athletics, Physical Education,
and Recreation, Newton, MA: Allyn and Bacon.
* Robert C. Berry and Glenn M. Wong (1986): Law and Business of the Sports Industries (Vol. II),
Dover, MA: Auburn House.
* Eugene C. Bjorklun: "Assumption of Risk and Its Effect on School Liability for Athletic Injuries."
West's Education Law Reporter, Vol. 55.
* Richard Borkowski: "From the Bench: Duty to Offer Proper Instruction." Coaches Legal Report,
December 1985.
* Andrew Grieve (1969): The Legal Aspects of Athletics Cranbury, NJ: A.S. Barnes.
* Ronald A. Kaiser (1986): Liability and Law in Recreation, Parks and Sports Englewood Cliffs, NJ:
Prentice Hall.
* John P. Lenich: "One Strike and You're Out: An Overview of Negligence and High School Athletics."
West's Education Law Reporter Vol. 40.
* Gary Nygaard and ThOmas H. Boone (1985): Coaches Guide to Sport Law, Champaign, IL: Human
Kinetics.
* Robert J. Shoop (revised 1990): Kansas School Law: A Principals Survival Guide Manhattan, KS:
Kinkos Copies.
* Raymond L. Yasser (1985): Torts and Sports, Westport, CT: Quorum Books.
Mark A. Neish Athletic Director Marysville (KS) High School
COPYRIGHT 1996 Scholastic, Inc.
No portion of this article can be reproduced without the express written permission from the
copyright holder.
Copyright 1996, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.