SCHOOL ATHLETICSAVOIDING LIABILITY

Walled Lake Athletic Conference

Friday, August 8, 2014WLN High School

Presented by:Kevin T. Sutton

Attorney, Lusk & Albertson

Download presentation at:www.LuskAlbertson.com/WLAC2014

PRESENTER INFO

Attorney with law firm of Lusk & Albertson

Exclusively represent school districts and district personnel

Specialty is litigation … lawsuits Filed against school districts Filed against individual school employees,

including coaches State and federal courts

WHY DO PEOPLE GET SUED?

Criminal Activity Breach of Contract Constitutional Violations Statutory Violations

NEGLIGENCE

neg·li·gence

Negligence is Defined As:

1. The failure to take proper care in doing something

2. The result of which causes damage or injury to another

Legal Elements =Duty, Breach, Causation, Damages

EXAMPLES OF NEGLIGENCE

Failure to Properly Supervise (students, coaches)

Failure to Warn (of risks, dangerous conditions)

Failure to Provide Proper and Safe Equipment and Facilities

Failure to Offer Proper Instruction Failure to Properly Condition

GOOD NEWS:

IMMUNITY HAS YOU COVERED

Governmental Immunity

Rooted in Government Tort Liability Act (GTLA)

Acts taken in furtherance of a governmental function are IMMUNE from negligence lawsuits

This immunity extends to public school athletic programs and coaches

Immunity does not apply to acts of GROSS NEGLIGENCE

If you are grossly negligent, you are NOT protected

GROSS NEGLIGENCE

Two Part Analysis:

Conduct So Reckless So As To Demonstrate A Substantial Lack Of Concern For Whether An Injury Results

Conduct Was The Proximate Cause Of The Harm

TOUGH STANDARD TO MEET

Jefferson Middle School – Supreme Court of Michigan– Wrestling coach takes down

unsuspecting wrestler, breaking wrestler’s arm

– No Gross Negligence, No Liability

Leonard Cry –Michigan Court of Appeals– Football coach – Detroit– Fight breaks out in weight

room– Coach says, “let them fight”– Injuries are sustained– No Causation, No Liability

Dryden Community Schools – Michigan Court of Appeals– Girls Volleyball– Player injures back while

doing pushups– Sues coach and District for

Gross Negligence– Coaches Were Acting

Reasonably, No Liability Ecorse –

Michigan Court of Appeals– Track coach sets up hurdles

in school hallway– Freshman injures leg– Coach “manipulates” leg

and tells student to “walk it off”

– Hurdles in hallway – No Gross Negligence

– Treating injured student without medical assistance – Gross Negligence!!!

SO …WHAT’S THE PROBLEM???

TWO STORIES.TWO

OUTCOMES.

JEREMY TARLEA

High School Football – Saline, MI 14 Years Old 71 degrees Summer football camp Regular water breaks Two minute break between each exercise Optional 1.5 mile run at the end of practice Jeremy’s body temperature reached 108°F at the

hospital Judgment in favor of the District – No Gross

Negligence Tarlea v. Crabtree

Simply alleging that an actor could have done more is insufficient under Michigan law because, with the benefit of hindsight, a claim can always be made that extra precautions could have influenced the result. However, saying that a defendant could have taken additional precautions is insufficient to find ordinary negligence, much less recklessness. Even the most exacting standard of conduct, the negligence standard, does not require one to exhaust every conceivable precaution to be considered not negligent. The much less demanding standard of care – gross negligence – suggests, instead, almost a willful disregard of precautions or measures to attend to safety and a singular disregard for substantial risks. It is as though, if an objective observer watched the actor, he could conclude, reasonably, that the actor simply did not care about the safety or welfare of those in his charge.

MAX GILPIN

High School Football – Kentucky 15 Years Old 94 Degrees Fahrenheit Coach is mad after bad day at practice Nine 200 Meter Sprints Collapses at 5:45 p.m. Ambulance Called at 6:17 p.m. Max’s Body Temp Reached 109°F. $1.5 million settlement Coach is criminally tried

“What we’re talking about is coaches entrusted with the care of children. This kid was 15. And 15 year-olds aren’t always the most cautious people. They want to please their coach and their parents and show off to their teammates. So a reasonable person should know about the limitations of a high school athlete, and should know that a kid might not necessarily ask for water if he’s being told not to.”

PRACTICAL GUIDANCETO AVOID LIABILITY

INJURY 101

The Basics All athletes must have a physical on file to participate When In Doubt, Call 9-1-1 – especially for head

injuries Listen to the Trainer – authority to restrict athlete’s

participation Where emergency treatment is required, make

immediate and personal contact with parents Doctor’s Note Out – Doctor’s Note In Check with your district to see if injury forms are

required

HYDRATION - HAVE A PLAN

Consult Physician and/or Expert Design a Safe Practice Schedule Design an Emergency Response Plan Pre-Season Meeting with Coaches Re:

Practice Schedule Gradually condition players/Be Smart! Know your players’ individual ability www.mhsaa.com for more info!

CONCUSSIONS

62,000 concussions sustained each year in high school football

Among girls’ sports, soccer accounts for the most concussions, followed by lacrosse (MedStar Health Institute, Baltimore)

Changes in the Law:– June 30, 2013– Michigan 39th state to enact concussion law– Applies to not just coaches and gym teachers, but to all

adults working with a youth athletic activity.– Online training.– Educational materials to parents and student athletes.

MHSAA CONCUSSION PROTOCOL

Any athlete who exhibits signs, symptoms, or behaviors

consistent with a concussion shall be immediately removed from the contest and shall not return to play until cleared by

an appropriate health care professional

PROTOCOL – SPECIFICS

Know the signs – www.mhsaa.com School’s designated health care

professional responsible for initial evaluation/diagnosis – officials will not diagnose, only alert.

Concussed athlete may not return to athletic field the same day as the concussion.

Concussed athlete may not return to athletic field on any subsequent day without written clearance from MD or DO.

HAZING

LEGAL STANDARD FOR SCHOOL’S LIABILITY

Knowledge hazing is occurring– Only minimal knowledge required

School exhibits deliberate indifference– School must make reasonable attempts to

stop behavior

HAZING EXAMPLES

Coopersville Area Public School District Two students were singled out and repeatedly “hazed” “Shark Bait” Behavior included– Slapping victim’s stomachs– Inserting fingers into rectum– Placing bare buttocks in face of victims– Slapping genitals Coaches knew of behavior and encouraged it Lawsuit and settlement of over $150,000

HANDLING HAZING

ZERO TOLERANCE POLICY Create team-orientated culture. Watch

for cliques within the team. If coach witnesses hazing or suspects

hazing, act immediately to intervene. Engage athletic director or principal as

necessary.

SOCIAL MEDIA

Facebook– 1 billion users– 250 million photos are uploaded daily– 425 million mobile users– 2.7 billion “likes” per day

Twitter– 465 million accounts– 1 million accounts are added daily

Linkedin– 2 members join every second– Fastest growing demographics are students and

recent college grads– 2011 revenues exceeded $522 Million

RULES TO LIVE BY

Be Old Fashioned– Don’t “friend” players– Keep your social media profile private– Carefully consider what pictures and

thoughts to post/blog– Only send texts that you would share with

the student’s mother and principal– *Remember, everything is discoverable!

CASE STUDIES

Grand Ledge, MI 2012– High school swimming

coach became Facebook friends with one of his swimmers.

– Highly inappropriate conversation ensued

– Terminated and charged criminally.

Florida, 2011– “Teacher of the Year”

post on FB her thoughts on marriage equality

– Terminated

Orlando 2012– High school basketball

coach sends sexual text message to female student

– Coach is 20 years old.– Terminated

Philadelphia, 2012– Teachers post on

“blog” that students are “lazy whiners”

– Terminated

QUESTIONS?

Kevin T. Sutton40950 Woodward, Suite 350

Bloomfield Hills, MI 48304-5129

Direct: (248) 988-5695Cell: (734) 377-7400

Email: KSutton@LuskAlbertson.com