Swank v. Valley Christian Sch.

• Decision Date: 06 July 2017
• Docket Number: No. 93282-4
• Citation: Swank v. Valley Christian Sch., 398 P.3d 1108, 188 Wash.2d 663 (Wash. 2017)
• Court: Washington Supreme Court
• Parties: Donald R. SWANK, individually and as personal representative of the Estate of Andrew F. Swank, and Patricia A. Swank, individually, Petitioners, v. VALLEY CHRISTIAN SCHOOL, a Washington State non-profit corporation, Jim Puryear, individually, and Timothy F. Burns, M.D., individually, Respondents, Mike Heden and Derick Tabish, individually, Defendants.

188 Wash.2d 663

398 P.3d 1108

Donald R. SWANK, individually and as personal representative of the Estate of Andrew F. Swank, and Patricia A. Swank, individually, Petitioners,

v.VALLEY CHRISTIAN SCHOOL, a Washington State non-profit corporation, Jim Puryear, individually, and Timothy F. Burns, M.D., individually, Respondents,Mike Heden and Derick Tabish, individually, Defendants.

No. 93282-4

Supreme Court of Washington.

Argued Jan. 19, 2017

Filed July 6, 2017

Reconsideration Denied August 15, 2017

George M. Ahrend, Ahrend Law Firm PLLC, 100 E. Broadway Ave., Moses Lake, WA, 98837-1740, Mark Douglas Kamitomo, Collin Michael Harper, The Markam Group Inc., PS, 421 W. Riverside Ave., Ste. 1060, Spokane, WA, 99201-0406, for Petitioners.

Edward Joseph Bruya, Eric Roche Byrd, Bennett Bigelow & Leedom, P.S., 717W. Sprague Ave., Ste. 1202, Spokane, WA, 99201, Gregory Mann Miller, Carney Badley Spellman PS, 701 5th Ave., Ste. 3600, Seattle, WA, 98104-7010, William Christopher Schroeder, Gerald Kobluk, KSB Litigation, P.S., 221N. Wall St., Ste. 210, Spokane, WA, 99201-0824, Patrick Joseph Cronin, Winston & Cashatt, 601 W. Riverside Ave., Ste. 1900, Spokane, WA, 99201-0695, Steven Robert Stocker, Bohrnsen Stocker Smith Luciani PLLC, 312 W. Sprague Ave., Spokane, WA, 99201-3711, for Respondents.

Stephen Michael Rummage, Douglas C. Ross, Rebecca J. Francis, Davis Wright Tremaine LLP, 1201 3rd Ave., Ste. 2200, Seattle, WA, 98101-3045, as Amicus Curiae on behalf of American Medical Association.

Rebecca J. Francis, Davis Wright Tremaine LLP, 1201 3rd Ave., Ste. 2200, Seattle, WA, 98101-3047, as Amicus Curiae on behalf of Washington Medical Association.

Douglas C. Ross, Rebecca J. Francis, Stephen Michael Rummage, Davis Wright Tremaine LLP, 1201 3rd Ave., Ste. 2200, Seattle, WA, 98101-3045, as Amicus Curiae on behalf of Oregon Medical Association.

Stephen Michael Rummage, Douglas C. Ross, Rebecca J. Francis, Davis Wright Tremaine LLP, 1201 3rd Ave., Ste. 2200, Seattle, WA, 98101-3045, as Amicus Curiae on behalf of Idaho Medical Association.

Daniel Edward Huntington, Richter-Wimberley PS, 422 W. Riverside Ave., Ste. 1300, Spokane, WA, 99201-0305, Valerie Davis Mcomie, Attorney at Law, 4549 N.W. Aspen St., Camas, WA, 98607-8302, as Amicus Curiae on behalf of Washington State Association for Justice Foundation.

Stephen Michael Rummage, Douglas C. Ross, Rebecca J. Francis, Davis Wright Tremaine LLP, 1201 3rd Ave., Ste. 2200, Seattle, WA, 98101-3045, as Amicus Curiae on behalf of Washington State Medical Association.

Stephen Michael Rummage, Douglas C. Ross, Rebecca J. Francis, Davis Wright Tremaine LLP, 1201 3rd Ave., Ste. 2200, Seattle, WA, 98101-3045, as Amicus Curiae on behalf of Idaho Academy of Family Physicians.

Stewart Andrew Estes, Keating, Bucklin & McCormack, Inc., P.S., 800Fifth Ave., Ste. 4141, Seattle, WA, 98104-3175, Christopher Weldon Nicoll, Noah Jaffe, Nicoll Black & Feig PLLC, 1325 4th Ave., Ste. 1650, Seattle, WA, 98101-2506, as Amicus Curiae on behalf of Washington Defense Trial Lawyers.

William Christopher Schroeder, KSB Litigation, P.S., 221N. Wall St., Ste. 210, Spokane, WA, 99201-0824, for Other Parties.

Wiggins, J.¶1Andrew Swank(Drew) died from complications after contact with another player during a high school football game.Drew's parents sued Drew's school, the football coach, and Drew's doctor on behalf of his estate and individually.The trial court granted summary judgment against the Swanks on all claims, and the Court of Appeals affirmed.

¶2We must decide whether Washington's Zackery Lystedt Law(Lystedt law), RCW 28A.600.190, gives rise to an implied cause of action.We hold that an implied cause of action does arise from the Lystedt law.As a result, the Swanks' claims that Valley Christian School (VCS) and Jim Puryear(Coach Puryear) violated the Lystedt law may proceed.We also hold that the evidence against the coach was sufficient to permit a jury to find liability against the coach, despite the limited volunteer immunity protecting the coach.Consequently, we reinstate the Swanks' common law negligence claims against the coach.Finally, we hold that the trial court lacked personal jurisdiction over Drew's doctor.Accordingly, we reverse in part and affirm in part.

FACTS¹

I.Factual History

¶3 VCS is a nonprofit religious school located in Spokane Valley, Washington.In 2007, Jim Puryear, a parent of students attending VCS, approached the school and offered to start a school football team.The school agreed, and Puryear began to coach VCS's football team.Coach Puryear was not compensated for his coaching, and he funded most, if not all, of the program, buying equipment, paying for referees and emergency medical services at games, and funding the team's travel.Drew played football for VCS in 2009.

¶4 In 2009, the legislature passed the Lystedt law, RCW 28A.600.190.The purpose of the Lystedt law is to reduce the risk of further injury or death to youth athletes who suffer concussions in the state of Washington.SeeRCW 28A.600.190.The law requires schools to develop a concussion and head injury information sheet to "inform and educate coaches, youth athletes, and their parents and/or guardians of the nature and risk of concussion and head injury including continuing to play after concussion or head injury."RCW 28A.600.190(2).The Lystedt law also requires youth athletes to be removed from play immediately when they are suspected of sustaining a concussion or head injury.RCW 28A.600.190(3).A youth athlete who is removed from play may not return until he or she is evaluated by and receives written clearance from a licensed health care provider.RCW 28A.600.190(4).

¶5 Pursuant to the Lystedt law, VCS developed a concussion information sheet (CIS).The CIS defined "concussion," listed the symptoms of a concussion, and warned of the consequences of a concussion, including serious injury and death, which can result when an athlete with a concussion returns to play too soon.The CIS also instructed that athletes suspected of having a concussion "should be removed from the game or practice immediately," and that such athletes may not return to play without receiving medical clearance.Prior to the start of the 2009 season, Coach Puryear had a meeting with the football athletes and their parents to discuss and distribute the CIS, which both Drew and his mother signed.

¶6 On September 18, 2009, Drew was hit hard on the head during a football game.After the injury, he was removed from the game.Drew reported having neck pain and headaches.Three days after he was injured, Drew's mother took him to see Dr. Timothy Burns, who has been the Swanks' primary care physician ever since Drew was born.The Swanks are residents of Idaho, and Dr. Burns, a licensed doctor in Idaho, has a doctor's office located in Coeur d'Alene, Idaho.Dr. Burns examined Drew in Idaho and told him and his mother that Drew should be kept out of contact sports for the next three days.He prescribed ibuprofen and told Drew and his mother that if Drew experienced headaches after playing football, he would need to stay out of contact sports for a week.

¶7 Two days later, Drew's mother called Dr. Burns's office and told a nurse that Drew's headaches had stopped.Drew's mother asked that Dr. Burns write and sign a release because Drew played football in Washington State and Washington had a new law requiring a note from a doctor before Drew could return to practice.Later that day, Dr. Burns wrote a note releasing Drew to play football, which Drew's mother picked up from the Idaho office.Drew's father gave a copy of the medical release to Coach Puryear or the athletic director.

¶8 The following day, Drew played in a football game.Although Drew initially played well, his quality of play sharply declined during the game.Drew appeared "sluggish," confused, and slow to respond.Drew's father stated that he thought the coaches "clearly missed the fact that Drew was playing so far below his normal level."He recalled Drew's uncharacteristically poor play on kickoff returns and Coach Puryear yelling at Drew from the sidelines in apparent frustration over Drew's missed plays.Drew's former teammate described the events in his affidavit:

Drew Swank started out the game playing like his normal self but his play grew worse and worse as the game progressed.This was evidenced by the fact that the coaches were yelling at Drew frequently during the game, especially about his positioning.Drew was one of the better players on the team and it was uncommon for the coaches to be yelling at him.Drew became sluggish during the game and was frequently out of position.

Drew's aunt said that she observed from the sidelines that "[Drew] wasn't the same player he was the year before.He wasn't running fast.He wasn't quick, and he was just kind of standing."She also recalled Drew's mother commenting to her after Drew's apparent confusion on a kickoff play, "[Drew is] confused.He doesn't know, what is wrong?He's not listening.Why isn't he listening?"

¶9 During the game, Coach Puryear called Drew over to the sidelines, where he grabbed Drew's face mask and, according to Drew's father, "began to jerk it up and down hard while he screamed at [Drew], ‘What are you doing out there, what are you doing out there?’ "Drew returned to the game, where he was hit by an opposing player.He suffered head injuries and staggered to the sideline, where he collapsed.Drew died two days later.

II.Procedural History

¶10 Three years after Drew's death, his parents² filed suit against VCS, Coach Puryear, and Dr. Burns.³The Swanks brought common law negligence claims and claimed that the parties violated the Lystedt law.VCS, Coach Puryear, and Dr. Burns moved for summary judgment, which the trial court granted.The Swanks appealed.

¶11The Court of Appeals affirmed the trial court's grants of summary judgment on all but the general negligence claim against VCS.SeeSwank v. Valley...