High School Concussion Case Proceeds

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By Steven M. Sellers

The governing body for Pennsylvania high school sports must face concussion class claims stemming from interscholastic sports in that state, the Pennsylvania Commonwealth Court ruled Oct. 10 ( Hites v. Pa. Interscholastic Athletic Ass’n , 2017 BL 361718, Pa. Commw. Ct., No. 8 C.D. 2017, 10/10/17 ).

The ruling upheld a trial court’s rejection of a multi-prong effort by the Pennsylvania Interscholastic Athletic Association to dismiss negligence claims by Jonathan Hites and three other student-athletes who allege sports-related concussions.

The decision is the latest, and perhaps the broadest, round of litigation over high school sports and the adequacy of scholastic programs employed to prevent and mitigate concussions and other brain injuries.

The appeal could also provide a template for similar suits against interscholastic athletic associations in other states.

The appeals court wasn’t persuaded by PIAA arguments that a state law barred the suits, that youth sports participants assume an inherent risk of brain injuries, and that waiver forms warning of brain injury risks necessarily absolved the association of liability.

It also rejected claims that the plaintiffs couldn’t plausibly argue that their injuries stemmed from PIAA’s action or inaction.

The passage of Pennsylvania’s Safety in Youth Sports Act in 2011—which specifies education, concussion management, and return-to-play standards—wasn’t intended to bar civil suits against the PIAA, the three-judge panel said.

The panel was “skeptical” of Hites’ argument that athletes assumed the risk of head injuries—not schools’ mismanagement of them—but said it was too soon to say whether dismissal was warranted on that “inherent risk” theory.

PIAA also argued it was against public policy to hold it responsible for school-based concussion decisions over which it has no direct control, but here the plausible claim is that its conduct increased the risk to students, the court said.

PIAA fared no better on its argument that the plaintiffs’ alleged concussions were caused by sports, rather than anything the association did.

PIAA’s claimed failures to enforce concussion baseline tests, educate trainers, adopt concussion protocols, and apply return-to-play standards were enough state a case that it was a “substantial factor” in the alleged injuries, the court said.

Judge Robert Simpson wrote the decision, joined by Judges Anne E. Covey and Michael H. Wojcik.

The law offices of Robert Peirce & Associates represented Hites and other plaintiffs.

Gordon & Rees represented PIAA.

To contact the reporter on this story: Steven M. Sellers in Washington at ssellers@bna.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bna.com

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