A traumatic brain injury sustained by a grown adult while accepting the monetary rewards of professional football is one thing. A traumatic brain injury sustained by a public high school football player while under the watch of grown adults is another, and may constitute a federal constitutional claim for “injury as a result of a state created danger,” as demonstrated by the decision issued last week by the U.S. District Court for the Eastern District of Pennsylvania in Mann v. Palmerton Area School Dist. et al, No. 3:14-cv-68, 2014 US Dist LEXIS 97142 (E.D. Pa., July 17, 2014).
The high school football player in Mann was injured during practice when he was hit by a teammate running at full speed. He reported feelings of numbness and disorientation to the coaching staff and his behavior was observed to be erratic. Nevertheless, the coaching staff told the player to finish practice without performing a medical evaluation or concussion testing, and without sending him to the athletic trainer. The player was hit again during that same practice and suffered a traumatic brain injury as a result of the collisions.
According to the court’s decision, approximately five months after the practice, the player “continues to suffer from serious and permanent effects of his traumatic brain injury including: second impact syndrome, slowed motor activity, altered sleep patterns, auditory hallucinations, recurrent headaches and head pain, nausea, dizziness, balance problems, nihilistic delusions, impaired concentration, poor short-term memory, hypersensitivity to light, sounds, and smells, social isolation, difficulty following conversations, episodic aggressive behaviors, impaired peripheral vision, seizure activity, impaired logical reasoning, impaired common sense reasoning, and overall moderate brain dysfunction suggestive of bilateral diffuse axonal injury secondary to a traumatic brain injury” (id. at *6).
The player’s parents commenced a lawsuit in federal court on his behalf as an incapacitated person against the school, the school district, the board of education, individual members of the school board, the athletic director, and the football coaches, alleging federal due process claims under the Fourteenth Amendment “for injury as a result of a state created danger” and “injury to human dignity and bodily integrity,” as well as a claim under the Pennsylvania Constitution. The defendants moved to dismiss the action. The court denied defendants’ motion to dismiss with respect to all claims except the state constitution claim, thereby allowing the federal constitutional claims to proceed to further litigation.
The court explained that to state a cause of action under the Fourteenth Amendment for injury as a result of a state created danger, the plaintiff must establish that: “(1) the harm ultimately caused was foreseeable and fairly direct; (2) a state actor acted with a degree of culpability that shocks the conscience; (3) a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant’s acts, or a member of a discrete class of persons subjected to the potential harm brought about by the state’s actions, as opposed to a member of the public in general; and (4) a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all” (id. at *12-13 [internal quotations and citations omitted]).
The court in Mann found that plaintiffs’ amended complaint adequately pled facts for each prong sufficient to withstand defendants’ motion to dismiss. Specifically, the court distinguished other concussion-related cases where omissions or mere failure to act by coaches have been found to be non-actionable. According to the Mann court, by establishing affirmative conduct on the part of the coaches in instructing the player to continue to participate in practice after he sustained the first hit, despite observing his condition, “Plaintiffs have sufficiently stated facts that could establish that Defendants acted with a degree of culpability that shocks the conscience” (id. at *17) and “created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all” (id. at *20).
Significantly, the court also found that plaintiffs pled sufficient facts to withstand the motion to dismiss with respect to the claim of municipal liability on the part of the school and school district defendants. The court explained that “[m]unicipal employers, such as school districts, cannot be held vicariously liable for the constitutional violations committed by employers. . . . Instead, municipal liability only attaches when a plaintiff demonstrates an official policy or custom caused the asserted constitutional deprivation” (id. at *21-22 [internal quotation marks and citations omitted]).
The Mann court found that plaintiffs’ amended complaint pled facts sufficient to state a claim of municipal liability by alleging that “Defendants had a policy or custom of failing to medically clear student athletes and failing to enforce and/or enact proper and adequate policies for head injuries” and that “failure to train the coaches on proper procedures and a safety protocol amounts to deliberate indifference to recurring head injuries, a common hazard associated with football” (id. at *25).
If the rash of concussion-related litigation over the last few years were not warning enough, the Mann decision—regardless of the ultimate disposition of the case as it progresses through further litigation—provides further cautionary guidance to schools, school districts, athletic departments, and coaches to make sure to establish—and enforce—appropriate protocols and procedures when the first incident or symptom is observed or reported, to prevent the potentially debilitating repeat collision such as Mr. Mann suffered.