SCHOOL ATHLETICS AVOIDING LIABILITY

1. SCHOOL ATHLETICSAVOIDING 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

2. 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

3. WHY DO PEOPLE GET SUED? • Criminal Activity • Breach of Contract • Constitutional Violations • Statutory Violations • NEGLIGENCE

4. neg·li·gence Negligence is Defined As: • 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

5. 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

6. 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

7. 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

8. 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!!!

9. SO …WHAT’S THE PROBLEM???

10. TWO STORIES.Two outcomes.

11. 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

12. 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.

13. 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

14. “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.”

15. Practical guidanceto avoid liability

16. 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

17. 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!

18. 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.

19. 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

20. 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.

21. 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

22. 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

23. 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.

24. 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

25. 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!

26. 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

27. QUESTIONS? Kevin T. Sutton 40950 Woodward, Suite 350 Bloomfield Hills, MI 48304-5129 Direct: (248) 988-5695 Cell: (734) 377-7400 Email: KSutton@LuskAlbertson.com