High School Sporting Event Head Injury Settled for $150,000
Attorney Jeffrey S. Cook of the law firm of Erlich, Rosen, Bartnick & Cook P.C., successfully settled a claim that was turned down by one law firm and labeled “an exercise in futility,” by another prominent litigator. The legal hurdles were numerous and preliminary research seemed to indicate that the case law would preclude a successful recovery. A closer look at the unique facts of this case offered an argument distinguishing this case from the published opinions and presented an opening in which to successfully bring this claim which Attorney Jeff Cook was able to utilize.
This case arose during a mandatory freshman gym class at a local public high school. It was during final exam week and while the gym teacher was timing the girls track and field events the boys were instructed to play soccer on the football field. The boys unsupervised soccer game quickly evolved into a pseudo rugby game of keep away. The boys were stripping the ball from their opponents which quickly led to tackling the ball away by some of the participants. Tackling in any form was an outlawed activity and against the high school gym class rules which all of the boys were aware.
Plaintiff, a 135 pound soccer player, stripped the ball out of the Defendant’s hand and began running with the ball looking for a teammate to pass the ball. Defendant, a 200 pound football player, ran after Plaintiff, lined him up, and delivered a full body football style tackle which drove Plaintiff’s head into the artificial turf. Plaintiff suffered multiple brain bleeds and immediately went into seizures and convulsions. He was rushed to the hospital and was in a coma for 36 hours before slowly regaining consciousness. Plaintiff spent three weeks in the local Children’s Hospital and then underwent extensive rehabilitation over the summer months. Plaintiff had to learn to walk and talk all over again and struggled in school academically. He fully recovered physically but suffered permanent cognitive deficits and personality changes as a result of his traumatic brain injury.
The High School and gym teacher were afforded Governmental Immunity which shielded them from any negligence claim for failing to properly supervise the gym class. This left a claim against the 14 year old Defendant as the the only possible cause of action under a negligence theory against his parents home owners policy. Two difficult legal hurdles had to be overcome to successfully bring this claim. Homeowners policies only cover negligent acts and preclude intentional acts from coverage. Under Michigan law the Supreme Court case of Ritchie Gamester vs. City of Berkeley, and it’s progeny, held that co participants in a recreational activity must prove reckless misconduct for liability to attach which is a much higher standard than ordinary negligence.
To address both of these issues the Complaint was filed, and depositions taken, to support the allegations that this was an ordinary negligence claim and not a recreational activities case. Plaintiff’s argument was that the gym class rules prohibiting tackling in any form trumped the ability of the 14 year old freshman from making up new rules allowing tackling as part of their game as this activity occurred during gym class and not after school hours. The defense claimed that the boys could make up their own rules to allow tackling as part of their activity and therefore the reckless misconduct standard applied to Defendant’s actions.
This was a legal issue the Trial Judge ultimately had to decide but during the pendency of the case the severity of the Plaintiff’s injuries, in conjunction with the possibility of a large award against their insured under an ordinary negligence claim, forced defense counsel to seek a cap on their client’s potential liability. Counsel for the defense agreed to waive any Declaratory Action proceeding on their policy for intentional acts outside of their coverage in exchange for a cap on damages at the policy limits. As there was no collectability beyond the homeowners coverage it was an easy decision to make and now allowed Plaintiff to pursue both a negligence claim and an intentional/reckless misconduct cause of action with full insurance coverage in place.
At the close of discovery Defendant’s filed their motion for summary disposition arguing that the reckless misconduct standard for co participants in a recreational activity applied to gym class activities. They further argued that tackling was a part of the activity being participated in by Plaintiff and Defendant and therefore Defendant’s tackle of Plaintiff was negligent at best but did not arise to the level of reckless misconduct. Defendants were therefore seeking dismissal of the entire case. The Trial Judge agreed with the defense that gym class activities fell under the reckless misconduct standard but denied their motion for summary disposition ruling that it was a question of fact for the Jury to decide whether Defendants’ tackle of Plaintiff arose to the level of reckless misconduct. This was based upon Defendants own testimony that he intentionally tackled the Plaintiff and one eye witness who testified the tackle was “over the top” for the game they were playing.
As defense counsel had already agreed to not pursue a Declaratory Action against their insured for his intentional act they were now stuck with the prospect of a Jury Trial. Though Defendants did file leave to Appeal the Court’s ruling the Trial Court ordered Facilitation and the case resolved at Facilitation for $150,000.
