On November 19, 2020, the Michigan Court of Appeals issued a decision in Randall v. Michigan High Sch. Athletic Association which clarifies the legal risks and obligations coaches and other covered adults face when they suspect a youth athlete has suffered a concussion.
The old playboook: standards were unclear
In 2013, Michigan enacted its concussion protection statute, codified at MCL 333.9156. It established requirements for coaches and other adult participants in organized youth sports events, providing in relevant part:
A coach or other adult employed by, volunteering for, or otherwise acting on behalf of an organizing entity during an athletic event sponsored by or operated under the auspices of the organizing entity shall immediately remove from physical participation in an athletic activity a youth athlete who is suspected of sustaining a concussion during the athletic activity. A youth athlete who has been removed from physical participation in an athletic activity under this subsection shall not return to physical activity until he or she has been evaluated by an appropriate health professional and receives written clearance from that health professional authorizing the youth athlete’s return to physical participation in the athletic activity.
While the law established requirements to follow, it did not explicitly set out any penalties. Since the law’s enactment, most authorities agreed that an injured person could sue non-medical professionals under a common-law negligence theory. Common-law negligence occurs when a person has a legal duty to exercise reasonable care, the person breaches that duty, and the breach “proximately” causes an injury giving rise to damages. Laws such as the concussion awareness law can and do impose legal duties of care on covered adults. Stated plainly, reasonable care is the level of care a reasonably prudent person would take. It is an objective standard, so the decision is up to a judge or jury.
Even with existing common-law negligence theories, the lack of clarity from the statute and the lack of case law to clarify it created uncertainty among many coaches, referees, school administrators, and other adults involved in organized youth sports. For example, it was uncertain whether violating the terms of the statute would automatically put someone on the hook for damages.
How the Randall decision changes the game
In the Randall case, the plaintiff sued the MHSAA and numerous other entities connected to his youth hockey team after he endured two collisions in a game—the second of which came after he allegedly showed signs of a concussion and his coach had put him back in. The plaintiff’s theories of liability were that:
- The concussion protection statute created a private cause of action against non-medical professionals, meaning that the plaintiff would not need to prove the covered adult was negligent—and,
- In the alternative, a violation of the statute constituted negligence per se—meaning that a covered adult’s violation of the statute would automatically be negligent—and finally,
- Failing those two arguments, defendants were liable under a theory of ordinary negligence.
In its November 19 opinion, the Michigan Court of Appeals established that a violation of the statute neither gives rise to a statutory cause of action nor constitutes negligence per se.
“Our Legislature enacted the concussion-protection statute to protect youth athletes from the harmful effects of concussions. In doing so, the Legislature did not create, explicitly or by implication, a private statutory cause of action for violation of the statute. Rather, the statute creates negligence-based duties on the part of coaches and other covered adults, and a violation of the statute can be evidence of actionable negligence.” Randall v. Michigan High Sch. Athletic Ass’n, No. 346135, 2020 WL 6811661, at *12 (Mich. Ct. App. Nov. 19, 2020)
This does not mean that coaches, referees, and other covered adults are free from liability concerns. If the plaintiff can prove that a covered adult violated the statute by failing to pull an athlete suspected of sustaining a concussion, the covered adult will face a rebuttable presumption of negligence. In other words, covered adults who violate the statute are presumed “guilty” of negligence unless they can prove themselves “innocent.” (Note: negligence under this statute is not a crime, but negligence can become criminal if the negligence and resulting injury are serious enough).
Covered adults who face this presumption can avoid liability by proving (by a preponderance of the evidence) that their negligence did not cause an injury giving rise to damages.
It is also important to note that an athlete’s willingness to get back in the game does NOT protect covered adults from liability. The rule is that if covered adults suspect a concussion, they need to pull the athlete from participation until a qualified medical professional determines that they can safely get back in the game.
Play it Safe
The best course of action is to follow the statutory requirements and exercise your judgment as a covered adult—whether you are a coach, referee, adult volunteer, or even a school administrator—conservatively. If you suspect a youth athlete might have suffered a head injury, it is likely in everyone’s best interests to play it safe. Remember that common-law negligence uses an objective standard—ultimately, if you run into a negligence suit, a judge or jury who lacks your background and experience in youth sports would decide whether your actions were reasonable. Furthermore—as we all know—in litigation and in life, hindsight is always 20/20.