Martin for C.M. v. Hermiston School District 8R

Decision Date04 November 2020
Docket NumberNo. 3:18-cv-02088-HZ,3:18-cv-02088-HZ
Citation499 F.Supp.3d 813
Parties Dawna MARTIN, as Guardian Ad Litem FOR C.M., a minor, Todd Martin, an individual, and Dawna Martin, an individual, Plaintiffs, v. HERMISTON SCHOOL DISTRICT 8R, a public body, and individuals Larry Usher, Dan Emery, David Faaeteete, and Matthew Bruck, in their personal capacities, Defendants.
CourtU.S. District Court — District of Oregon

Martin Dolan, Patricia Pascone, Dolan Law Group, P.C., 4300 NE Fremont Street, Suite 250, Portland, OR 97213, Attorneys for Plaintiffs.

Blake Fry, Karen Vickers, Mersereau Shannon, LLP, 111 SW Columbia Street, Suite 1100, Portland, OR 97201, Attorneys for Defendants.


HERNÁNDEZ, District Judge:

Plaintiffs bring this action under 42 U.S.C. § 1983 alleging that Defendants violated their Fourteenth Amendment rights when C.M. suffered a serious head injury in the fall of 2016 while playing football on Hermiston High School's junior varsity football team. C.M. also brings state law negligence and negligence per se claims against Defendants. Defendants move for summary judgment on each of Plaintiffs' claims. The Court grants in part and denies in part Defendants' Motion for Summary Judgment.


Plaintiffs Todd and Dawna Martin's son, Plaintiff C.M., joined his high school football team during his sophomore year of high school in 2016. C.M. was placed on the junior varsity ("JV") team. Pascone Am. Decl. Ex. 3 ("C.M. Dep.") 37:13–18, ECF 34-3. He had never played football before. Id. The team's roster listed C.M. as a wide receiver and a defensive back. Fry Decl. Ex. 1 at 40–41, ECF 16-1. C.M. and other players on his team said that C.M. also played on "first defense," a specific group of students who played the positions of middle and outside linebacker. C.M. Dep. 83:13–84:3; Paradiso Decl. ¶ 2, ECF 28. C.M. testified that he also played the position of starting "bullet" during kickoffs, where his job was to thwart blockers and try to tackle the receiver carrying the ball for the receiving team. C.M. Dep. 87:6–12.

Before the 20162017 football season, C.M. took an ImPACT test. Fry Decl. Ex. 1 at 89:5–12, ECF 16-1. All high school athletes must take an ImPACT test before the start of every season. Fry Decl. Ex. 5 ("Emery Dep.") 39:10–40:16, ECF 16-5. The test obtains a baseline level of cognitive functioning that health professionals can compare to post-injury ImPACT testing to determine whether an athlete's cognitive functioning has diminished after an injury. Id.

Hermiston School District's Athletic Director, Defendant Usher, oversaw the district's athletic programs. In that role, Defendant Usher was responsible for providing input into and implementing school district policies for concussion management, ensuring coaches received annual concussion training, and supervising coaches and athletic trainers to ensure that they followed the district's concussion policies. Pascone Am. Decl. Ex. 5 ("Usher Dep.") 16:15–21, 21:11–22:22, ECF 34-5. In 2016, Defendant Faateete was Hermiston High School's head football coach. Pascone Am. Decl. Ex. 8 ("Faateete Dep.") 15:6–11, ECF 34-8. In that position, Defendant Faateete was responsible for the entire school's football program and supervised the eleven other coaches of the varsity, junior varsity, and freshman football teams. Id. at 15:12–17, 16:11–21. The freshman, junior varsity, and varsity teams had a total of about 85 to 100 players in 2016. Id. 27:3–12. Another coach was responsible for coaching Hermiston's JV team during games, but Defendant Faateete led football practices and training for all teams. Id. ; Pascone Am. Decl. Ex. 4 ("Bruck Dep.") 17:2–10, ECF 34-4.

Defendant Bruck was the head coach of the JV football team in 2016. Id. at 14:2–5. At games, Defendant Bruck served as the JV team's point of contact for referees, called offensive plays, and helped coach the defensive backs. Id. at 17:11–22. Coaches Eddie Lopez and Gary Posten assisted Defendant Bruck with coaching the JV football team. Pascone Am. Decl. Ex. 10 ("Lopez Dep.") 25:2–7, ECF 34-10; Bruck Dep. 29:22–30:10, 44:14–23. Defendant Bruck also helped coach the players on the JV team at the all-team practices led by Defendant Faateete. Bruck Dep. 17:2–10.

In 2016, Defendant Emery, an athletic trainer employed by Good Samaritan Hospital, served as Hermiston High School's athletic trainer. Pascone Am. Decl. Ex. 7 12:1–9, ECF 34-7. Among other duties, Defendant Emery was responsible for attending all football practices and home games and traveling to away games with the varsity football team. Id. 22:13–25. Defendant Emery was also responsible for documenting and treating athlete injuries, including concussions, making recommendations to parents about whether players with concussion injuries needed immediate medical treatment, and assisting student athletes with returning to play after an injury. Id. 48:1–7, 42:8–44:13.

On September 15, 2016, Hermiston High's JV team played a game against Mountain View High School in Bend, Oregon. Fry Decl. Ex. 1 at 89:25–90:12, ECF 16-1; Bruck Dep. 42:24–43:6; T. Martin Decl. ¶ 3, ECF 27. The parties disagree about what happened during that game. Plaintiffs allege that toward the end of the first quarter of the game, when C.M. was playing the position of outside linebacker on defense, he tried to block a fullback on the other team, and C.M. collided with the other player helmet-to-helmet, injuring C.M.'s head. C.M. Dep. 90:5–91:10. C.M. testified: "It was my job to pick up the block on the fullback. And when I was going to pick up that block, the fullback came in and let his head down to truck, and there was head-to-head contact there." Id. at 90:25–91:4. C.M. did not lose consciousness. Id. at 91:11–12. As a result of the head-to-head contact, Plaintiffs claim that C.M. suffered a mild concussion. Id. 90:5–7. It is undisputed that Coach Bruck put C.M. in the game in the position of wide receiver during the fourth quarter. T. Martin Decl. ¶ 5; Bruck Dep. 43:9–12.

C.M.'s father, Todd Martin, arrived at the September 2016 game during the second half and saw C.M. sitting on the sideline with his helmet off. Id. ¶ 4. Todd Martin motioned to C.M. to ask him why he was not playing and saw C.M. point to his head. Id. Two of the players on C.M.'s team said that they did not see C.M.'s head injury, but they observed him afterward, and his behavior was strange. Ian Paradiso, a middle linebacker, said that C.M. went back into the game after his injury and was uncharacteristically slow and quiet, when he was usually fast and talkative. Paradiso Decl. ¶ 5, ECF 28. C.M. was supposed to line up next to Paradiso on the field, but he lined up on the wrong side of the line and was unsure what he was supposed to do. Id. ; T. Martin Decl. ¶ 5–6. C.M. played like that throughout what Paradiso believes was the entire fourth quarter of the game. Paradiso Decl. ¶ 5.

Jesse Johnson, another player on C.M.'s team, injured his ankle early in the game and spent the rest of the first half in the locker room. Johnson Decl. ¶ 3, ECF 29. Johnson said he watched the second half of the game from the sideline and saw C.M. sitting on the bench with his helmet off, which was the usual practice for injured players. Id. ¶ 4. Johnson said that C.M. went back into the game when the coach ordered "first defense" to take the field. Id. ¶ 5. After the game, Johnson said that C.M. was sitting alone quietly, which was unusual because C.M. was usually very talkative. Id. ¶ 6. Johnson also said that it seemed to take C.M. thirty minutes to untie his shoes after the game. Id.

Defendants' version of the facts concerning the September 2016 game differs significantly from Plaintiffs' rendition. Defendants maintain that C.M. did not play linebacker during the first half of the game and remained on the sideline until the fourth quarter of the game. Defendant Bruck testified that C.M. played only a few plays during the fourth quarter in the position of wide receiver. Bruck Dep. 43:7–12. Defendant Bruck, Coach Lopez, and Coach Posten do not remember C.M. suffering an injury during the game. Id. at 43:7–9; Lopez Dep. 48:4–9; Pascone Am. Decl. Ex. 11 ("Posten Dep.") 29:22–30:10, ECF 34-11. Defendant Emery did not attend the September 2016 game because athletic trainers attended only the home games of the JV team. Emery Dep. 22:24–23:2; 48:20–24. Defendants obtained a video of the September 2016 game from Mountain View High School, which Defendants argue establishes that C.M. did not play linebacker during the first half of the game. Def. Mot. Summ. J. ("Def. Mot.") 4, ECF 15; Fry Decl. Ex. 8, ECF 16-8. The video is just under twenty-six minutes long. Fry Decl. Ex. 8. The video footage does not run continually from the beginning of the game to the end. Id. Instead, the video consists of a series clips that begin at the start of a play and stop at the end of the play, even for plays that did not stop the game clock. Id. The video does not show substitutions, huddles, time-outs, or other events that occurred between plays and does not show the game clock. Id.

After the game, Mr. Martin asked Defendant Bruck if C.M. was okay, and Defendant Bruck said, "Yes." T. Martin Decl. ¶ 8. Defendant Bruck did not tell Mr. Martin that C.M. was injured during the game. Id. C.M. asked repeated questions and acted strangely during dinner and the long drive home. Id. ¶¶ 9–10. At one point, C.M. removed his clothes in the back seat during the drive home. Id. ¶ 10; C.M. Dep. 118:21–119:3.

When he returned home from the game, C.M. told his mother that he had taken a hit at the game and that someone had told C.M. that he had a concussion. D. Martin Decl. ¶ 4, ECF 26. C.M. told Mrs. Martin that C.M. needed to see Defendant Emery, his school's athletic trainer, the next day, on Friday, September 16, 2016. Id. C.M. tried to go to school on Friday, but he came home with a headache before the school day ended. Id. ¶ 5. Mrs. Martin drove C.M. back to the school...

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    ...Kosmala and LaFramboise's liability “beyond debate.” See Hughes, 31 F.4th at 1223; see also Martin for C.M. v. Hermiston Sch. Dist. 8R, 499 F.Supp.3d 813, 842 (D. Or. 2020) (“The Supreme Court has ‘repeatedly told courts . . . not to define clearly established law at a high level of general......
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