                                                               FILED
                                                             May 17, 2016
                                                     In the Office of the Clerk of Court
                                                   WA State Court of Appeals, Division Ill




        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                           DIVISION THREE

DONALD R. SWANK, individually and           )        No. 33782-1-111
as personal representative of the ESTATE    )
OF ANDREW F. SWANK, and                     )
PATRICIA A. SWANK, individually,            )
                                            )
                   Appellants,              )
                                            )
             V.                             )
                                            )
VALLEY CHRISTIAN SCHOOL, a                  )        PUBLISHED OPINION
Washington State Non-profit Corporation,    )
JIM PURYEAR, and TIMOTHYF.                  )
BURNS, M.D. individually,                   )
                                            )
                   Respondents,             )
                                            )
MIKE HEDEN and DERICK TABISH,               )
individually,                               )
                                            )
                   Defendants.              )

      LAWRENCE-BERREY, J. -       In 2009, the Washington Legislature passed the

Zackery Lystedt law, RCW 28A.600.190, entitled "Youth Sports-Concussion and Head

Injury Guidelines." High school junior Andrew (Drew) Swank, an Idaho resident, played

football for Valley Christian School (VCS), located in Spokane Valley, Washington. On
No. 33782-1-III
Swank v. Valley Christian Sch.


September 18, 2009, Drew sustained a head injury during a game. Days later, Dr.

Timothy Bums, an Idaho physician, saw Drew in his Idaho clinic and diagnosed Drew as

having sustained a concussion. Later that week, Dr. Bums received word that Drew's

headaches were gone and cleared Drew to return to play. The next day, one week after

receiving his concussion, Drew played his final football game. During the game, Drew

showed signs of a continued concussive injury. He remained in the game, was hit hard by

an opposing player, and shuffled off the field. Two days later, Drew died.

      In September 2012, Drew's parents, Donald and Patricia Swank, filed a wrongful

death suit against multiple entities, including VCS, head football coach Jim Puryear, and

Dr. Bums. The suit alleged causes of action for negligence, medical negligence, and

violation of the Zackery Lystedt law. On summary judgment, the Spokane County

Superior Court dismissed the claims against all defendants. The Swanks appeal.

      We hold ( 1) the Zackery Lystedt law does not create an implied cause of action,

but the violation of the Zackery Lystedt law by one on whom the law imposes a duty may

be evidence of negligence, (2) genuine issues of material fact preclude summary dismissal

of VCS even though Dr. Bums cleared Drew to return to play, when Mr. Puryear

permitted Drew to continue playing even after Drew showed observable signs of

continued concussive injury, (3) the nonprofit volunteer immunity statute, RCW 4.24.670,


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No. 33782-1-III
Swank v. Valley Christian Sch.


insulates Mr. Puryear from personal liability for simple negligence, and (4) Washington

lacks personal jurisdiction over Dr. Bums, an Idaho physician, for alleged medical

malpractice occurring in Idaho. We, therefore, reverse the summary dismissal of VCS but

affirm the summary dismissals of Mr. Puryear and Dr. Bums.

                                         FACTS 1

      VCS is a nonprofit religious school located in Spokane Valley, Washington. In

2007, Mr. Puryear, a parent of students at VCS, approached VCS about starting a football

program at the school. VCS did not have a football program because it lacked money.

To start the program, VCS relied extensively on outside donations, with Mr. Puryear's

family providing the bulk of the money. With the money, Mr. Puryear purchased

equipment and paid for team meals, transportation, referees, and emergency personnel.

Mr. Puryear served as the head coach of the football team, but he received no payment.

Mike Heden was the volunteer assistant coach. Drew played football for VCS in 2009.

      In 2009, the Washington Legislature passed the Zackery Lystedt law.

RCW 28A.600.190. The purpose of the Zackery Lystedt law is to reduce the risk of

injury or death to youth athletes who suffer concussions.


       1
          Because this case is before this court on summary judgment dismissal, the facts
are recited in the light most favorable to the nonmoving party, the Swanks. Osborn v.
Mason County, 157 Wn.2d 18, 22, 134 P.3d 197 (2006).

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Swank v. Valley Christian Sch.


      As a consequence of this new law, VCS developed a concussion information sheet

(CIS). The CIS noted it was "[a]dapted from the CDC [Center for Disease Control] and

the 3rd International Conference on Concussion in Sport." Clerk's Papers (CP) at 79-80.

In late July 2009, VCS sent Mr. Puryear to a multi-day Washington Interscholastic

Activities Association (WIAA) training program. A portion of this program discussed the

new Zackery Lystedt law.

      Prior to the fall 2009 football season, Mr. Puryear held a meeting with parents

where he discussed the Zackery Lystedt law and distributed the CIS. The CIS defined

concussion and warned that concussions could lead to serious complications, including

brain damage and death. The CIS also listed several observable signs that could indicate

a youth athlete might be suffering from a concussion. These signs included a dazed

appearance, confusion about an assignment, and a loss of coordination. Prophetically, the

CIS also provided:

         What can happen if my child keeps on playing with a concussion or
                                returns to soon?

      Athletes with the signs and symptoms of concussion should be removed
      from play immediately. Continuing to play with the signs and symptoms of
      a concussion leaves the young athlete especially vulnerable to greater
      injury. There is an increased risk of significant damage from a concussion
      for a period of time after that concussion occurs, particularly if the athlete
      suffers another concussion before completely recovering from the first one.
      This can lead to prolonged recovery, or even to severe brain swelling

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No. 33782-1-III
Swank v. Valley Christian Sch.


      (second impact syndrome) with devastating and even fatal consequences. It
      is well known that adolescent or teenage athlete[ s] will often under report
      symptoms of injuries. And concussions are no different. ...

CP at 80 (emphasis added). The CIS required any athlete even suspected of suffering a

concussion to be removed from the game or practice immediately, and to not return until

medically cleared. The CIS also provided: "The new 'Zackery Lystedt Law' in

Washington now requires the consistent and uniform implementation of long and well-

established return to play concussion guidelines that have been recommended for several

years." CP at 80. Finally, the CIS provided an official CDC link for current and up-to-

date information on concussions. Ms. Swank and Drew·signed the CIS.

      On September 18, 2009, during the first game of the season, Drew took a hit and

experienced a headache and neck pain. Mr. Puryear immediately removed Drew from the

game. The following Monday, Drew did not go to school or attend practice because he

still had a headache. On Tuesday, Ms. Swank took Drew to Dr. Bums, the Swanks'

regular physician in Coeur d'Alene, Idaho. Drew told Dr. Bums he attended VCS and

discussed what had happened in the game. Dr. Bums diagnosed Drew with a mild

concussion, instructed him to take ibuprofen for the next few days, and prescribed the

following course of treatment:




                                            5
No. 33782-1-III
Swank v. Valley Christian Sch.


       I am also going to have [Drew] stay out of contact sports for the next three
       days' period of time. If he has a bad headache, after playing football, he is
       to be out of the sport for a week's period of time. If he has another
       concussion, following that, then I would have him out probably for a two-
       month period of time.

CP at 115. Mr. Swank told Mr. Puryear that Drew's doctor diagnosed Drew with a

concussion. Drew attended practices that Tuesday, Wednesday, and Thursday, but he did

not participate.

       On Thursday, September 24, Drew's headaches stopped, and Ms. Swank called Dr.

Bums to get a release for Drew to play in the game the next day. Ms. Swank told Dr.

Bums's receptionist the following:

       I told the receptionist that he had a concussion and Dr. Bums saw him and
       said he couldn't play. He says his headaches are gone now, and he plays
       school in the State of Washington and they have a new law and before he
       can go back to play, he has to have a release from the doctor.

CP at 188. Later that day, Dr. Bums wrote a note clearing Drew to return to play on

September 25, 2009.

       Dr. Bums is an Idaho resident who practices medicine at Ironwood Family

Practice, an Idaho corporation. While he was licensed in Washington starting in 1988 and

completed his residency in Spokane in 1989, he has been licensed to practice medicine

only in Idaho since 2003. Out of Dr. Bums's approximately 2,400 patients, one to three

percent are Washington residents. Dr. Bums sends prescriptions to Washington

                                             6
No. 33782-1-111
Swank v. Valley Christian Sch.


pharmacies, and Ironwood uses laboratories in Washington and contracts with

Washington insurance companies. Dr. Burns first met the Swanks in Idaho in the early

1990s shortly after Dr. Burns joined Ironwood. The Swanks were Idaho residents at that

time and were still Idaho residents in 2009. Dr. Burns provided all treatment to Drew in

Idaho.

         On Thursday, September 24, VCS and Mr. Puryear received the note clearing

Drew to return to play the following day. During school on Friday, September 25, Drew

appeared to be his normal self. Mr. Heden did not notice anything wrong with Drew

during warmups before the game, and Drew played in the game against Washtucna. Soon

after the game began, multiple people observed Drew's quality of play decline. One of

Drew's teammates said, "his play grew worse and worse as the game progressed" and

"Drew became sluggish during the game and was frequently out of position." CP at 402-

03. Drew's aunt stated, "he 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." CP at 526. Mr. Swank

said Drew misjudged where the ball was going on kickoffs, missed blocking assignments,

looked sluggish, and appeared dazed and confused. Ms. Swank said Drew's timing was

off, he was not crisp and sharp when cutting, he missed tackles, and he looked confused

and sluggish. Mr. Puryear was also aware Drew was playing poorly because he yelled at


                                            7
No. 33782-1-III
Swank v. Valley Christian Sch.


Drew several times to come to the sidelines. In addition, on one occasion Mr. Puryear

"grabbed Drew by the face mask and violently began to jerk it up and down hard while he

screamed at him, 'What are you doing out there, what are you doing out there?'" CP at

175. At the end of the second quarter, an opposing player hit Drew. Drew shuffled off

the field and collapsed. Two days later, Drew died.

       In September 2012, Mr. Swank, as personal representative of the estate of his son,

and individually with his wife, filed suit against VCS, its principal Derick Tabish, Mr.

Puryear, Mr. Heden, and Dr. Bums. As to Mr. Puryear, the suit alleged negligence,

recklessness, and violation of the Zackery Lystedt law. As to VCS, Mr. Tabish, and Mr.

Heden, the suit alleged negligence and violation of the Zackery Lystedt law. As to Dr.

Bums, the suit alleged medical malpractice and violation of the Zackery Lystedt law. The

parties later agreed to dismiss Mr. Heden. VCS, Mr. Tabish, Mr. Puryear, and Dr. Bums

moved for summary judgment. The superior court granted dismissal for all defendants,

specifically noting it dismissed Dr. Bums for lack of personal jurisdiction. The Swanks

appealed. 2




       2
         During the pendency of their appeal, the Swanks moved to dismiss their claims
against Mr. Tabish with VCS's agreement that evidence of his alleged fault could be
presented and imputed to VCS. This court granted the Swanks' motion.

                                             8
No. 33782-1-III
Swank v. Valley Christian Sch.


                                           LAW

A.     Zackery Lystedt Law

       In 2009, Washington passed the Zackery Lystedt law, RCW 28A.600.190, the

country's first comprehensive concussion law for youth athletes. Josh Hunsucker, Buckle

Your Chinstrap: Why Youth, High School, and College Football Should Adopt the NFL 's

Concussion Management Policies and Procedures, 45 MCGEORGE L. REV. 801, 814

(2014). The purpose of the Zackery Lystedt law is to reduce the risk of injury or death to

youth athletes who sustain concussions. See RCW 28A.600. l 90. The three core tenets of

the Zackery Lystedt law are: (1) to establish a set of concussion management guidelines

in order to educate coaches, parents, and youth athletes about the risks associated with

concussions, (2) to remove youth athletes from competition if they exhibit any sign or

symptom of a concussion, and (3) to require youth athletes to be cleared by a licensed

health care provider before returning to play. RCW 28A.600.190(2)-(4).

       The law requires school districts to work in concert with the WIAA to develop

guidelines, pertinent information, and forms to inform and educate coaches, youth

athletes, and their parents concerning the nature and risk of concussions and head injuries,

including the heightened risk of continuing to play after suffering an initial concussion or

head injury. RCW 28A.600.190(2). Each youth athlete and the athlete's parent or



                                             9
No. 33782-1-III
Swank v. Valley Christian Sch.


guardian must sign and return a concussion and head injury information sheet circulated

by the school district before the youth athlete is allowed to participate in any sporting

practice or competition. RCW 28A.600. l 90(2).

       If a youth athlete is suspected of sustaining a concussion or head injury in a

practice or game, the youth athlete must be immediately removed from play at that time.

RCW 28A.600.190(3). A youth athlete who has been removed from play may not return

until he receives written clearance from a properly trained licensed health care provider.

RCW 28A.600. l 90( 4 ).

       I.     The Zackery Lystedt law does not mandate specific return to play standards

       The Swanks argue the Zackery Lystedt law requires schools and coaches to adhere

to "generally recognized return to play standards" that mandate gradually returning an

athlete to play after sustaining a concussion or head injury. The Swanks point to

numerous publications outlining these gradual return to play standards and rely on the

following language in the Zackery Lystedt law in making this argument:

      Continuing to play with a concussion or symptoms of head injury leaves the
      young athlete especially vulnerable to greater injury and even death. The
      legislature recognizes that, despite having generally recognized return to
      play standards for concussion and head injury, some affected youth athletes
      are prematurely returned to play resulting in actual or potential physical
      injury or death to youth athletes in the state of Washington.

RCW 28A.600.190(l)(c) (emphasis added).

                                             10
No. 33782-1-111
Swank v. Valley Christian Sch.


       "Statutory interpretation is a question of law which this court reviews de novo."

Berger v. Sonne/and, 144 Wn.2d 91, 104-05, 26 P.3d 257 (2001). Statutory interpretation

is used "' to determine and give effect to the intent of the legislature."' State v. Reeves,

184 Wn. App. 154, 158,336 P.3d 105 (2014) (internal quotation marks omitted) (quoting

State v. Evans, 177 Wn.2d 186, 192, 298 P.3d 724 (2013)). But this court will not

indulge in speculation about the legislature's subjective intent. Caritas Servs., Inc. v.

Dep't of Soc. & Health Servs., 123 Wn.2d 391,409, 869 P.2d 28 (1994). Thus, if the

statute is plain and unambiguous, this court does not engage in statutory interpretation.

Berger, 144 Wn.2d at 105. "A court may not add words to a statute even if it believes the

[l]egislature intended something else but failed to express it adequately." Caritas Servs.,

123 Wn.2d at 409. Nor can a statute incorporate something by reference without ever

specifically referring to that something. See State v. Hovrud, 60 Wn. App. 573, 576, 805

P.2d 250 (1991) (stating the court knows ofno authority for the proposition that a statute

incorporates other statutes by reference without ever referring to them).

       Contrary to the Swanks' contention, the Zackery Lystedt law does not adopt

"generally recognized return to play standards." Rather, in the Zackery Lystedt law's

introductory section, the law notes-notwithstanding the presence of standards for

returning athletes to play after sustaining a concussion-some athletes are still


                                             11
No. 33782-1-III
Swank v. Valley Christian Sch.


prematurely returned to play. The Zackery Lystedt law does not specifically reference

any return to play standard.

         To the extent there is any ambiguity in what the legislature intended, the legislative

history of the Zackery Lystedt law shows the legislature did not intend to adopt "generally

recognized return to play standards" providing for gradual return to play. See Reeves, 184

Wn. App. at 158 (In resolving ambiguity, this court "resort[s] to other indicia of

legislative intent, including ... legislative history."). When proposing the initial bill to

the House Education Committee, the bill's proponents stated Zackery Lystedt's injury led

to the creation of the bill. Hr'g on H.B. 1824 Before the H. Educ. Comm., 60th Leg.,

Reg. Sess. (Wash. Feb. 13, 2009), http://www.tvw.org/watch/?event1D=200902l239

(statement of Rep. Jay Rodne) [hereinafter February House Hearing]. Thirteen-year-old

Zackery Lystedt suffered a brain injury following his return to play in a football game

after sustaining a concussion in that same game. Tom Wyrwich, Special Report: The

Dangers ofAdolescents Playing Football with Concussions, THE SEATTLE TIMES (Nov. 4,

2008),

http ://seattletimes.nwsource.com/html/highschoolsports/20083473 82_ concussions04 .htm.

Accordingly, testimony before the House Education Committee focused on removing

young athletes from play if a brain injury is suspected and not returning them to play until


                                               12
No. 33782-1-III
Swank v. Valley Christian Sch.


cleared by a licensed health care provider. See generally February House Hearing; Hr'g

on E.H.B. 1824 Before the S. Early Learning & K-12 Educ. Comm., 60th Leg., Reg. Sess.

(Wash. Mar. 18, 2009), http://www.tvw.org/watch/?eventID=200903l207. There was no

legislative testimony regarding or contemplating gradual return to play standards. 3

      2.      The Zackery Lystedt law does not create an implied cause of action

      The Swanks seek both common law and statutory remedies. The Swanks argue

violation of the Zackery Lystedt law creates an implied statutory cause of action. While

the Zackery Lystedt law does not expressly provide a civil remedy, the Swanks contend it

implies a remedy because of the grant of immunity to volunteer health care providers, the

mandatory phrasing of the obligations imposed, and the absence of an alternative

enforcement mechanism.




      3
         Indeed, return to play standards in 2009 were not uniform. In North America in
2010, there were "no uniform guidelines for the identification of post-concussion
management of sport-related concussions for young athletes." Marie-France Wilson,
Young Athletes at Risk: Preventing and Managing Consequences ofSports Concussions
in Young Athletes and the Related Legal Issues, 21 MARQ. SPORTS L. REV. 241,257
(2010). Even in 2014, there were at least 16 different concussion guidelines in existence.
 Samuel D. Hodge, Jr., A Heads-Up on Traumatic Brain Injuries in Sports, 17 J. HEALTH
CAREL. & PoL'Y 155, 166, 172 (2014) (noting these disparate guidelines lack agreement
on the specific time in which an athlete may return to play).

                                            13
No. 33782-1-111
Swank v. Valley Christian Sch.


       This court will imply a statutory cause of action under a three-prong test:

      [F]irst, whether the plaintiff is within the class for whose "especial" benefit
      the statute was enacted; second, whether legislative intent, explicitly or
      implicitly, supports creating or denying a remedy; and third, whether
      implying a remedy is consistent with the underlying purpose of the
      legislation.

Bennett v. Hardy, 113 Wn.2d 912, 920-21, 784 P.2d 1258 (1990). The premise for an

implied cause of action is "the assumption that the legislature would not specifically grant

rights to a class of persons 'without enabling members of that class to enforce those

rights."' Adams v. King County, 164 Wn.2d 640,653, 192 P.3d 891 (2008) (quoting

Bennett, 113 Wn.2d at 921 ).

       The first Bennett prong asks whether the plaintiff was within the class intended to

be benefited by the statute. This question is resolved in the Swanks' favor. Drew was a

youth athlete who suffered a concussion in a game. Without question, Drew was within

the class who was intended to be benefited and protected by the Zackery Lystedt law.

      The second Bennett prong require us to discern legislative intent. The Swanks'

strongest argument for an implied cause of action is the legislature's grant of immunity to

volunteer health care providers who evaluate the youth athlete for concussion and/or

provide written clearance to return to play. See RCW 28A.600.190(4). The Swanks

argue that the legislature would not have provided for immunity had it not intended there


                                             14
No. 33782-1-111
Swank v. Valley Christian Sch.


to be liability.

        The Washington Supreme Court's precedent is divided over how grants of

immunity play into the intent to create an implied cause of action. In Beggs, the court

used the grant of good faith immunity seen in RCW 26.44.030, which requires certain

professionals to report suspected child abuse to the proper authorities, to find the statute

implicitly supported a civil remedy. Beggs v. Dep 't of Soc. & Health Servs., 171 Wn.2d

69, 78, 247 P.3d 421 (2011). But in Adams, the court specifically rejected the appellant's

argument that good faith immunity sufficed to establish legislative intent to create an

implied cause of action for violations of the former Washington Uniform Anatomical Gift

Act (WAGA). Adams, 164 Wn.2d at 656. The court noted "if the legislature had

intended to provide a remedy under the WAGA, it would have expressly created the

liability to which the immunity corresponds." Id. The court found further support for its

rejection of an implied cause of action in the comment to the revised Uniform Anatomical

Gift Act of 2006, which recognized that common law provides remedies if a person acts

in bad faith. Id.

       Here, as in Adams, the Swanks have remedies apart from implying a cause of

action under the Zackery Lystedt law. The availability of remedies weighs against the

third Bennett prong, which asks whether the legislative purpose is best achieved by


                                             15
No. 33782-1-III
Swank v. Valley Christian Sch.


implying a cause of action. The Swanks have common law negligence remedies against

VCS and Mr. Puryear. They also have a medical malpractice remedy against Dr. Bums.

Because RCW 5.40.050 allows a trier of fact to consider the breach of a statutory duty as

evidence of negligence, the Swanks may bootstrap their contentions that VCS and Mr.

Puryear violated the Zackery Lystedt law into their assertions of negligence. 4 Because the

Swanks already have these remedies, we conclude that we need not imply a new cause of

action given the legislature's murky intent in this regard.

       Having discussed the Zackery Lystedt law and concluded that the law neither

mandates a specific return to play standard nor gives rise to an implied cause of action,

we now address whether the trial court erred in dismissing the Swanks' claims on

summary judgment.

B.     Summary Judgment Standard and Analysis

       This court reviews summary judgment orders de novo, engaging in the same

inquiry as the trial court. Smith v. Safeco Ins. Co., 150 Wn.2d 478,483, 78 P.3d 1274

(2003) (quoting Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P.3d 1068 (2002)).

Summary judgment is appropriate only if "there is no genuine issue as to any material fact


       4
         Neither VCS nor Mr. Puryear deny that RCW 28A.600.190 creates duties for
schools and coaches. We do not answer the question of whether RCW 28A.600.190
creates a duty for licensed health care providers.

                                             16
No. 33782-1-III
Swank v. Valley Christian Sch.


and [] the moving party is entitled to judgment as a matter of law." CR 56(c ). Evidence

is construed in the light most favorable to the nonmoving party. Osborn v. Mason

County, 157 Wn.2d 18, 22, 134 P.3d 197 (2006).

       1.     Claims against VCS

       The Swanks argue VCS was negligent when it failed to ( 1) utilize gradual return to

play standards and (2) remove Drew from the Washtucna game when he exhibited signs

of a concussion. To overcome a motion for summary judgment, the Swanks must allege

facts showing the existence of the four basic elements of a negligence claim: ( 1) the

existence of a duty, (2) breach of that duty, (3) resulting injury, and (4) proximate cause.

Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008) (quoting

Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d 43, 48, 914 P.2d 728 (1996)).

       The first two elements are at issue here. The common law and the Zackery Lystedt

law each provide VCS with duties it owes to student athletes. Under the common law,

schools "owe[] a duty to [their] students to employ ordinary care and to anticipate

reasonably foreseeable dangers so as to take precautions for protecting the children in

[their] custody from such dangers." Wagenblast v. Odessa Sch. Dist. No. 105-157-166J,

110 Wn.2d 845, 856, 758 P.2d 968 (1988) (stating this duty extends to student athletes).

As discussed previously, the Zackery Lystedt law imposes duties on schools and coaches



                                             17
No. 33782-1-111
Swank v. Valley Christian Sch.


to protect youth athletes suspected of sustaining a concussion.

          Although the Zackery Lystedt law does not explicitly adopt gradual return to play

standards, it does explicitly require schools to work together with the WIAA "to develop

guidelines and other pertinent information and forms to inform and educate coaches ...

of the nature and risk of concussion and head injury including continuing to play after

concussion or head injury." RCW 28A.600.190(2). By logical extension, the Zackery

Lystedt law requires schools and their coaches to protect their youth athletes by

complying with the training they received or reasonably should have received. To the

extent that Washington high school football coaches actually received or should have

received concussion protocol training prior to the fall 2009 football season, this evidence

is highly relevant and admissible in this case. Here, the CIS explicitly states, "Athletes

with the signs and symptoms of concussion should be removed from play immediately.

Continuing to play with the signs and symptoms of a concussion leaves the young athlete

especially vulnerable to greater injury." CP at 80. VCS and Mr. Puryear were aware of

this language because VCS participated in creating the CIS, and Mr. Puryear handed out

the CIS to athletes and parents prior to the commencement of the fall 2009 football

season.




                                              18
No. 33782-1-III
Swank v. Valley Christian Sch.


       There is a genuine issue of material fact as to whether VCS breached its duty to

Drew during the Washtucna game. Although VCS argues it had a right to rely on Dr.

Bums' note that Drew was fit to play, the Zackery Lystedt law does not permit VCS to

ignore observable signs that Drew continued to suffer from the concussion he earlier

sustained and ignore its own CIS that required VCS to remove Drew from play. Under

the Zackery Lystedt law, VCS and Mr. Puryear knew that "some affected youth athletes

are prematurely returned to play" "and that "[ c]ontinuing to play with a concussion or

symptoms of head injury leaves the young athlete especially vulnerable to greater injury

and even death." RCW 28A.600. l 90( 1)( c). With this knowledge, VCS was charged with

the duty of ordinary care and protecting Drew consistent with the training Mr. Puryear

received or should have received prior to the fall 2009 football season.

       According to Drew's family and a teammate, Drew's performance in the

Washtucna game was atypical: he was slow, uncoordinated, and missed plays he did not

normally miss. These characteristics are those the CIS lists as observable characteristics

of an athlete who is exhibiting signs of a concussion. Further, there is evidence that VCS,

through Mr. Puryear, had knowledge of Drew's concussion-related deficits. Mr. Puryear

called Drew over to the sidelines multiple times to yell at him and once even grabbed

Drew by his face mask and shook it violently. With all this knowledge, together with the



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No. 33782-1-111
Swank v. Valley Christian Sch.


duty of ordinary care buttressed with proper training, there is a genuine issue of material

fact whether, and at what point, Mr. Puryear should have removed Drew from the

Washtucna game. The trial court erred in granting summary judgment dismissal for VCS.

       2.     Claims against Mr. Puryear

       Having concluded that VCS was improperly dismissed because issues of material

fact existed whether Mr. Puryear acted with ordinary care, we preliminarily conclude that

Mr. Puryear, as the agent of VCS, also has personal tort liability. Eastwood v. Horse

Harbor Found., Inc., 170 Wn.2d 380,400, 241 P.3d 1256 (2010). Mr. Puryear's primary

defense to personal liability is the nonprofit volunteer immunity statute, RCW 4.24.670.

              a.     Nonprofit volunteer immunity

       RCW 4.24.670 provides in relevant part:

              (1) [A] volunteer of a nonprofit organization ... shall not be
       personally liable for harm caused by an act or omission of the volunteer on
       behalf of the organization or entity if:

              (c) The harm was not caused by willful or criminal misconduct,
      gross negligence, reckless misconduct, or a conscious, flagrant indifference
      to the rights or safety of the individual harmed by the volunteer.

The statute further defines "volunteer" as

      an individual performing services for a nonprofit organization ... who does
      not receive compensation, other than reasonable reimbursement or
      allowance for expenses actually incurred, or any other thing of value, in
      excess of five hundred dollars per year. "Volunteer" includes a volunteer

                                             20
No. 33782-1-III
Swank v. Valley Christian Sch.


       serving as a director, officer, trustee, or direct service volunteer.

RCW 4.24.670(5)(e).

       The Swanks do not dispute that VCS is a nonprofit organization. The Swanks

argue: (1) Mr. Puryear was not a "volunteer" because he was not an individual, but

instead entered into a joint venture with VCS, and (2) Mr. Puryear acted with gross

negligence or acted recklessly when he grabbed Drew by the face mask and shook it.

                     1.      Joint venture rebuttal to volunteer immunity

       An individual can participate in an endeavor in many legal capacities. For

instance, an individual can be an employee and hence an agent of a principal, an

individual can be an independent contractor, or an individual can be a partner. The legal

capacity in which the individual participates in an endeavor does not change the fact that

the individual still is an individual. Even ifwe were to conclude that Mr. Puryear entered

into a joint venture with VCS, this does not detract from the fact that he did so as an

individual. We conclude that Mr. Puryear was an individual and subject to the immunity

of RCW 4.24.670.




                                              21
No. 33782-1-III
Swank v. Valley Christian Sch.


                     11.    Gross negligence/recklessness rebuttal to volunteer immunity

       In footnote 88 of their opening brief, the Swanks obliquely argue Mr. Puryear does

not have volunteer immunity for grabbing Drew by the face mask and shaking it because

such conduct amounts to gross negligence or recklessness. 5 Mr. Puryear's response to the

Swanks' footnoted argument is that the face mask claim is one for battery and is barred by

RCW 4.16.100(1 ), the two-year statute of limitations.

       The factual allegations of the complaint determine the applicable statute of

limitations. Boyles v. City of Kennewick, 62 Wn. App. 17 4, 177, 813 P .2d 178 (1991 ). A

plaintiff cannot avoid the battery limitation period "by disguising the real cause of action

in a different form." Id. The Swanks alleged the following facts in their complaint:

              2.7    As a result of Andrew's uncharacteristically poor play,
       Defendant Mr. Puryear called Andrew to the sidelines, grabbed him by the
       facemask and proceeded to violently shake his head up and down in anger.
       To the best information, knowledge, and belief of Plaintiffs, the violent
       shaking of Andrew's head caused and/or contributed to the second impact
       syndrome that resulted in Andrew's death.

CP at 4.

       These factual allegations are consistent with battery. A battery is "an intentional

and unpermitted contact with the plaintiffs person." Kumar v. Gate Gourmet, Inc., 180



       5
       The Swanks do not argue that Mr. Puryear's failure to remove Drew from the
Washtukna game amounted to gross negligence. Our analysis of this issue therefore is

                                             22
No. 33782-1-III
Swank v. Valley Christian Sch.


Wn.2d 481,504,325 P.3d 193 (2014). A defendant is liable for battery ifhe intends to

cause a harmful or offensive contact with the plaintiff and such a contact results. Id.

(quoting RESTATEMENT (SECOND) OF TORTS§ 13 (1965)). It is not necessary that the

defendant intended the specific harm that befell the plaintiff; it is the conduct that must be

intended, not the result. Sutton v. Tacoma Sch. Dist. No. 10, 180 Wn. App. 859,866,324

P.3d 763 (2014).

       The Swanks' complaint and depositions show this shaking of Drew's face mask

was harmful and/or offensive. The words used in the complaint demonstrate this was a

harmful contact, alleging it led to second impact syndrome. In his deposition, Mr. Swank

states the contact was offensive to him. By reaching out to grab and shake Drew's face

mask, Mr. Puryear obviously intended to make the harmful or offensive contact. Thus,

this claim is properly characterized as one for battery and is barred by the two-year statute

of limitations.

       In summary, we conclude that Mr. Puryear was an individual for purposes of

RCW 4.24.670(5)(e) and therefore protected by the nonprofit volunteer immunity statute.

We further conclude that the two-year statute of limitations shields Mr. Puryear from

potential liability for the face mask claim. The trial court did not err in granting summary


limited to the face mask shaking claim.

                                             23
No. 33782-1-III
Swank v. Valley Christian Sch.


judgment dismissal in favor of Mr. Puryear.

        3.    Claims against Dr. Burns

        The Swanks contend the court erred in dismissing their claims against Dr. Bums

for lack of personal jurisdiction. In a summary judgment context, the party asserting

personal jurisdiction, here the Swanks, bears the burden of presenting a prima facie case

establishing jurisdiction. Shaffer v. McFadden, 125 Wn. App. 364,370, 104 P.3d 742

(2005). This court treats the allegations in the complaint as true in determining whether

the Swanks have met their burden. Id.

        The Swanks first assert the Zackery Lystedt law creates an implied cause of action

that is not preempted by the medical negligence statute, chapter 7.70 RCW. They next

contend Washington has personal jurisdiction over Dr. Bums because Dr. Bums knew

Drew could suffer injury or death in Washington if he was cleared to return to play too

soon.

              a.     The Zackery Lystedt law does not create an implied cause of action

        We previously analyzed whether the Zackery Lystedt law created an implied cause

of action. We held the Zackery Lystedt law did not create an implied cause of action.

Therefore, the Swanks' only viable cause of action against Dr. Bums is one for medical

negligence.



                                              24
No. 33782-1-III
Swank v. Valley Christian Sch.


              b.      No personal jurisdiction 6

       The Swanks argue that Washington has personal jurisdiction over Dr. Bums

because Dr. Bums cleared Drew to return to play football in Washington. "It is well

established in Washington 'that under the long-arm statute, RCW 4.28.185, our courts

may assert jurisdiction over nonresident individuals and foreign corporations to the extent

permitted by the due process clause of the United States Constitution, except as limited by

the terms of the statute."' Shute v. Carnival Cruise Lines, 113 Wn.2d 763, 766-67, 783

P.2d 78 (1989) (quoting Deutsch v. W Coast Mach. Co., 80 Wn.2d 707,711,497 P.2d

1311 (1972)). "Our long-arm statute is patterned after the Illinois statute," which

"' reflects on the part of the [Illinois] legislature a conscious purpose to assert jurisdiction

over nonresident defendants to the extent permitted by the due-process clause.'" Id. at

767 (internal quotation marks omitted) (quoting Tyee Constr. Co. v. Dulien Steel Prods.,

Inc., 62 Wn.2d 106, 109, 381 P.2d 245 (1963)). So RCW 4.28.185 should be interpreted

broadly consistent with this purpose. Shute, 113 Wn.2d at 767.


       6
          In their facts section of their opening brief, the Swanks set forth numerous
contacts that Dr. Bums and/or his practice group had with the state of Washington. Yet,
in the argument section of their opening brief, the Swanks limit their general jurisdiction
argument to the second paragraph of footnote 91. We decline to consider the Swanks'
argument that Washington has general jurisdiction over Dr. Bums because the Swanks
have not meaningfully briefed this issue. Ameriquest Mortg. Co. v. Att'y Gen., 148 Wn.
App. 145, 166, 199 P.3d 468 (2009).

                                              25
No. 33782-1-III
Swank v. Valley Christian Sch.


       RCW 4.28.185( 1) provides in relevant part:

       Any person, whether or not a citizen or resident of this state, who in person
       or through an agent does any of the acts in this section enumerated, thereby
       submits said person ... to the jurisdiction of the courts of this state as to
       any cause of action arising from the doing of any of said acts:

              (b)    The commission of a tortious act within this state.

       The dispositive case is Lewis v. Bours, 119 Wn.2d 667, 835 P.2d 221 (1992). As

recognized in Lewis, Washington generally follows the rule that "when an injury occurs in

Washington, it is an inseparable part of the 'tortious act' and that act is deemed to have

occurred in this state for purposes of the long-arm statute." Id. at 670 (internal quotation

marks omitted). But the Lewis court deviated from this general rule. In Lewis, Jeanne

,Lewis, a Washington resident, went to Oregon to receive prenatal care at Dr. Peter

Bours's clinic. Id. at 668. Ms. Lewis gave birth to a baby girl at the clinic in Oregon, and

Dr. Bours released them with instructions to see a doctor upon returning to Washington.

Id. at 668-69. The baby suffered severe complications during the return drive home. Id.

at 669. Ms. Lewis sued Dr. Bours, alleging he committed a tort in Washington under the

long-arm statute because the injury manifested itself in Washington. Id. In rejecting Ms.

Lewis's argument, the court was persuaded by an Illinois decision. That decision

reasoned that the place of injury for a professional malpractice action is the state where

the professional service was performed, even if the injury later manifested itself in the

                                             26
No. 33782-1-111
Swank v. Valley Christian Sch.


forum state. Id. at 671-73. The Lewis court held:

                We thus align ourselves with the Illinois Supreme Court and hereby
        create an exception to the general rule that the place of the tort is the where
        the injury occurs. In the event that a nonresident professional commits
        malpractice in another state against a Washington State resident, that,
        standing alone, does not constitute a tortious act committed in this state
        regardless of whether the Washington State resident suffered injury upon
        his or her return to Washington.

Id. at 673.

        Like in Lewis, the Swanks unilaterally sought Dr. Bums's professional services in

Idaho. All care, negligent and/or otherwise, was rendered in Idaho. Dr. Bums was not a

part of any care Drew may have received in Washington. Dr. Bums may have known

Drew played football in Washington, but as Lewis holds, knowledge that a patient will go

to Washington and foreseeably suffer injury in this state is insufficient to create personal

jurisdiction. 7

        There are also public policy reasons supporting Dr. Bums's dismissal for lack of

personal jurisdiction. The exception carved out in Lewis is based on the personal nature


        7
          The Swanks emphasize the phrase "standing alone" within the above-quoted
holding in Lewis. They argue the contacts Dr. Bums and/or his clinic has with
Washington takes the present case outside of Lewis. The Swanks are potentially correct.
Had they adequately argued general jurisdiction, Lewis might be distinguishable. But
they did not adequately argue general jurisdiction in their opening brief. Nor did they
respond to Dr. Bums's numerous counter-arguments on the issue of general jurisdiction
in their reply brief.

                                              27
No. 33782-1-111
Swank v. Valley Christian Sch.


of rendering services as opposed to the sale of goods: "the location where the services are

performed is of greater jurisdictional importance than is the location where a product is

bought." Grange Ins. Ass 'n v. State, 110 Wn.2d 752, 763, 757 P.2d 933 (1988). It is a

national public policy to ensure medical services are available to all people. Id. If

physicians have to worry about defending malpractice suits in foreign jurisdictions, this

policy might be inhibited. Id. Along similar lines,

              "In the case of personal services focus must be on the place where
      the services are rendered, since this is the place of the receiver's (here the
      patient's) need. The need is personal and the services rendered are in
      response to the dimensions of that personal need. They are directed to no
      place but to the needy person herself. It is in the very nature of such
      services that their consequences will be felt wherever the person may
      choose to go. However, the idea that tortious rendition of such services is a
      portable tort which can be deemed to have been committed wherever the
      consequences foreseeably were felt is wholly inconsistent with the public
      interest in having services of this sort generally available. Medical services
      in particular should not be proscribed by the doctor's concerns as to where
      the patient may carry the consequences of his treatment and in what distant
      lands he may be called upon to defend it."

Hogan v. Johnson, 39 Wn. App. 96, 102-03, 692 P.2d 198 (1984) (quoting Wright v.

Yackley, 459 F.2d 287, 289-90 (9th Cir. 1972)) (emphasis added).

      Lewis controls. We conclude Washington does not have personal jurisdiction over

Dr. Bums as to the tortious cause of action asserted here. The trial court properly

dismissed Dr. Bums for lack of personal jurisdiction.



                                            28
No. 33782-1-III
Swank v. Valley Christian Sch.


      Based on the foregoing, we affirm the dismissals of Mr. Puryear and Dr. Bums.

We reverse the dismissal ofVCS. This matter is remanded to the superior court for

proceedings consistent with this opinion.


                                                 Lawrence-Berrey, J.
                                                                                j
WE CONCUR:




                                            29
