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Liability waivers have their limits

By Staff | Oct 17, 2012

It’s the end of the summer, and the coach wants to get his team in shape.

After running laps at the second of twice-a-day practices, a player goes down, clutching a leg. It turns out to be bad, probably a tear.

The player’s season is over before it began. Any hopes of college scholarship snapped along with the ligament. Recovery takes months and there are plenty of doctor’s bills.

The family has insurance, but the out-of-pocket expenses are still in the thousands of dollars.

Is the injury the coach’s fault? Can the parents sue the school to recover the medical expenses? Is there a legal way to recover the potential scholarship money that was lost?

That’s a scenario that many families face when their high-achieving high school athlete suffers a serious injury.

Parents, student-athletes and athletic departments know going in that injuries are a normal part of representing a school on the playing field, but more severe circumstances can lead to litigation.

In general, it is difficult to hold a school or coach liable for a student’s injuries. Especially in a public school setting, due to three key factors:

As a government agency that is federally funded, public schools are shielded from sports liability.

Parents and students sign a liability waiver that acknowledges the risks involved with the sport the participant is playing.

Athletic programs are viewed as a major part of the educational curriculum.

In Nashua, before each season begins, every student-athlete is given a packet of forms that has to be filled out. It includes permission slips ranging from parental consent to play a sport, to proof of a physical, to allowing the athletic trainers to do their jobs properly, and a liability waiver.

“It’s a simple but necessary process for all athletes and the department to follow,” said Nashua athletic director Tom Arria. “It’s the same process every city or town follows.

The wording varies from town to town depending on their legal advice, but such forms are uniform procedure.

For Nashua, the procedure is monitored closely.

“This all must be filled out prior to tryouts. If one piece of paperwork is incomplete or missing from a player’s file, their name is placed on a list we circulate to coaches. If one of their players is on this list, that student cannot touch the field of play, period.”

Private institutions such as Bishop Guertin High School face different challenges. With no backing from the local, state or federal government, BG and other private schools must find their own way to avoid liability concerns. Most private institutions follow the public path, assuming the liability waiver and curriculum arguments generally protect them as well.

“We have a waiver,” said first-year BG athletic director Peter Paladino, who has dealt with the private school liability issue in the same position at Central Catholic High School in Lawrence, Mass., prior to taking the job in Nashua. “We have a similar situation here at BG that I had at Central Catholic. It is mandatory that every athlete has health insurance. If you don’t have any at home, there are two options offered through the school – full-year health insurance coverage or just accidental insurance. As an athletic department, we have supplemental insurance, which covers the portion of a bill the family insurance doesn’t cover – as long as the reported injury happened during a school activity or on the way to or from a school activity.”

The one issue that is not protected no matter the school a student attends is negligence.

In legal terms, that means “the coach owed the student a duty of care; the coach breached the duty of care; the breach of duty caused the student to suffer measurable injuries.”

Other potential negligence issues could arise if unauthorized individuals engage in coaching duties; unfit or injured players are allowed or forced to compete in practice or game situations; a lack of proper training; or an injured athlete is moved without proper care.

Athletic directors nationwide are dealing with multiple teams and responsibilities, but keeping on top of liability issues is job one.

“It’s a huge part of our job,” Milford athletic director Marc Maurais said. “It goes a lot further than just making sure the coaches are teaching proper technique and the athletic trainer is certified and has their own liability insurance.

“Another key duty is providing safe facilities. It’s coaches, proper technique, properly maintaining the fields – it’s all of that.”

Maurais pointed out that a few years back, large rocks were discovered coming up through the football field at Milford. They were removed for safety purposes, but he still keeps walking the field in search of any new arrivals. And it’s not just concerns with the outdoor playing surfaces.

“Anybody who has been to our gym knows it’s small,” Maurais said. “The gym is tight; that is a concern. We have to make sure the endline is padded properly in case of somebody crashing or running into the wall. There is so much to stay on top of and that is part of the job.”

Even with proper care and taking the necessary precautions, tragedy can still happen.

At Nashua High School North during a 2010 preseason football practice, Cooper Doucette suffered a break at the C5 vertebra during a routine tackling drill – a situation that brought the community together.

But there was no drawn-out legal battle.

“In a situation like that, you really have to focus on making sure everything is in the proper order,” Arria said. “It’s hard to say this because of the situation we are talking about, but it’s this situation – the worst case scenario – that you prepare for. You double- and triple-check all the paperwork. You contact the district and look into what can be offered to the family insurance-wise for catastrophic injury.

“But most importantly, we are here to support the player and the family. The health of the student is always most important.”

Arria would be lying if he said nobody thought about or asked him about possible legal trouble surrounding this case.

“We live in a litigious society,” Arria said. “If a family feels like they have to file a claim, that’s their choice. That’s why as an athletic department you make sure every procedure is followed to the letter – crossing all T’s and dotting all I’s – making sure everything is done to protocol. You have to make sure everything is in place.”