There was a time when it seemed like nothing would stop the increase in football’s popularity in America. However, recent years have involved a better understanding of the serious risk of head injury the sport poses. From the professional leagues down to Pop Warner, there have been studies and anecdotes highlighting the potential dangers. We have a better understanding of concussion and traumatic brain injury occurrences in the sport, leading many parents to disavow the sport, refusing to let their child play.
It is true there is a certain level of assumed risk that comes with playing football. Some may even argue injuries are part of the game. But when serious injuries occur in a football game – or more likely, in practice – the question is who may be held liable?
When courts and legislatures created our system of laws dating back to the British before the United States was even formed, the king, and eventually the civilian government did not want people to be able to sue them. They felt that if there was a constant risk of getting sued, the government could not function efficiently. They had a lot of different jobs to do to take care of the people and they wanted protection while doing those jobs from civil lawsuits. The functions that a government must do like provide police protection, fire protection, provide free public school, and build roads for example are known as sovereign functions.
On the other hand, if the government is participating in the marketplace and doing something to make money, this is called a proprietary function. There is immunity to a certain extent for sovereign functions, and that is the doctrine of sovereign immunity, but there is no doctrine of proprietary immunity.
Chapter 258 allows for civil personal injury lawsuit to be filed against public employers for negligent conduct of their employees so long as the acting within the scope of their employment. This means that if a person was working at his or her government job and committed a negligent tort, that person’s employer could be sued for the employee’s negligence. However, the employee him or herself is typically immune from being held liable. This means they may be named in the lawsuit but will not be responsible for any damages to the plaintiff personally even though they may be the sole person who caused those damages. There is one exception to this as we have discussed and that involves a situation where the employee committed an intentional tort against the plaintiff.
An example of this would be if a school teacher intentionally struck a student. In this case, we would not be dealing with negligence on behalf of the employee. Negligence involves a defendant who owed a duty of due care to a plaintiff and breached that duty of due care, and that breach caused damages to plaintiffs. The duty is a duty to act a reasonable and prudent person so as to prevent a foreseeable injury to foreseeable persons and property. The breach is caused by failure to act in a such a reasonable and prudent manner.
Conversely, an intentional tort is, as the name implies, an intentional act that causes harm to another. For example, a tortious battery is defined as a harmful or offensive touching of another without permission. In our example where the teacher punched that student, this would be the tort of battery and the teacher could be held liable under the MGL. However, it should be noted that if the tort involved a federal employee, we would also have to look at the Federal Tort Claims Act (FTCA).
When we look at this in the context of student head injuries in youth sports, there are, as we all know, some accidents that cannot be avoided. However, the negligent conduct does not always involve allowing the student to suffer the initial head injury. If a player is wearing protective pads and has helmet to helmet contact with another player, there is a fairly decent chance this could result in a serious head injury to at least one, if not both of the students. The fact that this is so dangerous is why this type of contact is considered a personal foul and will cause the player who initiates such contact will be ejected from the game and suspended from future games.
Unless the coach actually instructed his player to engage in such dangerous and illegal game misconduct, then that coach is not likely liable. However, it is what the coach or his or her staff does next that may or may not be negligent. The coach must recognize there is a serious risk of a head injury. This mean the team trainer or other medical professional should immediately examine the injured player for any signs of head injury. This means going through the steps to check if the player is alert and responsive (typically alert and oriented times four with person, place, time, situation being the four). For example, if a player was awake and responded that that he knew his name and knew that it was Friday night, but didn’t know where he was or why was there, this student would only be alert times two and that might indicate a problem.
Aside from tests like this, the student may need brain scans and further monitoring. If the proper protocol is not followed due to the negligence of public employees, the school board might be liable and this would be allowed, but the coach would not personally be liable or the team trainer for example.
This may mean you would have a valid personal injury case, but there are many specific requirements involving notice to the government and when the notice must be sent. For this reason, you want to speak with an experienced personal injury attorney as soon as possible to discuss your potential case.
If you are injured in Boston, call Jeffrey Glassman Injury Lawyers for a free and confidential appointment — (617) 777-7777.
Additional Resources:
Chapter 258, Massachusetts General Laws
More Blog Entries:
Summer Swimming Pool Safety in New England, May 15, 2014, Boston Personal Injury Lawyer Blog