Felix v. Spaulding High Sch. Union Dist., No. 411-6-08 Wncv (Crawford, J., Mar. 3, 2010)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
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                                              STATE OF VERMONT
                                            COUNTY OF WASHINGTON

DEREK FELIX

v.                                                                  WASHINGTON SUPERIOR COURT
                                                                    DOCKET NO.: 411-6-08 Wncv
SPAULDING HIGH SCHOOL UNION
DISTRICT

           DECISION ON DEFENDANT’S FIRST AND SECOND MOTIONS FOR
                            SUMMARY JUDGMENT

Defendant has filed two motions for summary judgment. The motions address issues of
assumption of the risk, municipal immunity, and qualified immunity for municipal
employees.1

                                                              FACTS

For purposes of the motions for summary judgment, the facts are those alleged by the
plaintiff since he is the party opposing summary judgment. These facts are supplemented
by facts alleged by the defendant which are genuinely uncontroverted. Viewed in this
light, the facts are as follows:

Derek Felix grew up in Arizona until the 11th grade when he moved with his parents to
Vermont. During the 9th grade, he played football on the freshman team. He did not play
during 10th grade because he had been ill with pneumonia during the summer and had
moved to a new, larger school district.

In September 2005 Derek’s family moved to Barre, Vermont. He enrolled in Spaulding
High School and expressed interest in joining the football team. He had already missed
the August work-outs. Derek joined the team. His first day of practice was September
15, 2005. He took part in 7 team practices. At least one of the practices involved a
tackling drill. He also met with the coaches individually to talk about plays and
strategies. There is a dispute about how often these “chalk talks” occurred. Derek recalls
a single short talk after a regularly scheduled practice. Felix Depo. Tr. 73. Dennis Hill
recalls at least two talks: once in his office at Spaulding High School and once in the
chorus room where he used the blackboard. Hill Depo. Tr. 61.

On September 23, 2005, the Spaulding team traveled to Brattleboro for a game. Derek
was sent into the game in the final quarter as a defensive safety. The first play in which
he participated resulted in a touchdown for the other side. Brattleboro next lined up for a

1
 Defendant raised assumption of the risk and municipal immunity in the first summary judgment motion,
and qualified immunity in the second. While Plaintiff has requested that the court strike the second motion,
Plaintiff has fully briefed both. There is no useful purpose to delaying a ruling on qualified immunity. The
motion to strike is denied.
two-point conversion play. When the ball carrier came towards Derek, he lowered his
head and tackled the other boy. Derek suffered a catastrophic spinal injury due to “axial
loading” of his neck. Both sides attribute the injury to improper tackling technique,
specifically tackling with the head down rather than up.

Like other Vermont public high schools, Spaulding is subject to the Vermont Principals’
Association Bylaws and Policies concerning athletics. These include a requirement that
every student athlete attend 10 practice sessions before competing in an interscholastic
event. VPA Bylaws, Article IV, Section 1(I). The parties disagree about whether the
“chalk talks” which Derek received individually from his coaches satisfied the 10-
practice requirement. It is undisputed that Derek did not participate in 10 conventional
team practices before entering the game at Brattleboro. The defendant believes that the
10-practice requirement was met by combining actual practices and the one-on-one
“chalk talks.”

High school football players at Spaulding and at other schools receive instruction about
the danger of tackling with a lowered head in the course of practice and drills and also
through a short film about the hazard which is shown to players. Because he started the
season after the start of practices, Derek did not see the film. He did take part in tackling
drills in the course of practice. His coaches believe that he showed a good understanding
of tackling technique. He denies receiving instruction in tackling and states that he was
not taught about the danger of tackling with his head down.

                                        ANALYSIS

The motions for summary judgment raise three issues. First, the defendant argues that
the coaches can have no liability in this case because the plaintiff assumed the risk of
injury under 12 V.S.A. § 1037. Second, the defendant contends that the Spaulding High
School District has municipal immunity from suit because high school sports are a
governmental function. Third, the defendant argues that the three individuals—the
athletic director and the two coaches—have qualified official immunity because they
were engaged in a process of discretionary decision-making.

       I. Assumption of the risk, 12 V.S.A. § 1037

The history of Vermont’s sports injury statute, 12 V.S.A. § 1037, has been explained
elsewhere, and does not require any detailed elaboration here. See generally Frant v.
Haystack Group, Inc., 162 Vt. 11 (1994). In effect, the statute codifies the common law
doctrine of primary, as opposed to secondary, assumption of the risk. Frant, 162 Vt. at
17. The difference between the primary and secondary forms of the doctrine, as they
relate to this case, can be stated as follows:

Primary assumption of the risk refers to the determination that the allegedly negligent
defendant in fact was under no duty to the plaintiff. While a ski resort, for example, owes
its skiers the traditional business-invitee duty to maintain the premises free of
unreasonable risks, skiing nevertheless inevitably presents certain risks (such as slipping



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on a patch of ice on the slope) that the ski resort has no duty to prevent. Sunday v.
Stratton Corp., 136 Vt. 293, 302 (1978). Those latter risks remain the skiers’
responsibility whether the skier is aware of them or oblivious. Frant, 162 Vt. at 18
(explaining that the skier is “deemed to consent” to all such hazards). Because the risks
are integral to the sport, the resort has no duty to prevent them. Thus, where the plaintiff
has primary assumption of the risk, the defendant cannot be negligent and comparative
negligence is irrelevant. Sunday, 136 Vt. at 301. This is a no-duty formulation of the
doctrine.

Primary assumption of the risk does not apply in this case because the defendant does not
contend that its coaches have no duty to prevent injury to players. Instead, the defendant
claims that the plaintiff played football despite knowing he might become injured. This
is the secondary assumption of the risk doctrine. Secondary assumption of the risk is not
a defense in Vermont because it falls beyond the scope of section 1037 and is contrary to
the comparative fault statute.

The claim of secondary assumption of the risk in this case—that the plaintiff’s awareness
of the risk of injury in playing football completely bars recovery in spite of any
negligence of defendant’s employees—is no different in effect from the old rule that
contributory negligence created an absolute bar to recovery, a concept essentially made
irrelevant by principles of comparative fault.2 See id. at 300 (discussing the similarity of
this form of the doctrine with contributory negligence as a complete bar to recovery); D.
Dobbs, The Law of Torts § 211, at 539 (2001) (explaining the court routinely conclude
that this form of the assumption of the risk doctrine cannot be squared, logically and
morally, with comparative negligence). That is, the defendant has a duty, may have been
negligent, but the plaintiff nevertheless cannot recover. This is a no-negligence
formulation of the rule. The use of assumption of the risk doctrine in this fashion was
rejected in Frant.

The defendant’s argument on this issue reflects misunderstanding of the distinction
between these forms of assumption of the risk, and improper reliance on the latter
formulation of it. The defendant essentially argues that the plaintiff was generally aware
that playing football could result in injury, and did it anyway; thus, they should not be
liable. That claim is in the model of the long-rejected form of contributory negligence
that is incompatible with comparative negligence, 12 V.S.A. § 1036, and not authorized
by the sports injury statute, id. § 1037.

The court denies the motion for summary judgment which is based on assumption of the
risk.


2
  Another principal form of assumption of the risk—that the plaintiff expressly consented to the risk created
by the defendant’s employees’ negligence (a no-duty formulation)—would not be a good fit for this case.
Generally, the alleged negligence consists primarily in the alleged failure to properly instruct the plaintiff in
the safe tackling technique before putting him in the game, at significant risk of injury if the incorrect
tackling technique was used. The defendant does not claim that the plaintiff was aware that defendant’s
employees had failed to instruct him properly, expressly accepted the risk that the failure to receive that
instruction could result in severe injury, and then elected to be put in the game nevertheless.


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       II. Municipal Immunity

The issue of municipal immunity is governed by several principles.

First, there is no waiver of immunity except through the purchase of insurance. 29
V.S.A. § 1403. The Spaulding High School District has chosen to join an intermunicipal
risk-sharing association instead of buying liability coverage. Membership in such an
association is specifically excluded from the definition of insurance for purposes of
waiver. 24 V.S.A. § 4946.

Second, whether an act by a municipality qualifies for immunity depends on the common
law distinction between governmental and proprietary activities. Hillerby v. Town of
Colchester, 167 Vt. 270 (1997). The Vermont Supreme Court has declined to adopt the
“private analog” test used to define state sovereign immunity in the case of
municipalities.

The question raised by the summary judgment motion is whether a high school football
program is a governmental or a proprietary activity. The common law distinction has its
roots in the great increase in public works and services in the nineteenth century. Roads
and water works, in particular, brought benefits to many and injury to a few. In Welch v.
Village of Rutland, 56 Vt. 228 (1884), the Vermont Supreme Court expressed the issue in
this way:

       The immunity goes a step farther and protects such [municipal] corporations in a
       total neglect to perform certain functions which are concededly for the public
       benefit and convenience. No action can be maintained against a municipal
       corporation by an individual, no matter how great an injury he might be able to
       show, for the neglect to build sewers or water-works, or for defects or
       insufficiencies in the plans adopted for these or other public improvements; and
       this is upon the ground that in such matters the corporation is discharging a
       legislative or quasi judicial function, and its action is not reviewable by the law
       courts. . . .

               When, however, municipal corporations are not in the exercise of their
       purely governmental functions, for the sole and immediate benefit of the public,
       but are exercising, as corporations, private franchise powers and privileges, which
       belong to them for their immediate corporate benefit, or dealing with property
       held by them for their corporate advantage, gain or emolument, though enuring
       ultimately to the benefit of the general public, then they become liable for
       negligent exercise of such powers precisely as are individuals.

Id. at 234–35 (emphasis in original).




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This distinction between direct benefit to the public (immune) and revenue-generating
activities which are of only indirect benefit (not immune) has largely survived the efforts
of later courts to improve upon it.

Marshall v. Town of Brattleboro, 121 Vt. 417 (1960), is the most recent case to focus on
the origins and purpose of municipal immunity.3 In Marshall, the court drew a
distinction between the general grant of immunity for the construction of public parks in
Lemieux v. City of St. Albans, 112 Vt. 512 (1942), and the operation of a ski lift within a
public park. The court declined to rest its decision on the difference between the benefit
of an activity to the public generally or to the municipality in its corporate capacity. The
decision described the court’s belief that building a park is different from operating a
mechanical ski lift.

        The policy that favors the construction of recreational areas by municipalities for
        its citizens is not so vital to the community, so essential a municipal operation, as
        to require that immunity from liability for carelessness be conferred willy-nilly on
        any and all activities the municipality may carry on within the confines of the
        recreation area.

Id. at 425. This is not whether the public or the mayor’s budget benefits immediately
from the activity. Instead, the defining distinction is whether the activity is vital or
essential to the community or in some way more tangential and removed from public
benefit.

Here the analysis has rested with one exception. Activities which are specifically
authorized by statute are said to be clearly “governmental.” In Courchesne v. Town of
Weathersfield, 175 Vt. 585 (2003), for example, the sale of sand and gravel from a town-
owned pit was held to be governmental in part because of legislation authorizing
contracts with third-parties in order to maintain town highways.

In considering whether the operation of a high school football team is governmental or
proprietary, the court looks first to the statutory authorization for the activity. The
Spaulding Union High School District was formed in 1987 in order to provide a single
high school to serve the districts of Barre City and Barre Town. 16 V.S.A. App., ch. 91.
The district is required by law to provide, furnish, and maintain a high school for its
residents. 16 V.S.A. § 822. The required curriculum is limited to traditional classroom
subjects such as reading, writing, and mathematics plus physical education, health, and
civics. A district is not required to offer athletic programs, but obviously all public high
schools offer a variety of teams.


3
 Subsequent decisions have admitted the shortcomings of the governmental/proprietary distinction but
have looked for legislative action to bring change. See Hillerby v. Town of Colchester, 167 Vt. 270 (1997)
and O’Connor v. City of Rutland, 172 Vt. 570 (2001). The legislature took action in 1961 in the related
area of state sovereign immunity when it enacted the Tort Claims Act, 12 V.S.A. § 5601 et seq. There has
been no similar change to the rules of municipal immunity which can still be traced to the principle laid
down in the English case of Russell v. Men of Devon, 2 Term 667 (1788), that the needs of the public take
precedence over the claim of an individual.


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The purpose and philosophy of the Barre District’s athletic program appears in the
school’s policy manual. The Athletic Program Philosophy stresses the goals of wide
participation by many students, the development of athletic skill and team spirit within
the teams, and the promotion of pride and sportsmanship both within the team and the
larger community. These philosophies are educational in nature. “Big time” sports
issues of revenue, publicity, alumni support, and the stature of the program are absent.

The Barre District has joined with other public and independent school systems to create
its own system of governance for sports. These rules appear in the Bylaws and Policies
of the Vermont Principals’ Association (“VPA”), which were first adopted in 1986. Any
district which intends to compete with the other member schools binds itself to
compliance with these rules which govern eligibility, schedules of events, practice and
rest days, conduct of students and coaches, and specific rules for each sport. The Bylaws
include an ethical code for coaches, which emphasizes the educational purpose of high
school athletics.

The legal structure and stated purpose of high school athletics in Barre and elsewhere in
Vermont clearly identify this activity as governmental in nature. The purpose is clearly
educational. The rules which the high school accepted when it joined the VPA stress the
educational nature of high school athletics. There are few signs of conduct or activities
which would define the athletic program as proprietary. It is not a side-business like an
electrical plant or a telephone company or fiber-optic distribution system which could be
said to confer an immediate benefit on the municipal corporation. The beneficiaries of
the high school athletic system are the athletes who participate, the other students who
attend the games, and the larger community which watches from a distance. The purpose
of the program is to benefit the public directly. For these reasons, the district has
municipal immunity.

The court’s conclusion that high school athletics is a governmental function is consistent
with decisions in other states. See Yanero v. Davis, 65 S.W.3d 510, 527 (Ky. 2001)
(collecting cases); Annotation, Modern status of doctrine of sovereign immunity as
applied to public schools and institutions of higher learning, 33 A.L.R.3d 703, § 8[e]
(1970) (school athletics is governmental in nature); 57 Am.Jur.2d Municipal, County,
School, and State Tort Liability § 491 (same).

Since the court has concluded that municipal immunity applies to this case, it grants
summary judgment to the school district on all claims except those brought pursuant to
24 V.S.A. § 901a.

       III. Qualified Official Immunity

The plaintiff has brought suit against three employees of the Barre District. These are the
athletic director, Shawn Woods, the football coach, Phillip Joyal, and the assistant coach,
Dennis Hill. Pursuant to 24 V.S.A. § 901a(b), claims of negligence against these three
individuals have been brought against the Barre District. The plaintiff claims that the two
coaches were negligent in failing to make certain that he was sufficiently instructed in



                                             6
how to tackle safely and, more specifically, that he had not participated in 10 practices
prior to playing and had never seen the instructional video concerning the danger of
tackling head-on. The claim against the athletic director is that he did not supervise Mr.
Joyal and Mr. Hill sufficiently to make sure these steps were carried out.

The Vermont law of qualified official immunity is simple in outline. Municipal
employees are immune from claims of negligence which occur in the course of their
official duties so long as they are acting in good faith and their activities are discretionary
and not ministerial.4 An employee who fails in his duty of care while carrying out a
ministerial task is subject to suit. Compare Ferraro v. Earle, 105 Vt. 243 (1993)
(liability present for ministerial tasks) with Libercent v. Aldrich, 149 Vt. 76 (1987) (lower
level employees immune from tort liability when they perform discretionary acts in good
faith).

The two leading cases are Hudson v. Town of East Montpelier, 161 Vt. 168 (1993), and
Morway v. Trombly, 173 Vt. 266 (2001). In both cases, employees involved in road
repair (Hudson) and snowplowing (Morway) were held to be liable (or potentially liable)
for highway accidents because their actions—while requiring skill and judgment—did
not require the type of discretionary judgment which the qualified immunity doctrine
seeks to protect.

In Hudson, the court drew attention to the purposes of qualified immunity. These are
two: to protect employees who have a duty to exercise discretion in cases in which harm
to another person is inevitable (a police officer who must decide whether to make an
arrest, for example), and to protect employees who are required to make discretionary
judgments about the allocation of public resources or similar policy judgments.

When the present case is considered in the light of these two purposes, it becomes clear
that qualified official immunity is not available to the two coaches. First, although
coaching decisions may be criticized by spectators and parents of the players, they are not
commonly the subject of lawsuits. A coach is not like a police officer or a prosecutor
who may be compelled by her legal duty to make a judgment about another person which
results in arrest or incarceration with the risk of retaliation through the courts.

Second, the decision of a coach—in this case, to let a new player into the game—is not
one which requires a policy determination or a decision about the allocation of public
resources. The policy decision has already been made: players must receive appropriate
practice and instruction before playing in a game. Defining what constitutes sufficient
practice and instruction may be a difficult factual determination for the jury, but it is an
inquiry that has a right answer and a wrong answer. It is unlike a policy judgment which
requires a balancing of risks and benefits. As the Vermont Supreme Court remarked in
Libercent, and again in Hudson, ministerial decisions are those in which the employee
retains no “right to be wrong.”5

4
  The law of official immunity is generally the same for state and municipal employees. The additional
category of absolute official immunity is not relevant in this case.
5
  This observation originates in Williams v. City of Detroit, 111 N.W.2d 1 (1961).


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There is no “right to be wrong” about the coaching decision to send a player into a game.
It is a decision which requires judgment and attention, but it is not one in which—later—
an observer could say that policy considerations such as the player’s wishes, the needs of
the team, or the events of the game required a discretionary balancing of competing
concerns. A player either meets eligibility standards of training and practice or he does
not. Because the purpose of the activity is exclusively educational—the very factor
which provides immunity to the school district—there can be no balancing of other
interests and concerns. The only issue for the coach to decide is whether the student
athlete has had enough preparation to play the game. This is not a discretionary
judgment in the way that the immunity cases make use of the term. The better reasoned
out-of-state cases support this conclusion. See, e.g., Harris v. McCray, 867 So.2d
188,194 (Miss. 2004) (McRae, J., dissenting) (objecting that the acts of the coach were
ministerial because “they did not involve social, economic, or political policy”); Hacking
v. Town of Belmont, 736 A.2d 1229, 1234 (N.H. 1999) (explaining that the decision of
coaches and referees were ministerial because they “did not involve the weighing of
competing social, economic, or political factors”).

The court makes no judgment about whether Derek Felix was sufficiently prepared to
enter the Brattleboro game. That is a factual question for the jury. The parties disagree
about whether the 10-practice requirement was met. They also disagree about whether
Derek’s prior football experience and his apparent skill in the tackling drill support the
coaches’ decision. These factual disputes do not change the question of whether Derek
was qualified to play into a policy-based decision about how to weigh the risks and
benefits of letting Derek play. The decision was ministerial.

The claim against the athletic director requires separate consideration. He was not
present at the game and played no role in determining whether Derek was eligible to play
in the Brattleboro game. The claim against him is that he failed to supervise the coaches
so as to ensure that the VPA eligibility requirements would be enforced correctly. On
this record, it is difficult to tell what the details of the allegations against the athletic
director are. The court allows the plaintiff 10 days to submit a supplemental
memorandum which provides a clearer statement of the facts supporting a claim against
the athletic director. The defense has 10 days to respond.




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                                    CONCLUSION

The first motion for summary judgment is denied with respect to the assumption-of-the-
risk defense, and is granted with respect to claims against the Barre School District.

The motion to strike the second summary judgment motion is denied.

The second motion for summary judgment is denied with respect to claims brought
pursuant to 24 V.S.A. § 901a(b) for the individual conduct of the two coaches, Joyal and
Hill, and is not decided with regard to Woods pending further briefing.

Dated:                                      ______________________
                                            Geoffrey Crawford,
                                            Superior Court Judge




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