Nicholas Malfitano May 4, 2015, 2:28pm


PHILADELPHIA – A federal judge has dismissed an Upper Uwchlan couple’s lawsuit filed against Downingtown High School East and its girls soccer coach Craig Reed over their daughter’s head injury.

Other defendants in the lawsuit, dismissed April 27 by a judge in the U.S. District Court for the Eastern District of Pennsylvania, were Downingtown Area School District (DASD), Downingtown Superintendent Lawrence Mussoline and Total Soccer, LLC.

The lawsuit, brought in August by Thomas and Theresa Urban on behalf of their daughter, a former high school soccer prospect identified in the litigation only as “M.U.”, alleged liability on behalf of the defendants for a severe head injury M.U. suffered during a scrimmage in August 2012.

According to the lawsuit, M.U. was being groomed by Reed for a starting position on the DHSE girls’ soccer team, and he felt she would later be able to attain success at a Division I-level playing collegiate soccer.

M.U. also alleged feeling tremendous pressure playing for Reed, citing summer 6 a.m. practices and occasional twice-daily workouts the Urbans claim would have their daughter arriving home in tears.

The lawsuit further alleged membership on Reed’s varsity team was “political,” in that players were supposedly strongly encouraged to both participate in Reed’s travel team, Vincent United F.C., and purchase lessons at Total Soccer (a training clinic that then employed Reed) if they wanted to have an edge at making the varsity club.

On Aug. 20, 2012, M.U. collided headfirst with an opposing team’s player during a preseason scrimmage and felt her neck snap back from the impact. In the lawsuit, M.U. claimed both a teammate and the coach of the opposing team remarked she needed to be taken out of the game and medically evaluated.

Allegedly, Reed unilaterally made the decision to both not take M.U. out of the game, nor order impact testing to determine if she had sustained a concussion or other type of head injury.

On the ride back from the game, M.U. claimed she started getting “headaches, dizziness and black spots in her field of vision.” When she felt physically unable to compete two days later, M.U. saw the team trainer for assistance.

A later evaluation by M.U.’s physician confirmed she sustained a traumatic brain injury during the in-game collision with the other player, she said.

As a result, the suit says M.U. missed more than 80 days of her freshman year at DHSE due to complications from post-concussion symptoms, including “headaches, profound fatigue, sleep difficulty, anxiety, loss of concentration, memory loss and word-finding difficulty.”

Further, it is alleged M.U. required occupational therapy, physical therapy and speech therapy assistance during the school year.

The plaintiffs claim since the injury, M.U. never played another competitive soccer game for DHSE and her academic progress has declined considerably. Where she once earned “A” grades, she now struggles to earn “B” and “C” grades, according to the lawsuit.

In a 32-page opinion, Judge Gerald J. Pappert ruled all the claims were to be dismissed – with potential for some of the plaintiff’s claims to be amended.

First, Pappert opined on the federal law subject of state-created danger liability.

Under federal law, to successfully prove an environment of state-created danger, one must show “(1) the harm ultimately caused was foreseeable and fairly direct; (2) a state actor acted with a degree of culpability that shocks the conscience; (3) a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant’s acts, or a member of a discrete class of persons subjected to the potential harm brought about by the state’s actions, as opposed to a member of the public in general; and (4) a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all.”

Pappert explained the use of this theory and criteria as it relates to high school sports is a “recent phenomenon” and not all courts have agreed on whether such liability applies.

Pappert began his opinion by dismissing this claim against Mussoline individually, in his role as school district superintendent.

“The complaint contains no factual allegations regarding any conduct by Mussoline. M.U. has therefore failed to state a claim against Mussoline individually,” Pappert said.

Pappert continued.

“The Court finds that M.U.’s allegations as to Reed satisfy the first and third elements of a state-created danger claim. On the other hand, M.U. fails to allege facts sufficient to satisfy the second and fourth elements of her state-created danger claim as to Reed,” Pappert wrote.

Pappert felt Reed’s conduct neither shocked the conscience, nor was affirmative.

“M.U. does not allege facts sufficient to show that Reed engaged in conduct that shocks the conscience, even at the lowest end of the culpability continuum – deliberate indifference,” Pappert said.

“M.U. does not allege facts to show that Reed engaged in any affirmative conduct. All of her allegations against Reed are allegations of omission in that he failed to take her out of the game, failed to evaluate her for a concussion, and failed to send her for a medical evaluation.”

Pappert concluded this point by explaining without further substance, while Reed’s conduct “may constitute negligence,” it did not satisfy all of the criteria for a state-created danger theory of liability and would therefore be dismissed.

Similarly, Pappert noted the allegations for state-created danger as to DHSE and DASD were also not substantial enough to rule them liable under this designation.

Though, Pappert did provide a leave for the plaintiffs to amend and re-submit their federal claims of violation of bodily integrity and state-created danger for liability, against Reed, DHSE and DASD, with the provision they clarify the theories of liability being asserted against those specific defendants.

As to M.U.’s state claims of negligence and recklessness against the defendants, Pappert opined the Political Subdivision Tort Claims Act (PSTCA) bars those claims from consideration in this case.

As to the negligence claim levied against Reed specifically, Pappert dismissed that count as well.

“Reed enjoys immunity for his negligent acts taken within the scope of his employment with DASD because they do not fit within any of the exceptions to immunity under the Tort Claims Act,” Pappert said.

“As previously explained, all of M.U.’s allegations against Reed sound in negligence. There are no facts to suggest that Reed ‘desired to bring about the result that followed’ his conduct.”

Pappert was likewise not satisfied as to the claims of negligence and recklessness made by M.U. against Total Soccer.

However, Pappert did say the plaintiffs also had leave to amend this count against Total Soccer, if they were able to add “fact-based allegations” against the soccer training organization.

The judge also dismissed the claim brought by the Urbans for recovery of costs for M.U.’s medical care, since the foundational allegations on which that claim was based were also dismissed.

Pappert then summarized his final decision.

The plaintiffs are seeking reimbursement of all fees pertaining to M.U.’s medical care, past, present and until she reaches the age of 18, plus interest and attorney fees, compensatory and punitive damages, and any other relief the Court deems appropriate.

The plaintiffs are represented by Aaron J. Freiwald and Laura E. Nowicki of Layser & Freiwald P.C. in Philadelphia

The defendants are represented by Joseph P. Connor of Connor Weber & Oberlies, P.C. in Paoli and Theodore M. Schaer of Zarwin Baum Devito Kaplan Schaer & Toddy, P.C., also in Philadelphia.

United States District Court for the Eastern District of Pennsylvania case 2:14-cv-04877

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