Appeals court reinstates suit against high school coach, AD

An Albemarle County high school soccer player who sustained an exertional heat injury during conditioning did not assume the risk of the heat injury, the Court of Appeals of Virginia has held in an unpublished decision.

The appeals court reinstated the high school player’s suit in Clancy
v. Pearman (VLW 026-7-157), where the player accused the high school’s coach and athletic director of gross negligence.

The Albemarle County Circuit Court granted the defendants’ motion for summary judgment, stating that the athlete was contributorily negligent and “contributed to his own injuries by not … protect[ing] himself.”

The appeals court disagreed.

“We hold that the record supports Clancy’s objection to the grant of summary judgment,” Chief Judge Marla Graff Decker wrote. “The
assumption-of-the-risk defense does not apply where the defendants’ negligence creates risks that the plaintiff is not aware of and that are beyond the risks ordinarily expected from participating in the activity.”

Judges Mary B. Malveaux and Kevin M. Duffan joined Decker’s April 21 memorandum opinion.

Counsel for the parties in this case did not respond to requests for comment by deadline.

Background

The plaintiff, Patrick Clancy, was a player on the Monticello High School soccer team in July 2017, when the events this case stemmed from occurred.

Clancy attended an optional offseason conditioning session for the team, which took place on July 21, 2017, from 8 a.m. to 10 a.m. The National Weather Service had issued a heat advisory that day for Albemarle County effective 10 a.m.

That morning, school athletic director Matthew Pearman checked the Oregon School Activities Association, or OSAA, heat index calculator and determined it was safe to allow the session to take place. The session was supervised by head coach Stuart Pierson, who was licensed by the United States Soccer Federation.

Per the opinion, Pierson provided the players with breaks but did not provide water and held conditioning on a field that lacked shade. Clancy drank 64 ounces of water during the conditioning session but became “seriously ill” during the conditioning.

Clancy “stopped sweating, developed a bad headache, felt nauseous, and had difficulty walking and thinking.” Per the opinion, Clancy did not tell Pierson he became sick and followed instructions to help pick up equipment on the field — a task that stretched into the heat advisory window.

Later, Clancy’s symptoms worsened, leading to him collapsing and vomiting in the shower at home. He then was taken by his family to a hospital, where he was diagnosed with heat exhaustion. Emergency room records showed that Clancy and his family did not mention some of his prior symptoms, including that his appendages had turned blue, and the hospital did not diagnose him with heat stroke.

Clancy was later diagnosed with “exertional heat stroke, the most severe form of exertional heat illness” and suffered “significant permanent health consequences as a result.”

A suit was filed against Pearman and Pierson, alleging gross negligence. Specifically, Clancy claimed that although the conditioning was optional, Clancy believed failing to attend would make him less likely to play during the season.

It was also alleged that Clancy had missed a week’s worth of sessions due to a family vacation, and that under Virginia
High School League guidance, 10 to 14 days are needed for a player “to acclimate to hot weather conditions.”

Clancy claimed the defendants violated the standard of care by conducting an outdoor training session in excessive heat, not having an athletic trainer on site, having no shade or cold water provided and by not using the wet-bulb globe temperature to gauge the temperature on the artificial turf field.

Pearman and Pierson demurred the gross negligence claim, alleging they did not owe Clancy a legal duty, which the court overruled.

At trial, the defendants moved for summary judgment, arguing Clancy’s claim was barred by his assumption of the risk and that he was contributorily negligence. Specifically, the pair claimed that Clancy participated in a voluntary conditioning session knowing the conditions, and that he neither took a break nor notified anyone that he was feeling ill. Clancy argued he did not assume the risk that the defendants “would neglect to take proper precautions.”

The motion for summary judgment was granted, with the trial court acknowledging “a certain amount of pressure on kids [who] want to be on high school teams … to put forth effort even when” ill.

But the court held that Clancy was aware of the risk and “exposed himself to that risk” and that he was contributorily negligent by “not … protecting himself.”

Clancy appealed.

Assumption of risk?

On appeal, Clancy argued that the circuit court erred in granting the motion on assumption of risk and contributory negligence grounds, both of which are affirmative defenses.

On the assumption of risk claim, the trial court determined that Clancy assumed the risk of a heat-related injury by participating in the voluntary workout when he was aware of the conditions. Clancy appealed, claiming the trial court did not adequately consider the alleged violations of the standard of care.

“The assumption-of-the-risk defense does not apply where the defendants’ negligence creates risks that the plaintiff is not aware of and that are beyond the risks ordinarily expected from participating in the activity,” Decker wrote. “The trial court’s ruling does not address Clancy’s central claim that Pearman and Pierson’s alleged gross negligence exacerbated the risk of heat-related illness beyond that inherent in participating in an outdoor soccer conditioning session during a heat wave.”

The chief judge stated that issues of material fact remain regarding claims of gross negligence against Pearman and Pierson, namely whether Clancy was aware of the manner in which the conditioning session would be conducted.

Decker noted that Clancy claimed cold water and shade was not provided, while the defendants argued that players had access to a concessions building, ice machines, water fountains and air conditioning.

Additional disputes exist over whether VHSL guidelines were violated.

“In fact, the parties do not even agree whether the VHSL guidelines provide the relevant standard of care for evaluating Pearman and Pierson’s conduct, and Clancy represents that one of his designated expert witnesses would testify at a trial to a different standard of care,” Decker wrote.

Decker added that it is “unclear on the existing record” how much pressure Clancy
faced to participate in the training session despite the heat and the session being voluntary.

“Reasonable minds could disagree about whether Clancy assumed the risk of heat-related illness by participating in the allegedly voluntary conditioning session under the supervision of Pearman and Pierson,” Decker wrote.

Contributory negligence

On the contributory negligence claim, Clancy argued that the evidence did not prove he was contributorily negligent, despite the trial court deciding he “contributed to his own injuries by not taking the necessary actions to protect himself.”

Clancy was 16 years old at the time of the injury, a fact Decker noted as significant because minors are judged by a different standard of care than adults.

Decker pointed out that Clancy drank 60 ounces of water prior to practice and that Clancy and his mother, who was an athletic coach in the school system, believed practice would be moved indoors if the defendants deemed it too hot.

Clancy also argued that exertional heat injury includes symptoms of confusion and irrational behavior, providing another reason for the claims to be heard by a jury.

Decker noted that the record stated that Clancy became seriously ill during the session and had “difficulty … even thinking” by the end.

“In light of these circumstances, objectively reasonable minds could disagree about whether sixteen-year-old Clancy was negligent in not removing himself from play after he began to feel ill,” Decker wrote.

Decker added that the ruling “may implicate not whether Clancy was contributorily negligent but, instead, whether he failed to mitigate damages because Pearman and Pierson’s tortious conduct alone … caused his injury.”

The chief judge concluded that the jury could find that the issue surrounding
Clancy’s reasonableness in his actions is one of failure to mitigate damages, rather than contributory negligence.

“Whether Clancy was contributorily negligent or failed to mitigate his damages involves factual determinations that the parties dispute and, accordingly, should be resolved by a jury at trial,” Decker wrote.

The summary judgment order was reversed, and the case remanded back to the circuit court for further proceedings.

Clancy v. Pearman

THE ISSUE    Should a high school soccer coach and athletic director be granted summary judgment on a student athlete’s claims of gross negligence from a heat-related injury?

ANSWER      No (Court of Appeals of Virginia)

ATTORNEYS  J. Lloyd Snook III, Snook & Haughey, for the plaintiff; Melissa Y. York, Harmon Claytor Corrigan Wellman, for the defendants

• Clancy v. Pearman