Coverage On and Off the Field
Why the Croce decision provides an important warning for insurers of public schools.
High school football can invoke a lot of positive feelings and fervor in a community, as is evidenced by the games known as “Friday Night Lights” in states like Texas and Florida. During the season, football certainly brings out notions of school pride and tradition. High school football has the power to galvanize large and small towns alike around their kids playing this sport of enormous popularity. Football, along with other sports, also has proven to be useful for raising funds for school activities.
But awareness about the effects of concussions and chronic traumatic encephalopathy (CTE) occurring in high school football—and football in general—has raised parent and player concerns about potential long-term brain injuries. Both ESPN and CBS Sports have reported on the declining participation in Pop Warner youth football. Depending on the statistics, youth football has suffered a 10 percent drop in only the last two years. On the pro side, major headlines were made when San Francisco 49ers linebacker Chris Borland shocked his team by announcing his retirement at age 24. Borland, who had suffered a previous concussion, was quoted by several media outlets as saying, “I just thought to myself, ‘What am I doing? Is this how I’m going to live my adult life, banging my head, especially with what I’ve learned and know about the dangers?’” Borland was further quoted by ESPN as believing that his decision to retire was “simple” given the potential of repeat concussions. In choosing to retire, Borland walked away from a contract purportedly worth nearly $3 million.
In the past, CTE was referred to as being “punch drunk” in boxing circles. Now, it is known as a crippling and progressive brain disease. Before his untimely death, legendary NFL linebacker Junior Seau’s family described his mood as being “low” and “dark.” Although Seau had not formally been diagnosed with sustaining multiple concussions, he routinely complained (as his family described) of concussion-related symptoms and effects. According to ABC News, he had become emotionally detached and depressed. Seau, a former perennial all-star defensive player for the San Diego Chargers, committed suicide at the age of 43. After his death, Seau’s family permitted his brain to be examined, and CTE was detected.
So with Borland’s concerns and an awareness of the devastating effects of CTE, does high school football that is played in a public school with the risk of concussions constitute a state-created danger under the law? If so, does an injured or concussed high school player have a cause of action against the school for a violation of his constitutional rights? The answer—in following a current major case—is a clear and straightforward “not likely” but possibly “yes.” In addition, if yes, what should insurers of state actors such as public schools be on defense for concerning potential lawsuits?
In William Croce v. West Chester School District (decided on April 8, 2015), the U.S. District Court for the Eastern District of Pennsylvania wrestled with this precise question. According to the public docket, in 2010, Croce was a 10th grade student at the West Chester East High School and was a player on the junior varsity football team. Croce alleged that while playing in a game, he blacked out for a second on the field after a collision. Croce claims that when he came around, he felt pain in his head and hands. As set forth in the pleadings, since he was not feeling well, Croce then asked for permission to leave the game, which he received.
After he left the game, Croce maintained that he told an assistant coach that his head was hurting. The lawsuit alleges that he was not examined and, instead, was reinserted into the game. Back in the game, he was involved in another collision during a special teams play (generally considered one of the more dangerous plays) and was knocked unconscious.
Consistent with multiple concussions, Croce was not feeling well the next day. He claims he reported to the school’s athletic trainer who, at that point, performed concussion testing on him. Croce apparently failed the concussion protocol tests (testing positive for a brain injury) and was placed on “brain rest” for about a month. From that point, Croce complained of dizziness, cognition problems, and other concussion symptoms. He alleged that his academic life was forever diminished and that his “life prospects” had been “altered.”
No matter what sport, this type of sports-related injury is a parent’s worst nightmare. We know that concussion injuries have different effects on individuals. Some concussions are mild, but all concussions (and repeated impacts) potentially are dangerous. For insurers, does the known danger of concussions sustained in high school sports create the potential for a large loss?
As set forth in the court’s decision, Croce’s theory against the school (and public entity) was that the defendant school had created “a situation to exist where the coaches, trainers, and other staff of the junior varsity football team were inadequately prepared to recognize and react to a concussion.” Further, this conduct and failure to detect a concussion constituted a violation of Croce’s constitutional rights (pursuant to 42 U.S.C. Section 1983) for depriving the plaintiff of “bodily integrity” under the due process clause of the 14th Amendment.
Initially, however, the problem for Croce was getting the court to stretch municipal liability past well settled law. This proved to be as difficult as getting a first down on a fourth down and forever. As a matter of established law, for a municipal entity such as a public school to be subject to liability for a claim under Section 1983, a plaintiff must prove that a state actor’s (or in this situation, a school’s) policy caused a deprivation of his constitutional right. In addition, the plaintiff also must establish a causal connection between the policy and the alleged civil rights violation. In this context, there is no constitutional claim for vicarious liability for the actions of the school’s employees with regard to Croce’s claims.
This type of claim relating to a policy that causes a plaintiff to suffer a constitutional violation is also known as a “Monell” claim, which originates from the U.S. Supreme Court’s landmark decision in Monell v. NYC Department of Social Services. Examples of viable Monell claims often have stemmed from incidents of police misconduct and employment termination of public employees. Liability has been found against municipal defendants that have had a policy of allowing police officers to fire their weapons regardless of whether an individual posed a threat. There also have been cases where liability attached to municipalities that had a widespread failure to train employees properly and showed a deliberate indifference to public safety.
With these legal goalposts firmly planted, the Croce theory was tackled by the court. It found that the high school did not have a policy of ignoring concussion injuries for football players. The court relied on evidence that the school had followed concussion protocols generated by health care professionals. It also noted that the school used immediate post-concussion assessment and cognitive testing (ImPact) for baseline concussion evaluation of athletes. The school also used mandatory training for coaches and followed protocols for Heads Up Football—a USA Football initiative to make the sport better and safer. Of little consolation to the Croce family, the school’s athletic trainer apparently testified that their son was the only student ever reinserted into a game after complaining of concussion symptoms. In sum, the court found, “There is no evidence developed through discovery to suggest that the defendant had a policy, practice, or custom of indifference to the health and safety of its students.”
While the Croce case was dismissed, the court seemed to leave open the possibility of a Monell claim against schools in limited circumstances. It appears that a plaintiff would need to prove that a school either showed a deliberate indifference to the dangers of concussions or demonstrated a reckless disregard for the training and education of its coaches and trainers. If a systemic failure occurred, then the school could be deemed to have formed a state-created danger and a prospective plaintiff would have an actionable violation of the constitution.
The Croce decision provides an important warning for insurers of public schools. Any football program (or other contact sport such as soccer or lacrosse) that does not have a provable concussion training program for its coaches and a baseline testing protocol is as risky as throwing a slant pass in the middle of the end zone during the Super Bowl.