Citing Supreme Judicial Court precedent, the defendants argued that the plaintiff student should be allowed to recover for her injuries only if she could prove that the school and coach were reckless in permitting her to return to the field prematurely after suffering a concussion.
But Judge Peter B. Krupp said negligence was the appropriate standard.
“While the fact that a coach is acting in an athletic competition may affect what the duty of care requires in a game-time setting, the better authority indicates that a player’s own coach must exercise that degree of care of a reasonably prudent coach (i.e., the negligence standard) and may face liability without proof of recklessness,” Krupp wrote in denying the defendants’ motion to dismiss.
As a private school, defendant Thayer Academy may not be subject to the state’s relatively new law regarding head injuries and extracurricular athletics, G.L.c. 111, §222. But in a footnote, Krupp noted that even if the statute “does not apply to Thayer … or does not establish an independent cause of action for its violation … the statute likely affects the duty of care a coach owes to her players to prevent head trauma.”
The four-page decision is Dugan, et al. v. Thayer Academy, et al., Lawyers Weekly No. 12-059-15.
A pervasive issue
In its 1989 decision Gauvin v. Clark, the SJC had a sound “policy rationale” for adopting the recklessness standard for injuries that occur during competition, acknowledged plaintiffs’ attorney Christopher M. Reilly of Boston’s Sloane & Walsh.
Quoting from the Illinois Appeals Court’s decision in Nabozny v. Barnhill, the SJC wrote that “[v]igorous and active participation in sporting events should not be chilled by the threat of litigation.”
However, that chilling effect is less of a concern “after the whistle blows,” which is when the school and its coach truly failed his client, Reilly said.
Defense counsel John J. Davis of Boston’s Pierce, Davis & Perritano said Krupp’s decision “creates an anomaly” by subjecting coaches to a higher standard of care for their own players than opponents.
But Robert J. Humm, a member of the sports law group at Adler, Pollock & Sheehan in Providence, said the judge in Dugan clearly distinguished “the situations of competition between opposing players and coaches on the field,” and a coach’s duty to care for her own players off the field.
“On the field, we want participants to play hard and without fear of being sued for accidentally injuring another player during the heat of a game,” he said.
Off the field, the issue is not competition but a coach’s responsibility for player safety, Humm said. Coaches owe a duty of care to their players to keep them safe, which includes evaluating their capability to step onto the field and compete. That is especially the case in relation to head injuries, he said.
Steven H. Schafer, a Needham lawyer who handles sports-injury litigation, said he was not surprised the defense in Dugan argued that the higher recklessness standard should apply.
“Defendants always want to extend immunities beyond their intended purpose,” he said. “Judge Krupp’s decision correctly limits the application of the recklessness standard to opposing players and coaches for injuries sustained during sports competition.”
A rapidly evolving body of research on the health consequences of concussions prompted the Legislature to pass what became G.L.c. 111, §222 in 2010. The law requires anyone involved in extracurricular competition conducted under the auspices of the Massachusetts Interscholastic Athletic Association to undergo head-injury safety training.
By fall 2011, regulations were in place mandating that students who had sustained head injuries be removed from practice or play immediately, and cleared by a licensed trainer or medical professional before returning to the field, court or rink.
By now, all players, coaches and parents should be aware of the dangers of concussions, given how publicly the NFL has been grappling with the issue, Schafer said.
“The NFL’s admission last year that football players suffer a high rate of severe brain damage from recurrent concussions should have served as a wake-up call to coaches, trainers and athletic directors at all levels who missed the growing medical evidence on this public health hazard,” he said.
Krupp noted in his opinion that while Thayer Academy was not required to adhere strictly to the state regulations, the school did have a “concussion management protocol” that “called for the involvement and evaluation by a primary care physician, notification of parents, and action by an athletic trainer or nurse.”
If, as the plaintiffs claim, Thayer neglected its own protocol, that could spell trouble for the defendants, said Boston personal injury lawyer Peter V. Belotti.
“Even without that policy, a negligence standard should apply to a coach or school because of the unique position a coach is in,” he said.
Plaintiff Amy Dugan suffered an initial head injury in an Oct. 7, 2011, field hockey game in Concord, New Hampshire.
According to Dugan, the coach saw a ball strike her in the head but did not attempt to determine whether she had suffered a concussion or other injury, and did not remove her from the game.
Dugan attended the team’s practice four days later despite the fact that she had not been evaluated by, or received clearance from, a licensed medical professional.
On Oct. 12, the coach put Dugan on the field, where she collided with an opponent and was struck in the head.
The coach allegedly witnessed the injury but again did not try to determine whether Dugan had suffered an injury as a result and did not remove her from the game.
Neither Dugan’s parents nor school officials were notified about the injury, according to the complaint.
Defense counsel Davis, however, said that once all the facts have been presented, they will tell a much different story.
“Thayer Academy takes athletic injuries very seriously and does not unnecessarily put players’ health or well-being at risk,” he said. “They do have a concussion-management protocol; [her coach] was well trained in it and followed it in this case.”
Opposing parties, opposing precedents
Krupp noted that the parties had each submitted to him prior Superior Court decisions “reaching opposite results.”
The defendants offered Capua v. Town of North Reading, in which Judge Howard J. Whitehead applied a recklessness standard to a case involving a female goalie injured in a scrimmage between the girls and boys high school teams.
Whitehead reasoned that the school officials and coaches “were analogous in function to the nonprofit association, an organizer and sponsor of athletic events” that Judge Peter W. Agnes Jr. had subjected to a recklessness standard in Goodwin v. Youth Sports Association.
The plaintiffs, meanwhile, supplied Torres v. University of Massachusetts, in which a cheerleader was “injured while practicing a high-risk move without adequate spotters.” Judge Thomas P. Billings eschewed the rationale of Gauvin and Kavanagh v. Trustees of Boston University, “because the plaintiff ‘was not engaged in competition at the time of her accident,’ and because ‘the supervision she advocates would not interfere with the activity she was engaged in, even had it been at a game or a cheerleading competition.’”
“Judge Billings did not read the Supreme Judicial Court to be ‘suggesting that willfulness, wantonness or recklessness must be shown in every accident that takes place in or around a sporting event,’” Krupp wrote.
Krupp added that he agreed with Billings’ reading of the SJC decisions.
“Simply because the alleged tortious conduct occurred in connection with the conduct of a sport does not mean the recklessness standard must apply,” he wrote. “This case fundamentally involves allegations involving failure to obtain medical evaluation and care, not the manner and means of competition. Nothing in the heat of competition should release a coach of the obligation to assure a player’s fitness to engage in the particular type of competition or to secure medical assistance as may be needed. Nor should a coach be relieved of the duty to use ordinary care in the sober evaluation between games of whether a player is fit to take the field.”
Dugan, et al. v. Thayer Academy, et al.
THE ISSUE Can a field hockey player who suffered a head injury on the field sue her coach and school for negligence?
DECISION Yes (Superior Court)
LAWYERS Christopher M. Reilly of Sloane & Walsh, Boston (plaintiff)
John J. Davis of Pierce, Davis & Perritano, Boston (defense)