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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Litigating Sports Concussions: What you need to know about the science and the law

Advances in medicine, combined with a flurry of headlines about professional sports litigation, have raised awareness of the problem of concussions. But although rapid advancements in medicine and the evolution of the law are making these claims easier to pursue, litigating such claims remains difficult. Attorneys asserting claims on behalf of concussed athletes need to be careful and do their homework.

Public and professional awareness surrounding concussions in sports continues to grow, thanks in part to advances in medicine and the willingness of affected athletes to speak out about how concussions have impacted their lives. This heightened awareness is leading to more and more litigation on behalf of current and former athletes who are either living with the effects of concussions or have passed away because of concussion-related health issues. Because the trend of concussion-related lawsuits is probably on the rise for the foreseeable future, litigators taking on these types of cases need to understand some of the basics of concussion diagnosis and treatment, as well as the related legal developments.

Concussion diagnosis and treatment

Any attorney handling a case involving a concussed athlete needs a basic understanding of what a concussion is before he or she can go about gathering evidence and preparing for litigation. The simple definition of a concussion is an “injury to the brain or spinal cord due to jarring from a fall, blow, or the like.”1 For the purposes of a medical diagnosis and litigation, a concussion can be better defined as a mild traumatic brain injury (mTBI), meaning a “traumatically induced physiological disruption of brain function, as manifested by at least one of the following: (1) any period of loss of consciousness; (2) any loss of memory for events immediately before or after [an] accident; (3) any alteration in mental state at the time of the accident (e.g., feeling dazed, disoriented, or confused); and (4) focal neurological deficit(s) that may or may not be transient; but where the severity of the injury does not exceed the following: (a) loss of consciousness of approximately 30 minutes or less;
(b) after 30 minutes, an initial Glasgow Coma Scale (GCS) of 13-15; and posttraumatic amnesia (PTA) not greater than 24 hours.”2

Because a concussion is an internal injury, litigators also need to be familiar with common concussion symptomatology, which falls into three categories: physical symptoms, cognitive deficits, and behavioral changes.

The symptoms include: 

  • headache or a feeling of pressure in the head;
  • temporary loss of consciousness;
  • confusion or feeling as if in a fog;
  • amnesia surrounding the traumatic event;
  • dizziness or “seeing stars”;
  • ringing in the ears;
  • nausea;
  • vomiting;
  • slurred speech;
  • delayed response to questions;
  • appearing dazed;
  • fatigue;
  • concentration and memory complaints;
  • irritability and other personality changes;
  • sensitivity to light and noise;
  • sleep disturbances;
  • psychological adjustment problems and depression; and
  • disorders of taste and smell.3

By having a foundational understanding of concussions and the related symptoms, litigators can take the next steps toward building the facts necessary to support their potential claims. The fact-based investigation should start by focusing on ascertaining the difference between an athlete’s pre- and post-concussion cognitive abilities, followed by an investigation into the cause, severity, and both short- and long-term effects of a concussion (i.e., your damages).

Pre-season baseline testing

Pre-season baseline neurological testing is a fairly new practice borne out of the increased awareness of concussions in sports; the practice is slowly trickling down from professional to youth athletics. The NCAA, for instance, requires each athlete to undergo pre-season baseline testing to determine an athlete’s cognitive abilities and identify underlying health conditions that can complicate post-concussion diagnosis and treatment.4 Baseline testing is not intended to provide a comprehensive assessment of the athlete’s neurocognitive functions; rather, it is used to evaluate which cognitive domains are most affected by any concussion, such as memory, attention, mental processing, and reaction time.5 For litigation purposes, pre-season baseline testing can be used as a vital tool to compare a concussed athlete’s pre- and post-concussion abilities, thereby providing some objective measure of the effects the concussion has had on the athlete.

Prior medical history

As in almost any personal injury case, litigators should obtain and investigate a person’s prior medical history and obtain prior medical records when evaluating a potential claim. In the concussion context, an athlete’s prior medical history can reveal past concussions that may have an impact on the severity of the concussion being investigated, as well as doctor’s comments about advising an athlete not to return to play—either temporarily or permanently. Prior medical records may also reveal a past diagnosis for depression, anxiety disorders, attention-deficit/hyperactivity disorder, or a history of headaches. All of these prior diagnoses can affect the accuracy of baseline testing, so it’s important to identify them early in the investigative process.6

Investigating the occurrence of the concussion

Litigators also need to investigate the act that led to the concussion to assess the severity of the impact. A good place to start is to identify and interview all potential witnesses to the concussion. During these interviews, it’s important not only to find out what the witness saw first-hand, but also to ask if there are any texts, emails, social media posts, or cellphone videos in the possession of witnesses concerning the concussion. It’s also a good idea to find out whether the host of the sporting event has video of the incident.

Sideline diagnosis

The litigator’s next step should be to obtain any and all information concerning the concussed athlete’s sideline diagnosis. Sideline diagnostic tools have dramatically evolved over time, and despite the simplicity of certain sideline assessment tools, the information obtained from these assessments provides evidence of the acute effects of the injury and establishes an initial index of severity.7 Sideline diagnoses, which are typically performed by sideline medical staff, coaches, and volunteers, are often required by law. For instance, under Minn. Stat. §121A.37, cities—as well as both for-profit and not-for-profit organizations that organize youth athletic activities and charge a fee—must take mandatory concussion diagnosis training. This means that there should be trained witnesses who were actively looking for concussion symptoms and who likely attempted to perform a sideline assessment and diagnosis.

Sideline diagnosis may rely on a variety of testing protocols, with one of the more common being the Standardized Assessment of Concussion (SAC) protocol. The SAC measures orientation, immediate memory, concentration, and delayed recall.8 The SAC also screens for loss of consciousness, amnesia, and other neurological deficits. Based on the SAC test analysis, sideline personnel can make a diagnosis and assign a numerical score, with certain scores denoting the presence of a concussion and indicating whether or not an athlete should return to play. When an athlete exhibits concussion symptoms and thereby fails aspects of the SAC test, the athlete should be removed from play and immediately follow up with a medical professional for assessment. A red flag is raised for litigators whenever an athlete returns to play despite a failing SAC score.

Another sideline diagnostic tool commonly used is the computerized Immediate Post-Concussion Assessment and Cognitive Test (ImPACT) test. ImPACT analyzes an athlete’s neurocognitive functions based on six modules that evaluate the following: attentional processes, verbal recognition memory, visual working memory, visual processing speed, reaction time, numerical sequencing ability, and learning.9 The athlete’s post-concussion ImPACT score is then compared to pre-season baseline data. The difference in each area of neurocognitive function can then be monitored throughout the recovery period, and when post-concussion ImPACT scores return to baseline levels the athlete can return to play. For litigators, the normalization of ImPACT scores can help shed some light on the severity of the concussion, thereby helping quantify damages.

It must be noted that the reliability of post-concussion ImPACT scores for determining when an athlete is physically fit to return to play is closely tied to the validity of the pre-season baseline testing. For this reason, post-concussion ImPACT scores become less reliable when normative data has to be used as a baseline.10 Normative data accounts for sex, age, and educational level, but important factors (such as history of concussions) are not considered.11 Litigators need to be aware of the varying degrees of reliability when assessing an athlete’s ImPACT scores.

Thanks to rapid advancements in technology, SAC and ImPACT scores are now being entered into phones and other portable devices via a plethora of apps. Therefore it’s important that litigators not only interview personnel who are making the sideline diagnoses, but also seek to obtain data entered into apps and other written testing data or notes.

Investigating the medical diagnosis

While initial sideline concussion evaluations can be critical to an athlete’s health and to a litigator’s ability to bring or defend a concussion-related lawsuit, a litigator may have difficulty getting a coach or trainer’s testimony admitted in court under the Frye-Mack and Daubert standards. For these reasons, and more importantly for the health of the athlete, more formal post-concussion neurological testing should be performed as soon as possible following the concussion.

There are myriad post-concussion tests available to the concussed athlete, including: the GCS, MRI, CT scans, and Functional MRI (fMRI) scans. There are also more modern tests like Diffusion Tensor Imaging (DTI), which is an example of a test that should be used in tandem with more traditional evaluation tools to help protect the athlete, determine the viability of any legal claims, and determine the scope of damages.

The GCS is commonly used by emergency personnel to evaluate the presence and severity of a concussion. An individual’s GCS score is obtained by measuring eye opening, verbal response, and motor response.12 GCS scores range from 3-15 with a score of 3 assigned to a person who is wholly unresponsive or dead up to 13-15 for a concussion.13 Medical professionals will perform periodic re-examinations to assess fluctuations in GCS scores, but the litigator must be aware that even a GCS score of 15 does not rule out the existence of a concussion.14

Based on the individuals’ GCS score and subjective symptoms, medical personnel may order a CT scan. A CT scan provides a cross-sectional image of the brain’s structure.15 While CT scans are effective in detecting acute brain trauma such as hematoma or edema, they are limited in detecting concussions and other concussion-related symptoms because concussions affect brain function rather than structure.16 For this reason, other tools such as fMRIs need to be considered.

fMRI is a concussion diagnostic tool used by medical professionals to measure the difference between the magnetic states of oxygen-rich and oxygen-poor blood through the use of blood-oxygen-level-dependent (BOLD) contrast techniques.17 The differences in BOLD signal patterns are compared to a control group to measure increases in BOLD signals that may show the occurrence of a concussion.18 In plain English, when brain activity is increased from any activity, the natural response of the brain is to send oxygen to the affected region. The body carries oxygen to the brain by increasing blood flow to the affected region. Evidence of the presence and severity of a concussion can be seen on the fMRI results when the scans show little to no change in blood flow during neurocognitive testing (non-responsiveness), or when atypical activation patterns (blood flow) appear in a region of the brain that should not be processing that information.19 While fMRIs are gaining medical industry recognition, it must be noted that fMRI testing is still in the early stages of use for detecting the presence and severity of a concussion.

DTI is another common diagnostic tool that can be used when an athlete has sustained a mild concussion that results in a negative CT scan. DTI is an MRI-based technique that quantifies concussion-associated changes by measuring white matter tracks and the diffusion of water along those tracks in the athletes’ brain.20 Put more plainly, the presence of decreased white matter tracks in an athlete’s brain correlates to cognitive deficits. The disadvantage of DTI testing is that there is no baseline data prior to the impact for comparison.21 As a result, neurologists must compare the athletes’ white matter tracks with the tracks from a normalized group of individuals.22 Like fMRIs, DTIs are gaining medical industry recognition but there remain many medical professionals who question the reliability of DTI as there is “no generally accepted data as to what a normal brain looks like at different ages with regard to white matter tracks.”23

Treatment and damages

The severity of the concussion, which will dictate the frequency of treatment and the duration of recovery, directly correlates to the amount of damages in a potential case. Therefore, litigators should obtain all of the records from the recovery period—to make sure the progression of the athlete’s symptoms is well documented before the athlete returns to play and/or the athlete’s symptoms have dissipated, to determine the extent of the athlete’s short-term impairments following the point of maximum medical improvement, and also to determine if there are any permanent neurocognitive deficits that warrant further investigation.

Based on all of the information discussed supra, litigators can begin to piece together their liability determinations and damages calculations. Potential damages in a case include: wage loss, loss of future earning capacity, loss of consortium, medical bills, any other loss of opportunity/financial detriment such as college tuition, and even punitive damages.

Identifying the Responsible Parties

Litigation involving a concussed athlete can be extremely difficult for all of the attorneys involved because of the unique claims and defenses available. It’s important to think creatively about identifying every individual or entity that might have some exposure during pre-suit investigation, and then to perform the up-front research to determine which claims and defenses are available to the parties.

Schools, municipalities, and staff

The most difficult claims are likely to be those brought against a coach, manager, volunteer, physician, athletic trainer, nonprofit organization, public or private educational institution, or other community-based program. But coaches and teachers still have a duty to properly supervise students in their care.24 Thus, if a student is injured in a school-sponsored activity, one may look to the supervising adults as potentially responsible parties. The organization sponsoring the activity may bear vicarious liability for the coaches or teachers, or may have direct liability for inadequate training of employees25 or inadequate policies and procedures for concussion screening. As discussed infra, those claims are often precluded by various governmental immunities. But there are no such immunities for private schools or private athletic leagues. Physicians or trainers who examine and treat concussed athletes may have some exposure relative to a medical malpractice claim regarding their actions after the concussion occurred.

Athletes

If a fellow athlete is responsible for the concussion, a cause of action may exist against that athlete. Generally there must be some conduct that falls beyond the normal course of the activity before a negligence claim could survive. However, if it is a risk inherent within the activity and not something outside the rules, the claim will likely be barred by the doctrine of primary assumption of the risk.26 Further, in cases involving potentially actionable conduct, one runs the risk that there will be no insurance coverage for the intentional actions of the tortfeasor.

Sports equipment manufacturers

Investigating the sports equipment manufacturers is also a good idea, because product liability claims for defects in design or inadequate warning may also provide an avenue of recovery for an injured athlete. In Ridolfi v. Riddell a jury awarded $11.5 million in damages to a former high school football player, based in part on the allegation that the football helmet manufacturer Riddell failed to adequately warn amateur football players wearing Riddell helmets that its helmets did not fully shield against concussion. The jury did not find any defect in the design of the helmet. Riddell was found liable for $3.1 million (its 27 percent of fault) of the $11.5 million verdict. The importance of adding Riddell as a defendant in the Ridolfi case was made clear when the jury apportioned 73 percent of the fault to Ridolfi’s coaches, who were protected by government immunity and whose share of liability was thus uncollectible. Had Ridolfi’s attorney failed to name Riddell as a defendant, his client would not have recovered any damages at trial.27

Legal Claims

There are many legal claims available to help compensate a concussed athlete, including claims for negligence, various fraud and misrepresentation allegations, and product liability claims.28

Negligence

The most common legal claim brought is the negligence claim, or some derivation thereof. A negligence claim requires (1) the existence of a duty of care, (2) a breach of that duty, (3) an injury, and (4) that the breach of the duty of care was a proximate cause of the injury.29 In some contexts, it may pose a challenge to prove the existence of a duty of care. While a person supervising a minor may have a duty of care,30 there is generally no affirmative duty to protect someone from the conduct of a third party absent a “special relationship” between the protector and protectee.31 Special relationships are typically only found where one has entrusted safety to another, such as innkeeper-guest, hospital-patient, or guardian-child.32 But a duty of care also exists when one’s own conduct creates a foreseeable risk of injury.33 Thus co-participants in a sport may owe a duty of care if they engage in some conduct that enlarges the risk to other participants.

In Scott Eveland v. City of San Marcos, et al., a football player received a $4.375 million settlement stemming from the allegation that he was ordered to return to play by his coaches after he reported severe headaches.34 In Michael A. Rouchleau v. Three Forks School District
No. J24,
another high school football player obtained a $300,000 settlement based on the allegation that he was allowed to prematurely return to his football game after sustaining a concussion during a prior practice.35

In McNamee v. Hillsborough County School District, a former high school football player obtained a $2 million settlement based on the allegation that he sustained a TBI while practicing without a helmet and was then improperly evaluated and cared for by the football staff.36

Products liability

Product liability claims, more specifically design defect claims, provide another avenue for recovery that litigators need to investigate. In Minnesota, a design defect claim requires evidence that a product is in a defective condition unreasonably dangerous to users when used as intended or in a reasonably foreseeable way.37 Failure-to-warn claims allege that the manufacturer provided inadequate instructions or warnings of dangers inherent in improper use of the product.38 In the context of concussion litigation, the most likely target for such a claim would be a helmet manufacturer. Such claims have met with varying success. A class-action case on behalf of former college football players was recently initiated against Riddell, Inc. in California.39 It is one of several such cases the manufacturer is currently facing. Product liability claims tend to be very expert-intensive and thus very expensive to litigate.

Fraud

Professional athletes have had some success with fraud and misrepresentation claims against professional sports leagues. In the 2012 class action lawsuit In re: National Football Players’ Concussion Injury Litigation,40 numerous NFL players and alumni affected by TBIs and CTE (chronic traumatic encephalopathy) brought claims against the NFL alleging, in part, that the NFL “ … was aware of the evidence and the risks associated with repetitive traumatic brain injuries… but deliberately ignored and actively concealed the information from [the players] ……” The number of NFL players and alumni who participated eventually numbered in the thousands and the case resulted in a $765 million settlement.41 In addition to providing compensation to affected players, the settlement provided $10 million in funding to promote safety-related initiatives for football players at all levels.42

Former NHL players are also litigating fraud claims in an MDL located in the District of Minnesota, specifically alleging (amongst other causes of action) that the league fraudulently concealed or negligently misrepresented the risks of chronic concussions.43 A negligent misrepresentation claim requires a business relationship to be viable.44

Defenses to claims

Whether prosecuting or defending a case involving a concussed athlete, the potential defenses to such claims should be considered early in the process. Many possible claims may be barred or very difficult to pursue because of the multitude of defenses available to potential defendants. As with any case, it is therefore critical to evaluate those potential defenses and strategize about their applicability before litigation.

Statutory immunities

Statutory immunities provide many protections for tortfeasors in Minnesota, with some limited exceptions to the relevant statutory immunities. In Minnesota, volunteer coaches and staff, municipal organizations, charitable organizations, and even state actors may be immune from civil liability.45

Minnesota Statute §466.03 provides a laundry list of immunities afforded to “municipal” employees (broadly defined to include county, city, and school district employees, among others).46 Claims based upon discretionary functions are protected by immunity.47 Claims arising out of the condition or operation of parks, recreation areas, beaches, and pools are similarly barred by immunity.48 Common law official immunity also
protects public employees for claims arising out of the exercise of their judgment or discretion, unless the employee is guilty of willful or malicious wrong.49

Minnesota Statute §604A.11 provides immunity to volunteer athletic coaches and officials, physicians, and trainers. In order to overcome § 604A.11’s broad immunity, one of few narrowly carved exceptions must be proven.50 Two of the key exceptions include a showing that a coach or other sports volunteer or organization acted “in a willful and wanton or reckless manner in providing the services or assistance.”51 This first key exception mirrors similar common law causes of action across the country,52 but a basic Westlaw search did not render any results that show this exception has been successfully used by a plaintiff’s attorney. The second key exception negates §604A.11’s immunities if the tortfeasor’s acts or omissions are covered under an insurance policy.53 Therefore, the quickest way to find out if a statutory immunity can be negated is to find out if the tortfeasor has an applicable insurance policy.

Waiver

Almost every athlete and parent is all too familiar with the written, boilerplate waiver they are required to sign before their child can participate in a particular sport. These waivers often contain dense legalese—and despite this fact, Minnesota courts frequently enforce them. The enforceability of sports waivers is a serious problem for the concussed athlete and his or her attorney, because a waiver defense may bar any otherwise meritorious claim before it has even accrued.

The first step in determining whether a waiver is enforceable is to determine who signed it. Minnesota courts have enforced waivers signed by parents on behalf of minors. A court is almost certain to hold that a waiver signed by a minor on his or her own behalf is not enforceable.54 An argument likewise can be made that a waiver signed by a parent on behalf of a child should not be enforced. Any settlement made on behalf of a minor is subject to court approval to be valid.55 It thus begs the question of whether a parent can prospectively waive a child’s claim. In Hojnowski v. Vans Sake Park, the Supreme Court of New Jersey held that a parent could not bind a minor child to a pre-injury release of a child’s prospective tort claim.56 Several other states follow similar rules, but this issue has yet to be fully fleshed out in Minnesota.57

Even if an athlete’s parent or guardian signs a waiver on his or her behalf, courts still might not enforce the waiver. In Wu ex rel. Tien v. Shattuck-St. Mary’s School and Paine,58 plaintiff Wen Chen Wu, a student of Shattuck-St. Mary’s School, was injured when struck in the temple with a golf ball during golf class. Wu’s parents brought suit against Shattuck and the golf instructor on behalf of their minor daughter alleging negligence and breach of contract, and Shattuck moved for summary judgment. SSMS alleged that the waivers in the school registration materials signed by Wu’s mother barred plaintiff’s claim. The court denied Shattuck’s motion for summary judgment, concluding, in part, that the exculpatory clause in the enrollment contract was overly broad because it purported to release liability for intentional, willful, or wanton acts contrary to public policy.59
If the language of the agreement muddies the waters between a waiver and an indemnification agreement, it may also be unenforceable.60

Every waiver should be closely scrutinized to determine whether it is enforceable.

Assumption of risk

The assumption-of-risk defense is another very common defense raised in sports injury cases. The doctrine of primary assumption of the risk arises when parties “[v]oluntarily enter a relationship in which the plaintiff assumes well-known, incidental risks. The defendant has no duty to protect the plaintiff from the well-known, incidental risks assumed, and the defendant is not negligent if any injury to the plaintiff arises from the incidental risk.”61 The doctrine has frequently been applied to a variety of sporting activities: roller skating;62 golf;63 ice skating;64 skiing;65 paintball;66 diving;67 snowmobile racing;68 softball;69 and snow tubing.70

Before the doctrine of primary assumption of the risk can be applied to bar a claim, the defendant must show that the plaintiff (1) knows of the risk; (2) appreciates the risk; and (3) has a chance to avoid the risk.71 Actual knowledge of the risk may manifest itself through prior experience with a sport and the inherent risks involved. A seasoned high school or collegiate athlete will likely be attributed with greater knowledge and appreciation of the risk than a younger child, but courts have applied the doctrine to children as young as 11.72

The doctrine may be avoided if the defendant did something to enlarge the risk to a participant.73 Before the exception applies, there must be evidence that there was a new risk to which the
participant had only a limited time to react.74 Someone acting in violation of a rule of the game, for example, might create an enlarged risk. But a foreseeable rule violation (for example, a “high stick” in hockey) is unlikely to be deemed to enlarge the risk.

The doctrine creates challenges for bringing viable claims for older children and adults, but there remains an argument that the doctrine should not apply to younger children who may not know and appreciate the risk. Moreover, the doctrine does not relieve a school or other entity responsible for children’s safety of their duty to supervise sporting events.75 Nor does it eliminate the duty to maintain facilities in a safe, working condition.76

Comparative fault

Traditional comparative fault or contributory negligence principles should also be considered. If the concussed athlete is found to be more at fault than the defendant for his or her injuries, the athlete cannot recover.77 To the extent the athlete has any fault, it will reduce his or her recovery.78 It is thus very important to conduct a thorough investigation of how the concussion was sustained to ensure you can fairly evaluate the possibility of recovery.

Conclusion

The significant publicity arising from the claims of professional athletes for post-concussion difficulties has undoubtedly increased the focus of both medicine and the law on such injuries. Yet litigating claims on behalf of concussed athletes remains a difficult task. While rapid advancements in medicine and the evolution of the law are making these claims easier to pursue, attorneys asserting claims on behalf of concussed athletes need to be careful and do their homework. The failure to fully evaluate each claim from the outset could spell disaster. From the societal perspective, one hopes that with the advancement of medical science on the cause and seriousness of head injuries, all involved will take meaningful steps to minimize the risks—or we will see the end of many contact sports.


KATHLEEN CURTIS is a shareholder with the law firm Tewksbury & Kerfeld. Ms. Curtis focuses her practice on personal injury, wrongful death, products liability, and medical malpractice litigation.

KYLE WILLEMS is an associate with the law firm Tewksbury & Kerfeld. Mr. Willems practices personal injury, products liability, construction, insurance, and commercial litigation.

TOM STRAND is an associate with the law firm Tewksbury & Kerfeld. Mr. Strand practices personal injury and wrongful death litigation.


Notes

1 “Concussion.” Dictionary.com Unabridged. Random House, Inc. Accessed 4/13/2017.

2 Thomas Kay, et al., Definition of Mild Traumatic Brain Injury, 8 Journal of Trauma Rehabilitation, 86-87, 86 (1993).

3 Id. at 87.

4 Jordan E. Cottle, et al., “Concussion Baseline Testing: Preexisting Factors, Symptoms, and Neurocognitive Performance,” 52 Journal of Athletic Training, pp.77-81, 77.

5 Rosemarie S. Moser, et al., “Neuropsychological Evaluation in the Diagnosis and Management of Sports-Related Concussions,” 22 Archives of Clinic Neuropsychology pp. 909-916, 911 (2007).

6 Jordan E. Cottle, et al., at 80.

7 Michael McCrea, “Standardized Mental Status Testing on the Sideline After Sport-Related Concussion,” 36 (3) Journal of Athletic Training, pp. 274-279, 274 (September 2001).

8 Id. at 275.

9 Tracy Covassin, PhD, “Immediate Post-Concussion Assessment and Cognitive Testing (ImPACT) Practices of Sports Medicine Professionals,” 44(6) Journal of Athletic Training, pp. 639-644, 640 (November 2009).

10 Jordan E. Cottle, et al., at 77.

11 Covassin, Ph.D., at 640.

12 Francis H. Brown III, “Recent Developments in Traumatic Brain Injury Litigation,” American Bar Association Health Law Litigation, pp. 1-2, 1 (9/12/2016).

13 Id.

14 Id.

15 Jeffrey Scott Kutcher, et al., “What Evidence Exists For New Strategies or Technologies in the Diagnosis of Sports Concussion and Assessment of Recovery,” 47 Br J. Sports Med., pp. 299-303, 299 (2013).

16 Id.

17 Id. at 301.

18 Id.

19 Jen-Kai Chen, et al., “A Validation of the Post Concussion Symptom Scale in the Assessment of Complex Concussion Using Cognitive Testing and Functional MRI,” 78 J. Neurol Neurosurg Psychiatry, pp. 1231-1238, 1235 (2007).

20 Francis H. Brown III, at 2.

21 Id.

22 Id.

23 Id.

24 See Verhel by Verhel v. Indep. Sch. Dist. No. 709, 359 N.W.2d 579, 589 (Minn. 1984) (finding district had duty to supervise cheerleaders involved in team activity and to properly and adequately instruct team supervisor); Sheehan v. St. Peter’s Catholic Sch., 188 N.W.2d 868, 870 (Minn. 1971) (noting that while there is no duty of constant supervision, the school must use ordinary care to protect its students).

25 Note that Minnesota does not recognize a separate cause of action for negligent training. See Johnson v. Peterson, 734 N.W.2d 275, 277 (Minn. App. 2007) (citing M.L. v. Magnuson, 531 N.W.2d 849, 856 (Minn. App. 1995)). But it could fall within the scope of a general negligence claim.

26 See Grisim v. TapeMark Charity Pro-Am Golf Tournament, 415 N.W.2d 874 (Minn. 1987) (finding golfer owed no duty to spectator who was hit by a golf ball). Compare Hollinbeck v. Downey, 113 N.W.2d 9 (Minn. 1962) (holding golfer did owe a duty to warn a caddie collecting golf balls on a practice fairway because he was in a zone of danger and unaware of the risk).

27 See generally Ridolfi v. Begano, et al., 2010-cv-58 (Colo. D. Ct. of Las Animas Cnty., verd. Entered Apr. 13, 2013); Ridolfi v. Bengano, et al, No. 13CA1802, 2015 WL 2250990 (Colo. Ct. App. 2015) cert. denied Bengano v. Ridolfi, No. 15SC542, 2016 WL 768395 (2/29/2016) (en banc).

28 See Id.; see also In re: National Football League Players Concussion Injury Litigation, 821 F.3d 410 (3rd Cir. 2016); In re: National Hockey League Players’ Concussion Injury Litigation, 189 F.Supp.3d 856 (D.Minn. 2016); Noffke ex rel. Swenson v. Bakke, 760 N.W.2d 156 (Wis. 2009).

29 Louis v. Louis, 636 N.W.2d 314, 318 (Minn. 2001).

30 See Note 2, supra.

31 See Fuchness v. Cecil Newman Corp., 632 N.W.2d 666, 673 (Minn. 2001); Delgado v. Lohmar, 289 N.W.2d 479, 483 (Minn. 1979) (discussing the “special relationship” required to give rise to a duty to protect someone from the criminal conduct of a third party).

32 See Erickson v. Curtis Inv. Co., 447 N.W.2d 168 (Minn. 1989).

33 Domagala v. Rolland, 805 N.W.2d 14 (Minn. 2011).

34 See Scott Eveland, an incompetent, by and through his Guardian ad Litem, Diane Luth v. City of San Marcos, et al., No. 37-2008-00091303-CU-PO-NC (Sup. Ct. of Cal., San Diego Cnty.).

35 See Michael A. Rouchleau, et al. v. Three Forks High School No. J24, Cause No. DU-12-260C (Gallatin Cnty. D. Ct.).

36 See Todd McNamee v. Hillsborough County School Dist., No. 14-CA-9239 (Hillsborough Cnty. Cir. Ct.).

37 See Bilotta v. Kelley Co., Inc., 346 N.W.2d 616 (Minn. 1984).

38 See Frey v. Montgomery Ward & Co., 258 N.W.2d 782 (Minn. 1977).

39 Mark Adams, et al. v. BRG Sports, et al., Case No. 3:17-cv-00457 (N.D. Cal.).

40 In re: National Football League Players Concussion Injury Litigation, No. MDL 2323 (E.D. Penn. 2012).

41 In re: National Football League Players Concussion Injury Litigation, 821 F.3d 410, 423 (3rd Cir. 2016).

42 Id. There is some dispute that the NFL players’ class action settlement only provided nominal compensation for the players’ injuries and that it took a class action on behalf of some of the wealthiest athletes across America to obtain the publicity necessary to facilitate such a large settlement.

43 See In re: National Hockey League Players’ Concussion Injury Litigation, 189 F.Supp.3d 856 (D.Minn. 2016).

44 Minnesota has adopted the Restatement (Second) of Torts §552 (1976) definition of negligent misrepresentation: “One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.” Bonhiver v. Graff, 248 N.W.2d 291 (Minn. 1976).

45 See, e.g., Minn. Stat. §§466.03, 604A.11, subd.1.

46 See Minn. Stat. §466.01, subd. 1.

47 Minn. Stat. §466.03, subd. 6.

48 Id. subds. 6e, 6f, 23.

49 Anderson v. Anoka Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 651, 655 (Minn. 2004).

50 See Minn. Stat. §604A.11, subd.2. Limitations. Subd.1 does not apply: (1) “to the extent that the acts or omissions are covered under an insurance policy issued to the entity for whom the coach, manager, official, physician, or certified athletic trainer serves”; (2) “if the individual acts in a willful and wanton or reckless manner in providing the services or assistance”; (3) “if the acts or omissions arise out of the operation, maintenance, or use of a motor vehicle”; (4) “to an athletic coach, manager, or official who provides services or assistance as part of a public or private educational institution’s athletic program”; (5) “to a public or private educational institution for which a physician or certified athletic trainer provides services”; or (6) if the individual acts in violation of federal, state, or local law.”

51 Minn. Stat. §604A.11, subd. 2(2).

52 See Karas v. Strevell et al., 227 Ill.2d 440, 884 N.E.2d 122 (Ill. 2008); see also Kahn v. East Side Union High School District, 75 P.3d 30 (Cal. 2003).

53 Minn. Stat. §604A.11, subd. 2(1).

54 See Scoles, et al. v. North Central Speedway, No. C5-91-426 (Minn. Ct. App. 1991).

55 Minn. Stat. §540.08.

56 Hojnowski v. Vans Skate Park, 901 A.2d 381 (N.J. 2006).

57 Meyer v. Naperville Manner, Inc., 634 N.E.2d 411 (Ill. 1994); Doyle v. Bowdoin Coll., 403 A.2d 1206, 1208 n. 3 (Me.1979); Smith v. YMCA of Benton Harbor/St. Joseph, 550 N.W.2d 262, 263 (Mich. 1996); Hawkins v. Peart, 37 P.3d 1062, 1066 (Utah 2001); Scott v. Pac. W. Mountain Resort, 834 P.2d 6 (Wash. 1992) .

58 Wu ex rel. Tien v. Shattuck-St. Mary’s School and Paine, 393 F.Supp.2d 831 (D. Minn. 2005).

59 Id. at 838.

60 See Price v. Unverzagt and Associates, LLC, No. A16-1173, 2017 WL 1048137 (Minn. App. 3/20/2017)

61 Snilsberg v. Lake Wash. Club, 614 N.W.2d 738, 746–47 (Minn. Ct. App. 2000).

62 Wagner v. Obert Enters., 396 N.W.2d 223, 226 (Minn. 1986).

63 Grisim v. TapeMark Charity Pro–Am Golf Tournament, 415 N.W.2d 874, 876 (Minn. 1987)

64 Moe v. Steenberg, 275 Minn. 448, 450–51, 147 N.W.2d 587, 589 (Minn. 1966).

65 Peterson ex rel. Peterson v. Donahue, 733 N.W.2d 790, 793 (Minn. Ct. App. 2007).

66 Schneider ex rel. Schneider v. Erickson, 654 N.W.2d 144, 151–52 (Minn. Ct. App. 2002) rev. denied (Minn. 10/17/2000).

67 Snilsberg, 614 N.W.2d at 746–47.

68 Jussila v. U.S. Snowmobile Ass’n, 556 N.W.2d 234, 237–38 (Minn. Ct. App. 1996) review denied (Minn. 1/29/1997).

69 Swagger v. City of Crystal, 379 N.W.2d 183, 184–85 (Minn.App.1985) review denied (Minn. 2/19/1986).

70 Grady v. Green Acres, Inc., 826 N.W.2d 547 (Minn. Ct. App. 2013).

71 Grady, 826 N.W.2d at 551 (citation omitted).

72 See Peterson ex rel. Peterson, 733 N.W.2d at 793.

73 Schneider ex rel. Schneider, 654 N.W.2d at 151-152.

74 Jussila, 556 N.W.2d at 237.

75 Wagner v. Thomas J. Obert Enterprises, 396 N.W.2d 223, 226 (Minn. 1986); Wu ex rel. Tien v. Shattuck-St. Mary’s School, 393 F.Supp.2d 831, 836 (D. Minn. 2005) (citation omitted).

76 Id. (citation omitted).

77 Minn. Stat. §604.01, subd. 1.

78 Id.

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