Samuel J Randall v. Michigan High School Athletic Association

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

SAMUEL J. RANDALL, FOR PUBLICATION

November 19, 2020

Plaintiff-Appellee, 9:25 a.m.

v No. 346135

Kent Circuit Court

MICHIGAN HIGH SCHOOL ATHLETIC LC No. 18-001891-NI

ASSOCIATION, GRAND RAPIDS CHRISTIAN

HIGH SCHOOL, GRAND RAPIDS CHRISTIAN

SCHOOLS, ST. FRANCIS HIGH SCHOOL,

GRAND TRAVERSE AREA CATHOLIC

SCHOOLS, BAY HOCKEY ASSOCIATION,

RYAN FEDORINCHIK,

Defendants,

and

ANTHONY POLAZZO and METROPOLITAN

HEALTH CORPORATION,

Defendants-Appellants.

SAMUEL J. RANDALL,

Plaintiff-Appellant,

v No. 346476

Kent Circuit Court

MICHIGAN HIGH SCHOOL ATHLETIC LC No. 18-001891-NI

ASSOCIATION, ANTHONY POLAZZO,

METROPOLITAN HEALTH CORPORATION,

Defendants,

and

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GRAND RAPIDS CHRISTIAN HIGH SCHOOL,

GRAND RAPIDS CHRISTIAN SCHOOLS, ST.

FRANCIS HIGH SCHOOL, GRAND

TRAVERSE AREA CATHOLIC SCHOOLS,

BAY HOCKEY ASSOCIATION, RYAN

FEDORINCHIK,

Defendants-Appellees.

Before: K. F. KELLY, P.J., and FORT HOOD and SWARTZLE, JJ.

SWARTZLE, J.

Youth sports offer extensive benefits to kids—comradery, discipline, exercise, and self-

esteem, just to name a few. There can be a dark side to youth sports, however, and one of the

darkest is the possibility of short- and long-term injury and harm from concussions. In 2012, our

Legislature enacted the “concussion-protection statute,” 2012 PA 342, to help protect our youth

from this specific risk of harm. The statute imposes various duties on coaches and other covered

adults, including training about concussions and the requirement to remove a youth from an

athletic activity who is suspected of suffering a concussion.

Plaintiff sued his coach, trainer, and various institutional entities, alleging that they failed

to remove him from a youth hockey game after he showed obvious signs of a concussion.

Defendants have denied breaching any duty. On appeal, we clarify the legal duties imposed by

the Legislature on coaches and other covered adults and entities with respect to a youth who is

suspected of suffering a concussion during an athletic activity, and we affirm in part and vacate in

part the trial court’s rulings on summary disposition and remand both appeals to the trial court for

further proceedings.

I. BACKGROUND

Plaintiff, Samuel Randall, sued defendants, the Michigan High School Athletic Association

(“MHSAA”), Grand Rapids Christian High School, Grand Rapids Christian Schools, St. Francis

High School, Grand Traverse Area Catholic Schools, Anthony Polazzo, Metropolitan Health

Corporation, Ryan Fedorinchik, and the Bay Hockey Association, over a concussion that he

allegedly suffered while participating as a youth athlete in a hockey game. The orders on appeal

do not concern his claims against the MHSAA, Grand Rapids Christian High School, or Grand

Rapids Christian Schools, and those parties are not involved in these appeals. For clarity, this

opinion will refer to St. Francis High School, Grand Traverse Area Catholic Schools, Bay Hockey

Association, and Fedorinchik collectively as the “Association defendants.”

A brief preliminary note about the appellate record. In support and opposition to the

motions for summary disposition, the parties relied on plaintiff’s deposition testimony, the medical

records completed by the athletic trainer, and video evidence. Plaintiff’s briefs on appeal,

however, are not restricted to this evidence and instead cite extensively from depositions of

witnesses taken after the motions were decided. We decline to consider this evidence, as it was

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not presented to the trial court with respect to the rulings now on appeal. See Pena v Ingham Co

Rd Comm, 255 Mich App 299, 310; 660 NW2d 351 (2003). With that said and as explained below,

this additional evidence might be relevant to future proceedings in this case.

A. PLAINTIFF’S INJURY

Plaintiff played goalie for a youth hockey team run by St. Francis High School and the Bay

Hockey Association. The events at issue in this lawsuit occurred during a hockey game between

plaintiff’s team and a team operated by the Grand Rapids Christian Schools. Polazzo, an employee

of Metro Health, served as athletic trainer for both hockey teams during the game.

Plaintiff was involved in two separate collisions during the game. Plaintiff testified that,

during the second period, a player from the opposing team struck him in the head with an elbow.

Plaintiff claimed that, as a result of this blow to the head, he lost consciousness and fell to the ice.

Plaintiff obtained a video of this first collision and posted it on social media. The video was

approximately 30 seconds long, and while it showed the collision, it ended as soon as plaintiff was

hit and therefore did not confirm that he lost consciousness on the ice. Plaintiff testified that he

did not remember falling after the first collision, but when he regained consciousness, he found

himself lying on the ice.

The length of time plaintiff was lying on the ice—if at all—is highly contested. In his

complaint, plaintiff alleged that he “remained on the ice—unresponsive—for approximately four

minutes.” During his deposition, however, plaintiff denied any personal knowledge regarding how

long he was unconscious. Instead, plaintiff stated that two spectators watching the game from the

stands—specifically, Jonathan Ellis and Mark Stevenson—told him that he was unconscious for

four minutes. Plaintiff agreed during his deposition that any person watching the game, including

the spectators in the stands (which included his parents), would have been able to see how long he

was on the ice after the first hit. Yet, plaintiff has not alleged in his pleadings, briefs, or deposition

testimony that his parents saw the first hit or saw him on the ice for approximately four minutes.

After the first collision, Polazzo went on the ice to check on plaintiff. Plaintiff alleged in

his complaint that Polazzo did not perform any test to ascertain his medical condition or,

specifically, whether plaintiff exhibited any symptoms of a concussion. During his deposition,

however, plaintiff admitted that Polazzo assessed him to determine whether plaintiff could

continue to play.

Plaintiff testified that he felt dizzy after the first collision. He admitted, however, that he

wanted to remain in the game and that he told Polazzo, “I think I’m good.” He did not recall

experiencing any sensitivity to light at that time, and he stated that he would not have stayed in the

game if he had experienced such sensitivity, given the brightness of the lights and reflectivity of

the ice. He remembered that Polazzo told him that if he started to get a headache or feel dizzy, or

if he felt like he could not continue play, he should alert Polazzo immediately.

Polazzo later completed a three-page form that documented his visit to plaintiff on the ice.

One page, labeled “Cognitive & Physical Evaluation,” included an area for documenting the

evaluation of an athlete’s symptoms, as well as an area for documenting an athlete’s cognitive and

physical condition. According to the form, plaintiff reported a mild headache to Polazzo, but this

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subsided as the evaluation progressed. Plaintiff also purportedly reported experiencing mild

dizziness when his head hit the ice, but denied any dizziness during the on-ice evaluation. Plaintiff

purportedly denied other symptoms of a concussion, including pressure in the head, neck pain,

nausea or vomiting, blurred vision, balance problems, or sensitivity to light or noise. Polazzo

recorded on the cognitive-assessment portion of the form that plaintiff “knew where he was [and]

what happened,” and that he was “able to comprehend” and “was not delayed in answering”

Polazzo’s questions.

Another page of the form, labeled “Sports Medicine Athletic Injury Evaluation,” contained

Polazzo’s narrative description of plaintiff’s injury: “Athlete was hit and taken down when he said

his head hit the ice. He was wearing a helmet, goalie. He stayed down on ice until athletic trainer

got to him.” Regarding his evaluation of the injury, Polazzo wrote:

Eval. revealed pain where athlete’s head made contact with ice, in helmet.

He said he had a headache after hitting the ice, but it started to go away while talking

to him. He denied any dizziness, feeling in a fog, not feeling right, or troubles with

light sensitivity. He was asked if he thinks he can continue and he said he could.

He was told if he starts to get a headache, feel dizzy, feel like he can’t think straight

to tell the ref or motion to athletic trainer immediately.

It is uncontested that, after he visited plaintiff on the ice, Polazzo returned to the bench, plaintiff

remained in net, and the game resumed.

Plaintiff testified that, at some later point, he tried to signal Polazzo that he wanted to come

out. “I just remember looking at him and like shaking my head because I was dizzy, like losing

balance,” plaintiff testified. He did not come off the ice on his own, however, because he thought

Polazzo was going to stop play. The opposing team scored a goal, play stopped, and yet plaintiff

remained on the ice.

Shortly after the goal (and about five or six minutes after the first hit), plaintiff took a knee

to the head. He alleged in his complaint that he remained conscious, but he removed himself from

the game because his head hurt, and he had vision problems. During his deposition, however,

plaintiff testified that it was his father who “pulled me off the ice” when he “opened the door

during the whistle and yelled and told me to come off the ice.”

Polazzo’s evaluation form confirmed that plaintiff signaled that he wanted to come off the

ice, and that plaintiff was involved in a second collision. Polazzo claimed, however, that plaintiff

did not signal until after the opposing team scored a goal against him. Polazzo wrote on the form:

After missing a shot that went passed [sic] him he motioned to the athletic trainer.

[Athletic trainer] went to coach to instruct him the goalie was done. After the

athlete came off the ice he went to the locker room. In the locker room Dad said

he had trouble walking down the hallway. Talking to him he also said he started to

get a headache and not feel right. Dad took him to the hotel and was instructed on

home care and when to take to emergency room.

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Polazzo further wrote on the form that he believed that plaintiff had suffered a concussion. He

marked plaintiff’s initial treatment as “removed from game” and recommended that plaintiff

“Follow up with physician.”

B. THE LAWSUIT

Plaintiff sued the MHSAA, Grand Rapids Christian High School, Grand Rapids Christian

Schools, Polazzo, St. Francis High School, Grand Traverse Area Catholic Schools, and the Bay

Hockey Association. Substantively, plaintiff alleged that Polazzo was negligent because he failed

to “properly treat and evaluate” plaintiff for injuries, including “a concussion or concussive

symptoms,” and because Polazzo allowed plaintiff “to return to competition after the first

collision.” Plaintiff further alleged that Polazzo was negligent per se under MCL 333.9156(3)

because he failed to remove plaintiff from the hockey game “notwithstanding his obvious signs

and/or symptoms of sustaining a concussion—specifically the approximately four minutes he

remained on the ice.” He alleged claims against Polazzo for ordinary negligence and “negligence

per se”; claims against Grand Rapids Christian High School and Grand Rapids Christian Schools

under a theory of respondeat superior, as well as negligent hiring, retention, and supervision;

claims against St. Francis High School (purportedly operated, managed, and controlled by Grand

Traverse Area Catholic Schools) for negligence and respondeat superior; a claim against the

MHSAA for respondeat superior; and claims against the Bay Hockey Association for ordinary

negligence and respondeat superior, as well as negligent hiring, training, and supervision.

Polazzo moved for summary disposition in lieu of answering plaintiff’s complaint. In his

motion, Polazzo asserted that he was certified as an athletic trainer and qualified as a licensed-

health professional under the Michigan Public Health Code. Polazzo argued that, although

plaintiff styled the claims against him as ordinary-negligence claims, his claims actually sounded

in medical malpractice. He argued that plaintiff was required to follow the procedural

requirements for filing medical-malpractice actions set forth in MCL 600.2912b and MCL

600.2912d, including serving a notice of intent to file claim, waiting 182 days, and filing an

affidavit of merit from a qualified expert along with his complaint. Polazzo argued that the

appropriate remedy for plaintiff’s failure to comply with these statutory requirements was

dismissal of the claims against him.

In response to the motion, plaintiff insisted that he had filed an “ordinary negligence

action,” and argued that the concussion-protection statute “applies equally to medical experts and

lay persons, such as coaches, volunteers, or referees.” Plaintiff further argued that Polazzo “did

not perform any medical tests to determine if Plaintiff had suffered a concussion,” and that he did

not, therefore, exercise any medical judgment with regard to plaintiff’s injury.

Plaintiff subsequently filed his first-amended complaint, adding Metro Health as a party.

He alleged that Polazzo was an employee or agent of Metro Health, and that the latter was liable

for Polazzo’s negligence under a theory of respondeat superior. Plaintiff also added a claim against

the MHSAA for negligent hiring, training, and supervision related to its game officials.

The trial court denied Polazzo’s motion for summary disposition. The parties had not yet

taken the deposition of either plaintiff or Polazzo, and the parties had not provided the trial court

with the three-page form that documented Polazzo’s visit to plaintiff on the ice. Given the paucity

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of the record and plaintiff’s well-pleaded allegations, the trial court concluded that dismissal was

not warranted:

According to the First Amended Complaint, Randall was unconscious for

“four minutes” after he suffered the first blow to the head. Polazzo entered the ice

to talk to Randall, did not perform any medical tests, and did [not] stop Randall

from returning to the ice. Based on the information provided, Polazzo did not

perform a full evaluation and did not provide written clearance authorizing

Randall’s return to athletic activity. Although this claim is against a licensed

medical professional, Randall alleges that the claim arises from a statutory violation

of MCL 333.9156, which applies to coaches, volunteers, and other adults

participating in an athletic event. The claim is not alleging inappropriate written

clearance or judgment which required a higher level of medial expertise. Based on

this statute, it is immaterial whether Polazzo is a medical expert.

Accordingly, this claim does not sound in medical malpractice and was filed

appropriately. Based upon the well-plead facts, a sufficient legal claim exists.

Additionally, a genuine issue of material fact exists. Summary Disposition is

inappropriate on this matter.

Plaintiff then filed his second-amended complaint. He alleged the same claims as recounted

earlier, and he added Fedorinchik as a party, asserting claims against the coach for ordinary

negligence and “negligence per se”.

Discovery ensued under the trial court’s scheduling order. Prior to the end of discovery,

Polazzo and Metro Health moved for summary disposition under MCR 2.116(C)(7), (C)(8), and

(C)(10). Relying primarily on plaintiff’s deposition testimony, Polazzo again argued that

plaintiff’s claims against him sounded in medical malpractice, rather than ordinary negligence, and

that plaintiff had failed to follow the procedures applicable to medical-malpractice claims. In turn,

Metro Health argued that the trial court should dismiss plaintiff’s respondeat-superior claim

against it, if the trial court dismissed plaintiff’s claims against Polazzo. Metro Health and Polazzo

attached a copy of plaintiff’s deposition transcript to the brief supporting their motion. They

argued that plaintiff’s testimony confirmed that Polazzo evaluated plaintiff on the ice to determine

whether plaintiff should be allowed to play or be removed for further medical assistance.

Plaintiff responded to the motion by again arguing that his claim against Polazzo sounded

in ordinary negligence, not medical malpractice. Plaintiff conceded that Polazzo was a medical

professional who could be sued for medical malpractice, but argued that his claims against Polazzo

did not sound in medical malpractice because they did not raise questions of medical judgment

that were beyond the realm of common knowledge and experience.

Plaintiff also argued that, as a matter of logic, his claim against Polazzo could not sound in

medical malpractice because “no medical examination took place.” Plaintiff argued that the

question was not whether Polazzo provided negligent medical care, but whether Polazzo

committed ordinary negligence by failing to provide plaintiff with any medical care. Plaintiff

conceded that Polazzo “entered the ice and talked to” him after the first collision. Yet, plaintiff

continued to insist that Polazzo “did not perform any medical tests.” Plaintiff argued that “Polazzo

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never treated Plaintiff” because he “simply went out onto the ice and asked Plaintiff if he wished

to continue playing.” Plaintiff further argued that any lay juror could understand the allegations

of negligence, namely that Polazzo witnessed him sustain a violent collision causing his head to

make forceful contact with the ice and that he lay on the ice, unresponsive, for approximately four

minutes.

Plaintiff continued to argue that the duties set forth in the concussion-protection statute

apply “equally to those with and without medical knowledge” and that corrective action is always

required “if a concussion is suspected.” According to plaintiff, medical judgment is only

implicated under the statute after an athlete is removed from athletic activity. Finally, plaintiff

argued that Metro Health did not challenge that Polazzo was its agent and, accordingly, argued

that if Polazzo was potentially liable, then Metro Health was also potentially liable under a theory

of respondeat superior.

In reply, Polazzo and Metro Health pointed out that there was no evidence in the trial-court

record that plaintiff had lain on the ice, unresponsive, for a period of four minutes. At this point

in the case, plaintiff had not provided the trial court with any documentary evidence, video

evidence, or testimony from any other individual regarding the duration of his loss of

consciousness. Instead, plaintiff relied only on his hearsay testimony that Ellis and Stevenson told

him that he was unconscious for a period of four minutes.

For their part, the Association defendants also moved for summary disposition under MCR

2.116(C)(8) and (C)(10). These defendants argued that Polazzo evaluated plaintiff immediately

after the first collision, observed no signs of a concussion during that evaluation, and cleared

plaintiff to continue play. The Association defendants further argued that Polazzo was an

independent medical professional, and that Fedorinchik, who was not a medical professional,

justifiably relied on the on-ice evaluation that Polazzo conducted. The Association defendants

attached to their supporting brief the entire transcript of plaintiff’s deposition testimony, along

with the three-page form completed by Polazzo that documented his visit to plaintiff on the ice.

Although several parties attached the entire transcript of plaintiff’s deposition to their

motions and supporting briefs, plaintiff did not offer an affidavit from either of his parents or the

two witnesses he named, attesting that plaintiff had lain on the ice for approximately four minutes

after the first collision. Instead, plaintiff relied on his own lack of personal knowledge regarding

how long he had lain on the ice, and on the hearsay statements allegedly made to plaintiff by third

parties.

C. TRIAL-COURT RULINGS AND INTERLOCUTORY APPEALS

The trial court granted summary disposition in favor of the Association defendants under

MCR 2.116(C)(10). The trial court held:

In the current case, on December 17, 2016, Randall was competing in a

hockey game for the Bay Hockey Team. Bay Hockey is primarily staffed by [St.

Francis] staff and is coached by Fedorinchik. In the second period, Randall was

hit, fell to the ice, and struck the left side of his head. Randall contends that he was

unconscious on the ice for four minutes. Polazzo, a certified medical trainer,

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evaluated Randall and cleared Randall to continue playing. Randall continued to

play and was involved in a second collision which Randall alleges caused damage

causing him to leave the game.

No genuine issue of material fact exists. Randall has failed to provide

documentary evidence that Fedorinchik breached his ordinary duty of care to

Randall. Consequently, Randall has failed to provide documentary evidence that

[St. Francis, Grand Traverse Area Catholic Schools, or the Bay Hockey

Association] breached their duty of care or are liable through the doctrine of

respondeat superior. Randall only provides his deposition testimony, a video of the

two hits, and a copy of the consent form. These exhibits do not establish that

Randall was laying on the ice for four minutes. Further, [the Association

defendants] provide documentation that Polazzo cleared Randall to continue

playing after Randall said, “I think I’m good.”

On the issue of negligence per se, Randall has failed to provide documentary

evidence that Fedorinchik had reason to suspect that Randall sustained a

concussion. Further, the evidence shows that Polazzo cleared Randall to continue

playing. Accordingly, summary disposition is appropriate as to the claims against

[the Association defendants].

In a second opinion issued the same day, the trial court denied Metro Health and Polazzo’s

motion for summary disposition, holding:

As described in this Court’s previous Opinion and Order, although the claim

is against a medical professional, the allegations do not require a higher level of

medical expertise “beyond the realm of common knowledge and expertise.” The

question is not whether Polazzo was negligent in his medical treatment, but whether

he was negligent in failing to provide medical treatment. A question of material

fact exists as to the remaining elements of the claim. Accordingly, summary

disposition is not appropriate as to Counts I, II, or III against Polazzo and Metro

Health.

In a third opinion issued the same day, the trial court granted summary disposition in favor of

Grand Rapids Christian High School and Grand Rapids Christian Schools, and those parties were

dismissed from the case. But because several claims survived summary disposition, discovery

continued and the parties took additional depositions.

These interlocutory appeals followed. In Docket No. 346135, Polazzo and Metro Health

appealed by leave granted the trial court’s order denying their motion for summary disposition

under MCR 2.116(C)(7). See Randall v MHSAA, unpublished order of the Court of Appeals,

entered March 26, 2019 (Docket No. 346135). In Docket No. 346476, plaintiff appealed by leave

granted the trial court’s order granting summary disposition under MCR 2.116(C)(10) in favor of

the Association defendants. See Randall v MHSAA, unpublished order of the Court of Appeals,

entered March 26, 2019 (Docket No. 346476). This Court consolidated the two appeals and stayed

the trial-court proceedings pending resolution of the appeals. See Randall v MHSAA, unpublished

order of the Court of Appeals, entered March 26, 2019 (Docket Nos. 346135; 346476). This Court

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denied plaintiff’s application for leave to appeal the trial court’s decision granting summary

disposition in favor of Grand Rapids Christian High School and Grand Rapids Christian Schools,

and those defendants are not involved in these appeals.

II. ANALYSIS

A. STANDARD OF REVIEW

“This appeal involves various legal questions of statutory construction and the distinction

between ordinary negligence and medical malpractice, all of which we review de novo.” LaFave

v Alliance Healthcare Servs, Inc, __ Mich App __; __ NW2d __ (2020) (Docket No. 345986); slip

op at 3. With respect to whether the Legislature created a private statutory right of action under

MCL 333.9156(3), our interpretation of the statute is likewise done de novo. Long v Chelsea

Comm Hosp, 219 Mich App 578, 581-582; 557 NW2d 157 (1996); see also Pitsch v ESE Michigan,

Inc, 233 Mich App 578, 586; 593 NW2d 565 (1999). Moreover, “whether a defendant owes a

plaintiff a duty of care is a question of law” that we review de novo. Sabbagh v Hamilton

Psychological Servs, 329 Mich App 324, 348; 941 NW2d 685 (2019).

Similarly, we review de novo the trial court’s summary-disposition rulings. LaFave, slip

op at 2. Although Polazzo and Metro Health moved for summary disposition under MCR

2.116(C)(7) and (C)(8), “[i]n determining whether the nature of a claim is ordinary negligence or

medical malpractice . . . a court does so under MCR 2.116(C)(7).” Bryant v Oakpointe Villa

Nursing Ctr, Inc, 471 Mich 411, 419; 684 NW2d 864 (2004). For their part, the Association

defendants moved for summary disposition under MCR 2.116(C)(8) and (C)(10), and the trial

court granted the motion under MCR 2.116(C)(10). “Where a motion for summary disposition is

brought under both MCR 2.116(C)(8) and (C)(10), but the parties and the trial court relied on

matters outside the pleadings, as is the case here, MCR 2.116(C)(10) is the appropriate basis for

review.” Silberstein v Pro-Golf of America, Inc, 278 Mich App 446, 457; 750 NW2d 615 (2008).

B. THE CONCUSSION-PROTECTION STATUTE

In 2012, our Legislature addressed the problem of concussions in youth sports by enacting

the concussion-protection statute. Relevant to this dispute, the first two sentences of MCL

333.9156(3) provide:

A coach or other adult employed by, volunteering for, or otherwise acting

on behalf of an organizing entity during an athletic event sponsored by or operated

under the auspices of the organizing entity shall immediately remove from physical

participation in an athletic activity a youth athlete who is suspected of sustaining a

concussion during the athletic activity.

A youth athlete who has been removed from physical participation in an

athletic activity under this subsection shall not return to physical activity until he

or she has been evaluated by an appropriate health professional and receives written

clearance from that health professional authorizing the youth athlete’s return to

physical participation in the athletic activity.

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The Legislature defined an “appropriate health professional” as “a health professional who is

licensed or otherwise authorized to engage in a health profession under [MCL 333.16101 et seq.]

and whose scope of practice within that health profession includes the recognition, treatment, and

management of concussions.” MCL 333.9155(4)(a).

C. PRIVATE STATUTORY CAUSE OF ACTION FOR

VIOLATING THE CONCUSSION-PROTECTION STATUTE?

The first question we consider on appeal is whether our Legislature “either expressly or by

implication, intended to create” a private statutory cause of action for violation of the concussion-

protection statute. Office Planning Group, Inc v Baraga-Houghton-Keweenaw Child Dev Bd, 472

Mich 479, 498; 697 NW2d 871 (2005). This is important to clarify at the outset because, generally

speaking, a plaintiff cannot make a viable claim for money damages based strictly on violation of

a statute unless the Legislature provides for a private statutory cause of action. Lash v Traverse

City, 479 Mich 180, 197; 735 NW2d 628 (2007); see also People v Anstey, 476 Mich 436, 445 n

7; 719 NW2d 579 (2006) (“Because the Legislature did not provide a remedy in the statute, we

may not create a remedy that only the Legislature has the power to create.”). This question is

distinct from the separate question of whether violation of a statute factors into a common-law

negligence cause of action, a question that we consider in the next section.

Prior to oral argument on appeal, neither the parties nor the trial court addressed the

question of whether our Legislature created a private statutory cause of action for violation of the

concussion-protection statute. On its own motion following oral argument, this Court ordered the

parties to file supplemental briefs addressing the following questions: “(1) is there a private cause

of action for violation of MCL 333.9156(3); and (2) if there is not a private cause of action, how

does this impact plaintiff’s claims for monetary damages?” Randall v MHSAA, unpublished order

of the Court of Appeals, entered August 14, 2020 (Docket Nos. 346135; 346476).

In their supplemental briefs, the parties acknowledge that there is no express private

statutory cause of action, and our own review of the statute confirms this. The parties disagree,

however, on whether the statute creates, by implication, a private cause of action. We conclude

that it does not. First, in addition to there being no language in the statute explicitly creating a

private statutory cause of action, there is likewise no language from which a necessary inference

could be drawn that the Legislature nevertheless intended there to be one. There is simply no

ambiguity in the statute on this question, and like all questions of statutory construction, where our

Legislature has clearly spoken on a matter within its sole constitutional authority, it is outside of

our authority to provide otherwise. Lash, 479 Mich at 194; D’Agostini Land Co LLC v Dep’t of

Treasury, 322 Mich App 545, 560; 912 NW2d 593 (2018).

Second, even if we were to assume that there was some ambiguity in the concussion-

protection statute on this score, there is not a sufficient basis to infer a private statutory cause of

action. Courts have held that where the Legislature has provided other means for enforcing a

statute’s provisions, inferring a private statutory cause of action for money damages is not

warranted. See, e.g., Lash, 479 Mich at 196; Pitsch, 233 Mich App at 586-587. As relevant here,

the Legislature has provided that violations of the Public Health Code can be criminally

prosecuted. See MCL 333.1299(1) (“A person who violates a provision of this code for which a

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penalty is not otherwise provided is guilty of a misdemeanor”). Furthermore, the Public Health

Code vests the Department of Health and Human Services with broad authority to enforce

provisions of the code, including investigating, MCL 333.2241(1); ordering immediate corrective

action, MCL 333.2251(1); seeking injunctive relief, MCL 333.2255; and assessing civil penalties,

MCL 333.2262(1).

And third, the existence of a common-law remedy for an actor’s alleged bad acts further

counsels against inferring a statutory remedy here. In reconciling prior case law, our Supreme

Court explained in Lash that “where no common-law remedy existed” for an actor’s conduct, “the

remedy provided by statute was the sole remedy.” Lash, 479 Mich at 191-192. Whether the

inverse of the statement in Lash—i.e., where a common-law remedy does exist, no statutory

remedy should be inferred—is a categorical rule or merely a practical guide need not be resolved

here, because even if it is only the latter, our common-law negligence law provides private actors

with sufficient remedies for violation of the concussion-protection statute, as explained below.

Accordingly, we conclude that the concussion-protection statute does not create, explicitly or by

implication, a private statutory cause of action.

D. COMMON-LAW CAUSES OF ACTION FOR

VIOLATING THE CONCUSSION-PROTECTION STATUTE

We turn next to plaintiff’s common-law causes of action. These claims take several forms,

although all sound in negligence. To make a negligence claim, “a plaintiff must prove that (1) the

defendant owed the plaintiff a legal duty, (2) the defendant breached the legal duty, (3) the plaintiff

suffered damages, and (4) the defendant’s breach was a proximate cause of the plaintiff’s

damages.” Hill v Sears, Roebuck & Co, 492 Mich 651, 660; 683 NW2d 587 (2004). How

plaintiff’s negligence-based causes of action interact with the concussion-protection statute is

critical to an understanding of this case.

1. LEGAL DUTY ARISING FROM STATUTE

Any negligence-based claim must, as its starting point, identify a legal duty owed by one

to another. If there is no duty, then there is no negligence. See Sabbagh, 329 Mich App at 349-

350. The Legislature can create a duty by statute, but not every statute creates such a duty. To

determine whether a statute creates a particular duty with respect to a particular party, courts

generally consider two questions: (1) did the Legislature intend that the statute would prevent the

type of injury and harm actually suffered by the party; and (2) did the Legislature intend that the

party was within the class of persons protected by the statute? Wood v City of Detroit, 323 Mich

App 416, 422 n 3; 917 NW2d 709 (2018); 18A Michigan Civil Jurisprudence, Negligence, § 92,

p 200. If the answers to both are yes, then a legal duty arises from the statutory enactment. See

Wood, 323 Mich App at 422 n 3.

Upon review of the concussion-protection statute and relevant law, we conclude that the

statute imposes a legal duty on the part of coaches and other covered adults to remove a youth

athlete who is suspected of sustaining a concussion from further involvement in covered athletic

activities. The statute defines a narrow class of persons needing protection—youth athletes

involved in certain athletic activities. 57A Am Jur 2d, Negligence, § 729, p 703 (“The violation

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of a statute or ordinance is actionable negligence . . . only as to those persons for whose benefit or

protection it was enacted.”). Thus, this is not a statute intended to benefit the public at-large. Id.

§ 726, p 701. Moreover, the statute is intended to protect youth athletes from a specific type of

injury and harm—short- and long-term detrimental health effects from concussions. The statute

does not impose standards of conduct related to the general welfare of youth athletes, but instead

focuses on a singular, critical risk to those athletes.

The existence of a legal duty is not, however, the end of the analysis. Contrary to plaintiff’s

position, Michigan law does not “subscribe to the doctrine of negligence per se.” Candelaria v

BC Gen Contractors, Inc, 236 Mich App 67, 82; 600 NW2d 348 (1999). When a plaintiff proves

that an actor has violated the terms of a statute, that is not conclusive proof of negligence. Rather,

Michigan law provides that when a statute imposes a legal duty, violation of that statute creates “a

rebuttable presumption of negligence,” id. at 82 n 5, or stated another way, the violation “is only

prima facie evidence of negligence,” Wood, 323 Mich App at 422 n 3. It remains a question of

fact, for example, whether the violation had a causal connection to the claimed injury. Klanseck v

Anderson Sales & Service, Inc, 426 Mich 78, 86-87; 393 NW2d 356 (1986); Vaas v Schrotenboer,

329 Mich 642, 650; 46 NW2d 416 (1951); 57A Am Jur 2d, Negligence, § 738, p 711 (“A jury is

free to find that a violation of a statutory duty is not necessarily the direct cause of the injury.”).

Similarly, evidence of a legally sufficient excuse (e.g., natural hazard or sudden emergency) can

be used to rebut evidence of a statutory violation. See Massey v Scripter, 401 Mich 385, 395; 258

NW2d 44 (1977).

2. ORDINARY NEGLIGENCE VERSUS MEDICAL MALPRACTICE

Further complicating the analysis in this case is the distinction between ordinary negligence

and malpractice. “A medical malpractice claim is sometimes difficult to distinguish from an

ordinary negligence claim. But the distinction is often critical.” Trowell v Providence Hosp &

Med Ctrs, Inc, 502 Mich 509, 517-518; 918 NW2d 645 (2018). A court determines the gravamen

of a claim by examining the underlying facts of the case rather than the label that the parties attach

to the claim. Dorris v Detroit Osteopathic Hosp Corp, 460 Mich 26, 45-46; 594 NW2d 455 (1999).

Our Supreme Court has provided guidance on how to determine whether a claim is properly

brought as a medical-malpractice action. The first issue is whether the claim “is being brought

against someone who, or an entity that, is capable of malpractice.” Bryant, 471 Mich at 420. This

is a necessary condition for bringing a malpractice suit because a “malpractice action cannot accrue

against someone who, or something that, is incapable of malpractice.” Adkins v Annapolis Hosp,

420 Mich 87, 95; 360 NW2d 150 (1984); LaFave, slip op at 3. On this issue, the Legislature has

provided that medical-malpractice claims can be brought against “a person or entity who is or who

holds himself or herself out to be a licensed health care professional, licensed health facility or

agency, or an employee or agent of a licensed health facility or agency.” MCL 600.5838a(1).

Once a court has determined that a claim has been brought against a person or entity that

is capable of malpractice, a court must then determine whether the claim sounds in medical

malpractice. To answer this question, two matters must be considered: “(1) whether the claim

pertains to an action that occurred within the course of a professional relationship; and (2) whether

the claim raises questions of medical judgment beyond the realm of common knowledge and

experience.” Bryant, 471 Mich at 422. With respect to the latter consideration, our Supreme Court

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has explained, “If the reasonableness of the health care professionals’ action can be evaluated by

lay jurors, on the basis of their common knowledge and experience, it is ordinary negligence.” Id.

at 423. But, “if the reasonableness of the action can be evaluated by a jury only after having been

presented the standards of care pertaining to the medical issue before the jury explained by experts,

a medical malpractice claim is involved.” Id.

Returning to the concussion-protection statute, our Legislature has imposed two different

types of duty in the first two sentences of MCL 333.9156(3). The first sentence imposes an

ordinary-negligence duty. It covers a “coach or other adult employed by, volunteering for, or

otherwise acting on behalf of an organizing entity during an athletic event sponsored by or operated

under the auspices of the organizing entity.” MCL 333.9156(3). This list of covered persons

includes lay persons who are not capable of malpractice and against whom a medical-malpractice

claim cannot be brought. Furthermore, the action required by the first sentence is one to be taken

by lay persons—any adult acting on behalf of an organizing entity of an athletic event. The

statutory duty does not pertain to a professional relationship with a healthcare professional, as it

can apply to a range of lay persons acting in such capacities as a coach, referee, or volunteer. Nor

does the duty imposed by the first sentence require medical judgment beyond the realm of common

knowledge and experience, as it requires covered adults to remove a youth athlete who is merely

“suspected of sustaining a concussion.” Id. (emphasis added). And, although the covered adults

must undergo certain training required by other provisions of the concussion-protection statute,

see, e.g., MCL 333.9155, there is nothing to suggest that this training alone would be sufficient to

put a trainee’s knowledge and judgment on par with that of a medical professional. This statutory

standard is consistent with our case law holding coaches and other nonparticipant adults in

recreational activities “to an ordinary-negligence standard in the absence of an applicable

immunity statute.” Sherry v East Suburban Football League, 292 Mich App 23, 29; 807 NW2d

859 (2011).1

In contrast, the second sentence of MCL 333.9156(3) imposes a medical-malpractice duty.

The sentence covers “an appropriate health professional,” a term defined to mean “a health

professional who is licensed or otherwise authorized to engage in a health profession under [MCL

333.16101 et seq.] and whose scope of practice within that health profession includes the

recognition, treatment, and management of concussions.” MCL 333.9155(4)(a). This means that

a claim based on a violation of the second sentence “is being brought against someone who, or an

entity that, is capable of malpractice.” Bryant, 471 Mich at 420. The second sentence requires

that the “appropriate health professional” evaluate a youth athlete who has already “been removed

from physical participation in an athletic activity under this subsection” and further bars the youth

athlete from returning to physical participation in that activity until the athlete “receives written

clearance from that health professional authorizing the youth athlete’s return to physical

participation in the athletic activity.” MCL 333.9156(3). Thus, the second sentence “pertains to

1

The defendants on appeal appear to be private persons and entities, and therefore there has been

no claim on appeal that “[t]he gross-negligence standard” should apply to coaches and other

nonparticipants “of publicly sponsored athletic teams who are entitled to governmental immunity.”

Sherry, 292 Mich App at 29 (emphasis added). Nor has there been a claim that any of the

defendants are exempt from the statutory requirements under MCL 333.9156(4).

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an action that occurred within the course of a professional relationship,” Bryant, 471 Mich at 422,

because the duty applies only to an appropriate health professional who medically evaluates a

youth for a suspected concussion. Further, “the claim raises questions of medical judgment beyond

the realm of common knowledge and experience,” id., because it involves whether a health

professional properly diagnosed the youth athlete or properly cleared the youth athlete to return to

physical participation in the athletic activity. Thus, a claim for breach of the duty created by the

second sentence of MCL 333.9156(3), when brought against a health professional who evaluated

the youth athlete, sounds in medical malpractice.

3. APPLICATION

a. DOCKET NO. 346135

We now apply these legal considerations to the factual record in these two appeals. In

Docket No. 346135, Polazzo and Metro Health argue that plaintiff’s claim against Polazzo sounds

in medical malpractice, rather than ordinary negligence. They further argue that plaintiff was

required to follow the procedural requirements for filing medical-malpractice actions set forth in

MCL 600.2912b and MCL 600.2912d. Because plaintiff failed to do so, these defendants argue

that the trial court erred in failing to dismiss the claims against them. In response, plaintiff argues

that Polazzo never medically evaluated plaintiff after the first collision, and that a claim against

him cannot sound in medical-malpractice because Polazzo exercised no professional medical

judgment.

The trial court stated that the question before it was “not whether Polazzo was negligent in

his medical treatment, but whether he was negligent in failing to provide medical treatment.” That

is not, however, the proper question. It is undisputed, for example, that Metro Health is a “licensed

health facility or agency,” Polazzo is its employee or agent, and, therefore, both are subject to

medical-malpractice liability. These matters are irrelevant because plaintiff’s claims against these

defendants are based on the duty arising from the first sentence of MCL 333.9156(3), not the

second. The list of covered adults in the first sentence encompasses Polazzo, regardless of the fact

that he was a licensed-health professional, because it is undisputed that he was an adult acting on

behalf of an organizing entity while he served as athletic trainer for the two teams involved in the

hockey game. The determination whether a “coach or other adult” complied with the mandate of

MCL 333.9156(3) that a youth athlete who is suspected of sustaining a concussion be immediately

removed from physical participation in an athletic activity does not raise questions involving

medical judgment, regardless of whether the “coach or other adult” was a health professional.

Using its common knowledge and experience, a jury could determine whether, based on what

happened to plaintiff on the ice, Polazzo should have reasonably suspected that plaintiff suffered

a concussion.

Although a claim for breach of the duty established in the second sentence of the statute

sounds in medical malpractice, plaintiff’s claims in this lawsuit do not implicate that duty. The

second sentence applies to the medical evaluation of a youth athlete after the athlete has been

removed from physical participation in the athletic activity, on suspicion that the athlete sustained

a concussion. There are no facts in the record to indicate that Polazzo evaluated plaintiff after he

was removed from the hockey game. In fact, plaintiff’s claims expressly allege that Polazzo should

have—but did not—remove plaintiff from the hockey game. Accordingly, plaintiff’s claim against

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Polazzo is not based on the duty created in the second sentence of the statute, and the claim does

not sound in medical malpractice.

Because we conclude that plaintiff’s claim against Polazzo sounds in ordinary negligence,

the trial court properly denied the motion for summary disposition brought by Polazzo and Metro

Health, even though the trial court did so for the wrong reason.

b. DOCKET NO. 346476

In Docket No. 346476, plaintiff appeals by leave granted the trial court’s order granting

the motion for summary disposition filed by the Association defendants under MCR 2.116(C)(10).

In granting that motion, the trial court ruled that plaintiff had failed to raise a genuine issue of

material fact that he lay on the ice, unresponsive, for four minutes. Furthermore, the trial court

ruled that Fedorinchik could not be liable because he reasonably relied on Polazzo’s medical

evaluation and his resulting decision not to remove plaintiff from the game.

Regarding the question of how long plaintiff was on the ice, as we explained earlier, we

will not consider evidence submitted by plaintiff on appeal but not before the trial court when it

ruled on the Association defendants’ motion. With that said, we also recognize that granting

summary disposition prior to the close of discovery, when the case turns on factual issues not yet

settled, is only appropriate when there “is no reasonable chance that further discovery will result

in factual support for the nonmoving party.” Colista v Thomas, 241 Mich App 529, 538; 616

NW2d 249 (2000). In this case, the trial court granted the motion for summary disposition filed

by the Association defendants before the close of discovery, despite the reasonable chance that

further discovery could result in factual support for plaintiff’s claim that he was unconscious on

the ice for a period of four minutes.

With respect to Fedorinchik, the first sentence of the statute unquestionably applies to him

because he was acting in his capacity as a “coach” of “an organizing entity during an athletic event

sponsored by or operated under the auspices of the organizing entity.” MCL 333.9156(3). Under

this sentence of the statute, Fedorinchik had a duty, independent of the actions of Polazzo, to

“immediately remove from physical participation in an athletic activity a youth athlete who is

suspected of sustaining a concussion during the athletic activity.” Id. Whether there was a legally

sufficient excuse for Fedorinchik to rely on Polazzo’s recommendation given the latter’s medical

training, whether Polazzo actually made a recommendation, or whether Fedorinchik did or should

have suspected that plaintiff had sustained a concussion, are all factual questions that cannot be

answered conclusively on this limited record on appeal. Similarly, the trial court erroneously

granted summary disposition to the Association defendants before the close of discovery.

III. CONCLUSION

Our Legislature enacted the concussion-protection statute to protect youth athletes from

the harmful effects of concussions. In doing so, the Legislature did not create, explicitly or by

implication, a private statutory cause of action for violation of the statute. Rather, the statute

creates negligence-based duties on the part of coaches and other covered adults, and a violation of

the statute can be evidence of actionable negligence.

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In Docket No. 346135, we affirm denial of the motion for summary disposition filed by

Polazzo and Metro Health, and in Docket No. 346476, we vacate the grant of summary disposition

for the Association defendants. We remand the case to the trial court for application of the

standards set forth in this opinion and for further proceedings consistent with this opinion. On

remand, the trial court may permit such additional discovery as it deems appropriate, and it may

entertain additional motions for summary disposition from the parties after the close of discovery.

We do not retain jurisdiction. Plaintiffs, having prevailed in full, may tax costs under MCR

7.219(F).

/s/ Brock A. Swartzle

/s/ Kirsten Frank Kelly

/s/ Karen M. Fort Hood

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