Samuel J Randall v. Michigan High School Athletic Association ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
SAMUEL J. RANDALL, FOR PUBLICATION
November 19, 2020
Plaintiff-Appellee, 9:25 a.m.
v No. 346135
Kent Circuit Court
MICHIGAN HIGH SCHOOL ATHLETIC LC No. 18-001891-NI
ASSOCIATION, GRAND RAPIDS CHRISTIAN
HIGH SCHOOL, GRAND RAPIDS CHRISTIAN
SCHOOLS, ST. FRANCIS HIGH SCHOOL,
GRAND TRAVERSE AREA CATHOLIC
SCHOOLS, BAY HOCKEY ASSOCIATION,
RYAN FEDORINCHIK,
Defendants,
and
ANTHONY POLAZZO and METROPOLITAN
HEALTH CORPORATION,
Defendants-Appellants.
SAMUEL J. RANDALL,
Plaintiff-Appellant,
v No. 346476
Kent Circuit Court
MICHIGAN HIGH SCHOOL ATHLETIC LC No. 18-001891-NI
ASSOCIATION, ANTHONY POLAZZO,
METROPOLITAN HEALTH CORPORATION,
Defendants,
and
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GRAND RAPIDS CHRISTIAN HIGH SCHOOL,
GRAND RAPIDS CHRISTIAN SCHOOLS, ST.
FRANCIS HIGH SCHOOL, GRAND
TRAVERSE AREA CATHOLIC SCHOOLS,
BAY HOCKEY ASSOCIATION, RYAN
FEDORINCHIK,
Defendants-Appellees.
Before: K. F. KELLY, P.J., and FORT HOOD and SWARTZLE, JJ.
SWARTZLE, J.
Youth sports offer extensive benefits to kids—comradery, discipline, exercise, and self-
esteem, just to name a few. There can be a dark side to youth sports, however, and one of the
darkest is the possibility of short- and long-term injury and harm from concussions. In 2012, our
Legislature enacted the “concussion-protection statute,” 2012 PA 342, to help protect our youth
from this specific risk of harm. The statute imposes various duties on coaches and other covered
adults, including training about concussions and the requirement to remove a youth from an
athletic activity who is suspected of suffering a concussion.
Plaintiff sued his coach, trainer, and various institutional entities, alleging that they failed
to remove him from a youth hockey game after he showed obvious signs of a concussion.
Defendants have denied breaching any duty. On appeal, we clarify the legal duties imposed by
the Legislature on coaches and other covered adults and entities with respect to a youth who is
suspected of suffering a concussion during an athletic activity, and we affirm in part and vacate in
part the trial court’s rulings on summary disposition and remand both appeals to the trial court for
further proceedings.
I. BACKGROUND
Plaintiff, Samuel Randall, sued defendants, the Michigan High School Athletic Association
(“MHSAA”), Grand Rapids Christian High School, Grand Rapids Christian Schools, St. Francis
High School, Grand Traverse Area Catholic Schools, Anthony Polazzo, Metropolitan Health
Corporation, Ryan Fedorinchik, and the Bay Hockey Association, over a concussion that he
allegedly suffered while participating as a youth athlete in a hockey game. The orders on appeal
do not concern his claims against the MHSAA, Grand Rapids Christian High School, or Grand
Rapids Christian Schools, and those parties are not involved in these appeals. For clarity, this
opinion will refer to St. Francis High School, Grand Traverse Area Catholic Schools, Bay Hockey
Association, and Fedorinchik collectively as the “Association defendants.”
A brief preliminary note about the appellate record. In support and opposition to the
motions for summary disposition, the parties relied on plaintiff’s deposition testimony, the medical
records completed by the athletic trainer, and video evidence. Plaintiff’s briefs on appeal,
however, are not restricted to this evidence and instead cite extensively from depositions of
witnesses taken after the motions were decided. We decline to consider this evidence, as it was
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not presented to the trial court with respect to the rulings now on appeal. See Pena v Ingham Co
Rd Comm, 255 Mich. App. 299, 310; 660 NW2d 351 (2003). With that said and as explained below,
this additional evidence might be relevant to future proceedings in this case.
A. PLAINTIFF’S INJURY
Plaintiff played goalie for a youth hockey team run by St. Francis High School and the Bay
Hockey Association. The events at issue in this lawsuit occurred during a hockey game between
plaintiff’s team and a team operated by the Grand Rapids Christian Schools. Polazzo, an employee
of Metro Health, served as athletic trainer for both hockey teams during the game.
Plaintiff was involved in two separate collisions during the game. Plaintiff testified that,
during the second period, a player from the opposing team struck him in the head with an elbow.
Plaintiff claimed that, as a result of this blow to the head, he lost consciousness and fell to the ice.
Plaintiff obtained a video of this first collision and posted it on social media. The video was
approximately 30 seconds long, and while it showed the collision, it ended as soon as plaintiff was
hit and therefore did not confirm that he lost consciousness on the ice. Plaintiff testified that he
did not remember falling after the first collision, but when he regained consciousness, he found
himself lying on the ice.
The length of time plaintiff was lying on the ice—if at all—is highly contested. In his
complaint, plaintiff alleged that he “remained on the ice—unresponsive—for approximately four
minutes.” During his deposition, however, plaintiff denied any personal knowledge regarding how
long he was unconscious. Instead, plaintiff stated that two spectators watching the game from the
stands—specifically, Jonathan Ellis and Mark Stevenson—told him that he was unconscious for
four minutes. Plaintiff agreed during his deposition that any person watching the game, including
the spectators in the stands (which included his parents), would have been able to see how long he
was on the ice after the first hit. Yet, plaintiff has not alleged in his pleadings, briefs, or deposition
testimony that his parents saw the first hit or saw him on the ice for approximately four minutes.
After the first collision, Polazzo went on the ice to check on plaintiff. Plaintiff alleged in
his complaint that Polazzo did not perform any test to ascertain his medical condition or,
specifically, whether plaintiff exhibited any symptoms of a concussion. During his deposition,
however, plaintiff admitted that Polazzo assessed him to determine whether plaintiff could
continue to play.
Plaintiff testified that he felt dizzy after the first collision. He admitted, however, that he
wanted to remain in the game and that he told Polazzo, “I think I’m good.” He did not recall
experiencing any sensitivity to light at that time, and he stated that he would not have stayed in the
game if he had experienced such sensitivity, given the brightness of the lights and reflectivity of
the ice. He remembered that Polazzo told him that if he started to get a headache or feel dizzy, or
if he felt like he could not continue play, he should alert Polazzo immediately.
Polazzo later completed a three-page form that documented his visit to plaintiff on the ice.
One page, labeled “Cognitive & Physical Evaluation,” included an area for documenting the
evaluation of an athlete’s symptoms, as well as an area for documenting an athlete’s cognitive and
physical condition. According to the form, plaintiff reported a mild headache to Polazzo, but this
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subsided as the evaluation progressed. Plaintiff also purportedly reported experiencing mild
dizziness when his head hit the ice, but denied any dizziness during the on-ice evaluation. Plaintiff
purportedly denied other symptoms of a concussion, including pressure in the head, neck pain,
nausea or vomiting, blurred vision, balance problems, or sensitivity to light or noise. Polazzo
recorded on the cognitive-assessment portion of the form that plaintiff “knew where he was [and]
what happened,” and that he was “able to comprehend” and “was not delayed in answering”
Polazzo’s questions.
Another page of the form, labeled “Sports Medicine Athletic Injury Evaluation,” contained
Polazzo’s narrative description of plaintiff’s injury: “Athlete was hit and taken down when he said
his head hit the ice. He was wearing a helmet, goalie. He stayed down on ice until athletic trainer
got to him.” Regarding his evaluation of the injury, Polazzo wrote:
Eval. revealed pain where athlete’s head made contact with ice, in helmet.
He said he had a headache after hitting the ice, but it started to go away while talking
to him. He denied any dizziness, feeling in a fog, not feeling right, or troubles with
light sensitivity. He was asked if he thinks he can continue and he said he could.
He was told if he starts to get a headache, feel dizzy, feel like he can’t think straight
to tell the ref or motion to athletic trainer immediately.
It is uncontested that, after he visited plaintiff on the ice, Polazzo returned to the bench, plaintiff
remained in net, and the game resumed.
Plaintiff testified that, at some later point, he tried to signal Polazzo that he wanted to come
out. “I just remember looking at him and like shaking my head because I was dizzy, like losing
balance,” plaintiff testified. He did not come off the ice on his own, however, because he thought
Polazzo was going to stop play. The opposing team scored a goal, play stopped, and yet plaintiff
remained on the ice.
Shortly after the goal (and about five or six minutes after the first hit), plaintiff took a knee
to the head. He alleged in his complaint that he remained conscious, but he removed himself from
the game because his head hurt, and he had vision problems. During his deposition, however,
plaintiff testified that it was his father who “pulled me off the ice” when he “opened the door
during the whistle and yelled and told me to come off the ice.”
Polazzo’s evaluation form confirmed that plaintiff signaled that he wanted to come off the
ice, and that plaintiff was involved in a second collision. Polazzo claimed, however, that plaintiff
did not signal until after the opposing team scored a goal against him. Polazzo wrote on the form:
After missing a shot that went passed [sic] him he motioned to the athletic trainer.
[Athletic trainer] went to coach to instruct him the goalie was done. After the
athlete came off the ice he went to the locker room. In the locker room Dad said
he had trouble walking down the hallway. Talking to him he also said he started to
get a headache and not feel right. Dad took him to the hotel and was instructed on
home care and when to take to emergency room.
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Polazzo further wrote on the form that he believed that plaintiff had suffered a concussion. He
marked plaintiff’s initial treatment as “removed from game” and recommended that plaintiff
“Follow up with physician.”
B. THE LAWSUIT
Plaintiff sued the MHSAA, Grand Rapids Christian High School, Grand Rapids Christian
Schools, Polazzo, St. Francis High School, Grand Traverse Area Catholic Schools, and the Bay
Hockey Association. Substantively, plaintiff alleged that Polazzo was negligent because he failed
to “properly treat and evaluate” plaintiff for injuries, including “a concussion or concussive
symptoms,” and because Polazzo allowed plaintiff “to return to competition after the first
collision.” Plaintiff further alleged that Polazzo was negligent per se under MCL 333.9156(3)
because he failed to remove plaintiff from the hockey game “notwithstanding his obvious signs
and/or symptoms of sustaining a concussion—specifically the approximately four minutes he
remained on the ice.” He alleged claims against Polazzo for ordinary negligence and “negligence
per se”; claims against Grand Rapids Christian High School and Grand Rapids Christian Schools
under a theory of respondeat superior, as well as negligent hiring, retention, and supervision;
claims against St. Francis High School (purportedly operated, managed, and controlled by Grand
Traverse Area Catholic Schools) for negligence and respondeat superior; a claim against the
MHSAA for respondeat superior; and claims against the Bay Hockey Association for ordinary
negligence and respondeat superior, as well as negligent hiring, training, and supervision.
Polazzo moved for summary disposition in lieu of answering plaintiff’s complaint. In his
motion, Polazzo asserted that he was certified as an athletic trainer and qualified as a licensed-
health professional under the Michigan Public Health Code. Polazzo argued that, although
plaintiff styled the claims against him as ordinary-negligence claims, his claims actually sounded
in medical malpractice. He argued that plaintiff was required to follow the procedural
requirements for filing medical-malpractice actions set forth in MCL 600.2912b and MCL
600.2912d, including serving a notice of intent to file claim, waiting 182 days, and filing an
affidavit of merit from a qualified expert along with his complaint. Polazzo argued that the
appropriate remedy for plaintiff’s failure to comply with these statutory requirements was
dismissal of the claims against him.
In response to the motion, plaintiff insisted that he had filed an “ordinary negligence
action,” and argued that the concussion-protection statute “applies equally to medical experts and
lay persons, such as coaches, volunteers, or referees.” Plaintiff further argued that Polazzo “did
not perform any medical tests to determine if Plaintiff had suffered a concussion,” and that he did
not, therefore, exercise any medical judgment with regard to plaintiff’s injury.
Plaintiff subsequently filed his first-amended complaint, adding Metro Health as a party.
He alleged that Polazzo was an employee or agent of Metro Health, and that the latter was liable
for Polazzo’s negligence under a theory of respondeat superior. Plaintiff also added a claim against
the MHSAA for negligent hiring, training, and supervision related to its game officials.
The trial court denied Polazzo’s motion for summary disposition. The parties had not yet
taken the deposition of either plaintiff or Polazzo, and the parties had not provided the trial court
with the three-page form that documented Polazzo’s visit to plaintiff on the ice. Given the paucity
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of the record and plaintiff’s well-pleaded allegations, the trial court concluded that dismissal was
not warranted:
According to the First Amended Complaint, Randall was unconscious for
“four minutes” after he suffered the first blow to the head. Polazzo entered the ice
to talk to Randall, did not perform any medical tests, and did [not] stop Randall
from returning to the ice. Based on the information provided, Polazzo did not
perform a full evaluation and did not provide written clearance authorizing
Randall’s return to athletic activity. Although this claim is against a licensed
medical professional, Randall alleges that the claim arises from a statutory violation
of MCL 333.9156, which applies to coaches, volunteers, and other adults
participating in an athletic event. The claim is not alleging inappropriate written
clearance or judgment which required a higher level of medial expertise. Based on
this statute, it is immaterial whether Polazzo is a medical expert.
Accordingly, this claim does not sound in medical malpractice and was filed
appropriately. Based upon the well-plead facts, a sufficient legal claim exists.
Additionally, a genuine issue of material fact exists. Summary Disposition is
inappropriate on this matter.
Plaintiff then filed his second-amended complaint. He alleged the same claims as recounted
earlier, and he added Fedorinchik as a party, asserting claims against the coach for ordinary
negligence and “negligence per se”.
Discovery ensued under the trial court’s scheduling order. Prior to the end of discovery,
Polazzo and Metro Health moved for summary disposition under MCR 2.116(C)(7), (C)(8), and
(C)(10). Relying primarily on plaintiff’s deposition testimony, Polazzo again argued that
plaintiff’s claims against him sounded in medical malpractice, rather than ordinary negligence, and
that plaintiff had failed to follow the procedures applicable to medical-malpractice claims. In turn,
Metro Health argued that the trial court should dismiss plaintiff’s respondeat-superior claim
against it, if the trial court dismissed plaintiff’s claims against Polazzo. Metro Health and Polazzo
attached a copy of plaintiff’s deposition transcript to the brief supporting their motion. They
argued that plaintiff’s testimony confirmed that Polazzo evaluated plaintiff on the ice to determine
whether plaintiff should be allowed to play or be removed for further medical assistance.
Plaintiff responded to the motion by again arguing that his claim against Polazzo sounded
in ordinary negligence, not medical malpractice. Plaintiff conceded that Polazzo was a medical
professional who could be sued for medical malpractice, but argued that his claims against Polazzo
did not sound in medical malpractice because they did not raise questions of medical judgment
that were beyond the realm of common knowledge and experience.
Plaintiff also argued that, as a matter of logic, his claim against Polazzo could not sound in
medical malpractice because “no medical examination took place.” Plaintiff argued that the
question was not whether Polazzo provided negligent medical care, but whether Polazzo
committed ordinary negligence by failing to provide plaintiff with any medical care. Plaintiff
conceded that Polazzo “entered the ice and talked to” him after the first collision. Yet, plaintiff
continued to insist that Polazzo “did not perform any medical tests.” Plaintiff argued that “Polazzo
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never treated Plaintiff” because he “simply went out onto the ice and asked Plaintiff if he wished
to continue playing.” Plaintiff further argued that any lay juror could understand the allegations
of negligence, namely that Polazzo witnessed him sustain a violent collision causing his head to
make forceful contact with the ice and that he lay on the ice, unresponsive, for approximately four
minutes.
Plaintiff continued to argue that the duties set forth in the concussion-protection statute
apply “equally to those with and without medical knowledge” and that corrective action is always
required “if a concussion is suspected.” According to plaintiff, medical judgment is only
implicated under the statute after an athlete is removed from athletic activity. Finally, plaintiff
argued that Metro Health did not challenge that Polazzo was its agent and, accordingly, argued
that if Polazzo was potentially liable, then Metro Health was also potentially liable under a theory
of respondeat superior.
In reply, Polazzo and Metro Health pointed out that there was no evidence in the trial-court
record that plaintiff had lain on the ice, unresponsive, for a period of four minutes. At this point
in the case, plaintiff had not provided the trial court with any documentary evidence, video
evidence, or testimony from any other individual regarding the duration of his loss of
consciousness. Instead, plaintiff relied only on his hearsay testimony that Ellis and Stevenson told
him that he was unconscious for a period of four minutes.
For their part, the Association defendants also moved for summary disposition under MCR
2.116(C)(8) and (C)(10). These defendants argued that Polazzo evaluated plaintiff immediately
after the first collision, observed no signs of a concussion during that evaluation, and cleared
plaintiff to continue play. The Association defendants further argued that Polazzo was an
independent medical professional, and that Fedorinchik, who was not a medical professional,
justifiably relied on the on-ice evaluation that Polazzo conducted. The Association defendants
attached to their supporting brief the entire transcript of plaintiff’s deposition testimony, along
with the three-page form completed by Polazzo that documented his visit to plaintiff on the ice.
Although several parties attached the entire transcript of plaintiff’s deposition to their
motions and supporting briefs, plaintiff did not offer an affidavit from either of his parents or the
two witnesses he named, attesting that plaintiff had lain on the ice for approximately four minutes
after the first collision. Instead, plaintiff relied on his own lack of personal knowledge regarding
how long he had lain on the ice, and on the hearsay statements allegedly made to plaintiff by third
parties.
C. TRIAL-COURT RULINGS AND INTERLOCUTORY APPEALS
The trial court granted summary disposition in favor of the Association defendants under
MCR 2.116(C)(10). The trial court held:
In the current case, on December 17, 2016, Randall was competing in a
hockey game for the Bay Hockey Team. Bay Hockey is primarily staffed by [St.
Francis] staff and is coached by Fedorinchik. In the second period, Randall was
hit, fell to the ice, and struck the left side of his head. Randall contends that he was
unconscious on the ice for four minutes. Polazzo, a certified medical trainer,
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evaluated Randall and cleared Randall to continue playing. Randall continued to
play and was involved in a second collision which Randall alleges caused damage
causing him to leave the game.
No genuine issue of material fact exists. Randall has failed to provide
documentary evidence that Fedorinchik breached his ordinary duty of care to
Randall. Consequently, Randall has failed to provide documentary evidence that
[St. Francis, Grand Traverse Area Catholic Schools, or the Bay Hockey
Association] breached their duty of care or are liable through the doctrine of
respondeat superior. Randall only provides his deposition testimony, a video of the
two hits, and a copy of the consent form. These exhibits do not establish that
Randall was laying on the ice for four minutes. Further, [the Association
defendants] provide documentation that Polazzo cleared Randall to continue
playing after Randall said, “I think I’m good.”
On the issue of negligence per se, Randall has failed to provide documentary
evidence that Fedorinchik had reason to suspect that Randall sustained a
concussion. Further, the evidence shows that Polazzo cleared Randall to continue
playing. Accordingly, summary disposition is appropriate as to the claims against
[the Association defendants].
In a second opinion issued the same day, the trial court denied Metro Health and Polazzo’s
motion for summary disposition, holding:
As described in this Court’s previous Opinion and Order, although the claim
is against a medical professional, the allegations do not require a higher level of
medical expertise “beyond the realm of common knowledge and expertise.” The
question is not whether Polazzo was negligent in his medical treatment, but whether
he was negligent in failing to provide medical treatment. A question of material
fact exists as to the remaining elements of the claim. Accordingly, summary
disposition is not appropriate as to Counts I, II, or III against Polazzo and Metro
Health.
In a third opinion issued the same day, the trial court granted summary disposition in favor of
Grand Rapids Christian High School and Grand Rapids Christian Schools, and those parties were
dismissed from the case. But because several claims survived summary disposition, discovery
continued and the parties took additional depositions.
These interlocutory appeals followed. In Docket No. 346135, Polazzo and Metro Health
appealed by leave granted the trial court’s order denying their motion for summary disposition
under MCR 2.116(C)(7). See Randall v MHSAA, unpublished order of the Court of Appeals,
entered March 26, 2019 (Docket No. 346135). In Docket No. 346476, plaintiff appealed by leave
granted the trial court’s order granting summary disposition under MCR 2.116(C)(10) in favor of
the Association defendants. See Randall v MHSAA, unpublished order of the Court of Appeals,
entered March 26, 2019 (Docket No. 346476). This Court consolidated the two appeals and stayed
the trial-court proceedings pending resolution of the appeals. See Randall v MHSAA, unpublished
order of the Court of Appeals, entered March 26, 2019 (Docket Nos. 346135; 346476). This Court
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denied plaintiff’s application for leave to appeal the trial court’s decision granting summary
disposition in favor of Grand Rapids Christian High School and Grand Rapids Christian Schools,
and those defendants are not involved in these appeals.
II. ANALYSIS
A. STANDARD OF REVIEW
“This appeal involves various legal questions of statutory construction and the distinction
between ordinary negligence and medical malpractice, all of which we review de novo.” LaFave
v Alliance Healthcare Servs, Inc, __ Mich App __; __ NW2d __ (2020) (Docket No. 345986); slip
op at 3. With respect to whether the Legislature created a private statutory right of action under
MCL 333.9156(3), our interpretation of the statute is likewise done de novo. Long v Chelsea
Comm Hosp, 219 Mich. App. 578, 581-582; 557 NW2d 157 (1996); see also Pitsch v ESE Michigan,
Inc, 233 Mich. App. 578, 586; 593 NW2d 565 (1999). Moreover, “whether a defendant owes a
plaintiff a duty of care is a question of law” that we review de novo. Sabbagh v Hamilton
Psychological Servs, 329 Mich. App. 324, 348; 941 NW2d 685 (2019).
Similarly, we review de novo the trial court’s summary-disposition rulings. LaFave, slip
op at 2. Although Polazzo and Metro Health moved for summary disposition under MCR
2.116(C)(7) and (C)(8), “[i]n determining whether the nature of a claim is ordinary negligence or
medical malpractice . . . a court does so under MCR 2.116(C)(7).” Bryant v Oakpointe Villa
Nursing Ctr, Inc, 471 Mich. 411, 419; 684 NW2d 864 (2004). For their part, the Association
defendants moved for summary disposition under MCR 2.116(C)(8) and (C)(10), and the trial
court granted the motion under MCR 2.116(C)(10). “Where a motion for summary disposition is
brought under both MCR 2.116(C)(8) and (C)(10), but the parties and the trial court relied on
matters outside the pleadings, as is the case here, MCR 2.116(C)(10) is the appropriate basis for
review.” Silberstein v Pro-Golf of America, Inc, 278 Mich. App. 446, 457; 750 NW2d 615 (2008).
B. THE CONCUSSION-PROTECTION STATUTE
In 2012, our Legislature addressed the problem of concussions in youth sports by enacting
the concussion-protection statute. Relevant to this dispute, the first two sentences of MCL
333.9156(3) provide:
A coach or other adult employed by, volunteering for, or otherwise acting
on behalf of an organizing entity during an athletic event sponsored by or operated
under the auspices of the organizing entity shall immediately remove from physical
participation in an athletic activity a youth athlete who is suspected of sustaining a
concussion during the athletic activity.
A youth athlete who has been removed from physical participation in an
athletic activity under this subsection shall not return to physical activity until he
or she has been evaluated by an appropriate health professional and receives written
clearance from that health professional authorizing the youth athlete’s return to
physical participation in the athletic activity.
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The Legislature defined an “appropriate health professional” as “a health professional who is
licensed or otherwise authorized to engage in a health profession under [MCL 333.16101 et seq.]
and whose scope of practice within that health profession includes the recognition, treatment, and
management of concussions.” MCL 333.9155(4)(a).
C. PRIVATE STATUTORY CAUSE OF ACTION FOR
VIOLATING THE CONCUSSION-PROTECTION STATUTE?
The first question we consider on appeal is whether our Legislature “either expressly or by
implication, intended to create” a private statutory cause of action for violation of the concussion-
protection statute. Office Planning Group, Inc v Baraga-Houghton-Keweenaw Child Dev Bd, 472
Mich. 479, 498; 697 NW2d 871 (2005). This is important to clarify at the outset because, generally
speaking, a plaintiff cannot make a viable claim for money damages based strictly on violation of
a statute unless the Legislature provides for a private statutory cause of action. Lash v Traverse
City, 479 Mich. 180, 197; 735 NW2d 628 (2007); see also People v Anstey, 476 Mich. 436, 445 n
7; 719 NW2d 579 (2006) (“Because the Legislature did not provide a remedy in the statute, we
may not create a remedy that only the Legislature has the power to create.”). This question is
distinct from the separate question of whether violation of a statute factors into a common-law
negligence cause of action, a question that we consider in the next section.
Prior to oral argument on appeal, neither the parties nor the trial court addressed the
question of whether our Legislature created a private statutory cause of action for violation of the
concussion-protection statute. On its own motion following oral argument, this Court ordered the
parties to file supplemental briefs addressing the following questions: “(1) is there a private cause
of action for violation of MCL 333.9156(3); and (2) if there is not a private cause of action, how
does this impact plaintiff’s claims for monetary damages?” Randall v MHSAA, unpublished order
of the Court of Appeals, entered August 14, 2020 (Docket Nos. 346135; 346476).
In their supplemental briefs, the parties acknowledge that there is no express private
statutory cause of action, and our own review of the statute confirms this. The parties disagree,
however, on whether the statute creates, by implication, a private cause of action. We conclude
that it does not. First, in addition to there being no language in the statute explicitly creating a
private statutory cause of action, there is likewise no language from which a necessary inference
could be drawn that the Legislature nevertheless intended there to be one. There is simply no
ambiguity in the statute on this question, and like all questions of statutory construction, where our
Legislature has clearly spoken on a matter within its sole constitutional authority, it is outside of
our authority to provide otherwise. Lash, 479 Mich. at 194; D’Agostini Land Co LLC v Dep’t of
Treasury, 322 Mich. App. 545, 560; 912 NW2d 593 (2018).
Second, even if we were to assume that there was some ambiguity in the concussion-
protection statute on this score, there is not a sufficient basis to infer a private statutory cause of
action. Courts have held that where the Legislature has provided other means for enforcing a
statute’s provisions, inferring a private statutory cause of action for money damages is not
warranted. See, e.g., Lash, 479 Mich. at 196; Pitsch, 233 Mich. App. at 586-587. As relevant here,
the Legislature has provided that violations of the Public Health Code can be criminally
prosecuted. See MCL 333.1299(1) (“A person who violates a provision of this code for which a
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penalty is not otherwise provided is guilty of a misdemeanor”). Furthermore, the Public Health
Code vests the Department of Health and Human Services with broad authority to enforce
provisions of the code, including investigating, MCL 333.2241(1); ordering immediate corrective
action, MCL 333.2251(1); seeking injunctive relief, MCL 333.2255; and assessing civil penalties,
MCL 333.2262(1).
And third, the existence of a common-law remedy for an actor’s alleged bad acts further
counsels against inferring a statutory remedy here. In reconciling prior case law, our Supreme
Court explained in Lash that “where no common-law remedy existed” for an actor’s conduct, “the
remedy provided by statute was the sole remedy.” Lash, 479 Mich. at 191-192. Whether the
inverse of the statement in Lash—i.e., where a common-law remedy does exist, no statutory
remedy should be inferred—is a categorical rule or merely a practical guide need not be resolved
here, because even if it is only the latter, our common-law negligence law provides private actors
with sufficient remedies for violation of the concussion-protection statute, as explained below.
Accordingly, we conclude that the concussion-protection statute does not create, explicitly or by
implication, a private statutory cause of action.
D. COMMON-LAW CAUSES OF ACTION FOR
VIOLATING THE CONCUSSION-PROTECTION STATUTE
We turn next to plaintiff’s common-law causes of action. These claims take several forms,
although all sound in negligence. To make a negligence claim, “a plaintiff must prove that (1) the
defendant owed the plaintiff a legal duty, (2) the defendant breached the legal duty, (3) the plaintiff
suffered damages, and (4) the defendant’s breach was a proximate cause of the plaintiff’s
damages.” Hill v Sears, Roebuck & Co, 492 Mich. 651, 660; 683 NW2d 587 (2004). How
plaintiff’s negligence-based causes of action interact with the concussion-protection statute is
critical to an understanding of this case.
1. LEGAL DUTY ARISING FROM STATUTE
Any negligence-based claim must, as its starting point, identify a legal duty owed by one
to another. If there is no duty, then there is no negligence. See Sabbagh, 329 Mich. App. at 349-
350. The Legislature can create a duty by statute, but not every statute creates such a duty. To
determine whether a statute creates a particular duty with respect to a particular party, courts
generally consider two questions: (1) did the Legislature intend that the statute would prevent the
type of injury and harm actually suffered by the party; and (2) did the Legislature intend that the
party was within the class of persons protected by the statute? Wood v City of Detroit, 323 Mich
App 416, 422 n 3; 917 NW2d 709 (2018); 18A Michigan Civil Jurisprudence, Negligence, § 92,
p 200. If the answers to both are yes, then a legal duty arises from the statutory enactment. See
Wood, 323 Mich. App. at 422 n 3.
Upon review of the concussion-protection statute and relevant law, we conclude that the
statute imposes a legal duty on the part of coaches and other covered adults to remove a youth
athlete who is suspected of sustaining a concussion from further involvement in covered athletic
activities. The statute defines a narrow class of persons needing protection—youth athletes
involved in certain athletic activities. 57A Am Jur 2d, Negligence, § 729, p 703 (“The violation
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of a statute or ordinance is actionable negligence . . . only as to those persons for whose benefit or
protection it was enacted.”). Thus, this is not a statute intended to benefit the public at-large. Id.
§ 726, p 701. Moreover, the statute is intended to protect youth athletes from a specific type of
injury and harm—short- and long-term detrimental health effects from concussions. The statute
does not impose standards of conduct related to the general welfare of youth athletes, but instead
focuses on a singular, critical risk to those athletes.
The existence of a legal duty is not, however, the end of the analysis. Contrary to plaintiff’s
position, Michigan law does not “subscribe to the doctrine of negligence per se.” Candelaria v
BC Gen Contractors, Inc, 236 Mich. App. 67, 82; 600 NW2d 348 (1999). When a plaintiff proves
that an actor has violated the terms of a statute, that is not conclusive proof of negligence. Rather,
Michigan law provides that when a statute imposes a legal duty, violation of that statute creates “a
rebuttable presumption of negligence,” id. at 82 n 5, or stated another way, the violation “is only
prima facie evidence of negligence,” Wood, 323 Mich. App. at 422 n 3. It remains a question of
fact, for example, whether the violation had a causal connection to the claimed injury. Klanseck v
Anderson Sales & Service, Inc, 426 Mich. 78, 86-87; 393 NW2d 356 (1986); Vaas v Schrotenboer,
329 Mich. 642, 650; 46 NW2d 416 (1951); 57A Am Jur 2d, Negligence, § 738, p 711 (“A jury is
free to find that a violation of a statutory duty is not necessarily the direct cause of the injury.”).
Similarly, evidence of a legally sufficient excuse (e.g., natural hazard or sudden emergency) can
be used to rebut evidence of a statutory violation. See Massey v Scripter, 401 Mich. 385, 395; 258
NW2d 44 (1977).
2. ORDINARY NEGLIGENCE VERSUS MEDICAL MALPRACTICE
Further complicating the analysis in this case is the distinction between ordinary negligence
and malpractice. “A medical malpractice claim is sometimes difficult to distinguish from an
ordinary negligence claim. But the distinction is often critical.” Trowell v Providence Hosp &
Med Ctrs, Inc, 502 Mich. 509, 517-518; 918 NW2d 645 (2018). A court determines the gravamen
of a claim by examining the underlying facts of the case rather than the label that the parties attach
to the claim. Dorris v Detroit Osteopathic Hosp Corp, 460 Mich. 26, 45-46; 594 NW2d 455 (1999).
Our Supreme Court has provided guidance on how to determine whether a claim is properly
brought as a medical-malpractice action. The first issue is whether the claim “is being brought
against someone who, or an entity that, is capable of malpractice.” Bryant, 471 Mich. at 420. This
is a necessary condition for bringing a malpractice suit because a “malpractice action cannot accrue
against someone who, or something that, is incapable of malpractice.” Adkins v Annapolis Hosp,
420 Mich. 87, 95; 360 NW2d 150 (1984); LaFave, slip op at 3. On this issue, the Legislature has
provided that medical-malpractice claims can be brought against “a person or entity who is or who
holds himself or herself out to be a licensed health care professional, licensed health facility or
agency, or an employee or agent of a licensed health facility or agency.” MCL 600.5838a(1).
Once a court has determined that a claim has been brought against a person or entity that
is capable of malpractice, a court must then determine whether the claim sounds in medical
malpractice. To answer this question, two matters must be considered: “(1) whether the claim
pertains to an action that occurred within the course of a professional relationship; and (2) whether
the claim raises questions of medical judgment beyond the realm of common knowledge and
experience.” Bryant, 471 Mich. at 422. With respect to the latter consideration, our Supreme Court
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has explained, “If the reasonableness of the health care professionals’ action can be evaluated by
lay jurors, on the basis of their common knowledge and experience, it is ordinary negligence.” Id.
at 423. But, “if the reasonableness of the action can be evaluated by a jury only after having been
presented the standards of care pertaining to the medical issue before the jury explained by experts,
a medical malpractice claim is involved.” Id.
Returning to the concussion-protection statute, our Legislature has imposed two different
types of duty in the first two sentences of MCL 333.9156(3). The first sentence imposes an
ordinary-negligence duty. It covers a “coach or other adult employed by, volunteering for, or
otherwise acting on behalf of an organizing entity during an athletic event sponsored by or operated
under the auspices of the organizing entity.” MCL 333.9156(3). This list of covered persons
includes lay persons who are not capable of malpractice and against whom a medical-malpractice
claim cannot be brought. Furthermore, the action required by the first sentence is one to be taken
by lay persons—any adult acting on behalf of an organizing entity of an athletic event. The
statutory duty does not pertain to a professional relationship with a healthcare professional, as it
can apply to a range of lay persons acting in such capacities as a coach, referee, or volunteer. Nor
does the duty imposed by the first sentence require medical judgment beyond the realm of common
knowledge and experience, as it requires covered adults to remove a youth athlete who is merely
“suspected of sustaining a concussion.” Id. (emphasis added). And, although the covered adults
must undergo certain training required by other provisions of the concussion-protection statute,
see, e.g., MCL 333.9155, there is nothing to suggest that this training alone would be sufficient to
put a trainee’s knowledge and judgment on par with that of a medical professional. This statutory
standard is consistent with our case law holding coaches and other nonparticipant adults in
recreational activities “to an ordinary-negligence standard in the absence of an applicable
immunity statute.” Sherry v East Suburban Football League, 292 Mich. App. 23, 29; 807 NW2d
859 (2011).1
In contrast, the second sentence of MCL 333.9156(3) imposes a medical-malpractice duty.
The sentence covers “an appropriate health professional,” a term defined to mean “a health
professional who is licensed or otherwise authorized to engage in a health profession under [MCL
333.16101 et seq.] and whose scope of practice within that health profession includes the
recognition, treatment, and management of concussions.” MCL 333.9155(4)(a). This means that
a claim based on a violation of the second sentence “is being brought against someone who, or an
entity that, is capable of malpractice.” Bryant, 471 Mich. at 420. The second sentence requires
that the “appropriate health professional” evaluate a youth athlete who has already “been removed
from physical participation in an athletic activity under this subsection” and further bars the youth
athlete from returning to physical participation in that activity until the athlete “receives written
clearance from that health professional authorizing the youth athlete’s return to physical
participation in the athletic activity.” MCL 333.9156(3). Thus, the second sentence “pertains to
1
The defendants on appeal appear to be private persons and entities, and therefore there has been
no claim on appeal that “[t]he gross-negligence standard” should apply to coaches and other
nonparticipants “of publicly sponsored athletic teams who are entitled to governmental immunity.”
Sherry, 292 Mich. App. at 29 (emphasis added). Nor has there been a claim that any of the
defendants are exempt from the statutory requirements under MCL 333.9156(4).
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an action that occurred within the course of a professional relationship,” Bryant, 471 Mich. at 422,
because the duty applies only to an appropriate health professional who medically evaluates a
youth for a suspected concussion. Further, “the claim raises questions of medical judgment beyond
the realm of common knowledge and experience,” id., because it involves whether a health
professional properly diagnosed the youth athlete or properly cleared the youth athlete to return to
physical participation in the athletic activity. Thus, a claim for breach of the duty created by the
second sentence of MCL 333.9156(3), when brought against a health professional who evaluated
the youth athlete, sounds in medical malpractice.
3. APPLICATION
a. DOCKET NO. 346135
We now apply these legal considerations to the factual record in these two appeals. In
Docket No. 346135, Polazzo and Metro Health argue that plaintiff’s claim against Polazzo sounds
in medical malpractice, rather than ordinary negligence. They further argue that plaintiff was
required to follow the procedural requirements for filing medical-malpractice actions set forth in
MCL 600.2912b and MCL 600.2912d. Because plaintiff failed to do so, these defendants argue
that the trial court erred in failing to dismiss the claims against them. In response, plaintiff argues
that Polazzo never medically evaluated plaintiff after the first collision, and that a claim against
him cannot sound in medical-malpractice because Polazzo exercised no professional medical
judgment.
The trial court stated that the question before it was “not whether Polazzo was negligent in
his medical treatment, but whether he was negligent in failing to provide medical treatment.” That
is not, however, the proper question. It is undisputed, for example, that Metro Health is a “licensed
health facility or agency,” Polazzo is its employee or agent, and, therefore, both are subject to
medical-malpractice liability. These matters are irrelevant because plaintiff’s claims against these
defendants are based on the duty arising from the first sentence of MCL 333.9156(3), not the
second. The list of covered adults in the first sentence encompasses Polazzo, regardless of the fact
that he was a licensed-health professional, because it is undisputed that he was an adult acting on
behalf of an organizing entity while he served as athletic trainer for the two teams involved in the
hockey game. The determination whether a “coach or other adult” complied with the mandate of
MCL 333.9156(3) that a youth athlete who is suspected of sustaining a concussion be immediately
removed from physical participation in an athletic activity does not raise questions involving
medical judgment, regardless of whether the “coach or other adult” was a health professional.
Using its common knowledge and experience, a jury could determine whether, based on what
happened to plaintiff on the ice, Polazzo should have reasonably suspected that plaintiff suffered
a concussion.
Although a claim for breach of the duty established in the second sentence of the statute
sounds in medical malpractice, plaintiff’s claims in this lawsuit do not implicate that duty. The
second sentence applies to the medical evaluation of a youth athlete after the athlete has been
removed from physical participation in the athletic activity, on suspicion that the athlete sustained
a concussion. There are no facts in the record to indicate that Polazzo evaluated plaintiff after he
was removed from the hockey game. In fact, plaintiff’s claims expressly allege that Polazzo should
have—but did not—remove plaintiff from the hockey game. Accordingly, plaintiff’s claim against
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Polazzo is not based on the duty created in the second sentence of the statute, and the claim does
not sound in medical malpractice.
Because we conclude that plaintiff’s claim against Polazzo sounds in ordinary negligence,
the trial court properly denied the motion for summary disposition brought by Polazzo and Metro
Health, even though the trial court did so for the wrong reason.
b. DOCKET NO. 346476
In Docket No. 346476, plaintiff appeals by leave granted the trial court’s order granting
the motion for summary disposition filed by the Association defendants under MCR 2.116(C)(10).
In granting that motion, the trial court ruled that plaintiff had failed to raise a genuine issue of
material fact that he lay on the ice, unresponsive, for four minutes. Furthermore, the trial court
ruled that Fedorinchik could not be liable because he reasonably relied on Polazzo’s medical
evaluation and his resulting decision not to remove plaintiff from the game.
Regarding the question of how long plaintiff was on the ice, as we explained earlier, we
will not consider evidence submitted by plaintiff on appeal but not before the trial court when it
ruled on the Association defendants’ motion. With that said, we also recognize that granting
summary disposition prior to the close of discovery, when the case turns on factual issues not yet
settled, is only appropriate when there “is no reasonable chance that further discovery will result
in factual support for the nonmoving party.” Colista v Thomas, 241 Mich. App. 529, 538; 616
NW2d 249 (2000). In this case, the trial court granted the motion for summary disposition filed
by the Association defendants before the close of discovery, despite the reasonable chance that
further discovery could result in factual support for plaintiff’s claim that he was unconscious on
the ice for a period of four minutes.
With respect to Fedorinchik, the first sentence of the statute unquestionably applies to him
because he was acting in his capacity as a “coach” of “an organizing entity during an athletic event
sponsored by or operated under the auspices of the organizing entity.” MCL 333.9156(3). Under
this sentence of the statute, Fedorinchik had a duty, independent of the actions of Polazzo, to
“immediately remove from physical participation in an athletic activity a youth athlete who is
suspected of sustaining a concussion during the athletic activity.” Id. Whether there was a legally
sufficient excuse for Fedorinchik to rely on Polazzo’s recommendation given the latter’s medical
training, whether Polazzo actually made a recommendation, or whether Fedorinchik did or should
have suspected that plaintiff had sustained a concussion, are all factual questions that cannot be
answered conclusively on this limited record on appeal. Similarly, the trial court erroneously
granted summary disposition to the Association defendants before the close of discovery.
III. CONCLUSION
Our Legislature enacted the concussion-protection statute to protect youth athletes from
the harmful effects of concussions. In doing so, the Legislature did not create, explicitly or by
implication, a private statutory cause of action for violation of the statute. Rather, the statute
creates negligence-based duties on the part of coaches and other covered adults, and a violation of
the statute can be evidence of actionable negligence.
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In Docket No. 346135, we affirm denial of the motion for summary disposition filed by
Polazzo and Metro Health, and in Docket No. 346476, we vacate the grant of summary disposition
for the Association defendants. We remand the case to the trial court for application of the
standards set forth in this opinion and for further proceedings consistent with this opinion. On
remand, the trial court may permit such additional discovery as it deems appropriate, and it may
entertain additional motions for summary disposition from the parties after the close of discovery.
We do not retain jurisdiction. Plaintiffs, having prevailed in full, may tax costs under MCR
7.219(F).
/s/ Brock A. Swartzle
/s/ Kirsten Frank Kelly
/s/ Karen M. Fort Hood
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