J. Hites, etc. v. PIAA, Inc.

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.

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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,

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[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).

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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]

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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).

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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.

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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.

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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

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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.

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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

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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

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(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

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(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