J. Hites, etc. v. PIAA, Inc. ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jonathan Hites, Kaela Zingaro, :
Samuel Teolis on Behalf of :
Minor Domenic Teolis, Individually :
and on behalf of those similarly :
situated : No. 8 C.D. 2017
: Argued: September 11, 2017
v. :
:
Pennsylvania Interscholastic :
Athletic Association, Inc., :
Appellant :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: October 10, 2017
In this interlocutory appeal by permission, the Pennsylvania
Interscholastic Athletic Association, Inc. (PIAA) asks whether the Court of Common
Pleas of Lawrence County1 (trial court) erred in overruling, in part, its preliminary
objections to the negligence suit filed by Jonathan Hites, Kaela Zingaro, and Samuel
Teolis, on behalf of minor Domenic Teolis, individually and on behalf of those
similarly situated (collectively, Plaintiffs). Through their complaint, Plaintiffs seek
to recover damages arising from concussion-related injuries inflicted during
participation in PIAA-regulated sports.
1
The Honorable Eugene E. Fike, II, S.J., presided.
The four issues before this Court at this time relate solely to negligence
claims: (1) whether the claims are non-justiciable due to the effect of the Safety in
Youth Sports Act2 (SYSA); (2) whether Plaintiffs are barred from recovery as a
matter of law, because of the “inherent risk/no duty” rule; (3) whether Plaintiffs are
unable to establish the requisite “duty” as an element of their negligence cause of
action because the “duty” may not be imposed on the PIAA as a matter of public
policy; and, (4) whether Plaintiffs failed to aver facts to show the requisite causation.
After review at this earliest stage of litigation, we affirm.
I. Factual and Procedural Background
A. Plaintiffs’ Original Complaint
The trial court set forth the following background to this matter based
on the facts averred in Plaintiffs’ original complaint (Complaint). “This is an action
to recover damages on behalf of the named Plaintiffs, Jonathan Hites [(Hites)], Kaela
Zingaro [(Zingaro)], and Domenic Teolis [(Teolis)], as well as on behalf of the
members of the below-defined [c]lass, arising from concussion-related injuries
inflicted during participation in PIAA regulated sports.” Tr. Ct., Slip Op., 10/11/16,
at 1 (quoting Compl. at ¶15). Among other things, Plaintiffs aver the PIAA
voluntarily assumed the duty to protect student athletes in Pennsylvania, but its
“concussion policies” are “insufficient and ineffective[,]” and the PIAA failed to:
“adequately implement and interpret accurate pre-season and regular season baseline
testing for detecting and managing concussions,” id. at 2 (quoting Compl. at ¶6(a));
“track and report concussions (and require such reporting from member schools),”
id. (quoting Compl. at ¶6(b)); “require qualified medical personnel at all PIAA
sporting practices and events with specific expertise in concussion diagnosis,
2
Act of November 9, 2011, P.L. 411, 24 P.S. §§5321-5323.
2
treatment, and management,” id. (quoting Compl. at ¶6(c)); “mandate the removal
of athletes who have appeared to suffer concussions in practice as well as in games,”
id. (quoting Compl. at ¶6)(d)); “take measures for educating teachers and other
school personnel on how to implement medical recommendations of concussed
athletes and make appropriate accommodations,” id. (quoting Compl. at ¶6(e)); and,
“provide resources to student athletes in seeking professional medical attention at
the time of an injury, during the course of treatment for such injury, and for necessary
medical monitoring post-injury.” Id. (quoting Compl. at ¶6(f)).
The Complaint alleges the following facts specific to the injuries
suffered by each of the named Plaintiffs.
1. Plaintiff Jonathan Hites
In August 2011, Hites was a football player for Neshannock High
School. He was instructed to participate in football summer camp. Hites
“experienced a brutal blow” during a practice session. Tr. Ct., Slip Op., at 7 (quoting
Compl. at ¶12). Although Hites was “staggering and dizzy, [he] was required to
continue participation in practice … until he vomited on the field …” when he was
“allowed to sit out.” Id. (quoting Compl. at ¶13). Hites “reported ongoing dizziness
and nausea, but … despite the symptoms of a concussion, [Hites] was not permitted
to leave the practice field.” Id. Plaintiffs aver Hites “remembers the morning
practice concluding and everyone leaving for lunch[,]” but he “has no recollection
of any true events …” until dinner, when he was “unable to eat”; after dinner, Hites
sat on the bench and watched a scrimmage “until he lost consciousness,” and “[at]
that time his parents were finally contacted.” Id. (quoting Compl. at ¶14).
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Plaintiffs further allege: Hites’ father picked him up and took him to an
emergency room; approximately 12 hours passed from the time the injury occurred;
and, Hites was referred to a concussion clinic in Pittsburgh. Plaintiffs also aver:
Hites’ concussions were “severe”; he could not attend school for approximately four
months; he struggled in school and socially; he began to experience difficulties,
including “secondarily-acquired attention [deficit] disorder symptoms and lack of
impulse control”; he began treating with a psychiatrist; and, he was diagnosed with
“early-onset glaucoma causally connected to the traumatic blow to the head[.]” Tr.
Ct., Slip Op., at 7-8 (quoting Compl. at ¶16).
In addition, Plaintiffs aver Hites received a full medical release in July
2012, and he was permitted to return to playing football. In the Fall of 2012, he was
administered the “ImPACT baseline test,” but the test “was conducted without
oversight by a trained test administrator,” and “[n]o prior baseline testing existed
that allowed for comparing Hites “pre-concussion” with Hites “post-concussion.”
Id. at 8 (quoting Compl. at ¶17). Plaintiffs allege Hites continued to experience
fatigue, headaches, confusion and disorientation, but he continued to play football
“when he was not in a safe condition to do so[.]” Id. (quoting Compl. at ¶18). In
2013, while playing football, Hites suffered a serious back injury, and he is now
unable to participate. Id.
Plaintiffs further aver Hites and his family paid medical expenses,
which are expected to continue into the future to address the “transitioning
symptoms of attention [deficit] disorder, impulsivity, glaucoma, headaches, and
ongoing medical monitoring,” but neither Hites nor his family was informed of the
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availability of any resources in the form of PIAA-provided medical or financial aid
for personal injury or otherwise. Id. (quoting Compl. at ¶15).
2. Plaintiff Kaela Zingaro
As to Plaintiff Zingaro, Plaintiffs allege: Zingaro was injured in June
2014 in the final softball game of the season, sustaining a concussion from striking
her head on the ground while attempting to make a diving catch; Zingaro became
dizzy and nauseous; and, by midnight, her nausea “reached a point” causing her
mother to take her to the hospital by ambulance. Id. at 9 (quoting Compl. at ¶¶20,
23). Plaintiffs allege a CT scan showed no injury to the brain, but Zingaro was
diagnosed with whiplash and a concussion and referred to a concussion clinic in
which she participated for eight weeks, also undergoing orthopedic examinations
and physical therapy at the direction of her treating physicians.
Plaintiffs further aver: Zingaro’s headaches and dizziness remained for
weeks; after a month, Zingaro began to feel better; and, two months after the injury,
a medical professional cleared her to return to physical activity. Plaintiffs allege the
trainer who was at the game was not qualified to make a proper concussion
determination, and, although Zingaro was removed from the game, “her coaches and
trainer dismissed the possibility that she had a concussion,” and her volleyball coach
“pressed for her to appear the following day for practice.” Id. (quoting Compl. at
¶22).
Plaintiffs allege no “legitimate baseline testing” was performed on
Zingaro, and, after the injury, the trainer “attempted to have [Zingaro] complete
baseline testing every day, and appeared unaware of how to properly implement a
valid concussion protocol.” Id. Plaintiffs further aver, “although unable to play,
5
[Zingaro] was required to report to volleyball practice throughout the summer
months while she underwent treatment.” Id. (quoting Compl. at ¶24). Zingaro
“struggled in returning to sport activities, and often struggled with concentration and
headaches[.]” Id. at 9-10 (quoting Compl. at ¶24). Plaintiffs allege Zingaro’s family
incurred expenses for her treatment, and they will incur expenses in the future “as
the result of the initial blow, secondary head trauma, return to practice, and delay in
the receipt of treatment …” which include “addressing the transitioning symptoms
of deterioration of eyesight, headaches, and ongoing medical monitoring.” Id. at 10
(quoting Compl. at ¶25). Plaintiffs aver neither Zingaro nor her family was informed
of the availability of any resources in the form of PIAA-provided medical or
financial aid for personal injury or otherwise.
3. Plaintiff Domenic Teolis
As to Plaintiff Teolis, Plaintiffs allege: in October 2012, while he was
a high school freshman, Teolis suffered “multiple severe hits” during a practice; after
practice, he complained of headaches and nausea, but was placed in a game the
following day; and, he suffered “additional head trauma ….” Id. (quoting Compl. at
¶¶26-28). Plaintiffs aver Teolis reported his concussive symptoms to his trainer and
coaches, but no medical treatment was provided during the game, and his parents
took him to the hospital that evening where he was diagnosed with a concussion and
referred to a concussion clinic. Id.
Plaintiffs allege Teolis was withdrawn from school for nine weeks as a
result of his injury. In January 2013, he returned to school for half-day in-sessions,
but he continued to experience “typical concussion difficulties,” including
headaches, dizziness, light sensitivity, and nausea. Id. at 11 (quoting Compl. at ¶29).
6
Plaintiffs further aver that treating physicians released Teolis in April 2015, but he
continues to experience concussion symptoms, including periodic headaches and
light and noise sensitivity. Id. Plaintiffs allege Teolis and his family incurred
expenses in obtaining treatment, and it is expected that they will continue to “incur
medical expenses as a result of the initial blow and his return to competitive play his
injury notwithstanding.” Id. Plaintiffs claim neither Teolis nor his family was
informed of the availability of any financial resources in the form of PIAA-provided
medical or financial aid for personal injury or otherwise.
4. Other Averments Relating to Plaintiffs’ Negligence Claims
Plaintiffs further allege the PIAA is a statewide athletic association,
whose membership consists of 1420 schools. Further, in accordance with Articles
VI and VIII of its Constitution: “[the] PIAA admits it possesses, ‘control over all
interscholastic athletic relations and athletic contests in which a member school of
this association participates.’” Id. (quoting Compl. at ¶51). As stated in Article II
of its Constitution, the PIAA’s purpose is to “formulate and maintain policies that
will safeguard the educational values of interscholastic athletics and cultivate high
ideals of good sportsmanship.” Id. (quoting Compl. at ¶52). Plaintiffs also aver
“[the] PIAA openly acknowledges that participation in interscholastic athletic
competition can be, and often is expected to be, demanding and stressful. Although
[the] PIAA considers injuries to be an inherent risk of participation, it further
acknowledges its role and responsibility to successfully mitigate the risk of such
injuries and illnesses through proper coaching, training, and supervision.” Compl.
at ¶53. And, in accordance with Article VII of its Constitution, the PIAA has the
authority and power to fix and enforce penalties for violations of its Constitution,
By-Laws, Policies and Procedures, its Rules and Regulations, “and such other by-
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laws, policies, procedures, rules and regulations as it may, from time to time, adopt.”
Tr. Ct., Slip Op., at 3 (quoting Compl. at ¶55).
The Complaint cites Article V of the PIAA’s By-Laws, and it avers the
PIAA “believes that all students should have a thorough, pre-participation physical
evaluation by an Authorized Medical Examiner, to ensure that there are present no
obvious illnesses and/or injuries, which would place the student or others of
enhanced risk or injury through the student’s participation in interscholastic athletics
… and that a review and re-certification of some students is necessary prior to their
participation in their next sport season.” Id. (quoting Compl. at ¶54). Further, the
PIAA prescribes a form for a Comprehensive Initial Pre-Participation Physical
Evaluation (CIPPE), and at the beginning of every school year, each athlete must
submit a completed CIPPE, in which, there is a one-page document titled,
“Understanding of Risk of Concussion and Traumatic Brain Injury (also known as
[the] ‘Concussion Information Sheet’),” which defines a concussion, its signs and
symptoms, and action to be taken when there is reason to believe someone suffered
a concussion. Id. (quoting Compl. at ¶57).
Plaintiffs aver the PIAA assumed jurisdiction over the following boys
and girls sports: baseball; basketball; bowling; competitive spirit (i.e., cheerleading,
mascots); cross country; field hockey; football; golf; gymnastics; lacrosse; rifle;
soccer; swimming and diving; softball, fast Pitch; tennis; track & field (both indoor
and outdoor); volleyball; water polo; and, wrestling. They allege the PIAA member
schools sponsoring any of these sports are subject to the provisions of the PIAA’s
Constitution, By-Laws, Policies and Procedures, and Rules and Regulations. “[The]
8
PIAA, therefore, holds the authority and duty to protect the student athletes over
which the sponsoring extends.” Compl. at ¶56.
Plaintiffs further allege the PIAA’s responsibilities extend to providing
resources to assist the student athlete, that the PIAA affirmatively represents “that
[it] provides medical financial resources for student-athletes ….” and that
“[a]ccording to [the] PIAA, such resources are available for students during practice
for, competition in or supervised group travel directly to and from, interscholastic
athletic events[.]” Tr. Ct., Slip Op. at 3 (quoting Compl. at ¶58). Additionally,
member schools’ dues are used to fund these “medical financial resources” that
extend “up to $5 million dollars per incident for each … student who participates in
an interscholastic program at a PIAA member school[,]” but the PIAA “does not
provide additional information to the parents and students regarding these resources
such that Plaintiffs … can avail themselves of this financial support in a timely
manner, if at all.” Id. at 4 (quoting Compl. at ¶59).
Plaintiffs also aver the “PIAA’s failure to require and enforce proper
baseline testing and interpretation, failure to fully educate athletic departments and
trainers regarding concussion diagnosis, protocols, or provide ongoing education
with parents and student athletes, and failure to prioritize a safety culture educating
student athletes on the importance of warning signs and the severity of concussion
conditions has harmed and continues to harm, student athletes in Pennsylvania.” Id.
(quoting Compl. at ¶60).
9
In addition, Plaintiffs allege: “Despite possessing significant
knowledge of the danger of concussion, it was not until recently that [the] PIAA
substantively modified its policies and procedures, and only then in the wake of
legislative change by the Commonwealth of Pennsylvania. PIAA waited until nearly
nine years after the first international consensus statement on concussions (and still
do not meet the consensus standards) to substantively act. Such acts and omissions
… give rise to the [three counts stated in the Complaint].” Compl. at ¶71.
Count I of the Complaint asserts a cause of action for negligence, which
includes an averment that the PIAA’s violation of the standard of care exceeds
ordinary negligence and constitutes gross negligence. Count II asserts a cause of
action for establishment of a medical monitoring trust fund. Count III asserts claims
for equitable relief. In addition to a demand for monetary damages and equitable
relief, Plaintiffs also request: certification as a class action suit; appointment of
Plaintiffs as class representatives and Plaintiffs’ counsel as class counsel as well as
a request for attorney fees and costs to class counsel. Only count I of the Complaint,
which sets forth Plaintiffs’ negligence claims, is at issue here.
Count I states:
72. Because the PIAA has assumed the role as the guardian
of player safety, student athletes and their families,
including [Plaintiffs], have looked to PIAA for guidance
and protection on player-safety issues. Student-athletes
are often as young as 12 when they begin their sports
participation in schools and are not on equal footing with
[the] PIAA when it comes to understanding the
importance of brain injury prevention and treatment, nor
do they possess the resources to ensure safe play,
diagnosis of concussion, proper return to activity, or
medical oversight.
10
73. [The] PIAA was in a superior position to know of
student-athletes’ concussion-injury rates and the long-
term medical consequences. [The] PIAA and its members
breached the duty to provide a ‘safe environment’ and by
failing to provide long-term and/or complete medical or
financial aid for student-athletes who suffered
concussion(s) while playing PIAA sports.
74. [The] PIAA’s conduct is particularly egregious in light
of the fact that its policies and procedures - or lack thereof
- leave student-athletes like Plaintiffs … inadequately
protected from sustaining, monitoring, and recovering
from brain injuries at a particularly early and vulnerable
point in their lives. Unlike professional athletes, who at
least have resources to pay for medical care necessitated
by head injuries caused during their professional careers,
youth athletes range in age from 12-18. For such PIAA
student-athletes, including Plaintiffs … these injuries may
have long-term, debilitating effects, ranging from an
inability to finish their education, to loss of memory,
physical impairments in hearing and sight, depression, and
early-onset dementia.
75. [The] PIAA was aware of the health risks associated
with blows producing sub-concussive and concussive
results, and was further aware that members of the PIAA
athlete population were at significant risk of developing
brain damage and cognitive decline as a result. Despite its
knowledge and controlling role in governing member
schools, coaches, trainers, and student player conduct, the
PIAA failed to timely and adequately impose safety
regulations and post-concussion protocols governing this
health and safety problem.
76. [The] PIAA has a legal duty to exercise reasonable
care toward the student athletes under its authority. Such
duty encompasses the duty to exercise reasonable care for
the health and safety of student athletes. [The] PIAA has
breached such duties by failing to:
(a) require and enforce proper screening, baseline
testing and interpretation prior to a student-athlete’s
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participation in a sport and proper use of the
baseline testing for both immediate diagnosis of
concussion and return-to-play decisions;
(b) fully educate athletic departments and trainers
regarding concussion diagnosis, protocols, or
provide ongoing education with parents and student
athletes;
(c) provide adequate medical personnel trained in
concussions or adequate medical equipment for use
by team physicians and/or athletic trainers for
concussion diagnosis;
(d) provide proper planning for athletic injuries and
emergency situations that may arise in the context
of practices and athletic events;
(e) prioritize a safety culture educating student
athletes on the importance of warning signs and the
severity of concussion conditions;
(f) provide consistent and ongoing warning of long-
term risks or provide adequate post-concussion care
and monitoring;
(g) provide a safe playing environment;
(h) create, implement and enforce immediate
diagnosis protocols through the use of trained
medical personnel, immediate access to baseline
testing, and comprehensive ‘sideline’ testing for
head trauma (direct or indirect) for continuation of
practice or play;
(i) create, implement and enforce proper return-to-
activity (academic and athletic) protocols after a
concussion diagnosis through medically-supported
stepwise concussion protocols implemented by
medical professionals trained in concussion;
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(j) provide adequate medical financial resources or
otherwise inform and educate student athletes and
their parents regarding financial resources; and,
(k) provide resources and recommendations for and
follow-up medical care and assessments.
[77.] [The] PIAA has a legal duty to exercise reasonable
care in the creation and ultimate enforcement of its
policies and procedures by its member schools. The duty
to act in conformity with the standard of care imposed on
a reasonable sport authority with jurisdiction over youth
sports encompasses the obligations outlined above in the
provision of trained medical professionals at practice and
sporting events, trained baseline test administrators,
adherence to post-concussion protocols, and provision of
resources after injury. [The] PIAA’s failure to act as a
reasonable and prudent youth sports authority has resulted
in the harm outlined above to [Plaintiffs] …
[78.] [The] PIAA’s violation of the standard of care is
greater than ordinary negligence – [the] PIAA has
committed gross negligence in the manner in which it has
failed in its duties to the youth of Pennsylvania. Parents
and student athletes rely upon [the] PIAA in the creation,
implementation, and enforcement of safety policies. [The]
PIAA has possessed superior knowledge regarding
prevention, diagnosis, and treatment of concussion in
student athletes, but has recklessly promoted the successes
of competitive sport over the risks and dangers of
concussion. Furthermore, [the] PIAA’s conscious lack of
enforcement of proper protocols misleads parents and
student athletes into a false sense of safety, and [the]
PIAA’s decision to remain mute on issues of post-
concussion resources operates to increase the harm.
Compl. at ¶¶72-78.
13
Although count I does not contain a paragraph describing the relief
requested, the trial court explained, if successful on their negligence cause of action,
the Complaint’s prayer for relief requests an award of monetary damages.
B. The PIAA’s Preliminary Objections
In response to the Complaint, the PIAA filed preliminary objections.
Specifically, the PIAA objected to the legal sufficiency of the Complaint, asserting
Plaintiffs’ averments were insufficient to state a claim for which relief may be
granted because, among other things, the Complaint: (a) fails to adequately allege
either a statutory or non-statutory duty owed to Plaintiffs; (b) fails to adequately
allege the existence of proximate cause; (c) presents a non-justiciable issue that is
for the legislature rather than the courts; (d) seeks court intervention that would
contravene Pennsylvania’s strong policy against interference in PIAA decisions;
and, (e) avers facts that make clear that Plaintiffs assumed the risk of potential injury.
C. Trial Court’s Opinion on the PIAA’s Preliminary Objections
After briefing and argument, the trial court issued a thorough and
thoughtful 65-page opinion in which it sustained in part and overruled in part the
PIAA’s preliminary objections.
1. The PIAA’s Demurrer to Plaintiffs’ Negligence Claims
a. Duty/Assumption of the Risk
The trial court began by explaining that judicial authority often
describes “assumption of the risk” as a counterpart to “lack of duty.” See, e.g.
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Carrender v. Fitter, 469 A.2d 120, 125 (Pa. 1983); Howell v. Clyde, 620 A.2d 1107
(Pa. 1993) (plurality op.); Montagazzi v. Criscl, 994 A.2d 626 (Pa. Super. 2010).
However, as the Restatement (Second) of Torts suggests, analysis of the concept as
a defense may be more appropriate than in terms of duty. See RESTATEMENT
(SECOND) TORTS §496C, cmt. d. (analysis as a defense would be most appropriate in
a case in which the court finds there is a duty in the first instance, and the issue is
subjective knowledge of the hazard and a knowing and voluntary decision to proceed
in the face of that danger.).
Here, as the basis for its objection based on lack of duty, the PIAA
argued that the Complaint’s averments were not sufficient to show the PIAA had a
duty in the traditional sense. The PIAA argued Plaintiffs assumed the risk in the
traditional sense of voluntarily participating in a contact sport, subjectively knowing
of the risk of injury, including concussions, and yet nevertheless proceeded in the
face of danger. However, in support of its objection based on assumption of the risk,
the PIAA also suggested that, in terms of lack of duty, it had no duty under
application of the “inherent risk/no duty” rule. As additional support for its claim
that Plaintiffs assumed the risk of injury, the PIAA pointed to the fact that Plaintiffs
and their parents signed the CIPPE forms. These forms contained information about
concussions and traumatic brain injuries, and an acknowledgment by the signer of
familiarity with the nature and risks of concussion and traumatic brain injuries while
participating in interscholastic athletics, “including the risks associated with
continuing to compete after a concussion or traumatic brain injury.” Tr. Ct., Slip
Op., at 16-17 (quoting Prelim. Objs., Ex. D, §3 (CIPPE Form)). The trial court
15
analyzed the intertwined issues of “lack of duty” in connection with “assumption of
risk.”
Initially, however, the trial court discussed the SYSA, which Plaintiffs
alleged provided general standards for interscholastic athletics. The trial court noted
Plaintiffs did not rely on the statute as creating a duty on the part of the PIAA, but
rather they asserted the SYSA generally described minimum standards of care for
interscholastic athletics.
In their Complaint, Plaintiffs refer to the Pennsylvania Legislature’s
enactment of the SYSA, which, according to the Complaint “generally described
standards for interscholastic athletics: immediate removal from play for anyone
suspected of having a concussion; written clearance by a licensed medical
professional before returning to play; concussion training courses for coaches prior
to every season; and[,] signing of a concussion information sheet by the parent and
student athlete prior to every school year.” Tr. Ct., Slip Op., at 17-18 (quoting
Compl. at ¶47).
The PIAA argued that, by implication, Plaintiffs were relying on the
SYSA to prove a duty imposed on the PIAA. The PIAA then presented its
responsive argument, pointing out that the SYSA does not impose any duty on the
PIAA, but only mandates action by the Department of Health, Department of
Education, school entities, game officials, coaches, trainers and physicians. The trial
court noted the SYSA clearly does not impose a duty on the PIAA.
16
However, the trial court explained, Plaintiffs were not relying on the
SYSA to support their argument on the “duty” issue. Plaintiffs were not contending
the SYSA imposes a duty on the PIAA, but rather they asserted the SYSA generally
describes minimum standards of care for interscholastic athletics. As a result, the
trial court determined it was not necessary to engage in any discussion that the SYSA
might by implication impose a statutory duty on the PIAA. Rather, Plaintiffs’ claim
was solely that of a non-statutory duty. Nevertheless, the trial court deemed the
SYSA relevant to the PIAA’s argument that the Complaint’s averments were
insufficient to support a finding of “duty,” and that the Complaint raised issues that
were not proper for consideration by the courts.
b. Inherent Risk/No-Duty Rule
Before the trial court, the PIAA argued the Complaint revealed that, as
a matter of law, Plaintiffs’ voluntary participation in sports that involve obvious
inherent risk of injury eliminated any duty of care toward Plaintiffs. In support, the
PIAA relied on the “no-duty/inherent risk” doctrine, buttressed by Plaintiffs’
execution of the CIPPE forms which, according to the PIAA, contained
acknowledgment and acceptance of the risks of participation in football and softball.
The trial court noted that the PIAA cited to no authority defining the parameters of
the inherent risk concept. Nevertheless, the trial court noted, “[the] no-duty rule
provides that a defendant owes no duty of care to warn, protect or insure against
risks which are common, frequent, expected and inherent in an activity.” Vinikoor
v. Pedal Pa., Inc., 974 A.2d 1233, 1240 (Pa. Cmwlth. 2009).
The trial court noted it may not logically be disputed that playing
football (Hites and Teolis) or softball (Zingaro) involves an inherent risk of injury,
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including the risk of head trauma and possible concussion. However, as added
support for its argument, the PIAA pointed to provisions in its Constitution and the
CIPPE form, which specifically apprise students and parents of the risks of
participation, with specific reference to concussions in the CIPPE form.
The trial court pointed out that Plaintiffs argued they were not basing
their claims on the occurrence of the initial contact and head trauma, but rather on
the PIAA’s negligent creation and enforcement of concussion protocols (both pre-
and post-injury) that caused Plaintiffs to experience a continuing injury as they
attempt to recover. Plaintiffs further pointed to the PIAA’s alleged improper
administration of baseline testing that was causatively linked to post-injury
evaluation and treatment, and the PIAA’s omission in protocol enforcement and
provision of paid-for resources, none of which are risks that are common, frequent,
expected, and inherent in the activities at issue. Plaintiffs argued the Complaint’s
averments supported their claims that the risks of which they complained were not
inherent risks, and the PIAA deviated from established custom in the subject school
sports activities, and Plaintiffs’ averments were sufficient to withstand a demurrer
and permit the case to proceed to discovery.
In response, the trial court determined the Complaint did not aver facts
to support Plaintiffs’ contention that the “deviation from established custom
exception” applies. Tr. Ct., Slip Op., at 20. To that end, the trial court explained the
Complaint lacked factual averments to show established customs regarding
concussion injuries practiced generally that were relevant to the issues here, as well
18
as any facts to support Plaintiffs’ claim that the PIAA deviated from protocols and
practices customarily followed in general.
Remaining for discussion, the trial court stated, was Plaintiffs’
contention that the occurrence of head trauma was the risk accepted by participating
in contact sports, not the risk created by the PIAA’s alleged failure to create,
implement and enforce proper protocols, to provide for proper baseline testing, to
train and educate personnel, as well as other alleged pre- and post-concussion
negligent conduct. Plaintiffs argued the latter were not common, frequent and
expected risks of participating in contact sports; therefore, they were excepted from
operation of the inherent risk/no duty rule that would relieve the PIAA from a duty
of care. In resolving this issue, the trial court deemed relevant the Superior Court’s
decision in Craig v. Amateur Softball Association of America, 951 A.2d 372 (Pa.
Super. 2008). Ultimately, and as explained more fully below, the trial court
determined that dismissal of Plaintiffs’ negligence claims on the basis of the
“inherent risk/no-duty” rule at this stage would be premature.3
c. Duty as an Element of a Negligence Cause of Action
The trial court next considered whether, regardless of the applicability
of the “inherent risk/no duty rule,” the Complaint’s averments showed, pursuant to
a basic negligence analysis, a duty of care toward Plaintiffs could be imposed based
on the circumstances described in the Complaint.
3
The trial court further explained that: (1) in light of the fact that, to prove the defense of
assumption of the risk, a defendant must prove a plaintiff’s subjective knowledge of the specific
risk and a voluntary and knowing acceptance of that risk; (2) accepting the Complaint’s averments
as true; and, (3) affording Plaintiffs all reasonable inferences from those averments, it was not
possible to conclude with certainty that the complaint failed to state a viable claim for negligence
on the ground that Plaintiffs subjectively understood all the risks involved, and knowingly
volunteered to participate and assume those risks.
19
In considering this issue, the trial court examined our Supreme Court’s
decision in Althaus ex rel. Althaus v. Cohen, 756 A.2d 1166 (Pa. 2000), which set
forth five factors to be weighed in determining whether a duty exists in a particular
case: (1) the relationship between the parties; (2) the social utility of the actor’s
conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred;
(4) the consequences of imposing a duty on the actor; and, (5) the overall public
interest in the proposed solution. The trial court applied these factors to the various
allegations of negligence averred in Plaintiffs’ Complaint.
i. Paragraphs 76(d), (e) and (g) of the Complaint
The trial court first explained that, given the general and conclusory
nature of the allegations in paragraphs 76(d), (e) and (g) (regarding the PIAA’s
alleged failure to provide proper planning for injuries and emergencies, failure to
prioritize a safety culture for educating student-athletes on the issues related to
concussions, and failure to provide a safe playing environment), except for a
determination of whether a relationship existed between the PIAA and Plaintiffs, the
trial couurt could not conclude the remaining Althaus factors weighed in favor of
the imposition of a duty of care toward Plaintiffs. Thus, the trial court sustained the
PIAA’s demurrer to those averments.
ii. Paragraphs 76(j) and (k) of the Complaint
Next, as to the allegations of negligence averred in paragraphs 76(j) and
(k) (regarding the PIAA’s alleged failure to provide information and resources), the
trial court explained, with the exception of the relationship between the PIAA and
Plaintiffs, the remaining Althaus factors weighed against imposition of a duty.
20
When applying the duty analysis, the trial court stated, PIAA is not liable. To that
end, the trial court determined, although a relationship between the PIAA and
Plaintiffs might be inferred, the factors of the social utility of the PIAA’s activities,
the nature of the risk and foreseeability, the consequences to the PIAA, and the
overall public interest, weighed against imposition of a duty.
Further, the trial court explained, as explained more fully below, in this
tort suit for personal injury, neither proximate cause nor actual cause of the
complained of injuries could be shown.
Finally, the trial court stated, it was not aware of any authority that
mentions or approves the viability of a negligence or tort cause of action for failing
to provide information and resources under the circumstances averred in the
Complaint. In any event, the trial court explained, it would not be sound policy to
expand tort liability to encompass such a claim.
As such, the trial court sustained the PIAA’s demurrer to Plaintiffs’
damage claim based on the PIAA’s alleged negligent failure to inform student-
athletes of available financial resources and to take action to provide those resources
to student-athletes and their families, as alleged in paragraphs 76(j) and (k) of the
Complaint as well as paragraphs 6(f) and 59, and as may be alleged elsewhere in the
Complaint.
iii. Paragraphs 76(a)-(c), (f), (h) and (i) of the Complaint
As to paragraphs 76(a)-(c), (f), (h) and (i), incorporating paragraphs
6(a) and (e) and supplemented by paragraphs 6(c) and (d), which relate to the duty
21
owed to the individual named Plaintiffs, the trial court first noted its analysis was
impacted by the fact that the SYSA became effective in July 2012, after the
concussion suffered by Hites, but before the concussions suffered by Zingaro and
Teolis.
As to Hites, the trial court determined paragraphs 76(c) and the latter
part of subparagraph (f) (alleging the PIAA failed to provide adequate medical
personnel and consistent and ongoing warnings of long term risks and adequate post-
concussion care or monitoring), the trial court determined the Althaus factors
weighed against imposition of a duty on the PIAA.
However, as to paragraph 6(c) (the PIAA’s alleged failure to require
qualified medical personnel), accepting the Complaint’s averments as true at this
stage, the trial court stated, it must be accepted that the failure to require and enforce
proper screening, baseline testing and interpretation, and proper use of baseline
testing (Compl. at ¶76(a)); failure to fully educate athletic departments and trainers
regarding concussion diagnoses, and protocols, and to provide ongoing education to
parents and student-athletes (Compl. at ¶76(b)); failure to provide consistent and
ongoing warning of long term risks (Compl. at ¶76(f)); failure to create, implement
and enforce diagnosis protocols, immediate access to baseline testing and “sideline
testing for continuation of practice or play” (Compl. at ¶76(h)); failure to create,
implement and enforce proper return-to-activity protocols after a concussion
diagnosis (Compl. at ¶76(i)); failure to require qualified medical personnel (Compl.
at ¶6(c)); and, failure to mandate removal of athletes (Compl. at ¶6(d)), could
conceivably have led to increased harm to student-athletes suffering concussions.
22
Likewise, the trial court determined, accepting the Complaint’s factual
allegations as true, which suggest the PIAA’s past awareness of the existence of the
protocols and policies that Plaintiffs allege were accepted and established, and the
potential consequences of failure to comply with those standards, Plaintiffs averred
sufficient facts to support a claim that the risk of some level of exacerbation of harm
as a result of the failure to comply with those responsibilities might have been
foreseeable.
The trial court further explained it also appeared that imposing a duty
to provide and perform the responsibilities identified in Paragraph 76(a), (b), (h) and
(i), and the remaining portion of subparagraph (f), as well as paragraphs 6 (c) and
(d) would adversely affect the PIAA’s ability to perform its responsibilities in their
present form. However, the trial court reiterated, this case is now only at the
preliminary objection stage. The trial court stated there was insufficient record
evidence from which such findings regarding Paragraph 76(a), (b), (h) and (i), and
the second part of subparagraph (f), as well as paragraphs 6(c) and (d), may be made.
As such, the trial court determined a final evaluation and decision regarding the
consequences of imposition of a duty as to the responsibilities suggested in
paragraphs 76(a), (b), (h) and (i), and the remaining portion of subparagraph (f)
(regarding warning of risks), as well as in paragraphs 6(c) and (d), in Hites’ case,
must await discovery and further proceedings. Therefore, the trial court stated, the
task of weighing the social utility of the PIAA’s conduct against the risk and
foreseeability of the harm must likewise be postponed.
23
Finally, the trial court stated, the public should be interested in adopting
practical measures to enhance the safety of participation in interscholastic contact
sports. At this stage, the trial court explained, in Hites’ case, and accepting the
Complaint’s averments as true, as to paragraphs 76 (a), (b) (h) and (i), and the
remaining part of paragraph (f), and as to paragraphs 6(c) and (d), it appeared that
Althaus factors one and five (relationship between the parties and overall public
interest in the proposed solution) weighed in favor of finding the existence of a duty,
and that factor two (the social utility of the actor’s conduct) weighed in favor of the
PIAA. The trial court explained that a final determination of foreseeability (factor
three) and the weight of factor three would depend on findings of fact that may be
made after development of an evidentiary record, and although it seemed likely that
factor four (the consequences of imposing a duty on the actor) would weigh in favor
of the PIAA, there was insufficient development of a record at this point to sustain
the PIAA’s claim that imposition of a duty would impose an impossible or, at least,
impractical burden. Therefore, as to Hites’ claims, the trial court overruled the
PIAA’s demurrer to paragraphs 76(a), (b), (h) and (i), and the identified parts of
subparagraph (f), as well as paragraphs 6(c) and (d), with further ruling to await the
close of the pleadings and discovery. See, e.g., Barton v. Lowe’s Home Cntrs., Inc.,
124 A.3d 349, 360 (Pa. Super. 2015) (although complaint may survive demurrer,
issue of “duty” is to be revisited, if warranted, based on evidence submitted at later
phases of the case).
Next, as to Plaintiffs Zingaro and Teolis, the trial court stated, the
concussions suffered by those Plaintiffs occurred after the SYSA’s effective date.
Thus, the SYSA must be considered when analyzing Plaintiffs’ claims based on the
24
allegations of the PIAA’s duty toward Zingaro and Teolis. The trial court noted the
SYSA establishes responsibility in interscholastic athletics for education regarding
concussions and consequences, rules for removal from play and return to play,
training for coaches, a requirement that the governing body of a school establish
penalties for a coach found in violation of the removal from and return to play rules
set forth in the SYSA, and provides for coaches’ immunity from civil liability.
The trial court stated it must be concluded that the Legislature has
assumed responsibility for establishment of: rules and policy for education of
student-athletes and parents regarding concussions and consequences; training of
coaches who are to be responsible for removal from and return to play decisions;
decisions to be based on opinions of medical professionals; authority for schools to
designate the medical professional who is to provide opinions regarding return to
play decisions; minimum penalties for violation of the rules regarding removal from
and return to play, to be enforced by the school; and, immunity of a coach from civil
liability.
Consequently, whether analyzed pursuant to the five Althaus factors,
or notions of public policy, the trial court stated, the SYSA must be considered when
evaluating whether a duty should be imposed on the PIAA as a basis for the
Complaint’s allegations of negligence.
The trial court stated that, given enactment of the SYSA and the
Legislature’s promulgation of rules and standards as set forth above, with the
exception of failure to implement baseline testing averred in paragraphs 76(a) and
(h), the consideration of the factor of foreseeability and risk of harm (the third
25
Althaus factor), and the consequences of imposing a duty on the PIAA (the fourth
Althaus factor), would seem to weigh against a finding of duty as to paragraphs
76(b), (c), (f), (i), and the remaining allegations in subparagraph (h), as well as
paragraph 6(c) and (d).
In addition, the trial court stated, notions of practicality apply,
considering the problems that would arise from an obligation to adopt policies in
response to Plaintiffs’ allegations of deficiencies in enforcement, training, actions
regarding medical professionals, and other areas, that might conflict, or be
inconsistent, with the rules and policy established by the Legislature or by the
Departments of Health or Education, schools and coaches, and the Center for
Disease Control and Prevention.
Ultimately, the trial court stated, bound by its mandate to accept all
relevant averments from the Complaint as true, as well as all reasonable inferences
from those averments, the ruling in the cases of Zingaro and Teolis must be the same
as in the case of Hites. Thus, the trial court sustained the PIAA’s demurrer based on
failure of the Complaint to aver sufficient facts to support imposition of a duty with
regard to paragraph 76(c) and that part of subparagraph (f) that alleges failure to
provide post-concussion care and monitoring. The trial court overruled the demurrer
as to subparagraphs 76(a), (b), (h) and (i), and that part of subparagraph (f) that
alleges failure to “provide consistent and ongoing warning of long-term risks” and
as to paragraphs 6(c) and (d), with the same comment as was made in the case of
Hites. Tr. Ct., Slip Op., at 39. Nevertheless, the trial court acknowledged that the
26
issue of duty would be revisited at succeeding stages of the case, with an eye toward
the SYSA, as may be warranted as the record develops.
d. Proximate Cause
The trial court next examined the issue of whether Plaintiffs sufficiently
pled proximate cause. As explained above, the trial court sustained the PIAA’s
demurrer based on failure to aver facts supporting the imposition of a duty as to
paragraphs 76 (d), (e) and (g) of the Complaint. Further, the trial court sustained the
PIAA’s demurrer to that portion of Plaintiffs’ negligence claim set forth in
paragraphs 76 (j) and (k). Moreover, the trial court explained, if those allegations
were analyzed based on the factors listed in Section 433 of the Restatement (Second)
of Torts (stating three factors for determining whether negligent conduct is a
substantial factor in producing an injury), an inference supporting a finding of
proximate cause could not be made.
In addition, the trial court observed, after the initial impacts occurred,
the alleged failures to recognize and diagnose concussion symptoms, improper
permission of return to play, failure to direct appropriate post-concussion symptom
testing and medical treatment, and improper permission to return to play after
medical clearance, were committed, and made, by school and medical personnel.
The trial court further stated, although the Complaint sets forth a
conclusion that the PIAA failed to enforce its rules and regulations, it does not aver
facts to support the conclusion. Specifically, the Complaint does not allege the
manner in which lack of enforcement relates to the actions of the school and medical
27
personnel involved in the different school districts attended by each of the individual
Plaintiffs.
The trial court also explained that, although it is a court’s responsibility
to determine from the facts pled whether any viable cause of action exists, it is a
plaintiff’s burden to plead sufficient facts upon which a court may make that
determination. Without averments providing the facts upon which Plaintiffs were
relying to show the requisite connection to the complained of harm, the trial court
determined it was required to sustain the PIAA’s demurrer to Plaintiffs’ cause action
with regard to Plaintiffs’ claims concerning: failure to provide ongoing education
with parents and student-athletes as alleged in paragraph 76(b); failure to provide
medical equipment described in paragraph 76(c); the negligent conduct averred in
paragraphs 76(d), (e), (g), (j) and (k); and, the lack of enforcement alleged in
paragraphs 76(h) and (i) and elsewhere in the Complaint.
On the other hand, the trial court explained, the allegations of
negligence surviving the demurrer based on lack of causation were the PIAA’s
alleged failure to: require proper baseline testing and interpretation in paragraph
76(a); educate athletic departments and trainers in paragraph 76(b); provide
warnings of long-term risks in paragraph 76(f); create and implement protocols in
paragraphs 76(h) and (i); require qualified medical personnel in paragraph 6(c); and,
mandate removal from play in paragraph 6(d).
2. The PIAA’s Preliminary Objection that Plaintiffs’ Claims are Non-
Justiciable
28
The trial court next considered the PIAA’s preliminary objection that
the Complaint presented a non-justiciable issue for the legislature rather than the
courts. The trial court explained there was no allegation that the Pennsylvania
Legislature appointed the PIAA as the agency responsible for adopting,
implementing and enforcing rules and regulations to govern recognition, response,
treatment, rehabilitation and other issues involving concussion injuries incurred in
interscholastic sports.
As noted above, the trial court indicated, the Pennsylvania Legislature
adopted legislation that: imposes obligations on the Department of Health and the
Department of Education to develop and disseminate guidelines and other
information regarding the nature and risk of concussion and traumatic brain injuries;
establishes procedures that coaches and school officials must follow regarding
removal from play, return to play, and training; and, requires schools to establish
penalties for a coach’s non-compliance. Significantly, the SYSA also provides for
immunity from civil liability for coaches who comply with its requirements.
In addition, the Legislature enacted legislation directing the board of
school directors in every school district to “prescribe, adopt, and enforce such
reasonable rules and regulations as it may deem proper, regarding … the
management, supervision, control, or prohibition of exercises, athletics, or games of
any kind ….” Section 511(a)(1) of the Public School Code of 1949 (School Code).4
4
Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §5-511(a)(1).
29
With the enactment of the SYSA, the trial court explained, the
Legislature assigned responsibility in the areas of education, training, removal from
play, return to play and adoption and enforcement of penalties to state agencies and
school districts. The trial court further stated, to hold the PIAA accountable for
failure to implement policies, protocols and rules advocated by Plaintiffs might place
the PIAA in the dilemma of deciding whether to promulgate and enforce protocols
and rules that could be inconsistent or in conflict with the legislatively promulgated
rules and penalties. Because involving subjects in an area in which the Legislature
acted, the trial court stated, with the exception of allegations relating to baseline
testing, it may be argued that the claims of Zingaro and Teolis impermissibly
impinge on the legislative scheme and the Legislature’s assumption of responsibility
regarding the subject of response to student-athlete concussion related events.
Ultimately, the trial court determined, absent development of a record
to provide information as to the specific parameters of Plaintiffs’ claims, it could not
be determined with the requisite degree of certainty the extent to which those claims
might improperly interfere and conflict with legislative provisions already in place,
and the Legislature’s assumed role and responsibility to investigate, deliberate and
enact legislation or take other action regarding the subject matter and issues that
Plaintiffs are attempting to resolve in the judicial sphere. As such, the trial court
overruled the PIAA’s demurrer to Plaintiffs’ negligence cause of action based on
non-justiciability, only to be confronted as the case develops.
30
For these reasons, the trial court issued an order sustaining in part and
overruling in part the PIAA’s preliminary objections.5
D. The PIAA’s Petition for Permission to Appeal the Trial Court’s
Interlocutory Order
Thereafter, the PIAA filed an application, asking the trial court to
amend its order sustaining in part and overruling in part the PIAA’s preliminary
objections to certify this case for immediate appeal pursuant to Section 702(b) of the
Judicial Code, 42 Pa. C.S. §702(b) (relating to interlocutory appeals by permission).
Plaintiffs opposed the PIAA’s application.
Ultimately, the trial court issued an opinion in which it first explained
that a complicating factor in arriving at an appropriate resolution of the PIAA’s
5
The PIAA also raised several other preliminary objections to the Complaint. More
particularly, the PIAA objected that Plaintiffs failed to allege facts that would allow them to prevail
on their claim for a medical monitoring trust fund under Pennsylvania law. Further, the PIAA
objected to Plaintiffs’ claims for equitable relief because of the existence of a full, complete and
adequate non-statutory remedy at law. Additionally, the PIAA objected to the inclusion of alleged
impertinent matter in the Complaint. The PIAA also objected to Plaintiffs’ claim of class
representation on the ground that it was clear from the facts averred that Plaintiffs could not satisfy
the elements required to maintain a class action suit. Finally, the PIAA objected to Plaintiffs’
claim for attorney fees on the ground that attorney fees are non-recoverable in these circumstances.
As to the these preliminary objections, the trial court: (1) sustained the PIAA’s demurrer
to Plaintiffs’ medical monitoring claim (Count II of the Complaint) on the ground that case law
makes clear that a medical monitoring cause of action was only adopted in toxic tort cases, see
Redland Soccer v. Dep’t of Army, 696 A.2d 137 (Pa. 1997); (2) sustained the PIAA’s demurrer to
Plaintiffs’ claim for equitable relief (Count III of the Complaint) on the ground that the equitable
relief sought by Plaintiffs would constitute overreaching into the legislative sphere; (3) sustained
in part and overruled in part the PIAA’s preliminary objection that the Complaint contained
impertinent matter; and, (4) sustained in part and overruled in part the PIAA’s preliminary
objection to the suit proceeding as a class action. The trial court also denied the PIAA’s motion
to strike Plaintiffs’ request for attorney fees at this stage.
The trial court’s rulings on these issues are not before us in this appeal.
31
application was the fact that, in response to the trial court’s order sustaining in part
and overruling in part the PIAA’s preliminary objections, Plaintiffs filed a first
amended complaint to which the PIAA filed preliminary objections that were
awaiting argument. However, the trial court explained, the first amended complaint
did not eliminate any of the issues that were the subject of the trial court’s prior
rulings. Thus, the trial court opined that its rulings on the issues set forth above
involved controlling questions of law as to which there was a substantial ground for
difference of opinion, and that an immediate appeal of those rulings might materially
advance the ultimate termination of the matter. As such, the trial court granted the
PIAA’s application to certify this case for immediate appeal under 42 Pa. C.S.
§702(b).
The PIAA subsequently filed a petition for permission to appeal to this
Court, which Plaintiffs opposed. Ultimately, this Court issued an order granting the
PIAA’s petition limited to the four issues stated above. This matter is now before
us for disposition.
II. Issues
As stated above, this Court granted the PIAA’s petition for permission
to appeal the trial court’s interlocutory order to consider the following four
negligence-based issues: (1) whether the claims pled are non-justiciable based on
the effect of the SYSA; (2) whether Plaintiffs are barred from recovery, as a matter
of law, because of the “inherent risk/no duty” rule; (3) whether Plaintiffs are unable
to establish the requisite “duty” as an element of their negligence cause of action
because the “duty” may not be imposed on the PIAA as a matter of public policy;
and, (4) whether Plaintiffs failed to aver facts to show the requisite causation.
32
III. Discussion
With regard to the applicable standards in reviewing a trial court’s
rulings on preliminary objections, in Hill v. Slippery Rock University, 138 A.3d 673,
676-77 (Pa. Super. 2016), appeal denied, 164 A.3d 491 (Pa. 2017), the Superior
Court explained:
A preliminary objection in the nature of a demurrer
is properly granted where the contested pleading is legally
insufficient. Preliminary objections in the nature of a
demurrer require the court to resolve the issues solely on
the basis of the pleadings; no testimony or other evidence
outside of the complaint may be considered to dispose of
the legal issues presented by the demurrer. All material
facts set forth in the pleading and all inferences reasonably
deducible therefrom must be admitted as true.
In determining whether the trial court properly
sustained preliminary objections, the appellate court must
examine the averments in the complaint, together with the
documents and exhibits attached thereto, in order to
evaluate the sufficiency of the facts averred. The impetus
of our inquiry is to determine the legal sufficiency of the
complaint and whether the pleading would permit
recovery if ultimately proven. This Court will reverse the
trial court’s decision regarding preliminary objections
only where there has been an error of law or abuse of
discretion. When sustaining the trial court’s ruling will
result in the denial of claim or a dismissal of suit,
preliminary objections will be sustained only where the
case is free and clear of doubt.
Thus, the question presented by the demurrer is
whether, on the facts averred, the law says with certainty
that no recovery is possible. Where a doubt exists as to
whether a demurrer should be sustained, this doubt should
be resolved in favor of overruling it.
A. Justiciability of Plaintiffs’ Claims Based on the SYSA
33
1. Contentions
The PIAA first argues that, as evidenced by the scope of and duties
imposed by SYSA, Plaintiffs’ negligence claims involve non-justiciable issues
reserved for the Legislature. Thus, the PIAA asserts, the courts must not usurp the
Legislature’s policy and rule making authority by imposing duties clearly not
required by statute.
The PIAA contends Pennsylvania courts hold “[t]he enunciation of
matters of public policy is fundamentally within the power of the legislature.” Lurie
v. Republican Alliance, 192 A.2d 367, 370 (Pa. 1963). Thus, “[w]hile the courts
may in a proper case, in the absence of a legislative pronouncement, determine what
is against public policy … [i]t is only when a given policy is so obviously for or
against the public health, safety, morals or welfare that there is a virtual unanimity
of opinion in regard to it, that a court may constitute itself the voice of the community
in so declaring.” Id. (citation and internal quotation omitted); see also Atcovitz v.
Gulph Mills Tennis Club, Inc., 812 A.2d 1218 (Pa. 2002) (declining to impose a duty
on club to maintain defibrillator on its premises, principally on the ground that
legislature carefully regulated use of such devices without imposing a duty on
business operators to maintain such equipment); Pierscionek v. Illinois High Sch.
Ass’n, No. 14 CH 19131 (Ill. Cir. Ct. filed Oct. 25, 2017) (trial order), 2015 WL
6550826 at *1 (unreported) (holding, in a similar concussion case that such issues
were a public policy dispute for the legislature and school boards, and noting
injunctive relief would improperly interfere with “the distinct province of the
legislature.”)
34
By enacting the SYSA, the PIAA maintains, the Pennsylvania
Legislature made clear that the issues presented here and duties alleged by Plaintiffs
are matters reserved for the Legislature. The PIAA argues the SYSA is a
comprehensive act designed to protect and educate students and the public, which
places affirmative burdens on the Departments of Health and Education, school
entities, game officials, coaches, trainers, physicians and others regarding
prevention and treatment of head injuries in youth sports. Despite expressly
choosing to place duties on all of these persons and entities, the PIAA contends,
there is no dispute the Legislature imposed no duty on PIAA.
The PIAA further asserts the SYSA requires the Departments of Health
and Education to develop and publicize information to “educate students
participating in or desiring to participate in an athletic activity, their parents and
their coaches about the nature and risk of concussion and traumatic brain injury,
including the risks associated with continuing to play or practice after a concussion
or traumatic brain injury.” See Section 3(a) of the Act, 24 P.S. §5323(a). The
SYSA also requires students and parents to acknowledge receipt and review of “a
concussion and traumatic brain injury information sheet.” Id. Thus, the PIAA
contends, the SYSA includes guidelines and mandates to make certain that students
and parents are educated and receive warnings regarding the risks of head injuries.
The PIAA maintains the SYSA is directed to “school entit[ies],” which
the School Code defines as “[a] public school, school district, nonpublic school or
private school in this Commonwealth other than a private or nonpublic school
which elects not to become a member of the [PIAA].” Section 1602-A of the School
35
Code, 24 P.S. §16-1602-A.6 Such school entities “may”—but are not required to—
hold seasonal informational meetings for competitors “regarding concussions and
other head injuries, the importance of proper concussion management and how
preseason baseline assessments can aid in the evaluation, management and recovery
process.” See Section 3(b) of the SYSA, 24 P.S. §5323(b). These informational
meetings may include physicians, neuropsychologists, athletic trainers and physical
therapists. Id. Thus, the PIAA argues, the Legislature addressed the obligations of
PIAA members. Clearly, it asserts, the Legislature was aware of the PIAA and its
member schools, but chose to impose only upon the schools a suggestion to hold
informational meetings.
In addition, the PIAA contends, the SYSA is directed to coaches, game
officials, and medical professionals. Thus, removal from play decisions and the
responsibility to remove concussed players rests with those individuals. Section 3(c)
of the SYSA, 24 P.S. §5323(c). Coaches may not permit a concussed athlete to
participate unless and until the athlete is cleared in writing by an “appropriate
medical professional,” who may be designated by “the governing body of a school
entity.” Section 3(d) of the SYSA, 24 P.S. §5323(d). Ultimately, if a coach is found
to be in violation of the removal from or return to play subsections, the SYSA
requires the governing body of a school entity to establish the penalties enumerated
by the statute. Section 3(f) of the SYSA, 24 P.S. §5323(f). The PIAA also asserts
coaches are charged with completing an annual concussion management
certification training course offered by the Center for Disease Control, the National
Federation of State High School Associations, or another approved provider.
6
Section 1602-A was added by the Act of November 22, 2000, P.L. 672.
36
Section 3(e) of the SYSA, 24 P.S. §5323(e). Thus, the PIAA maintains, the SYSA
places the burden on coaches and medical professionals, not the PIAA, to become
educated regarding the proper handling of concussions and removal from or return
to play decisions.
Finally, the PIAA points out, “sponsors of youth athletic activities not
specifically addressed by [the SYSA] are encouraged to follow the guidance set
forth in [SYSA].” Section 3(g) of the SYSA, 24 P.S. §5323(g). The PIAA
contends, although it is not clear that the PIAA is a “sponsor of youth athletic
activities,” even if it is, the SYSA only “encourages” such sponsors to follow its
guidance, expressly choosing not to impose any mandated burdens or duties on any
person or entity involved in youth sports other than as expressly stated. Id.
The PIAA argues that, despite the broad scope and direct relevance of
the SYSA to the issues presented here, as recognized by Plaintiffs and the trial court,
the SYSA imposes no duty on the PIAA. It asserts that, to the extent the Legislature
wished to express any opinion regarding or impose duties on PIAA or any other
entities, it could and would have here, as it expressly addressed many persons and
entities regarding these issues. In so doing, the PIAA contends, the Legislature also
expressed its intentions by excluding the PIAA. It maintains Pennsylvania courts
observe the statutory interpretation rule of expressio unius est exclusio alterius (the
express mention of a specific matter in a statute implies the exclusion of others not
mentioned).
37
As a result, the PIAA argues, the Legislature has spoken regarding the
imposition of relevant duties and responsibilities and chose not to impose such
duties on PIAA. The PIAA asserts this conclusion is bolstered by the fact that the
School Code places the duty and responsibility for prescribing, adopting and
enforcing rules and regulations regarding the management, supervision, control or
prohibition of exercises, athletics or games of any kind on the board of school
directors of each school and requires schools to stand in loco parentis over children
participating in school activities. See Sections 511 and 1317 of the School Code,
24 P.S. §§5-511, 13-1317.
The PIAA maintains the trial court held that further development of a
record was necessary to provide information as to the specific parameters of
Plaintiffs’ claims before determining the SYSA’s impact on the negligence claims.
To the contrary, the PIAA asserts, no further record is needed to dismiss these
claims.7
2. Analysis
No error is apparent in the trial court’s decision to overrule the PIAA’s
preliminary objection to Plaintiffs’ negligence claims on the ground that, based on
the enactment of the SYSA, those claims involve non-justiciable issues reserved for
the Legislature.
At the outset, we note, because this appeal arises from the trial court’s
order disposing of the PIAA’s preliminary objections to Plaintiffs’ original
7
The National Federation filed an amicus curiae brief in support of the PIAA.
38
complaint, we consider the averments in the original complaint, rather than
Plaintiffs’ first amended complaint (referenced throughout Plaintiffs’ brief), in
analyzing the issues presented.
The SYSA is comprised of three sections: (1) its “Short title,” Section
1 of the SYSA, 24 P.S. §5321; (2) its “Definitions” section, Section 2 of the SYSA;
and, (3) a section entitled “Concussions and traumatic brain injuries.” Section 3 of
the SYSA.
Section 2 of the SYSA contains definitions for the following terms: (1)
“appropriate medical professional”; (2) “athletic activity”; (3) “interscholastic
athletics”; and (4) “school entity.” The term “school entity,” which is defined by
reference to the School Code, is “a public school, school district, nonpublic school
or private school in this Commonwealth other than a private or nonpublic school
which elects not to become a member of the association.” Id.
Section 3 of the SYSA is divided into several subsections, which: (1)
requires the Departments of Health and Education to develop guidelines and other
relevant materials to inform and educate students participating in or desiring to
participate in an athletic activity, their parents and their coaches about the nature and
risk of concussion and traumatic brain injury, including the risks associated with
continuing to play or practice after a concussion or traumatic brain injury; (2) permits
school entities to hold informational meetings before each athletic season for all ages
of competitors regarding concussions and other head injuries, the importance of
proper concussion management and how preseason baseline assessments can aid in
39
the evaluation, management and recovery process; (3) sets forth standards for
removal from and return to play after a concussion or traumatic brain injury; (4)
requires coaches to complete a concussion management certification training course;
(5) sets forth penalties for coaches who violate the removal from or return to play
requirements; (6) encourages sponsors of youth athletic activities not specifically
addressed by the SYSA to follow the SYSA’s guidelines; and, (7) sets forth civil
liability provisions, which state (a) “nothing in [the SYSA] shall be construed to
create, establish, expand, reduce, contract or eliminate any civil liability on the part
of any school entity or school employee[,]” Section 3(i)(1) of the SYSA, 24 P.S.
§5323(i)(1); and, (b) any coach who acts in accordance with the removal from or
return to play requirements shall be immune from civil liability.
Noticeably absent from the SYSA is any mention of the PIAA.
Additionally, as to civil liability, the SYSA expressly states that nothing in the SYSA
shall be construed to “reduce, contract or eliminate any civil liability on the part of
any school entity or school employee.” Id. Thus, while the SYSA adds certain
responsibilities to school entities and school employees, it does not purport to alter
any immunity which may currently exist for them. See M.U. v. Downingtown High
Sch. East, 103 F. Supp. 3d 612 (E.D. Pa. 2015). The SYSA does extend immunity
to compliant coaches, who may or may not be school employees. In sum, there is
no indication that the General Assembly, through enactment of the SYSA, intended
to eliminate civil suits such as the suit filed by Plaintiffs here against the PIAA.
In addition, as the trial court properly explained (with emphasis added),
with passage of the [SYSA], the Legislature assigned
responsibility in the areas of education, training, removal
40
from play, return to play and adoption and enforcement of
penalties to state agencies and to the individual school
districts. To hold [the] PIAA accountable for failure to
implement policies, protocols and rules advocated by
Plaintiffs might place [the] PIAA in the dilemma of
deciding whether to promulgate and enforce protocols and
rules that could be inconsistent or in conflict with the
legislatively promulgated rules and penalties. Because
involving subjects in an area in which the Legislature has
acted, with the exception of allegations relating to baseline
testing, it may be argued that [Zingaro] and [Teolis’]
claims impermissibly impinge upon the legislative scheme
and the Legislature’s assumption of responsibility
regarding the subject of response to student athlete
concussion related events. …
Without additional development of the record to
provide information regarding the specific parameters of
Plaintiffs’ claims, it cannot be determined with the
required degree of certainty the extent to which those
claims might improperly interfere and conflict with the
legislative provisions already in place, and the
Legislature’s assumed role and responsibility to
investigate, deliberate and enact legislation or take other
action regarding the same subject matter and issues that
Plaintiffs are attempting to resolve in the judicial sphere.
Consequently, the demurrer to Plaintiffs’
negligence cause of action based on [non-justiciability]
will be overruled, only to be confronted as the case
develops.
Tr. Ct., Slip Op., at 44-45. Thus, dismissal of Plaintiffs’ negligence claims based
upon the enactment of the SYSA would be premature at this stage.
Further, Atcovitz and Pierscionek, cited by the PIAA are
distinguishable. In Atcovitz, our Supreme Court determined that a tennis club did
not owe a duty of care to its members to acquire and maintain an automated external
defibrillator (AED) on its premises for emergency use. In granting summary
41
judgment in favor of the tennis club, the Court determined the use of AEDs was
highly regulated through the former Emergency Medical Services Act8 (EMS Act)
and its regulations, and the club was not required to keep an AED on its premises
for use by unqualified and untrained personnel. The Court also determined 42 Pa.
C.S. §8331.2 (“Good Samaritan civil immunity for use of [AED]”), which created
an exception for imposing liability on untrained individuals who used AEDs in
limited emergency situations, did not authorize the use of AEDs by untrained
individuals, and it did not impose a duty on the tennis club to acquire and maintain
such a device.
First, unlike in Atcovitz, which arose at the summary judgment stage,
the case presently before us arises from the trial court’s decision on preliminary
objections. Additionally, unlike the legislative exclusion of untrained persons from
the EMS Act, which implied that untrained individuals were precluded from
administering emergency medical services using AEDs, there is no indication here
that, through the enactment of the SYSA, the Legislature intended to eradicate
negligence claims such as those alleged by Plaintiffs. Indeed, as set forth above, the
SYSA expressly states that it is not intended to eliminate civil liability.
Further, in Pierscionek, an unreported Illinois case involving claims
relating to concussions sustained in high school football, the plaintiff’s complaint
only contained counts seeking injunctive relief and creation of a medical monitoring
8
Act of July 3, 1985, P.L. 164, as amended, formerly 35 P.S. §§6921-6938. The
Emergency Medical Services System Act is now codified at 35 Pa. C.S. §§8101-8157.
42
fund. At issue in this appeal, however, are only Plaintiffs’ negligence claims.9 Thus,
the nature of the relief sought distinguishes this case from Pierscionek.
For all of these reasons, no error is apparent in the trial court’s decision
to overrule the PIAA’s preliminary objection on the ground that the SYSA renders
Plaintiffs’ negligence claims non-justiciable.
B. Inherent Risk/No Duty Rule
1. Contentions
The PIAA next argues Plaintiffs’ negligence claims must be dismissed
in their entirety pursuant to the “inherent risk/no duty rule” because the alleged
injuries were inherent to the activities in which they occurred. As a general rule,
the PIAA asserts, where a plaintiff suffers injury as a result of a risk that is inherent
to an activity, Pennsylvania courts deny recovery finding no duty to exist. See e.g.,
Vinikoor, 974 A.2d at 1240 (“The no-duty rule provides that a defendant owes no
duty of care to warn, protect or insure against risks which are common, frequent,
expected and inherent in an activity.”). The PIAA contends this is particularly true
in a sports setting. See Amon v. Shemaka, 214 A.2d 238, 240 n.* (Pa. 1965)
(“Every player in and every spectator at a baseball game, a football game, a
basketball or soccer or hockey game … knows that an accident or injury may occur
in these and in many other sports, and that by playing or watching, he voluntarily
assumes the risk of injury. …”). Thus, “if it is determined the no-duty rule is
applicable to a negligence claim, a plaintiff will be unable to set forth a prima facie
case of liability.” Craig, 951 A.2d at 376 (citation omitted).
9
As noted above, the trial court here sustained the PIAA’s preliminary objections to
Plaintiffs’ claims for injunctive relief and creation of a medical monitoring fund, and the propriety
of those rulings is not presently before this Court.
43
Here, the PIAA argues, Craig, and the inherent risk/no duty rule
generally require dismissal of Plaintiffs’ negligence claims in their entirety. To that
end, the PIAA asserts, each of the injuries was the direct result of head trauma
occurring in the course of practices or games. Importantly, the PIAA contends, the
Complaint is replete with allegations that show head trauma is a common and well
known risk in youth sports. See Compl. at ¶¶31, 41, 44, 45. Equally clear from the
Complaint, the PIAA argues, is the allegation that the risk of secondary head injury
is common and expected in youth sports and such injuries are a prevalent occurrence
closely related to the inherent risk of primary injury. See Compl. at ¶¶33-36, 60.
The PIAA asserts the Complaint’s allegations support a conclusion that primary and
secondary injuries are inherent risks associated with playing contact sports.
The PIAA further contends, although Plaintiffs allege they suffered
various injuries and impairments as a result of head trauma, the nature of these
injuries and whether they were foreseeable are irrelevant to the analysis. Indeed,
“[o]nce a risk is deemed inherent, it no longer matters whether the risk is also
foreseeable.” Craig, 951 A.2d at 376-77. Thus, the PIAA asserts, as all of the
injuries result from the inherent risk of head trauma, the inherent risk rule applies,
and the PIAA had no duty to prevent such injuries.
Nevertheless, as the trial court explained, Plaintiffs asserted
the occurrence of head trauma is the risk that is accepted
by participating in the subject contact sports, not the risk
created as a result of PIAA’s alleged failure to create,
implement and enforce proper protocols; failure to provide
for proper baseline testing; failure to train and educate
personnel; and other alleged pre- and post-concussion
44
negligent conduct; and that the latter are not common,
frequent and expected risks of participating in contact
sports, and, therefore, are excepted from operation of the
inherent risk/no duty rule that would relieve [the] PIAA
from a duty of care.
Tr. Ct., Slip Op., at 21.
The PIAA contends Plaintiffs’ Complaint reveals these risks are, in
fact, frequent and expected risks. However, the PIAA argues, even if it did not, this
is a distinction without a difference. Albeit creatively, the PIAA contends, Plaintiffs
merely seek a backdoor to permit them to create liability where none exists. Rather
than creating or identifying different “risks,” the risk created as a result of these
alleged “failures” remains primarily, if not exclusively, head trauma. If the PIAA
does not have a duty to prevent the inherent risk of head trauma in contact sports, it
asserts, it must not be burdened with a duty to create protocols, testing or education
to do so.
Further, the PIAA maintains, this is not a case in which Plaintiffs can,
in good faith, argue they were not aware or informed of these inherent risks. Before
being permitted to participate in the sports at issue, all student-athletes or their
parents receive and are required to sign CIPPE forms, which state, among other
things: “I hereby acknowledge that I am familiar with the nature and risk of
concussion and traumatic brain injury while participating in interscholastic
athletics, including the risks associated with continuing to compete after a
concussion or traumatic brain injury.” Reproduced Record (R.R.) at 203a. The
PIAA argues the CIPPE form plainly advises that head trauma, including trauma
resulting from participating after an initial head injury, is a risk inherent to the
45
activity and the fact that (as alleged in the Complaint) all student-athletes are
required to acknowledge these risks only bolsters the inherent nature of the risk
involved. Compl. at ¶57.
Finally, the PIAA asserts, the very nature of the head trauma at issue
and the manner in which it may occur shows both primary and secondary head
trauma are inherent risks in youth sports. See Compl. at ¶¶33-36, 60. It contends
the occurrence of a prior concussion, prior blow to the head, or multiple blows to
the head does not change the nature of the risk involved. Concussions are not
always recognizable and, as alleged in the Complaint, signs and symptoms of a
concussion are highly variable and individualized, and no two concussions are
exactly alike. Id. at ¶33. Thus, the PIAA maintains, to hold that secondary head
trauma is not an inherent risk would place a burden on the PIAA to stop play and
perform extensive testing each time a blow to the head occurs, regardless of the
immediate presence or absence of outward signs of concussion. The PIAA argues
this absurd result would severely impair, if not destroy, many interscholastic sports.
See Mayall v. USA Water Polo, Inc., 174 F. Supp. 3d 1220, 1227 (C.D. Cal. 2016)
(risks of primary and secondary concussions are inherent to water polo; discussing
detrimental impact of a contrary finding on the “fundamental nature” of the sport).
In sum, the PIAA argues, contrary to the trial court’s ultimate
conclusion, no amount of discovery or further pleading is needed to determine the
nature of the risk or the appropriate application of the inherent risk/no duty rule.
The only risk at issue is the risk of head trauma and that risk is inherent in any
46
contact sport. As a result, the PIAA asserts the no duty/inherent risk rule bars
Plaintiffs’ negligence claims.
2. Analysis
We discern no error in the trial court’s decision to overrule the PIAA’s
preliminary objection on the basis of the “inherent risk/no duty” rule at this early
stage of the litigation.
The “inherent risk/no duty” rule provides that a defendant owes no
duty of care to warn, protect, or insure against risks which are “common, frequent
and expected” and “inherent” in an activity. Craig, 951 A.2d at 375-76 (quoting
Jones v. Three Rivers Mgmt. Corp., 394 A.2d 546, 551 (Pa. 1978)). If it is
determined the no-duty rule applies to a negligence claim, a plaintiff will be unable
to set forth a prima facie case of liability. Id.
In Craig, the plaintiff was struck in the head by a softball while playing
in a game organized under the Amateur Softball Association of America’s (ASA)
rules. The plaintiff was not wearing a helmet when he was struck. The plaintiff
filed suit against the ASA alleging he suffered serious injuries as a result of the
accident. He alleged the ASA had a duty to recommend or mandate that he wear a
helmet. Ultimately, the trial court granted the ASA’s motion for summary judgment
based on the inherent risk/no duty rule. On the plaintiff’s appeal, the Superior Court
affirmed.
47
More particularly, the Superior Court rejected the plaintiff’s argument
that the risk of being struck in the head by a ball while running the bases, thrown
with such force that the plaintiff’s skull was crushed was not a risk “inherent” to the
game of softball. The Superior Court explained the plaintiff’s argument
“confuse[d] the concepts of risk and result. The risk at issue in this matter is being
struck by an errant softball; the risk is not the injuries that resulted from being
struck.” Id. at 376. The Superior Court also rejected the plaintiff’s contention that
the ASA owed him a duty of care because it was foreseeable that he could be struck
with a softball during play, stating:
While there is no question foreseeability is a relevant
consideration in determining whether a duty of care is
owed as a general matter, [the plaintiff’s] contention is
premised on flawed logic. All inherent risks which fall
within the parameters of the no-duty rule are, by
definition, foreseeable. Once a risk is deemed inherent, it
no longer matters whether the risk is also foreseeable. The
inherency determination mandates application of the no-
duty rule ab initio. In other words, the issue of
foreseeability is ancillary to the inherency determination.
Id. at 377.
Here, as the trial court aptly observed (with emphasis added):
Acknowledging Plaintiffs’ argument that the
Complaint’s averments of negligence do not involve the
initial contact itself, concussions incurred, and usual
resulting harm, but rather consequences suffered as a
result of [the] PIAA’s alleged pre- and post-concussion
negligent conduct; accepting the [c]omplaint’s averments
as true; affording Plaintiffs the benefit of all reasonable
inferences from those averments; and considering the
concept of intervening cause; it may not properly be
concluded at this point that the [c]omplaint, on its face,
48
shows with the required certainty that, as a matter of law,
Plaintiffs are barred from recovery by application of the
‘inherent risk/no-duty’ rule. The ‘inherent risk/no duty’
doctrine applies undoubtedly to the concussions
themselves, but might not apply to harm that Plaintiffs are
able to show was due to [the] PIAA’s alleged pre- and
post-concussion negligent conduct as averred in the
[c]omplaint, depending, inter alia, upon the nature of the
harm suffered by Plaintiffs; the cause of the harm; the
extent to which the harm could, as a matter of law, be
considered to be an expected consequence; and
applicability of the [Superior] Court’s reasoning in Craig.
If it is determined that liability is not barred by the
‘inherent risk/no duty’ doctrine, then the alleged negligent
conduct might in turn be found to constitute a breach of
duty imposed pursuant to basic principles of negligence
law.
The issue may be presented again after the
pleadings are closed and discovery has been conducted. If,
pursuant to Craig, the risk is suffering head trauma,
triggering the inherent risk/no duty rule with respect to all
consequences of the injury incurred, liability will be
barred unless an exception clearly appears from the
pleadings and … is supported by the evidence.
Tr. Ct., Slip Op., at 23 (internal citation omitted). While we are skeptical of
Plaintiffs’ “splintered” approach to defining risk, we generally agree with the trial
court that dismissal of Plaintiffs’ negligence claims on the basis of the “inherent
risk/no duty” rule would be premature at this stage.
To that end, our review of the averments set forth in the Complaint
reveals that Plaintiffs do not focus solely on the initial contact itself, concussions
incurred, and the usual resulting harm. Instead, Plaintiffs also allege they suffered
harm as a result of the PIAA’s alleged pre- and post-concussion negligent conduct.
See Compl. at ¶¶6, 53, 54, 58, 59, 60, 71, 73-78. Accepting the averments as true
49
and affording Plaintiffs the benefit of all reasonable inferences deducible from those
averments, as we must at this stage, we cannot conclude that the Complaint shows
with the required certainty that Plaintiffs are barred from recovery by application of
the “inherent risk/no duty” rule. See, e.g., Onyshko v. National Collegiate Athletic
Ass’n, No. 2014-3620 (C.P. Washington Mar. 24, 2017) (denying National
Collegiate Athletic Association’s (NCAA) motion for summary judgment on
plaintiffs’ claims that NCAA negligently failed to adequately supervise and
minimize the risk of long-term brain injuries resulting from repeated head impacts
while playing collegiate football; rejecting NCAA’s reliance on Craig as not
imposing a duty based on inherent risks in playing football). Indeed, the
determination that the plaintiff’s claims in Craig were barred by the “inherent risk/no
duty” rule was reached at the summary judgment stage rather than on the basis of
the complaint alone. As the trial court indicated, this issue may be revisited as the
case proceeds.
C. Public Policy
1. Contentions
The PIAA also argues, as a matter of public policy, the duties Plaintiffs
allege may not be imposed on the PIAA. It asserts that, in analyzing whether
Plaintiffs adequately pled a duty, the trial court applied the Althaus factors. The
PIAA contends the Althaus factors heavily implicate public policy considerations.
Importantly, the PIAA argues, “unless the justifications for and
consequences of judicial policymaking are reasonably clear with the balance of
factors favorably predominating, [a court] will not impose new affirmative duties.”
Seebold v. Prison Health Servs., Inc., 57 A.3d 1232, 1245 (Pa. 2012). “The
50
[Pennsylvania Supreme] Court has said it is ‘reluctan[t] to impose new affirmative
duties,’ especially where there is an existing and longstanding framework
establishing what duties generally apply, and that a request to add a new duty to such
an existing framework ‘require[s] concrete and substantial justification.’” Newell v.
Montana West, Inc., 154 A.3d 819, 832 (Pa. Super. 2017) (quoting Seebold, 57 A.3d
at 1246).
Even in the absence of the application of the specific Althaus factors,
the PIAA asserts, it is clear that imposing the alleged duties is inappropriate and
contrary to public policy here. Considering their allegations as a whole, the PIAA
contends, Plaintiffs seek to impose on the PIAA duties not only to provide greater
education and warnings regarding concussions, but also to implement and interpret
baseline testing, create and implement diagnosis protocols and sideline testing for
return to and removal from play decisions, create and implement proper return-to-
activity protocols after concussions, and to ensure qualified medical personnel are
on site at all relevant times. Thus, the PIAA argues, Plaintiffs seek to require the
PIAA to not only set rules and guidelines, but to monitor, enforce and judge those
charged with implementation of the rules and guidelines, as well as those already
imposed on others by the SYSA. Considered collectively, the PIAA contends, these
obligations would force the PIAA to act as a medical governing body, overseeing
decisions and qualifications of doctors, trainers, and other medical professionals
involving thousands of participants in thousands of sporting events. The PIAA
maintains this is not in the public’s best interest.
51
The PIAA argues the SYSA speaks to Pennsylvania’s public policy by
expressly placing all relevant duties on persons or entities other than the PIAA,
including Commonwealth agencies, schools, coaches, game officials, and medical
professionals. It asserts this policy decision is fitting when considered in the context
of the relationship of the PIAA to the issues involved. Given the number of sports,
competitions, and practices involved, the PIAA could never provide firsthand
oversight of all events. Thus, it maintains, placing the ultimate responsibility for
these issues on the myriad of people directly involved in these activities provides
more practical, effective, and immediate protection of student-athletes and properly
avoids placing undue burdens the PIAA.
The PIAA further contends courts confirm the power and duty of
schools to determine whether a student may initially participate in interscholastic
athletics or is permitted to continue to participate after an injury and uphold schools
decisions to bar students from participation for medical reasons.10 The PIAA argues
it has no authority to supersede these decisions, and it does not attempt to do so.
Indeed, it asserts, these decisions are expressly reserved for schools and trained
medical professionals. See R.R. at 144a-199a.
In addition, the PIAA contends, the alleged duties at issue would
require a non-medical expert to become directly engaged in issues more
10
See Calandra v. State Coll. Area Sch. Dist., 512 A.2d 809 (Pa. Cmwlth. 1986) (upholding
school district decision to bar student from participation without first getting a tetanus shot); Grube
v. Bethlehem Area Sch. Dist., 46 Northampton 54 (C.P. Northampton 1982) (upholding school’s
decision to bar student with one kidney from participating in football); Crawshaw v. Pa.
Interscholastic Athletic Ass’n, 11 Crawford 39 (C.P. Crawford 1970) (school directors have
absolute right to make, adopt and enforce reasonable rules and regulations governing athletics;
upholding school’s decision to deny opportunity to participate to student with diabetes).
52
appropriately and safely handled by medical professionals. It maintains baseline
testing, real time assessments, and removal and return to play protocols and
decisions are rightly left to medical professionals.
Moreover, the PIAA argues, it has protocols in place that directly
address many of the negligence averments and the enforcement obligations of those
protocols rest with the principals of the member schools. See R.R. at 144a-199a.
For example, the PIAA’s Sports Medicine Guidelines set rules for helmet fitting,
prohibit the use of the head as a weapon in football, provide information regarding
concussions, and mandate that the member school’s team physician has final
responsibility to determine when a student-athlete is withheld or removed from
participation based on an injury. R.R. at 148a-151a, 173a-75a, 178a. Further, the
PIAA asserts, its guidelines provide recommended rules for medical coverage for
student-athletic events, as set forth by the Governor’s Council on Physical Fitness
and Sports. See R.R. at 189a. Clearly, the PIAA contends, it is concerned with and
takes very seriously the well-being of student-athletes.
Importantly, the PIAA argues, it has not voluntarily undertaken a duty
to enforce the mandates at the school-level. Oversight and enforcement of the
above-discussed protocols necessarily rests, by statute and under the PIAA
Constitution and By-Laws, with member schools. The PIAA contends the
relationship is and should be between the student-athlete and their school or medical
provider. The PIAA maintains it neither created nor assumed any duty of care in
this regard.
53
The PIAA further argues public policy and common sense favor
adoption of the precise allocation of responsibility contemplated by the PIAA and
the SYSA. The PIAA, an organization comprised primarily of public schools
operating with limited funds provided by those schools, reasonably determined it is
in the best interest of the schools and the student-athletes to have the ultimate
responsibility for application and enforcement of student safety guidelines rest with
schools, medical professionals, and other entities directly involved with the
participants and events. Moreover, based on the number of parties involved and the
circumstances of each particular instance, the issue of enforcement is complex.
Factors relating to enforcement would include and necessarily turn on the school,
the sport, the particular student, the circumstances of the injury, and the decisions
made by the coaching staff, athletic trainers, and the students’ physicians. As such,
the PIAA contends, direct enforcement or oversight by the PIAA would be
impossible.
The PIAA contends public policy favors restraint regarding imposition
of the alleged duties on the PIAA; as such, Plaintiffs’ negligence claims should be
dismissed. The PIAA maintains this conclusion is supported by application of the
Althaus factors. To that end, the PIAA argues, although it does have some
relationship with the parties (factor 1), its relationship is significantly more remote
than that of families, coaches, trainers, doctors, principals, and school
administrators, each of whom is more actively involved in the oversight and
monitoring sought by Plaintiffs.
54
The PIAA further contends, while there is social utility (factor 2) in
protecting student-athletes, greater social utility is achieved by having those more
directly involved and qualified ultimately responsible. The PIAA also argues
injecting it into these decisions is contrary to the public interest (factors 2 and 5), as
well as the Legislature’s stated intentions in the SYSA.
In addition, the PIAA asserts, the consequences of imposing these
duties on it (factor 4) are potentially devastating. The PIAA maintains it is not and
has never been intended to be a substitute for or supervisor of medical professionals
and, it could not reasonably take on these duties absent a complete restructuring of
its personnel and finances.
Finally, the PIAA argues, given the existence of SYSA, relevant
School Code provisions, the PIAA’s existing rules and guidelines, and the
involvement of medical professionals, trainers, principals, parents, governmental
agencies, and others in directly protecting student-athletes, neither the risk imposed
nor the foreseeability of the harm incurred by not imposing the alleged duties on
the PIAA (factor 3) are significant. The PIAA asserts there are many other means
in place to protect athletes (and from which to seek recovery for failures to protect
athletes). As such, it asserts, imposing these additional, duplicative and
unreasonable burdens on a publicly-funded association is simply not necessary or
appropriate.
2. Analysis
The primary element in any negligence cause of action is that “the
defendant owes a duty of care to the plaintiff.” Althaus, 756 A.2d at 1168. Noting
that the “legal concept of duty of care is necessarily rooted in often amorphous
55
public policy considerations, which may include our perception of history, morals,
justice and society[,]” the Supreme Court delineated several “discrete” factors that
must be weighed in order to determine if such a duty exists: (1) the relationship
between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the
risk imposed and foreseeability of the harm incurred; (4) the consequences of
imposing a duty on the actor; and, (5) the overall public interest in the proposed
solution. Id. at 1169. “Courts are not required to weigh each factor equally and no
individual factor is dispositive.” Newell, 154 A.3d at 835 (citations omitted).
Here, in considering whether the PIAA owed a duty to Plaintiffs based
on the facts alleged in the Complaint, the trial court analyzed the Althaus factors.
Ultimately, the trial court overruled the PIAA’s preliminary objection to Plaintiffs’
allegations that the PIAA breached its duties by failing to: (1) require and enforce
proper screening, baseline testing and interpretation prior to a student-athlete’s
participation in a sport and proper use of baseline testing for both immediate
diagnosis of concussions and return-to-play decisions; (2) fully educate athletic
departments and trainers regarding concussion diagnosis, protocols, or provide
ongoing education to parents and student athletes; (3) provide adequate medical
personnel trained in concussion or adequate medical equipment for use by team
physicians and athletic trainers for concussion diagnosis; (4) provide consistent and
ongoing warning of long-term risks; (5) create, implement and enforce immediate
diagnosis protocols through the use of trained medical personnel, immediate access
to baseline testing, and comprehensive “sideline” testing for head trauma (direct or
indirect) for continuation of practice or play; and, (6) create, implement, and enforce
proper return-to-activity protocols after a concussion diagnosis through medically-
56
supported stepwise concussion protocols implemented by medical professionals
trained in concussions.
As the trial court recognized, application of the Althaus factors here is
fairly problematic in the absence of any record. Nevertheless, we set forth the
following analysis based on the facts averred in the Complaint.
As to the first factor, “duty is predicated on the relationship that exists
between the parties at the relevant time.” R.W. v. Manzek, 888 A.2d 740, 748 (Pa.
2005). Here, a relationship clearly existed between the body that oversees
interscholastic sports and the student-athletes such as Plaintiffs who participate in
those sports. While this relationship might not be as direct as the relationship
between student-athletes and their schools, coaches and medical personnel, a
relationship nevertheless exists.
As to the second factor, the PIAA’s oversight of interscholastic sports
and its actions and conduct in ensuring participant safety in furtherance of its role,
constitute actions of social utility.
With regard to the third factor, “[a] duty arises only when one engages
in conduct which foreseeably creates an unreasonable risk of harm to others.” Id.
Here, it is not entirely clear at this stage whether this factor weighs in favor of
imposition of a duty on the PIAA. To that end, the nature of the risk is certainly
significant; however, the foreseeability of the harm incurred is not entirely clear.
Thus, as the trial court indicated, this factor may ultimately weigh against
57
imposition of a duty against the PIAA, but it is not clear at this stage absent any
development of a record.
As to the fourth factor, as the trial court acknowledged, the
consequences of imposing a duty on the PIAA appear to be significant and may
weigh against imposition of a duty on the PIAA. However, the development of a
record is necessary to adequately and definitively address this factor.
With regard to the fifth factor, it would appear that the adoption of
additional safety measures for youth who participate in interscholastic contact
sports is in the public interest. However, at this stage of the proceedings, it is
unclear whether imposition of a duty upon the PIAA in that regard is, in fact, in the
public interest.
Thus, as the trial court explained (with emphasis added):
Accepting the Complaint’s averments of fact as true
for the purpose of evaluating [the] PIAA’s demurrer, it
must be accepted for present purposes that the failure to
require and enforce proper screening, baseline testing and
interpretation, and proper use of baseline testing
(Paragraph 76, subparagraph (a); failure to fully educate
athletic departments and trainers regarding concussion
diagnosis, and protocols, and to provide ongoing
education with parents and athletes (id., subparagraph (b);
failure to provide consistent and ongoing warning of long
term risks (id., subparagraph (f)); failure to create,
implement and enforce diagnosis protocols, immediate
access to baseline testing and ‘sideline testing’ for
continuation of practice or play (id., subparagraph (h));
and failure to create, implement and enforce proper return-
to-activity protocols after a concussion diagnosis (id.,
subparagraph (i); failure to require qualified medical
58
personnel (Paragraph 6.c.); and[,] failure to mandate
removal of athletes (Paragraph 6.d), could conceivably
have led to increased harm to athletes suffering
concussions. Likewise, for the purpose of evaluating [the]
PIAA’s demurrer, and, therefore, accepting the
Complaint’s allegations of fact as true that suggest [the]
PIAA’s past awareness of the existence of the protocols
and policies that Plaintiffs allege have been accepted and
established, and potential consequences of failure to
comply with those standards, the Complaint avers facts
sufficient at this demurrer stage to support a claim that the
risk of some level of exacerbation of harm as a result of
failure to comply with those latter-identified
responsibilities might have been foreseeable.
It appears, also, however, that imposing a duty to
provide and perform the responsibilities identified in
Paragraph[s] 76 (a), (b), (h) and (i), and the remaining
portion of subparagraph (f), and in Paragraph 6.c. and d.
would adversely affect [the] PIAA’s ability to perform its
responsibilities in their present form. However, the case
is now only at the preliminary objection stage. There is
insufficient record evidence from which such findings
regarding Paragraph 76(a), (b), (h) and (i), and the second
part of subparagraph (f), and regarding Paragraph 6.c. and
d., may be made. Consequently, a final evaluation and
decision regarding the consequences of imposition of a
duty with respect to the responsibilities suggested in the
Complaint’s Paragraph 76, subparagraphs (a), (b), (h) and
(i), and the remaining portion of subparagraph (f),
regarding warning of risks; and in Paragraph 6.c. and d. …
must await discovery and further proceedings, and,
therefore, of necessity, the task of weighing the social
utility of [the] PIAA’s conduct against the risk and
foreseeability of the harm must likewise be postponed.
Finally, the public should be interested in adopting
practical measures to enhance the safety of participation in
interscholastic contact sports.
At this demurrer stage … accepting the averments
of the Complaint as true, with respect to the Complaint’s
Paragraph 76 (a), (b) (h) and (i), and part of subparagraph
59
(f), and with respect to the Complaint’s Paragraph 6.c. and
d., it appears that Factors 1 and 5 weigh in favor of finding
the existence of a duty, and that Factor 2 weighs in favor
of [the] PIAA. Final determination of foreseeability and
the weight of Factor 3 will depend upon findings of fact
that may be made after development of an evidentiary
record, and although it seems likely that Factor 4 will
weigh in favor of [the] PIAA, there is insufficient
development of a factual record at this point to sustain
[the] PIAA’s claim that imposition of a duty as Plaintiffs
request would impose an impossible or, at least,
impractical burden. Therefore, … the demurrer based on
the Complaint’s alleged failure to plead facts supporting
the imposition of a ‘duty’ will be overruled with respect to
the Complaint’s Paragraph 76, subparagraphs (a), (b), (h)
and (i), and the identified parts of subparagraph (f), and
with respect to the Complaint’s Paragraph 6.c. and d., with
further ruling to await the close of the pleadings and
discovery. See, e.g.[,] [Barton] ([a]lthough the Complaint
may survive demurrer, issue of ‘duty’ is to be revisited, if
warranted, based on evidence submitted during
subsequent phases of the case).
Tr. Ct., Slip Op., at 34-37. No error is apparent in this analysis.
Of further note is Section 323 of the Restatement (Second) of Torts
(entitled, “Negligent Performance of Undertaking to Render Services”), which
states:
One who undertakes, gratuitously or for consideration, to
render services to another which he should recognize as
necessary for the protection of the other’s person or things,
is subject to liability to the other for physical harm
resulting from his failure to exercise reasonable care to
perform his undertaking, if
(a) His failure to exercise such care increases the
risk of such harm, or
60
(b) The harm is suffered because of the other’s
reliance upon the undertaking.
RESTATEMENT (SECOND) OF TORTS §323 (1965). Section 323 has been adopted as
the law in Pennsylvania. Hill (citing Feld v. Merriam, 485 A.2d 742 (Pa. 1984);
Cooper v. Frankford Health Care Sys., Inc., 960 A.2d 134, 145 (Pa. Super. 2008);
Filter v. McCabe, 733 A.2d 1274 (Pa. Super. 1999)). Further, an increased risk of
harm can occur through acts of both commission and omission. Hill.
Here, Plaintiffs allege the PIAA “assumed the role as the guardian of
player safety,” and, as such, it had a duty to exercise reasonable care toward student-
athletes under its authority, including the manner in which concussions and
traumatic brain injuries are handled. Compl. at ¶72. Plaintiffs further aver the
PIAA’s pre- and post-concussion actions and inactions increased the risk of harm to
Plaintiffs. Thus, Section 323 of the Restatement (Second) of Torts may apply here.
Hill (plaintiff adequately alleged negligence claim based on Section 323 of the
Restatement (Second) of Torts where plaintiff pled that NCAA had a duty to protect
its players from sickle cell trait and, in failing to discharge that duty, increased the
risk of harm to plaintiff); Onyshko (denying NCAA’s motion for summary judgment
on plaintiffs’ claims that NCAA negligently failed to adequately supervise and
minimize the risk of long-term brain injuries resulting from repeated head impacts
suffered while participating in collegiate football based on Section 323 of the
(Restatement (Second) of Torts).
In addition, Seebold and Newell, referenced generally by the PIAA, are
inapposite. In Seebold, our Supreme Court held that a physician who treated prison
inmates had no common law duty to warn third parties (corrections officers), who
61
were outside the physician-patient relationship, that an inmate had a communicable
disease. In Newell, the Superior Court held that a business owner did not owe a duty
of care to an invitee who was struck and killed while crossing an adjoining public
roadway in order to reach his vehicle. The PIAA offers no developed explanation as
to how these cases apply here.
Nevertheless, in a footnote, the PIAA references cases which it asserts
stand for the proposition that Pennsylvania courts do not interfere with the PIAA’s
decision-making. It contends this policy should be observed here with regard to the
PIAA’s decision to have direct supervisors involved in student-athlete safety
decisions be ultimately responsible for those decisions. However, none of the cases
cited by the PIAA involved tort suits such as the negligence claims alleged by
Plaintiffs here. Indeed, the cases referenced by the PIAA involved claims for
equitable relief regarding the PIAA’s decisions as to whether students were eligible
to participate in interscholastic sports after transfers11 and the PIAA’s decision to
sanction a member high school after a fight during a high school football game.12 As
such, those cases are inapplicable here.
For all these reasons, we reject the PIAA’s assertions that, as a matter
of public policy, the duties Plaintiffs allege may not be imposed on the PIAA here.
Revesz ex rel. Revesz v. Pa. Interscholastic Athletic Ass’n, Inc., 798 A.2d 830 (Pa.
11
Cmwlth. 2002); Pa. Interscholastic Athletic Ass’n, Inc. v. Greater Johnstown Sch. Dist., 463 A.2d
1198 (Pa. Cmwlth. 1983).
12
Sch. Dist. of City of Harrisburg v. Pa. Interscholastic Athletic Ass’n, 309 A.2d 353 (Pa.
1973).
62
D. Proximate Cause
1. Contentions
As a final issue, the PIAA argues, Plaintiffs failed to adequately plead
proximate cause. To prove causation, “a demonstration that the breach of duty was
both the proximate and actual cause of the injury” is required. Eckroth v. Pa. Elec.,
Inc., 12 A.3d 422, 427 (Pa. Super. 2010) (internal citation omitted). “Proximate
causation is defined as a wrongful act which was a substantial factor in bringing
about the plaintiff’s harm.” Id. at 428. The determination of proximate cause is
“primarily a problem of law” and must, as a threshold matter, be “determined by
the judge and it must be established before the question of actual cause is put to the
jury.” Id. at 427-28.
The PIAA asserts Plaintiffs failed to and cannot plead facts showing
the alleged breaches were a “substantial factor” in causing the harm they allege.
Importantly, there is no allegation that any alleged act or failure to act by the PIAA
would have prevented the injuries from occurring. Indeed, the PIAA argues, the
only injuries alleged are those that normally flow from head trauma, which is clearly
an inherent risk of contact sports.
Further, the PIAA contends, Plaintiffs have not averred the PIAA’s
alleged failure to act in a particular way proximately caused any specific injuries.
The PIAA maintains this is understandable in light of the multitude of factors
necessarily involved in each case. Each instance will necessarily have different
injuries, involve a different sport, a different school, a different athletic trainer, and
a different physician for the student. The PIAA argues decisions of coaching staffs,
63
principals, school boards, and others all intervene to cause or potentially cause
student-athletes’ injuries.
The PIAA further asserts, to the extent Plaintiffs’ position is that the
PIAA somehow exacerbated their injuries, Plaintiffs failed to plead facts showing
the relationship between the PIAA’s conduct and the specific injuries. Again, it
contends, the only injuries specifically and factually identified are those that
normally arise from initial head trauma. The PIAA maintains it cannot be disputed
that, but for the initial head trauma alleged, no injury would have occurred. Yet,
the PIAA argues, there is no specific allegation of how the PIAA’s conduct resulted
in additional injuries or what those injuries are, let alone allegations showing the
PIAA’s conduct was a substantial factor in causing the injuries.
Stated another way, the PIAA asserts, it is impossible to determine
from the Complaint what injuries or portions of injuries suffered by Plaintiffs are
even alleged to have been proximately caused by PIAA. Instead, all injuries are
lumped together, and the PIAA is left to speculate. The PIAA maintains that
Plaintiffs cannot know if any injuries were caused by the alleged breaches
remaining in the Complaint. Instead, they merely speculate generally, without any
supporting factual allegations, that the PIAA is at fault.
Perhaps most importantly, the PIAA argues, the Complaint sets forth
numerous allegations showing the PIAA was not a substantial factor in the injuries
alleged. For example, Plaintiffs generally focus on how their individual school
personnel addressed resulting symptoms. Compl. at ¶¶13-14, 22, 24, 27. Further,
64
although Plaintiffs appear to question decisions to return them to play, each Plaintiff
also alleges he or she was returned to play after clearance by a medical professional.
See R.R. at 68a-73a.
The PIAA argues the fact that each Plaintiff was promptly treated at a
hospital minimizes any alleged impact of the PIAA and calls into question whether
any action by the PIAA could have been a substantial factor in causing the harm at
issue. If an athlete is cleared to return to play by medical professionals, the PIAA
asserts, it is difficult to understand how the PIAA’s alleged breaches could have
somehow been a substantial factor in injuries resulting after the athletes were
cleared to return. To the extent Plaintiffs allege they were improperly returned to
play and the PIAA is somehow liable for any adverse consequences based on the
decision to return to play, the PIAA maintains, Plaintiffs necessarily seek to require
the PIAA to override state law and the decisions of professional healthcare
providers. The PIAA argues that from a policy standpoint this is improper. Such a
duty cannot and should not be imposed on the PIAA and is further evidence that
Plaintiffs lack a causal link between the actions or inactions of the PIAA and the
alleged injuries here.
Moreover, the PIAA asserts, the SYSA requires that a player may not
return to play after a concussion “until the student is evaluated and cleared to return
to participation by an appropriate medical professional.” See Section 2(d) of the
SYSA. The PIAA contends these requirements are consistent with the CIPPE form,
which states that any student who suffers an injury requiring medical attention must
complete Section 8 of the form. R.R. at 208a. That Section specifies (in bold): “If
65
the physician completing this Form is clearing the herein named student subsequent
to that student sustaining a concussion or traumatic brain injury, that physician must
be sufficiently familiar with current concussion management such that the physician
can certify that all aspects of evaluation, treatment, and risk of that injury have been
thoroughly covered by that physician.” Id. Given Plaintiffs’ allegations, the SYSA,
and the CIPPE form, the PIAA argues, any alleged causal link to the PIAA is
without merit.
Finally, the PIAA asserts, the relationship between the injuries and the
PIAA is, at best, remote. Indeed, the PIAA maintains, the Complaint specifically
states that decisions to remove a player, or not, based on concussion symptoms were
made at the local level by a coach or trainer, each named Plaintiff received medical
care and treatment, and for each, a medical professional made the decision to clear
the athlete for participation. Compl. at ¶¶13-15, 17, 21-22, 23-25, 27-29.
In sum, the PIAA argues, the Complaint’s allegations fail to show how
conduct by the PIAA could have been the proximate cause of the alleged injuries.
Fundamentally, the concussions allegedly experienced by Plaintiffs were the result
of their participation in the sports they played, not any action or inaction by the
PIAA. If other injuries occurred separate and apart from the concussions, the PIAA
asserts, Plaintiffs should be required to identify both the injury and its specific
cause.
2. Analysis
66
Our Supreme Court “define[s] ‘legal’ or ‘proximate’ cause as that
point at which legal responsibility should attach to the defendant as a matter of
fairness because the plaintiff has demonstrated (in addition to cause-in-fact) that the
defendant’s act was a ‘substantial factor’ or a ‘substantial cause,’ as opposed to an
‘insignificant cause’ or a ‘negligible cause,’ in bringing about the plaintiff’s harm.
Ford v. Jeffries, 379 A.2d 111, 114 (Pa. 1977). “The determination of [legal or
proximate cause] simply involves the making of a judgment as to whether the
defendant’s conduct although a cause in the ‘but for’ sense is so insignificant that
no ordinary mind would think of it as a cause for which a defendant should be held
responsible.” Reott v. Asia Trend, Inc., 55 A.3d 1088, 1103 (Pa. 2012).13
Accepting as true the Complaint’s averments, and all reasonable
inferences deducible from the averments, the trial court determined Plaintiffs
adequately alleged proximate cause regarding the PIAA’s alleged failure to: (1)
require and enforce proper screening, baseline testing and interpretation prior to a
13
To determine whether a party’s negligence was the proximate or legal cause of an injury,
this Court adopted the “substantial factor” test. Taylor v. Jackson, 643 A.2d 771, 775 (Pa.
Cmwlth. 1994). As we explained in Taylor, Section 433 of the Restatement (Second) of Torts
sets forth a three-part test for determining whether negligent conduct is a substantial factor in
producing the injury:
(a) the number of other factors which contribute in producing the
harm and the extent of the effect which they have in producing it;
(b) whether the actor’s conduct has created a force or series of forces
which are in continuous and active operation up to the time of the
harm, or has created a situation harmless unless acted upon by other
forces for which the actor is not responsible;
(c) lapse of time.
Taylor, 643 A.2d at 775 (quoting RESTATEMENT (SECOND) OF TORTS §433 (1965)).
67
student-athlete’s participation in a sport and proper use of baseline testing for both
immediate diagnosis of concussion and return-to-play decisions; (2) fully educate
athletic departments and trainers regarding concussion diagnosis and protocols; (3)
provide consistent and ongoing warning of long-term risks; (4) create, implement
and enforce immediate diagnosis protocols through the use of trained medical
personnel, immediate access to baseline testing, and comprehensive “sideline”
testing for head trauma (direct or indirect) for continuation of practice or play; and,
(5) create, implement and enforce proper return-to-activity protocols after a
concussion diagnosis through medically-supported stepwise concussion protocols
implemented by medical professionals trained in concussions.
Our review of the Complaint supports the trial court’s determination
that, at this early stage of the proceedings, Plaintiffs aver sufficient facts to show
the PIAA’s pre- and post-concussion acts or omissions were a substantial factor in
bringing about the harm allegedly suffered by Plaintiffs. See Compl. at ¶¶2, 60, 71-
73, 75, 77. Therefore, as to the allegations set forth above, no error is apparent in
the trial court’s rejection of the PIAA’s assertion that Plaintiffs failed to adequately
allege proximate cause.
Moreover, to the extent the Complaint’s averments are lacking with
regard to the element of proximate cause, as stated above (and although not directly
before us in this appeal), Plaintiffs filed a first amended complaint that appears to
bolster their original averments regarding causation. See R.R. at 331a-362a.
IV. Conclusion
68
For all the foregoing reasons, we affirm the order of the trial court, and
the matter is remanded for further proceedings consistent with this opinion.
ROBERT SIMPSON, Judge
69
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jonathan Hites, Kaela Zingaro, :
Samuel Teolis on Behalf of :
Minor Domenic Teolis, Individually :
and on behalf of those similarly :
situated : No. 8 C.D. 2017
:
v. :
:
Pennsylvania Interscholastic :
Athletic Association, Inc., :
Appellant :
ORDER
AND NOW, this 10th day of October, 2017, the order of the Court of
Common Pleas of Lawrence County is AFFIRMED. Accordingly, the matter is
REMANDED for further proceedings in accordance with the attached opinion.
Jurisdiction is relinquished.
ROBERT SIMPSON, Judge