September 19, 2019, Trial News
College assumed duty of care for injured student-athletes, Pennsylvania Supreme Court rules
A college athletics program and its employees assumed a duty of care to two students who tried out for their football team when it required them to sign a consent to medical treatment form before playing with the team, the Pennsylvania Supreme Court has ruled. When the athletes were injured during a practice and treated by unqualified “athletic trainers,” the defendants had a duty to exercise reasonable care to protect the students against unreasonable risk of harm because of their “affirmative conduct” in requiring the consent to treatment. The court also found that a liability waiver the student-athletes signed was unenforceable for their gross negligence claims against the defendants—an issue of first impression for the court. (Feleccia v. Lackawanna College, 2019 WL 3917069 (Pa. Aug. 20, 2019).)
When Lackawanna College’s athletic trainers for its football team resigned in 2009, the school hired two replacements who had not yet passed their athletic trainer certification exams and therefore were not board licensed. Despite knowing this, the school’s athletic director still hired them and retitled their job descriptions as “first responders.” The school did not update the job descriptions that both employees signed when they were hired as athletic trainers, nor did the school inform student-athletes that the “trainers’” lacked credentials.
Lackawanna students Augustus Feleccia and Justin Resch tried out for the football team in 2010. To participate in tryouts, they had to sign various documents, including a liability waiver and hold harmless agreement and a form consenting to emergency medical services “provided by the athletic trainer, team physician, or hospital staff.” On the first day of practice, both students were injured. Resch suffered a fractured vertebra. He could not get up after being hit, was attended to by one of the trainers, and then was transported to the hospital. Later, Feleccia injured his shoulder during a tackle. After being treated, he was cleared to continue practicing. He did and then suffered a traumatic brachial plexus avulsion while using his right shoulder to make another tackle.
The athletes filed negligence, gross negligence, and recklessness claims against the athletic trainers, school, athletic director, and coaches. The defendants moved for summary judgment on the basis that the athletes had signed a liability waiver. The plaintiffs countered that the defendants assumed a duty of care when they required the athletes to sign a consent to treatment form but failed to provide properly licensed athletic trainers. The trial court granted summary judgment on the grounds that the waiver did not violate public policy, was a private contract, and was not a contract of adhesion. It also concluded that the waiver was enforceable because it addressed the risks and hazards inherent in playing football. The appellate court reversed, finding that the waiver was unenforceable because it was not sufficiently particular and was ambiguous. It also held that the defendants owed a duty of care to the student-athletes.
On appeal, the Pennsylvania Supreme Court considered two questions: whether the college is required to have qualified medical personnel at athletic events to satisfy a duty of care to its athletes, and whether the waiver of “any and all liability” is enforceable for the plaintiffs’ negligence and gross negligence claims. The defendants argued that the appellate court imposed a new common law duty that required colleges to have qualified medical personnel available at all athletic events and that it failed to analyze that duty under the Althaus factors, which examine the relationship between the parties, the social utility of the conduct, the risk and foreseeability of the harm, the consequences of imposing a duty, and the public interest in such a duty. The plaintiffs countered that there was nothing new in the duty the appellate court expounded. Instead, they argued the defendants had failed to comply with existing statutory and common law duties of care.
The Pennsylvania Supreme Court agreed that the appellate court appeared to recognize a new common law duty and failed to analyze it under the Althaus factors. But the court also concluded it was unnecessary to create a new common law duty in this scenario. The defendants had an existing duty for their “affirmative, risk-causing conduct.” The court pointed to a recent decision involving an employer’s duty to protect its employees’ sensitive personal information: In Dittman v. UPMC, (196 A.3d 1036 (Pa. 2018)), the court held that when the defendant required employees to submit sensitive personal information and then stored that information on an inadequately secured computer system that was subsequently breached, the defendant had assumed a duty to exercise reasonable care because its “affirmative conduct” created the risk of harm that later occurred.
The court further explained that §323 of The Restatement (Second) of Torts, which the court has adopted and which addresses liability for a person’s affirmative conduct, supports this duty. The court reasoned that applying these principles to the facts of the plaintiffs’ case “supports a determination that ‘affirmative conduct’ by appellants created a ‘special relationship’ with and increased risk of harm to its student athletes” to impose a duty of care. The college “undertook a duty to provide duly licensed athletic trainers for the purpose of rendering treatment to its student athletes participating in athletic events,” and a jury could find for the plaintiffs on the evidence in the record: The college customarily employed athletic trainers, it required athletes to consent to athletic trainers’ treatment, it held out the unlicensed trainers at the plaintiffs’ practice as athletic trainers and misrepresented their role to the athletes, and it was aware that the employees were not licensed but hired them anyway. The court concluded that through its actions, the college created a reasonable expectation for the athletes that they would be treated by a licensed athletic trainer.
The court then considered whether the liability waiver was enforceable on claims of negligence and gross negligence: Construing the waiver’s language strictly, is the parties’ intent particularly and expressly stated? If there is ambiguity, the contract must be construed against the party seeking immunity, which also bears the burden of proving immunity.
As to ordinary negligence, the court concluded the waiver was enforceable because the language to exclude “any and all liability” for “any injury” was sufficient to express the parties’ intent. As to whether gross negligence claims were excluded, an issue on which the court had not previously ruled, it concluded that “pre-injury releases are unenforceable in circumstances where they ‘would jeopardize the health, safety, and welfare of the people by removing any incentive for parties to adhere to minimal standards of safe conduct.’” The court remanded the gross negligence claims to the trial court.
“This decision affirms for the first time in Pennsylvania that exculpatory releases cannot bar gross negligence claims,” said Dan Siegel, of Havertown, Pa., and Andrew Motel, of West Chester, Pa., who represent the plaintiffs. “In addition, the opinion sends a strong message to schools and other groups that sponsor athletic teams that they must act reasonably when dealing with athletic injuries, they must prepare for and provide appropriate care for foreseeable injuries, and they cannot expose athletes to unreasonable risks of injury.”