Negligence Per Se

A legal principle with which every school and athletics administrator should be familiar, one which addresses the often-asked question concerning the precise definition of the vague concept of reasonable care which is at the core of so many sports injury-related lawsuits, is the doctrine of “negligence per se.” Translated literally, the phrase refers to some act that is intrinsically, by its very nature or essence, a negligent deed that was performed with a lack of reasonable care. In application, the legal theory of negligence per se means that anyone who causes harm to another while violating black-letter law – a federal law, a state statute, a local ordinance, an administrative agency regulation or other properly enacted piece of legislation – is presumed to have acted with a lack of reasonable care and will therefore be held responsible to the injured party in a form of strict or automatic liability.

Negligence per se = presumed negligent.

Applied to a driver who was violating the speed limit or statutory blood alcohol limit at the time of a car accident, the doctrine would result in automatic liability for the harm caused by the crash. Applied to a construction contractor who violated building codes leading to the collapse of a structure, the doctrine would result in automatic liability to those injured in the destruction. Applied to a business that violated worker safety laws resulting in harm to an employee, the doctrine would result in automatic liability for the laborer’s injury.

And applied to school or athletics personnel who violate a state concussion protocol law, the doctrine would result in automatic liability for the traumatic brain injury, or aggravation thereof, sustained by a student-athlete.

In many states, negligence per se creates merely a rebuttable presumption of a lack of reasonable care, but even in those jurisdictions shifts the burden of proof to the defendant(s) – school district, administrators, coaches, athletic trainers and other personnel in situations involving sports injuries – to establish that the harm was not caused by their failure to follow all of the mandates set forth in the state law governing traumatic brain injuries.

Therefore, in order to avoid application of the negligence per se doctrine to impose automatic liability or shift the burden of proof to an indefensible position, it is imperative that all school and athletic personnel involved in the operation of sports activities have a thorough understanding of the precise, up-to-date requirements set forth in their state concussion protocol law.

History of State Concussion Laws

The first state law to be enacted – Washington’s 2009 Zackery Lystedt Law – imposed an extensive set of requirements on school and non-school-sponsored, youth sports programs. The statute was named after a football player who was injured late in the second quarter of a 2006 game when his head struck the ground after he tackled an opponent. Video of the incident available online shows Lystedt lying on the ground in a state of near-unconsciousness with his hands clutching both sides of his helmet. He was removed from the game for the last three plays of the half, but he was returned to action at the beginning of the third quarter.

During the second half, Lystedt collapsed on the field, was transported to a hospital and underwent life-saving surgery to remove part of his skull to relieve the pressure from his badly-damaged and rapidly-swelling brain. He suffered several strokes, spent a week on a ventilator and was in a coma for three months. It was nine months before he was able to speak his first word, more than a year before he regained any movement in his limbs, and more than 20 months before he was able to be removed from a feeding tube.

The Zackery Lystedt Law addressed a wide range of “return to play” (RTP) and “return to learn” (RTL) issues for schools, administrators, coaches, student-athletes and parents. Considered to be a model statute and serving as the template for many of the state laws enacted in following years, it contained several key components:

1. All organizations operating sports programs for athletes under the age of 18, including both schools and youth sports organizations [emphasis added] must provide education programs and materials to inform coaches, parents and student-athletes about the nature and risks of concussions and on an annual basis a concussion information form must be signed by each athlete and his or her parents/guardians.
2. An athlete suspected of having sustained a concussion during any sports activity including practice or competition must be immediately removed from action and cannot be returned to play on the same day.
3. An athlete suspected of having sustained a concussion cannot return to action until having been evaluated by a licensed health-care provider trained in the evaluation and management of concussions and receiving written clearance from that provider.

Over the course of the five years following the passage of the Zackery Lystedt Law, incentivized by concerns for the safety of student-athletes in an era of increasing knowledge regarding the dangers of traumatic brain injuries suffered by young people competing in school and youth sports, states began enacting legislation similar to Washington’s. As of January 30, 2014, when the governor of Mississippi signed into law that state’s Youth Concussion Act, every state in the nation and the District of Columbia had enacted a sports concussion law, most establishing mandatory protocols regarding issues such as removal from action, RTP procedures, credentialing requirements for individuals providing RTP clearance, concussion education programs for coaches, concussion information for student-athletes and parents, baseline cognitive testing for student-athletes, RTL procedures related to resuming academic work, and the scope of each statute’s application.

Not every state concussion law addresses all of these issues – significant variations exist between the legal requirements set forth in the various statutes – and, again because of the looming presence of the negligence per se doctrine, it is essential that school and athletics personnel read and implement the precise mandates of their state’s legislation. To read summaries and obtain the fulltext of each jurisdiction’s concussion statute enacted between 2009 and 2014, consult the website of the National Conference of State Legislatures here.

According to a study completed in March 2014 by the Education Commission of the States (available full-text at www.ecs.org), 25 of the state statutes follow the Zackery Lystedt Law model in mandating concussion education for coaches. Forty of the laws require student-athletes and parents to sign concussion information forms (although it is unclear from the study whether complying schools provide meaningful concussion education to those athletes and parents or whether the mandate is implemented via mere form-over-substance signing of paperwork). Thirteen of the statutes extended the scope of the law’s coverage beyond school sports programs to include non-school-sponsored, youth sports. Only four of the state laws required baseline testing, although the practice has been voluntarily implemented by hundreds of districts across the country as an additional tool to be utilized as part of RTP protocols.

Recent Updates to State Concussion Laws

Since 2014, numerous states have updated their concussion statutes to improve procedures for dealing with sports-related head injuries or to correct deficiencies in the original versions of their legislation on the topic. In 2018 alone, 37 total bills addressing sports-related, head-injury protocols were introduced in 17 states. The following are four typical examples of state concussion laws that have been updated this year. To check for any changes in your state’s law and to read a synopsis, along with the full-text of any updates, consult the website of the National Conference of State Legislatures here (check the search box for traumatic brain injuries and the search box designating your state).

On April 26, 2018, Iowa Governor Kim Reynolds signed into law legislation updating the state’s existing concussion law. The new bill passed in the Iowa House on April 10 by a vote of 96-2, in the Iowa Senate on April 12 by a vote of 46-0, and became effective on July 1, 2018. The updated law implements a research-based system, requires enhanced RTP and RTL protocols to be used by all Iowa high schools, and creates decreased-liability incentives for schools that historically have struggled financially to provide athletic trainers at athletic events to provide such health-care support.

On August 10, 2018, Illinois Governor Bruce Rauner signed into law legislation that will become effective on January 1, 2019, mandating standardized protocols statewide for any student who may have sustained a concussion, whether at a school sports event or otherwise, including enhanced educational efforts regarding traumatic brain injuries, stricter implementation of RTP and RTL procedures, and State Board of Education development of guidelines regarding the accommodations that must be provided to students recovering from concussions.

On May 16, 2018, Arizona Governor Doug Ducey signed a bill which became effective on August 3 mandating immediate notification of a student-athlete’s parent(s) or guardian(s) when the athlete is removed from an athletic contest or activity (including practice) for a suspected concussion, legislation introduced in response to several instances of athletic personnel allegedly failing to provide such notification in order to avoid having to place a star athlete into a concussion protocol that might have prevented the student from playing in an upcoming game.

On April 13, 2018, Oregon Governor Kate Brown signed into law legislation expanding the list of health-care professionals who can provide medical release to a student-athlete who is suspected of having suffered a concussion and clarifying the requirements for those health-care professionals to be qualified to provide medical release. The law will not take effect until July 1, 2020, in order to provide adequate time for the development and launch by the Oregon Health and Science University of an enhanced online concussion education course that will be required of health-care professionals in order to be certified to provide RTP releases.

Recommendations

• School administrators, athletic directors, coaches, athletics trainers and other school sports personnel should carefully read their state concussion legislation to ensure that they fully understand all of the specific mandates required by the law (consult the NCSL website noted above). Only through compliance with the precise and up-to-date requirements of the state law, can the automatic liability threat of the negligence per se doctrine be avoided.
• Athletics personnel should also monitor their state association concussion protocols to ensure that they understand each of the specific mandates set forth in association regulations. Some state associations impose more stringent requirements regarding the prevention and treatment of concussions than are imposed in state law.
• Athletics directors should include in their annual in-service training programs for coaches, athletics trainers and other athletics personnel coverage of the specific mandates of the state’s concussion legislation and state association regulations regarding concussions. The full-text of both the state law and state association requirements should be included in coaching handbooks.
• Athletics directors or head athletic trainers should create and enforce mandatory use of a Concussion Incident Form/Concussion Clearance Form on which a coach or trainer will provide a brief description of any suspected head injury to a student-athlete, document the RTP and RTL protocols that are employed, and to which may be attached the written RTP and RTL clearances by the appropriate medical personnel.
• Even if the school uses a web-based system for the completion and signing of sports participation paperwork by student- athletes and parents, athletics directors and coaches should ensure that at each pre-season meeting of athletes and parents, concussion information and education is discussed extensively in order to emphasize the negative, long-term implications of head injuries and to overcome the culture of resistance among student-athletes and parents to reporting incidents for fear of losing playing time, a starting position, an opportunity to play in a big-rivalry game or the chance to play before college coaches in the recruiting process.
• School athletics personnel should clarify for student-athletes and parents that the school retains the right to refuse to grant medical clearance for an athlete’s RTP if evidence is provided by any qualified individual (a coach, athletic trainer or other appropriate medical professional) that the athlete remains concussion-symptomatic. Some of the recent head injury-related deaths and injuries resulting in permanent brain damage in high school sports have occurred in situations where qualified school personnel believed that the student-athlete was still symptomatic and that RTP was not yet safe, yet they acquiesced to a written clearance provided by a doctor who had been pressured by an athlete or parents anxious for a speedier-than-warranted return to action.