College’s Duty of Care to Student-Athletes; Exculpatory Clause
Feleccia v. Lackawanna College, 156 A.3d 1200 (Pa. Super. 2017), allocatur granted Nov. 29, 2017, appeal docket 75 MAP 2017
Student athletes Augustus Feleccia (Gus) and Justin T. Resch (Justin) were injured while they were participating in a tackling drill on March 29, 2010, the first day of spring contact football practice at Lackawanna College, a non-profit junior college in northeastern Pennsylvania and member of the National Junior College Athletic Association (NJCAA).
Traditionally, the College employed two athletic trainers to support the football program. When both trainers resigned, Ms. Coyne and Ms. Bonisese were hired “with the intent to have them serve as Certified Athletic Trainers” and each signed an athletic-trainer job description. Slip Op., at 3. Neither Coyne nor Bonisese were certified or licensed, and former professors alerted the College that they did not feel either Coyne or Bonisese were qualified to act as academic trainers. When Coyne and Bonisese informed the Athletic Director (AD) that they failed to pass their certifications, their positions were retitled “First Responders,” although they were not required to sign new job descriptions. While the College eventually hired one certified part-time trainer, the certified trainer did not attend football practices during the academic year Gus and Justin were injured.
In anticipation of spring football tryouts in 2010, Gus and Justin signed a document titled “Lackawanna College Waiver of Liability and Hold Harmless Agreement” (Waiver), which provided, in relevant part:
1. In consideration for my participation in (sport), I hereby release, waive, discharge, and covenant not to sue Lackawanna College, its trustees, officers, agents, and employees from any and all liability, claims, demands, actions, and causes of action whatsoever arising out of or related to any loss, damage, or injury, including death, that may be sustained by me, or to any property belonging to me, while participating in such athletic activity.
* * *
4. It is my express intent that this Release and Hold Harmless Agreement shall bind my family, if I am alive, and my heirs, assigns, and personal representative, if I am deceased, and shall be deemed as a release, waiver, discharge, and covenant not to sue Lackawanna College, its trustees, officers, agents, and employees. I hereby further agree that this Waiver of Liability and Hold Harmless Agreement shall be construed in accordance with the laws of the Commonwealth of Pennsylvania.
Slip Op., at 7.
On March 29, 2010, Gus and Justin were participating in a variation of the Oklahoma Drill (a practice technique used to test players in confined space full contact situations) at Lackawanna’s first fully padded, full contact tryout practice of the season. Coyne and Bonisese were the only training staff working with the football players on that day, and no certified trainer was present. The trial court summarized the facts surrounding the March 29 incident as follows:
While participating in the drill, [Justin] attempted to make a tackle with his head down and suffered a T-7 vertebral fracture. As [Gus] describes it, [Justin] “put his head down, hit him with his head and just went limp on the ground and kind of rolled over.” [Gus] went on to admit that [Justin’s] tackle was improper because “his head was down and he led with the top of his head.” [Justin] recalls that while lying on the ground in pain, he was attended to by “one of the first responders,” namely Defendant Kaitlin M. Coyne, before being transported to the hospital in an ambulance.
Despite [Justin’s] injury, the Oklahoma Drill continued. When [Gus] attempted his first tackle, he endured a “stinger” to his right shoulder, an injury he understood as “when your arm tingles.” He described his injury as feeling “tingly and numb” and that he “couldn’t really move his right shoulder as well.” Following his injury, [Gus] sought guidance from Defendant Alexis D. Bonisese, the other first responder employed by Lackawanna to monitor football practices. [Gus] testified that Bonisese told him he could return to practice “if he was feeling better,” and that he was “feeling a little better” when he returned to practice, even though his pain had “not totally” gone away. He then participated in the Oklahoma Drill again, made a tackle with his right shoulder, and suffered a traumatic brachial plexus avulsion on his right side.
Slip Op., at 9-10.
Gus and Justin filed a complaint against the College, Coyne, and Bonisese alleging negligence and negligence per se and requesting punitive damages. After the trial court overruled the College’s preliminary objections, the College asserted defenses based on the Waiver and assumption of risk.
Gus and Justin argued that the College “ran its Athletic Training Department in a manner demonstrating a total disregard for the safety of its student-athletes or the laws of the Commonwealth of Pennsylvania.” Additionally, they argued that the College was negligent in its failure “to provide qualified athletic trainers who could have directed an end to or a modification of the improperly conducted drill in the interest of the student athlete’s safety, and who would have been able to properly assess Gus’ ‘stinger’ and advise him against returning to the drill.” Slip Op., at 11.
Following oral argument, the trial court granted Lackawanna summary judgment based on the Waiver and, alternatively, on assumption of the risk, having initially concluded that the Waiver met the requirements for validity. Additionally, the trial court found the Waiver was enforceable because the College met its burden of proving that, when strictly construed, the Waiver’s language was sufficiently particular and unambiguous. Gus and Justin appealed.
The Superior Court agreed with the trial court that the waiver was valid, however it disagreed that the waiver was enforceable. First, the Superior Court determined that the Waiver’s language was not particular and unambiguous when the language did not indicate that Lackawanna was being relieved of liability for its own acts of negligence. Additionally, the trial court failed to address the averments of gross negligence and recklessness or whether such conduct rendered the Waiver unenforceable and “this omission resulted in an incomplete analysis by the trial court and, ultimately, led it to reach an incorrect conclusion.” Slip Op., at 21. Specifically, as established by the Pennsylvania Supreme Court in Tayar v. Camelback Ski Corp., 47 A.3d 1190 (Pa. 2012), Waiver cannot be used as a shield against claims of recklessness. Therefore, the trial court erred in determining the Waiver was enforceable when the Waiver would not release Lackawanna from its own gross negligence or reckless conduct as a matter of law, and recklessness was sufficiently pleaded in Gus and Justin’s Complaint.
This conclusion set the basis for the Superior Court’s “most important reason for rejecting the trial court’s analysis” – whether the College’s failure to have qualified medical personnel at the March 29, 2010 practice was so egregious as to render the waiver unenforceable was a genuine question of material fact that should have been decided by the jury. Slip Op., at 24.
The court thus addressed the issue of negligence per se based on the College’s alleged duty of care to student-athletes to provide qualified medical personnel present at athletic events. The trial court did not address the duty of care issue, but the College argued that negligence per se is not an available basis for recovery because “there was no legal requirement in Pennsylvania or standard in the NJCAA requiring a Certified Athletic Trainer to be on the college practice field.” Id., at 30.
In determining whether the College’s failure to have qualified medical personnel at the March 29, 2010 practice constitutes gross negligence or recklessness, the court looked to the Third Circuit case of Kleinknecht v. Gettysburg College, 989 F.2d 1360 (3rd Cir. 1993). In that case, the Third Circuit held that when a student-athlete was participating in a scheduled athletic practice for an intercollegiate team sponsored by the College under the supervision of College employees a special relationship existed between the college and student-athlete that was sufficient to impose a duty of reasonable care. Additionally, the Third Circuit predicted “that the Supreme Court of Pennsylvania would hold that a college also has a duty to be reasonably prepared for handling medical emergencies that foreseeably arise during a student’s participation in an intercollegiate contact sport.” Slip Op., at 26.
Finding Kleinknecht persuasive, the Superior Court held that the College owed Gus and Justin a duty of care in their capacity as intercollegiate athletes engaged in a school sponsored and supervised intercollegiate athletic activity. The court further held:
the College’s duty of care to its intercollegiate student athletes required it to have qualified medical personnel available at the football tryout on March 29, 2010, and to provide adequate treatment in the event that an intercollegiate student athlete suffered a medical emergency. Lastly, we hold that the determinations of whether the College breached this duty to Gus and Justin and whether that breach caused the student athletes’ damages are questions of fact for the jury. Thus, the trial court erred in determining that the Waiver was enforceable without considering whether the College’s conduct in failing to provide qualified medical personnel at the March 29, 2010 practice was grossly negligent or reckless.
Id., at 27 (internal citations omitted).
The Pennsylvania Supreme Court granted allocatur to determine:
- Is a Pennsylvania college required to have qualified medical personnel present at intercollegiate athletic events to satisfy a duty of care to the college’s student-athletes?
- Is an exculpatory clause releasing “any and all liability” signed in connection with participation in intercollegiate football enforceable as to negligence?
For more information, please contact Kevin McKeon or Dennis Whitaker.