Transcript SCHOOL ATHLETICS AVOIDING LIABILITY August ____, 2014

SCHOOL ATHLETICS
AVOIDING LIABILITY
Walled Lake Athletic Conference
Friday, August 8, 2014
WLN High School
Presented by:
Kevin T. Sutton
Attorney, Lusk & Albertson
Download presentation at:
www.LuskAlbertson.com/WLAC2014
PRESENTER INFO
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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
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Breach of Contract
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Constitutional Violations
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Statutory Violations
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NEGLIGENCE
neg·li·gence
Negligence is Defined As:
1.
2.
The failure to take proper care in doing something
The result of which causes damage or injury to
another
Legal Elements =
Duty, Breach, Causation, Damages
EXAMPLES OF NEGLIGENCE
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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
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Rooted in Government Tort Liability Act (GTLA)
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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
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If you are grossly negligent, you are NOT protected
GROSS NEGLIGENCE
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Two Part Analysis:
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Conduct So Reckless So As To Demonstrate A
Substantial Lack Of Concern For Whether An Injury
Results
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Conduct Was The Proximate Cause Of The Harm
TOUGH STANDARD TO MEET
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Jefferson Middle School –
Supreme Court of Michigan
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Wrestling coach takes down
unsuspecting wrestler, breaking
wrestler’s arm
No Gross Negligence, No
Liability
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Leonard Cry –
Michigan Court of Appeals
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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
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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
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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
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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
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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 GUIDANCE
TO AVOID LIABILITY
INJURY 101
The Basics
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All athletes must have a physical on file to participate
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When In Doubt, Call 9-1-1 – especially for head injuries
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Listen to the Trainer – authority to restrict athlete’s participation
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Where emergency treatment is required, make immediate and personal
contact with parents
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Doctor’s Note Out – Doctor’s Note In
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Check with your district to see if injury forms are required
HYDRATION - HAVE A PLAN
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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
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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:
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June 30, 2013
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Michigan 39th state to enact concussion law
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Applies to not just coaches and gym teachers, but to all adults working with a youth
athletic activity.
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Online training.
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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
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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
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Knowledge hazing is occurring
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Only minimal knowledge required
School exhibits deliberate indifference
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School must make reasonable attempts to stop
behavior
HAZING EXAMPLES
Coopersville Area Public School District
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Two students were singled out and repeatedly “hazed”
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“Shark Bait”
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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
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Lawsuit and settlement of over $150,000
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HANDLING HAZING
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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
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Be Old Fashioned
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Don’t “friend” players
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Keep your social media profile private
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Carefully consider what pictures and thoughts to
post/blog
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Only send texts that you would share with the student’s
mother and principal
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*Remember, everything is discoverable!
CASE STUDIES
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Grand Ledge, MI 2012
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High school swimming
coach became Facebook
friends with one of his
swimmers.
Highly inappropriate
conversation ensued
Terminated and charged
criminally.
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Orlando 2012
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Philadelphia, 2012
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Florida, 2011
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“Teacher of the Year” post
on FB her thoughts on
marriage equality
Terminated
High school basketball
coach sends sexual text
message to female student
Coach is 20 years old.
Terminated
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Teachers post on “blog”
that students are “lazy
whiners”
Terminated
QUESTIONS?
Kevin T. Sutton
40950 Woodward, Suite 350
Bloomfield Hills, MI 48304-5129
Direct: (248) 988-5695
Cell: (734) 377-7400
Email: [email protected]