Washington State’s Lystedt Law – an Update
By Tony Corleto, of Gordon & Rees
(Editor’s Note: The following article appears in Concussion Litigation Reporter, which can be subscribed to at the site.)
Enacted by the Washington State legislature in 2009 (RCWA 28A.600.190) the “Zackery Lystedt Law” set the pattern for similar legislative and regulatory acts in each state and the District of Columbia.
Washington’s law established an education requirement for coaches, youth athletes and their parents, requiring each school district to develop a concussion and head injury information sheet for athletes and parents. Critically, the law also requires: (i) removal from play of athletes suspected of sustaining concussion or head injury; and (ii) written medical clearance before returning to play. Although implementation varies in each state, invariably each includes an information component, criteria for removal upon injury and criteria for return with medical clearance.
This article examines two decisions from the Washington Supreme and Appellate courts which illustrate the interplay of Lystedt with traditional tort law and procedural principals. In Swank, Washington’s Supreme Court addresses private causes of action, volunteer immunity and long arm jurisdiction. In Anderson, the Court of Appeals restricts Lystedt to sport activities.
Private Right of Action Recognized
What happens when a statute regulates conduct? In some instances (e.g., securities, telemarketing) penalties, rights of action and other remedies are implemented. In areas that are generally unregulated (e.g., youth sports) remedies are left to the judicial system. Lystedt laws fall into the latter category: invariably they specify no penalty, right of action or limitation of action. At this point in time, the core Lystedt requirements for disclosure, removal from play and return to play, are recognized as standards of care in tort claims. The approach taken by each court gives insight for defense strategies.
Washington’s Supreme Court expressly recognized the right to sue based on a Lystedt violation in Swank v Valley Christian School, 118 Wash.2d 663 (2017). The case arises from on field events in 2009, the year Lystedt was adopted. Valley Christian School (VCS) adopted the requisite information disclosure and implemented the prescribed removal from play and return to play criteria.
On September 18, 2009, Drew Swank took a hard hit to the head in a football game, was removed from play and later complained of neck pain and headaches. Three days later he saw the family physician, Dr. Burns, in Coeur d’Alene, Idaho where the Swanks resided. Dr. Burns examined Drew in Idaho and told him to stay out of contact sports for the next three days. He prescribed ibuprofen and advised that if Drew experienced headaches after playing football, he would need to stay out of contact sports for a week.
Two days later Drew had been without headaches. His mother asked Dr. Burns for a release because Washington’s new law required a doctor’s note for Drew to practice. Later that day, Dr. Burns wrote a note releasing Drew and his mother picked it up from the Idaho office. Drew’s father gave a copy of the medical release to the VCS coach, Puryear.
Playing in the next game, Drew appeared “sluggish,” confused, and slow to respond. Drew’s father recalled uncharacteristically poor play on kickoff returns and coach Puryear yelling at Drew from the sidelines in apparent frustration over missed plays. Drew’s teammates recalled coaches yelling frequently about his positioning. During the game, coach Puryear called Drew to the sidelines, grabbed his face mask and, according to Drew’s father, “began to jerk it up and down hard while he screamed at [Drew]”. Drew returned to the game, was hit by an opposing player, staggered to the sideline and collapsed. Drew died two days later.
Three years later, Drew’s parents sued VCS, coach Puryear, and Dr. Burns, claiming that each violated the Lystedt law. Each defendant moved for and was granted summary judgment. The Court of Appeals affirmed dismissal of Lystedt based claims against the school and coach, affirmed the jurisdictional dismissal in favor of the doctoy and reversed dismissal of the general negligence claim against VCS, holding: (1) Lystedt did not create an implied statutory cause of action, (2) coach Puryear was entitled to volunteer immunity, (3) the battery claim (coach Puryear’s) jerking of Drew’s face mask is barred by the two-year statute of limitations; and (4) the court lacked personal long-arm jurisdiction over Dr. Burns in Idaho.
Implied Cause of Action
Holding that Lystedt implied a cause of action, Washington’s Supreme Court reversed dismissal of the coach and reinstated the Swanks’ claims that VCS and coach Puryear violated the Lystedt law. The court also found the grant of summary judgment on the general negligence claim against coach Puryear “erroneous” and reversed the grant of summary judgment on this point. Finally, the court found that the trial court lacked personal jurisdiction over Dr. Burns and affirm the grant of summary judgment for the claims against him.
In Bennett v Hardy, 113 Wash.2d 912 (1990) Washington’s Supreme Court created a test to determine whether a statute includes an implied cause of action. Bennett sued her employer for age discrimination under the state’s non-discrimination statute, which made age discrimination an unfair employment practice, but did not create a remedy. Opposing summary judgment, the plaintiffs argued they should be able to sue their employer for an implied cause of action. Finding that plaintiff is within the class intended to benefit from the statute, that legislative intent supports a remedy, and that implying a remedy is consistent with the act’s underlying purpose, the Bennett court denied the motion. Their rationale is generally recognized: “We can assume that the legislature is aware of the doctrine of implied statutory causes of action and also assume that the legislature would not enact a remedial statute granting rights to an identifiable class without enabling members of that class to enforce those rights. Without an implicit creation of a remedy, the statute is meaningless.”
Turning back to Lystedt, the Swank court observed that there is no dispute Drew was within the class intended to benefit from Lystedt, that legislative concern for catastrophic and significant injuries associated with youth athlete concussions is clear, and that the legislature contemplated the possibility of civil liability when it exempted volunteer health care providers from liability. Finally, observing that “One of the major purposes of tort law is to encourage people to act with reasonable care for the welfare of themselves and others”, the court found that recognizing a private remedy would serve Lystedt’s purpose of preventing injuries by encouraging people to act with due care for the welfare of youth athletes and giving youth athletes recourse.
Volunteer Immunity Defense
The court’s handling of coach Puryear’s volunteer immunity defense is particularly instructive. Washington’s Volunteer Protection Act (RCW 4.24.670) immunizes volunteers from liability for simple negligence. However, volunteers are not immune for acts that are grossly negligent or reckless. RCW 4.24.670 provides immunity for a volunteer of a nonprofit organization for harm caused by an act or omission on behalf of the organization “if the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the volunteer.”
Although Coach Puryear plainly met the definition of volunteer, evidence was sufficient for a jury to find that Coach Puryear acted with gross negligence or recklessness. Simple negligence is the degree of care which the reasonably prudent person would exercise in the same or similar circumstances. Simonetta v. Viad Corp., 165 Wash.2d 341, 348, 197 P.3d 127 (2008) (“Under the law of negligence, a defendant’s duty is to exercise ordinary care.”). Gross negligence is “negligence substantially and appreciably greater than ordinary negligence.” Nist, 67 Wash.2d at 331, 407 P.2d 798; see also Eastwood v. Horse Harbor Found., Inc., 170 Wash.2d 380, 401, 241 P.3d 1256 (2010).
Reckless misconduct differs from negligence in that the actor “must recognize that his conduct involves a risk substantially greater in amount than that which is necessary to make his conduct negligent.” Reckless misconduct, unlike gross negligence, “requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man.” (quoting Restatement § 500 cmt. g); see also State v. Graham, 153 Wash.2d 400, 408, 103 P.3d 1238 (2005).
Here, the Swanks presented evidence about Coach Puryear’s conduct that a jury could find to be gross negligence or reckless misconduct. The evidence would support the Swanks’ claims that Coach Puryear violated the Lystedt law, as well as their common law negligence claims.
Testimony suggested that Coach Puryear failed to monitor Drew for symptoms of a concussion during the game. Coach Puryear testified that he was not looking at Drew during the game for the possibility of a concussion. Other testimony contradicted Puryear’s statement that he believed Drew’s play was normal up until the injury. Several witnesses described Drew’s conduct during the game as highly unusual and consistent with the “signs” of a concussion as disclosed in VCS’s CIS: “appears dazed; confused about assignment; forgets plays; is unsure of game, score, or opponent; moves clumsily or displays incoordination; any change in typical behavior or personality.” Witnesses further described Puryear and the assistant coach yelling at Drew from the sidelines in frustration over his poor performance, and about Puryear grabbing Drew’s face mask and shaking it up and down while yelling at him.
The Swanks submitted further evidence from a medical expert who concluded that Coach Puryear violated the relevant standard of care, that Drew’s game behavior was an indication that he “more likely than not continued to suffer from the concussion he had been previously diagnosed with”, and that “the coaching staff should have removed Drew from play once he began to exhibit the signs and symptoms [of a concussion] and kept Drew off the field until he had been properly evaluated and cleared to return to play again.”
The court observed that this collective evidence could suggest that Coach Puryear “substantially” failed to meet the standards of a reasonable and prudent person under the circumstances, and as a whole, the evidence created genuine issues of material fact regarding Puryear’s degree of fault. Holding that a reasonable jury may conclude Puryear was grossly negligent or reckless summary judgment on the claims against Coach Puryear was reversed.
Long Arm Jurisdiction
Every state recognizes the concept of long arm jurisdiction: the court’s power to compel non-citizens or non-residents to appear and answer outside their home jurisdiction. Conversely, every state recognizes limits on this power, based on the nature and particulars of the defendant’s conduct. Generally, courts have no power to compel the appearance of someone who doesn’t reside, work or have some other relevant presence in the forum state. Although Dr. Burns’ treatment affected someone who was injured in Washington and was expressly done for purposes of complying with Washington’s Lystedt act, the Swank court recognized the limitation of its power over Dr. Burns as a non-resident / non-citizen practitioner: Dr. Burns provided medical care to Drew solely in Idaho; therefore, the tort is deemed to have taken place in Idaho, not Washington.
Washington’s long-arm statute reaches: “Any person, whether or not a citizen or resident of this state, who in person or through an agent does any of the acts in this section enumerated, thereby submits . . . to the jurisdiction of the courts of this state [for] any cause of action arising from [such] acts: (b) The commission of a tortious act within this state.”
Washington generally follows the rule that when an injury occurs in the forum, it is inseparable from the tortious act, and thus the act is deemed to have occurred in the forum for purposes of the long-arm statute. Lewis, 119 Wash.2d at 670, 835 P.2d 221 . However, Washington recognizes an exception for professional malpractice. Id. at 673, 835 P.2d 221. A nonresident professional’s malpractice in another state against a Washington resident, without more, does not confer jurisdiction, regardless of whether injury was suffered upon the plaintiff’s return to Washington.
Because Dr. Burns rendered treatment solely in Idaho, less than 30 miles from the school, he was not subject to jurisdiction in Washington, and his dismissal was upheld.
Lystedt Confined to Sports
What activities are within Lystedt? Washington’s Appellate Court has declined to extend the education requirement to other school based activities, specifically field trips.
In Anderson v Snohomosh School District, parents of a high school student brought suit after their daughter, Haley, suffered a concussion and a second impact riding the Matterhorn at Disneyland on a school field trip. Between the first and second impacts, Haley had informed a chaperone of her initial injury. The chaperone, untrained any aspect of medicine or concussion recognition and management, told Haley that “she didn’t look concussed” and let her proceed with further activity. After the band flew home, Haley experienced dizziness and headaches and was diagnosed with ‘second impact’syndrome.
The Andersons sued the District and the trip chaperones, alleging that while acting as agents for the District, the chaperones failed to provide reasonable and necessary medical care after her head injury, and that their failure to prevent ongoing trauma was a proximate cause of Haley’s “second impact syndrome”.
Independent of Lystedt, Washington, school districts have “an enhanced and solemn duty to protect minor students in [their] care.” Christensen v. Royal Sch. Dist. No. 160, 156 Wn.2d 62, 67, 124 P.3d 283 (2005). They must exercise the care that an ordinarily responsible and prudent person would exercise under the same or similar circumstances. N.L., 186 Wn.2d at 430. Further, school districts must take certain precautions to protect the students in their custody from dangers reasonably to be anticipated. Hendrickson v. Moses Lake Sch. Dist., 192 Wn.2d 269, 276, 428 P.3d 1197 (2018). If harm is reasonably foreseeable, a school district may be liable if it failed to take reasonable steps to prevent that harm. Id.
In opposition to the District’s motion for summary judgment plaintiffs argued in part that the District’s Lystedt “Concussion Form, which student athletes and their parents sign to acknowledge the risks and symptoms of a concussion, made the risk of injury foreseeable. The court noted that “[u]nlike student athletes who are protected by a mandated concussion protocol, there is no district policy or mandate requirement that would override the students’ responses.” It pointed out that the Districts general policy requires that word of illness or accident be sent to the principal’s office and the nurse, but that the school was closed on at the time of Haley’s injury. It also cited a declaration stating that the principal’s primary duty in that situation is to inform the parents, and this was effectively accomplished.
The District argued that it has no duty to seek medical attention every time a student reports hitting their head and having a headache, noting that Lystedt, which requires youth athletes be removed from play immediately when they are suspected of sustaining a concussion or head injury, applies only to student athletes. The District further argues that “[t]o create Lystedt-like duties for schools, toward every student, based on the imputed knowledge that ‘all concussions are potentially serious’ would completely change the landscape of school liability for student head injuries.”
The Appellate Court agreed, holding that Lystedt plainly applies only to student athletes. See RCW 28A.600.190, and that the concussion form is also directed to the parents of student athletes.