In Ausmus by Ausmus v. Board of Education of City of Chicago, 155 Ill.App.3d 705, 508 N.E. 2d 298 (Appellate Court of Illinois, First District, Fifth Division, 4/16/1987), the Court cited cases from various jurisdictions enunciating the legal requirement of providing safe facilities and equipment, as follows:

Gerrity v. Beatty (1978), 71 Ill.2d 47, 15 Ill.Dec. 639, 373 N.E.2d 1323 for negligence in failing to furnish safe athletic equipment fit for the purpose intended. See also Hadley v. Witt Unit School District No. 66 (1984), 123 Ill.App.3d 19, 78 Ill.Dec. 758, 462 N.E.2d 877 (where, in addition to other allegations, a complaint alleges that school district was negligent in providing hazardous equipment it should not be barred as a matter of law because the school district has a duty to provide safe equipment); Nielsen v. Community Unit School District No. 3 (1980), 90 Ill.App.3d 243, 45 Ill.Dec. 595, 412 N.E.2d 1177 (Supreme Court Rule 308 (87 Ill.2d R. 308), interlocutory appeal holding that plaintiff's complaint alleging negligence by the school district in furnishing defective and dangerous equipment in a high school science class was not barred as a matter of law); Griffis v. Board of Education District No. 122, Oak Lawn (1979), 72 Ill.App.3d 784, 29 Ill.Dec. 188, 391 N.E.2d 451 (a reversal of the dismissal of a negligence action against the school district, wherein the court stated, “[l]ike the court in Gerrity, we are not anxious to relieve school boards from liability for acts which do not clearly fall within the doctrine of educational immunity * * *”); and Thomas v. Chicago Board of Education (1978), 60 Ill.App.3d 729, 17 Ill.Dec. 865, 377 N.E.2d 55, rev'd on other grounds, 77 Ill.2d 165, 32 Ill.Dec. 308, 395 N.E.2d 538 (complaint that school board was negligent in furnishing ill-fitting and obsolete football equipment was sufficient to state a cause of action under the holding in Gerrity v. Beatty (1978), 71 Ill.2d 47, 15 Ill.Dec. 639, 373 N.E.2d 1323).

Ausmus by Ausmus v. Bd. of Educ. of City of Chicago, 155 Ill. App. 3d 705, 709–10, 508 N.E.2d 298, 300–01 (1987)

Clean Equipment

In Zaffarese v. Iona College, 63 A.D. 3d 727 (New York Supreme Court, Appellate Division, Second Department, 06/02/2009), the Court dismissed plaintiff’s allegation that athletic facilities are required to be maintained in such a manner as to be free from the MRSA bacteria.  The Court also dismissed plaintiff’s allegation that athletic training personnel have the duty to routinely screed for the presence of MRSA, holding that requiring athletic personnel to screen for the presence of MRSA “far exceed[s] any legally cognizable duty on the part of the defendant.”  However, the Court allowed plaintiff’s claim that the defendant had actual or constructive notice of the presence of MRSA and notwithstanding such notice, failed to take proper precautionary measures.  Thus, this case stands for the proposition that facilities are not required to be free of MRSA, and athletic personnel are not required to screen for MRSA, but when athletic personnel know or should be aware that MRSA actually exists in the facility, the suit may proceed.

In Palmer v. Mount Vernon TP. High School Dist. 201, 662 N.E.2d 1260 (Illinois Supreme Court, 1/18/86), the Illinois set the duty of school districts regarding safe equipment, as follows:

A school district has a duty to furnish reasonably necessary safety equipment to protect students from reasonably foreseeable serious injury; the school district cannot discharge this duty by simply warning the students to purchase such equipment themselves. (Lynch, 82 Ill.2d at 434–35, 45 Ill.Dec. 96, 412 N.E.2d 447.)

A school district should not be permitted to avoid its obligation to provide appropriate safety equipment by the expedient of advising students that they should purchase such equipment at their own expense. As this court stated in Lynch, a student's ability to engage in a school athletic activity while wearing the appropriate safety equipment should not be dependent upon the student's financial ability to obtain such equipment. Lynch, 82 Ill.2d at 434–35, 45 Ill.Dec. 96, 412 N.E.2d 447.

For an example of how the law varies from state to state, see e.g. Allen v. Dover Co-Recreational Softball League, 807 A.2d 1274 (Supreme Court of New Hampshire, 9/30/02) in which the Supreme Court of New Hampshire ruled that a recreational softball league had no duty to provide helmets for softball players, and no duty to protect player against risk of errant throw striking her in the head; as compared to the case of Tolar, et al. v.  The Amateur Softball Association of America, et al; No. 48,880 3rd Judicial District Court Lincoln Parish, Louisiana, a case worked by the author’s firm, in which a Louisiana Court ruled that the identical claim of a widow (errant softball throw striking her husband in the head resulting in his death) could proceed to trial on claims that the Amateur Softball Association of America had a duty to provide helmets for softball players.

See for example section B. 2-3 below, 46 La. Admin. Code Pt XLV,  5705, as follows:

A.         The Activities of an Athletic Trainer--the practice of prevention, emergency management, and physical rehabilitation of injuries and sports-related conditions incurred by patient/athletes. In carrying out these functions, the athletic trainer shall use whatever physical modalities are prescribed by a team physician or consulting physician, or both. The results of these activities should be recorded.

B.         Practice of Prevention--shall include, but is not limited to the following:

. . . .

3.         working cooperatively with supervisors, coaches, and a team physician or consulting physician in the selection and fitting of protective athletic equipment for each athlete and constantly monitoring that equipment for safety; and

In Pichardo v. North Patchogue Medford Youth Athletic Association, Inc., 569 N.Y.S. 2d 186 (New York Supreme Court, Appellate Division, Second Department, 4/29/91), 172 A.D.2d 814, the New York Supreme Court dismissed the lawsuit of a participant in a summer league baseball game who was struck by lightning and killed.  The Court found that the player was not under inherent compulsion to play, and thus league officials were not negligent in allowing the game to continue when threatening weather became apparent. 

In Porter v. Grant County Board of Education, 219 W.Va. 282 (6/16/2006), 633 S.E.2d 38, the West Virginia Supreme Court ruled that the school board was not negligent in failing to cancel an athletic event due to snow and ice, despite the fact that academic classes were cancelled countywide, when the plaintiff fell on snow and ice on school grounds on the way to the athletic event.

In the author’s opinion, Pichardo and Porter reflect the efforts of national lobbying to cloak States, political subdivisions, and insurance companies with “immunity” (see e.g. Governmental Tort Claims and Insurance Reform Act) and deny individuals access to courtrooms and our justice system.  As some states have been successful in limiting the efforts of insurance companies to push their tort reform agenda through state legislatures, these case results cannot be taken to infer that schools will escape liability for failure to monitor or cancel athletic events.

See for example See for example section B. 2-3 below, 46 La. Admin. Code Pt XLV,  5705, as follows:

A.         The Activities of an Athletic Trainer--the practice of prevention, emergency management, and physical rehabilitation of injuries and sports-related conditions incurred by patient/athletes. In carrying out these functions, the athletic trainer shall use whatever physical modalities are prescribed by a team physician or consulting physician, or both. The results of these activities should be recorded.

B.         Practice of Prevention--shall include, but is not limited to the following:

            ….

4.         counseling and advising supervisors, coaches, and patient/athletes on physical conditioning and training, such as diet, flexibility, rest, and reconditioning.

46 La. Admin. Code Pt XLV,  5705

In perhaps the most extensive opinion seen regarding the duty of an institution to care for its patient/athletes, the Commonwealth Court of Pennsylvania provided the following lengthy discussion in a lawsuit against the Pennsylvania Interscholastic Athletic Association (PIAA).  Although the case arose due to high school patients/athletes who suffered long term, severe concussion symptoms, the court requires an overarching duty of care with regard to the long-term health as highlighted:

[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.

[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.

[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.

See, for example, in Kentucky KRS § 160.445 “Sports safety course required for high school athletics coaches; training and education on symptoms, treatment, and risks of concussion; venue-specific emergency action plans” as follows:

1. (a) The Kentucky Board of Education or organization or agency designated by the board to manage interscholastic athletics shall require each interscholastic coach to complete a sports safety course consisting of training on how to prevent common injuries. The content of the course shall include but not be limited to emergency planning, heat and cold illnesses, emergency recognition, head injuries including concussions, neck injuries, facial injuries, and principles of first aid. The course shall also be focused on safety education and shall not include coaching principles

(b) The state board or its agency shall:

. . . .

3. Be responsible for ensuring that an approved course is taught by qualified professionals who shall either be athletic trainers, registered nurses, physicians, or physician's assistants licensed to practice in Kentucky;

In Williams v. Board of Supervisors of the University of Louisiana System, 135 So.3d 1352 (La. 2 Cir. 2/26/14) the Louisiana Second Circuit Court of Appeal upheld a jury verdict of nearly $2,000,000.00 to the minor child of Henry White, III a Grambling basketball player who collapsed while on an outdoor team run, and later died as a result of heat stroke complications.  No athletic trainers were present during the run.  When Mr. White collapsed, it took 15 – 20 minutes for a “trainer” to respond.  The “trainer” who finally arrived had failed her boards and was uncertified.  Expert testimony provided by Douglas Casa, Ph.D. established that Mr. White would have survived had the “trainer” been on-site, recognized the signs of heat stroke, and immersed White in an ice bath within 10 – 15 minutes.  The jury found Grambling and its staff 100% negligent, and the Louisiana Second Circuit Court of Appeals upheld the verdict. 

Many states require physician direction/supervision of licensed athletic trainers, but not all.  Athletic Trainers and organizations should be aware of state laws and requirements and ensure compliance.  State law takes precedence over documents produced by non-regulatory organizations such as NATA and State Athletic Training Associations.

In states where state law requires physician direction see, for example N.J. Admin. Code § 13:35-10.5  “Plan of care guidelines”

 (a) Every licensed athletic trainer shall enter into a written plan of care with a supervising physician, which sets forth the practices in which a licensed athletic trainer shall engage in while providing physical treatment modalities to athletes in an interscholastic, intercollegiate, intramural or professional athletic setting and all athletic training services, including physical treatment modalities, provided outside of these settings. The plan of care shall be signed and dated by both the licensed athletic trainer and the supervising physician.

(b) A licensed athletic trainer and his or her supervising physician shall meet at least once a year to review the plan of care and revise it as necessary.

(c) A supervising physician shall be available, either in person or through voice communication, whenever a licensed athletic trainer is practicing athletic training.

(d) A licensed athletic trainer shall make a plan of care available to the Board upon request.

At the time of publication, no case law was found on this standard.

While there is growing case law in this area, we would be unable to list all relevant cases.  Athletic trainers and organizations must be aware of state laws and ensure compliance.

See discussion regarding Standard 7, as cited from Hites v. Pennsylvania Interscholastic Athletic Ass'n, Inc., No. 8 C.D. 2017, 2017 WL 4507367, at *5–6 (Pa. Commw. Ct. Oct. 10, 2017).  Again, although the plaintiffs in the Hites case brought claims for inadequate care following concussions, the Court does an excellent job of stating the overarching duty of the PIAA regarding health care administration and ensuring appropriate medical care is provided.