Cerny v. Cedar Bluffs Public School
| Decision Date | 29 June 2001 |
| Docket Number | No. S-99-1227.,S-99-1227. |
| Citation | 262 Neb. 66,628 N.W.2d 697 |
| Parties | Brent CERNY, Appellant, v. CEDAR BLUFFS JUNIOR/SENIOR PUBLIC SCHOOL, Saunders County District No. 107, Appellee. |
| Court | Nebraska Supreme Court |
Larry C. Johnson, of Johnson & Vaughan, P.C., Fremont, for appellant.
Stephen S. Gealy and Timothy E. Clarke, of Baylor, Evnen, Curtiss, Grimit & Witt, Lincoln, for appellee.
Maren Lynn Chaloupka, of Van Steenberg, Chaloupka, Mullin, Holyoke, Pahlke, Smith, Snyder & Hofmeister, P.C., Scottsbluff, for amicus curiae Nebraska Association of Trial Attorneys.
This is a personal injury action brought pursuant to the Political Subdivisions Tort Claims Act. Brent Cerny alleged that while participating in athletics as a student at Cedar Bluffs Junior and Senior High School (the School), he sustained personal injuries as a result of negligence on the part of the School and its coaching staff. Following a bench trial, the district court for Saunders County found that the School's employees were not negligent and dismissed the petition. Cerny perfected this timely appeal, which we moved to our docket pursuant to our authority to regulate the dockets of the appellate courts. See Neb.Rev.Stat. § 24-1106(3) (Reissue 1995).
In the fall of 1995, Cerny was a student at the School and a member of its football team. On the evening of Friday, September 15, 1995, he participated in a football game between Cedar Bluffs and Beemer high schools. Mitchell R. Egger was the head coach of the Cedar Bluffs team, and Robert M. Bowman was the assistant coach. Both held Nebraska teaching certificates with coaching endorsements.
Cerny fell while attempting to make a tackle during the second quarter of the Beemer game, striking his head on the ground. Although he felt dizzy and disoriented after the fall, Cerny initially remained in the game but took himself out after a few plays. He returned to the game during the third quarter. Subsequently, during football practice on Tuesday, September 19, Cerny was allegedly injured again when his helmet struck that of another player during a contact tackling drill.
There was conflicting evidence at trial regarding the symptoms experienced and communicated by Cerny during and after the Beemer game. Cerny testified that when he came out of the game, he told Egger and Bowman that he felt dizzy, disoriented, and extremely weak. Egger stated that Cerny complained of dizziness when he came off the field during the Beemer game. He also noted that Cerny was short of breath and had a tingling sensation in his neck. Egger stated that Bowman continued to monitor Cerny.
Bowman testified that Cerny did not complain of a headache when he left the game, but did state that he felt fuzzy or dizzy, that he had some burning in his shoulder, and that he could not catch his breath. Bowman attributed Cerny's dizziness to hyperventilation, not a head injury. Bowman stated that when Cerny came out of the game, Cerny made normal eye contact with Bowman and Cerny's speech and movement appeared normal. After catching his breath, Cerny appeared to Bowman to be in a normal emotional state. However, Bowman did recommend to Egger that Cerny should get medical attention, but to his knowledge, no medical personnel examined Cerny that evening.
When Cerny asked to re-enter the game during the third quarter, Bowman observed that he seemed completely normal, exhibiting neither confusion, disorientation, nor abnormal speech. Bowman also noted that Cerny did not complain of a headache. Egger allowed Cerny to re-enter the game after observing that his color looked good, his eyes looked clear, and his speech was normal.
Cerny testified that he had a headache continuously from Friday night until the practice on Tuesday. However, there is conflicting evidence as to whether he reported this to his coaches. Cerny testified he told Bowman he had a headache during the bus ride home after the Beemer game. However, Bowman testified that during the bus ride, he asked Cerny how he felt, and Cerny replied "I feel good, Coach" and did not complain of a headache. Cerny's mother testified that she first became aware of Cerny's headache on Saturday morning and that it persisted throughout the weekend. Cerny's brother testified that he did not attend the Beemer game but remembered Cerny "laying [sic] on the couch at our house and became very sick and complained he had a really bad headache, and then had to go to the hospital for it." Cerny testified that he told his coaches before the Tuesday practice that he had a nagging headache all weekend, but on cross-examination, he admitted that he did not remember if he had told the coaches that he was feeling bad before practice. Egger testified that he did not talk to Cerny before the Tuesday practice and permitted him to participate because
Dr. Thomas A. McKnight, a family practice physician who has treated Cerny since September 1995, and Dr. Richard Andrews, a neurologist to whom Cerny was referred by McKnight, both expressed opinions that Cerny suffered a concussion during the Friday night game; that he was still symptomatic at the practice on the following Tuesday; and that during the practice, he suffered a closed-head injury with second concussion syndrome. Andrews testified that the second blow to the head sustained during the practice was "the principal cause of [Cerny's] traumatic brain injury, and the sequelae as it exists now."
Several witnesses testified regarding the standard of care to be exercised by high school coaches in dealing with head injuries. Andrews testified that dizziness, disorientation, and headache are all recognized signs of a concussion. He stated that if a football player has one or more of these symptoms during a game, he should not be permitted to participate further in that game. In addition, three certified athletic trainers testified as expert witnesses on behalf of Cerny regarding the applicable standard of care. Christina Froiland is an assistant professor of physical education and a certified athletic trainer at Midland Lutheran College in Fremont, Nebraska, who teaches a class entitled "Prevention and Care of Athletic Injuries." This class is required by the State of Nebraska for teachers seeking a coaching endorsement. Froiland testified the typical symptoms of a concussion include dizziness, headache, and disorientation, and are generally known in the coaching profession. She further testified that when an athlete exhibits such symptoms following an injury, the coach should not permit the athlete to return to competition until receiving clearance from a physician.
Michael McCuistion is a certified athletic trainer at Lincoln East High School who also teaches coaching certification courses in Nebraska. He testified regarding the recognition of symptoms of head injuries. McCuistion explained that dizziness, disorientation, and headache are all symptoms of a concussion. He testified that coaches must be aware of this and, when an athlete exhibits such symptoms, must take the athlete out of competition until a medical evaluation has been performed.
Rick D. Bettger, a certified athletic trainer who works in Colorado and teaches undergraduate and graduate courses on the identification and treatment of athletic injuries, similarly testified regarding the symptoms of and treatment for head injuries. He testified that a student athlete who exhibits any symptoms of a concussion, including dizziness, shortness of breath, disorientation, and a flushed face, should be removed from competition immediately.
John Stineman, the head football coach at Centennial Public Schools, testified as an expert witness on behalf of the School. Stineman opined that the coaches at Cedar Bluffs acted reasonably and that he would not have acted differently in 1995. However, on cross-examination, he testified that if a coach identifies that a student athlete has been injured, then that coach should make sure that the student receives proper medical treatment. On cross-examination, Stineman engaged in the following colloquy with Cerny's counsel:
After a bench trial, the district court dismissed the petition based upon a finding that the School was not negligent. In its written findings, the district court noted that both Egger and Bowman had a teaching certificate with a coaching endorsement. It further found that "[a]s part of the endorsement process, each had completed the requisite first aid training required by the State as part of a college level course dealing with the prevention of athletic injuries." The district court also noted that neither was a certified athletic trainer.
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