Was Prohibition Against Wearing Headgear a Basis of Liability?
Samantha Grieber sued to recover for personal injuries from multiple concussions sustained while participating in women’s lacrosse practice drills as a member of Hofstra University’s collegiate team. The first concussion occurred during a shooting drill on March 18, 2013, when a ball which was shot by another player and had missed the goal ricocheted off of nearby bleachers, striking Grieber in the back of the head. She was removed from play, examined by Athletic Trainer Robert DiMonda, and referred to team physicians.
Grieber was ultimately cleared to return to play after approximately two months, in May of 2013. The second concussion occurred during a “mimic drill” on January 21, 2014, when Grieber slipped and collided heads with another player. She was again removed from practice, examined by Mr. DiMonda, and referred to team physicians. Grieber was not cleared to return to team activity following her second concussion.
Grieber alleged that Hofstra and Head Coach Shannon Smith failed to adequately supervise, regulate, and minimize her risk of injury. Grieber claimed that Hofstra and Smith failed to warn her of the risk of head injuries that could result from concussions, and took issue with Smith’s experience, the safety of the drills which resulted in her injuries, and the adequacy of the concussion protocols.
Grieber also sued the National Collegiate Athletic Association (NCAA) and claimed the NCAA breached a duty of care by failing to provide proper information and by prohibiting protective headgear that allegedly would have prevented her injuries.
Under the doctrine of primary assumption of risk, if the risks are known by or perfectly obvious, a voluntary recreational participant has consented to them and the duty of care is discharged by making the conditions as safe as they appear to be. That principle extends to those risks associated with the construction, and any open and obvious condition, of the playing field. However, participants are not deemed to have assumed risks that are concealed or unreasonably increased over and above the usual dangers that are inherent in the sport.
Hofstra and Smith made a motion for summary judgment and submitted, the pleadings, the parties’ deposition transcripts, a certified weather report for January 21, 2014, and the affidavits of Dr. Shawn Arent, Andrew Smith, and Jennifer Kent. Hofstra and Smith contended the statute of limitations barred any claims stemming from Grieber’s first concussion, which occurred more than three years prior to the action being commenced. They added that Grieber voluntarily assumed the risk of injury that comes with playing women’s lacrosse, was repeatedly provided with educational materials, and admitted to executing multiple informed consent forms throughout her years participating with the team. Team meetings were held in which concussion risks were discussed and a concussion fact sheet was posted in the team locker room. In any event, Hofstra and Smith argued that they provided safe playing conditions for all players and exercised reasonable care with regard to concussion protocols.
Arent, a Professor and Chair of the Department of Exercise Science at the Arnold School of Public Health at the University of South Carolina, described his extensive experience in concussion research and familiarity with the resulting protocols and rehabilitation of NCAA student-athletes, as well as his review of the documents related to the action and Grieber’s injuries.
Arent opined that Hofstra and its staff, including Smith, were properly trained and experienced in preventing concussions and had adequate protocols and policies in place that put player safety first. Arent further opined that Hofstra properly relied upon contracted team physicians to ascertain injuries to their players. Arent also opined that Smith and Hofstra’s athletic trainers were appropriately experienced and trained with respect to concussions and provided players with adequate equipment considering the information available and the fact that NCAA did not allow headgear at the time.
Arent added that Smith and Hofstra personnel acted appropriately given their respective roles, properly supervising team activities in light of the players’ advanced experience and properly deferring to and relying on medical experts with regard to Grieber’s injuries. Arent opined that the drills performed which resulted in the injuries were common in the sport and safe to perform in rainy conditions as they were meant to prepare players for game situations.
Specifically, Arent opined that following both of Grieber’s injuries, Athletic Trainer Robert DiMonda acted properly by immediately removing her from participation, examining her for symptoms, and contacting the team physician for further evaluation. Arent opined that Hofstra and its contracted physicians properly implemented a medically sound concussion protocol in accordance with established guidelines, taking a conservative approach in managing Grieber’s injuries. Arent also stated that Grieber was not cleared to return to play until she passed medical exams and reported herself to be symptom free. Arent noted that she did not actually participate for Hofstra’s team again until several additional months later in the fall of 2013, yet chose to participate with another team independently of Hofstra during the summer of 2013.
Andrew Smith, Director of Sports Medicine at Canisius College, supervises, hires, schedules, mentors, and evaluates athletic trainers and team physicians. Smith also serves as a liaison for medical needs and follow-up in the medical community. Smith described his experience and familiarity with athletic training and NCAA concussion protocols, as well as documented related injuries. Upon his review, Smith opined that Hofstra and its personnel properly implemented a thorough concussion’ management plan by following Prohealth Care Associates, LLP’s concussion protocol which placed player safety first. Further opined that Hofstra and its staff responded promptly, and properly implemented that protocol. Smith agreed with Arent that Hofstra’s contracted team physicians took a conservative approach in holding Grieber out of participation for approximately two months. He additionally opined that Grieber was provided safe and adequate equipment and was made aware of the risks as demonstrated by the fact that she executed informed consent forms.
Jennifer Kent, the Assistant Coach for the Boston College Women’s Lacrosse Team, played women’s lacrosse for ten years and coached for over thirty years. Kent opined that the shooting drills in which Grieber sustained her concussions were basic and common drills used with women’s lacrosse players at varying levels. Kent added that it is common for missed shots to go wide of the net or ricochet off the goal post or other objects in the area. Players assumed risks such as being struck by a ball or slipping and colliding with another player. Kent concluded that Hofstra and Smith acted in a reasonable and safe manner with regard to how practice drills were conducted and provided adequate supervision and warnings to players including the Grieber.
The NCAA also made a motion to dismiss and submitted the affidavit of John Parsons, various communications, and scientific studies which were relied upon in assessing concussions and whether helmets should be required for student athletes participating in women’s lacrosse. The NCAA argued that it did not owe any duty to warn individual players of the risks of concussions but, even if it did, such duty was satisfied by providing member institutions including Hofstra with the most current information about the risks of concussions.
The NCAA further argued that student athletes such as Grieber were provided detailed information and warnings, and as such, assumed the risks when participating. The NCAA noted that there was no certified standard for women’s lacrosse headgear at the time of Grieber’s injuries. In fact, no manufacturer made headgear for use by women’s lacrosse players while Grieber was playing. The NCAA pointed to the litany of studies it provided in averring that the rule prohibiting helmets was based on careful analysis with the ultimate consensus that helmets could increase rather than decrease risk to women’s lacrosse players.
Parsons is the managing director of the NCAA Sports Science Institute, which is a resource for health and safety. In his affidavit, Parsons averred that the NCAA provided a sports medicine handbook as well as support and educational resources to each member institution including Hofstra. Parsons added that only NCAA member institutions may propose and approve rule changes through the playing rules committee and, as such, the NCAA was unable to create or change playing rules on its own.
In opposition to the two motions, Grieber submitted her medical records, studies regarding head injuries in collegiate athletics, and the reports of Dr. Robert C. Cantu, a neurologist, and R. Dawn Comstock, Ph.D., a professor and epidemiologist. Grieber contended that Hofstra, Smith, and the NCAA breached a multitude of duties, including failing to use reasonable care in instituting safe practices and implementing adequate concussion protocols, and failing to supervise Grieber and prohibiting the use of helmets. Grieber contended that those failures impacted her recovery and caused her to suffer permanent post-concussion issues.
In support of her position, Cantu opined that Grieber’s injuries were permanent and would have been prevented if she had been allowed to wear a helmet and added that the concussion related symptoms caused a decline in Grieber’s test scores which prevented her from being accepted into graduate school. Cantu concluded that the NCAA rendered Grieber vulnerable to concussions by failing to require the use of helmets.
Comstock opined that women’s lacrosse players had high concussion rates compared to other sports and noted that concussion rates have increased over time in women’s lacrosse. Comstock concluded that concussions would have been prevented if players were allowed to wear helmets as was allowed with men’s teams.
The Court found that, with their submissions, Hofstra and Coach Smith demonstrated prima facie entitlement to judgment as a matter of law. Specifically, Hofstra and Smith met their burden by providing expert opinions establishing that (1) Hofstra adequately informed Grieber of the risks associated with concussions, (2) she was injured while performing common practice drills in conditions typical to women’s lacrosse players under adequate supervision, (3) Hofstra properly implemented an adequate concussion protocol to manage the injuries, (4) Hofstra personnel and contracted team physicians, acted properly at all times in caring for Grieber following her accidents, and (5) that she assumed the risk of injury by voluntarily participating on the women’s lacrosse team despite her knowledge that doing so could result in being struck by an errant ball or colliding with another player.
Grieber reiterated various allegations regarding duties that allegedly had been breached by Hofstra and Smith, but failed to adequately address the conclusions of their experts that their actions were not negligent. The experts for Grieber offered no opinion regarding Hofstra and Smith to rebut their experts’ findings with regard to the safety of the practice drills, the adequacy of concussion protocols in place, the supervision of Grieber, the information provided to educate and warn her regarding concussions, or the actions of Smith and others involved in managing Grieber’s injuries. As such, Grieber failed to raise an issue of fact as to Hofstra and Smith.
Rather, the Court found that the only questions of fact that existed regarding the negligence pertained to the rule prohibiting women’s lacrosse players from wearing helmets, which was under the purview of the NCAA rather than Hofstra or Smith. The NCAA exercised significant control over the rules of play and equipment for women’s lacrosse, and imposed conditions of membership on its member institutions which included requirements regarding head injury protocols.
As such, the NCAA was charged with carrying out those functions with reasonable care. The studies submitted by Grieber, in conjunction with Cantu’s opinion that she would not have suffered concussions had the NCAA allowed women’s lacrosse players to wear helmets, were sufficient to create issues of fact as to whether the NCAA adequately discharged its duty to avoid exposing Grieber to risks that were “unreasonably increased.”
The Court dismissed all claims against Hofstra and Smith and denied the NCAA’s motion for summary judgment.