UNNECESSARY ROUGHNESS: COACHES, CONCUSSIONS AND THE CONSTITUTION IN MANN V. PALMERTON AREA SCHOOL DISTRICT

A recent decision by the United States Court of Appeals for the Third Circuit may have coaches checking with their lawyer before deciding whether to allow an injured player to go back into a game or practice. In an alarming decision for public secondary schools, colleges, and universities, the Third Circuit held in Mann v. Palmerton Area School District that “an injured student-athlete participating in a contact sport has a constitutional right to be protected from further harm.”  Consequently, permitting a student-athlete who has suffered a serious injury to continue participating in a practice or game – thereby risking further harm — could violate the United States Constitution, leaving the coach and, by extension, educational entities liable for damages.

The student athlete in Mann was a seventeen-year-old student at Palmerton Area High School, when, on November 1, 2011, he sustained a hard hit to the upper body during football practice.  A number of teammates testified that the plaintiff was dizzy and stumbling around the field after the hit, that they believed he had suffered a concussion, and that they were surprised when the coach told him to continue participating in the practice.  The coach claimed not to have seen the hit, although evidence adduced at the trial-court level seemed to contradict that.  Furthermore, despite denying that he had seen the hit, the coach acknowledged that before sending him back to practice, he had asked the plaintiff whether he was alright.  Approximately twenty plays later, the plaintiff sustained what he told the coach “was the hardest hit he received in playing football.”  As a result of the two violent hits, he suffered a traumatic brain injury.

The trial court entered judgment in favor of the coach on the ground that he had qualified immunity. On appeal, the Third Circuit affirmed the coach’s entitlement to qualified immunity, but not before delineating the reasons why, without immunity, a jury could have found him liable for the student’s injuries.  The appellate court also affirmed the trial court’s finding that the plaintiffs had failed to establish that the school district had a custom or policy that had resulted in the student’s injury.  In short, the case was ultimately decided in the defendants’ favor, but not before the Third Circuit set the stage for future liability in similar cases.  It is, therefore, important to consider the bases upon which the Third Circuit essentially created a new constitutional right for students — and a new obligation for public schools.

In Mann, the court held that knowingly exposing a player to the risk of further injury implicated the student’s “constitutional right to bodily integrity under a state-created danger theory of liability.” This theory derives from the Fourteenth Amendment’s Due Process Clause, which provides that the government shall not “deprive any person of life, liberty, or property without due process of law.”  It consists of four elements:  1) the harm caused by the state actor was both foreseeable and direct; 2) the state actor acted with “a degree of culpability that shocks the conscience”; 3) the relationship between the state and the plaintiff established the plaintiff as a foreseeable victim of the state’s acts; and 4) the state actor affirmatively used his authority in a manner that created a danger to the plaintiff.

In holding that the plaintiffs satisfied the first prong of the state-created danger test, the Third Circuit noted the coach’s testimony that he was trained both to identify the symptoms of a concussion and to err on the side of caution when it came to removing players who were exhibiting concussion-like symptoms. He also admitted that the student’s first hit could have resulted in a “stinger,” a potential concussion symptom.  Nonetheless, the student was returned to practice.  As for the second element, the court noted that in cases which involve “something less urgent than a ‘split-second’ decision but more urgent than an ‘unhurried judgment,’” mere deliberate indifference can constitute “conscience-shocking” behavior, and that the coach’s conduct satisfied that standard.

Regarding the third prong’s requirement that there be a relationship between the state actor and the victim, the court held that “a student-athlete stands in such a relationship with the coaching staff.” Finally, the court held that if the coach were aware of the initial blow and observed possible concussion symptoms, the use of his authority to return the student to practice rendered the student more vulnerable to harm.  In summary, the court held that a state actor – in this case a high school football coach – violates a student’s constitutional right to be protected from further harm when the injured student-athlete is required to be exposed to a risk of harm by continuing to practice or compete.”

As noted, though, the Third Circuit provided the coach with a respite by holding that he had qualified immunity from suit. Qualified immunity is applied when the contours of a legal right are not sufficiently clear that a reasonable official would understand that his actions violated that right.  At the time of the student’s injury, there were no appellate cases that had established the constitutional right that Mann was in the process of creating.  Consequently, “it was no so plainly obvious that requiring a student-athlete, fully clothed in protective gear, to continue to participate in practice after sustaining a violent hit and exhibiting concussion symptoms implicated the student athlete’s constitutional rights.”

What Does It Mean?

With its decision in Mann, the Third Circuit has put public school districts, as well as public colleges and universities, on notice that when a student-athlete has suffered a serious injury in a contact sport, the days of “put me back in the game, coach” are over.  The coach in Mann was given a pass due to the absence of any legal authority that would have been deemed even constructive notice that his actions were unconstitutional.  Now that in Mann the Third Circuit has created the precedent that previously was lacking, other coaches will not be so lucky.  Consequently, coaches must exercise great caution when dealing with injured students, not only for the athletes’ well-being, but for their own benefit as well.

Furthermore, coaches are at greater risk for liability than the educational entities, as the entities would only be liable for the coaches’ constitutional torts if they had established a custom or policy of permitting injured athletes to be placed back into harm’s way. Nonetheless, public schools should ensure that they both have and enforce policies with respect to the use of injured student-athletes in contact sport games and practices.  In states such as Connecticut, which have established concussion protocols for their public schools, it is imperative that school districts – and their coaches – comply with them.  The failure to do so could serve as a basis for a claim that the schools had established such a custom – even through deliberate indifference — leaving themselves open to liability.