                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            FEB 28 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


DAPHNE INGRAM, a single woman,                   No. 14-35359
individually; DWIGHT INGRAM,
                                                 D.C. No. 3:12-cv-05892-RBL
              Plaintiffs-Appellants,

 v.                                              MEMORANDUM*

UNITED STATES OF AMERICA, by and
through the Department of the Interior, and
Bureau of Indian Affairs,

              Defendant-Appellee.


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                      Argued and Submitted October 3, 2016
                              Seattle, Washington

Before: W. FLETCHER, GOULD, and N.R. SMITH, Circuit Judges.

      After oral argument, we determined this case would be appropriate for

mediation. We therefore referred the case to the Ninth Circuit Mediation Office

and withdrew submission in an order dated October 13, 2016. On January 27,


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
2017, the Circuit Mediator issued an order concluding that mediation efforts had

been exhausted and returning the case to the panel. We now resubmit the case for

decision and issue a memorandum disposition on the merits.

      Daphne Ingram and her son Dwight Ingram brought suit against the United

States under the Federal Tort Claims Act (“FTCA”), alleging that employees of

Chief Leschi High School, a tribal school, were negligent in administering

eligibility requirements and in monitoring Dwight’s safety during a school football

game. After a bench trial, the district court entered judgment in favor of the United

States. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

      On September 10, 2011, sixteen-year-old Dwight Ingram collapsed while

playing football for Chief Leschi in Puyallup, Washington. School officials called

an ambulance and Dwight was taken to Mary Bridge Children’s Hospital, where he

was eventually diagnosed with a subacute infarct, or stroke.

      Chief Leschi is a tribal school, and its employees are considered to be acting

within the scope of federal employment under the FTCA. In 2012, Daphne Ingram

filed a standard Form 95 claim with the Department of the Interior, Bureau of

Indian Affairs, alleging $15 million in damages for Dwight’s permanent brain

damage as a result of the stroke and her loss of Dwight’s consortium. The U.S.

denied her claim two months later. The Ingrams then filed a complaint for


                                          2
damages on both a personal injury theory and loss of consortium theory. The

parties stipulated to bifurcating the trial as to Dwight’s personal injury claim and

Daphne’s loss of consortium claim. Following a three-day bench trial, the district

court entered judgment in favor of the United States.

      In Washington, football coaches “who know[], or in the exercise of

reasonable care should know, that one of the players is physically unfit to enter the

game,” have a duty not to “permit[], persuade[], or coerce[] such player to play.”

Morris v. Union High Sch. Dist. A, King Cty., 294 P. 998, 999 (Wash. 1931).

Washington’s “Zackery Lystedt law” further provides that “[a] youth athlete who

is suspected of sustaining a concussion or head injury in a practice or game shall be

removed from competition at that time,” and “may not return to play until [he or

she] is evaluated by a licensed health care provider trained in the evaluation and

management of concussion and receives written clearance to return to play from

that health care provider.” Wash. Rev. Code § 28A.600.190(3), (4). The Ingrams

argued, at trial and on appeal, that Chief Leschi employees breached both their

common law duty and duty under the Zackery Lystedt law by permitting Dwight to

play in the fall 2011 football season and by failing to remove him from the

September 10, 2011 game after he suffered two hits to the head.




                                           3
      The district court, relying on Athletic Director Adams’s testimony, found

that Chief Leschi had received and reviewed “the appropriate authorizations” prior

to allowing Dwight to play in the fall 2011 season. In particular, Dwight’s October

2009 physical examination met the requirements of the Washington Interscholastic

Activities Association policy and Chief Leschi Handbook. Moreover, the district

court concluded that Dwight did not inform his coaches of his head injury

sustained during practice on June 13, 2011, and therefore Chief Leschi employees

were not on notice of the need to obtain medical clearance for Dwight prior to his

return to play. See Wash. Rev. Code § 28A.600.190. Although contested, these

factual conclusions were neither implausible nor illogical, and were supported by

testimony provided at trial.

      The district court reasonably relied upon the testimony of three coaches that

Dwight did not inform them that his head hurt at the September 10 game. See

Newton v. Nat’l Broad. Co., Inc., 930 F.2d 662, 671 (9th Cir. 1990) (heightened

deference due to a trial court’s credibility determination). Neither the game video

nor witness testimony presented at trial established an observable decline in

Dwight’s play or affect. Cf. Swank v. Valley Christian Sch., 374 P.3d 245, 250

(Wash. Ct. App. 2016). Even assuming the Lystedt law created a duty to remove

players after a hit that could cause a concussion, without regard to a player’s lack


                                           4
of symptoms, it was not illogical, implausible, or without basis for the trial court to

conclude that the two hits Dwight sustained during play were not of the type to

lead a trained observer to suspect a head injury. Evidence supported the trial

court’s conclusion that a reasonable, trained coach would not have suspected that

Dwight had sustained a head injury prior to his collapse during the September 10,

2011 game.

      AFFIRMED.




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