Swank v. Valley Christian School ( 2017 )

This opinion was filed for record
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GHIEFJUSnGe SU5AN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
DONALD R. SWANK, individually and as
personal representative of THE ESTATE OF
ANDREW F. SWANK, and PATRICIA A.
SWANK, individually.
No. 93282-4
Petitioners,
En Banc
V.
VALLEY CHRISTIAN SCHOOL, a Filed JUL 0 6
Washington State non-profit corporation,
JIM PURYEAR, individually, and TIMOTHY
F. BURNS, M.D., individually.
Respondents,
MIKE HEDEN and DERICK TABISH,
individually.
Defendants.
WIGGINS, J.—^Andrew Swank (Drew) died from complications after contact with
another player during a high school football game. Drew's parents sued Drew's school,
the football coach, and Drew's doctor on behalf of his estate and individually. The trial
court granted summary judgment against the Swanks on all claims, and the Court of
Appeals affirmed.
Swank et al. v. Valley Christian School et al., No. 93282-4
We must decide whether Washington's Zackery Lystedt Law (Lystedt law), RCW
28A.600.190, gives rise to an implied cause of action. We hold that an implied cause
of action does arise from the Lystedt law. As a result, the Swanks' claims that Valley
Christian School(VCS)and Jim Puryear(Coach Puryear) violated the Lystedt law may
proceed. We also hold that the evidence against the coach was sufficient to permit a
jury to find liability against the coach, despite the limited volunteer immunity protecting
the coach. Consequently, we reinstate the Swanks' common law negligence claims
against the coach. Finally, we hold that the trial court lacked personal jurisdiction over
Drew's doctor. Accordingly, we reverse in part and affirm in part.
FACTS^
I. Factual History
VCS is a nonprofit religious school located in Spokane Valley, Washington. In
2007, Jim Puryear, a parent of students attending VCS, approached the school and
offered to start a school football team. The school agreed, and Puryear began to coach
VCS's football team. Coach Puryear was not compensated for his coaching, and he
funded most, if not all, of the program, buying equipment, paying for referees and
emergency medical services at games, and funding the team's travel. Drew played
football for VCS in 2009.
^ Since this case is a review of a grant of summary judgment,"we consider all facts and make
all reasonable factual Inferences In the light most favorable to the nonmoving party," here, the
Swanks. Scrivener v. Clark Coll., 181 Wash. 2d 439, 444, 334 P.3d 541 (2014). As a result, the
following facts are presented according to the Swanks' description of events.
Swank et al. v. Valley Christian School at ai., No. 93282-4
In 2009, the legislature passed the Lystedt law, RCW 28A.600.190. The purpose
of the Lystedt law is to reduce the risk of further injury or death to youth athletes who
suffer concussions in the state of Washington. See RCW 28A.600.190. The law
requires schools to develop a concussion and head injury information sheet to "inform
and educate coaches, youth athletes, and their parents and/or guardians of the nature
and risk of concussion and head injury including continuing to play after concussion or
head injury." RCW 28A.600.190(2). The Lystedt law also requires youth athletes to be
removed from play immediately when they are suspected of sustaining a concussion
or head injury. RCW 28A.600.190(3). A youth athlete who is removed from play may
not return until he or she is evaluated by and receives written clearance from a licensed
health care provider. RCW 28A.600.190(4).
Pursuant to the Lystedt law, VCS developed a concussion information sheet
(CIS). The CIS defined "concussion," listed the symptoms of a concussion, and warned
of the consequences of a concussion, including serious injury and death, which can
result when an athlete with a concussion returns to play too soon. The CIS also
instructed that athletes suspected of having a concussion "should be removed from the
game or practice immediately," and that such athletes may not return to play without
receiving medical clearance. Prior to the start of the 2009 season. Coach Puryear had
a meeting with the football athletes and their parents to discuss and distribute the CIS,
which both Drew and his mother signed.
On September 18, 2009, Drew was hit hard on the head during a football game.
After the injury, he was removed from the game. Drew reported having neck pain and
headaches. Three days after he was injured, Drew's mother took him to see Dr. Timothy
Swank etal. v. Valley Christian School et al., No. 93282-4
Burns, who has been the Swanks' primary care physician ever since Drew was born.
The Swanks are residents of Idaho, and Dr. Burns, a licensed doctor in Idaho, has a
doctor's office located in Coeur d'Alene, Idaho. Dr. Burns examined Drew in Idaho and
told him and his mother that Drew should be kept out of contact sports for the next three
days. He prescribed ibuprofen and told Drew and his mother that if Drew experienced
headaches after playing football, he would need to stay out of contact sports for a week.
Two days later, Drew's mother called Dr. Burns's office and told a nurse that
Drew's headaches had stopped. Drew's mother asked that Dr. Burns write and sign a
release because Drew played football in Washington State and Washington had a new
law requiring a note from a doctor before Drew could return to practice. Later that day.
Dr. Burns wrote a note releasing Drew to play football, which Drew's mother picked up
from the Idaho office. Drew's father gave a copy of the medical release to Coach
Puryear or the athletic director.
The following day. Drew played in a football game. Although Drew initially played
well, his quality of play sharply declined during the game. Drew appeared "sluggish,"
confused, and slow to respond. Drew's father stated that he thought the coaches
"clearly missed the fact that Drew was playing so far below his normal level." He
recalled Drew's uncharacteristically poor play on kickoff returns and Coach Puryear
yelling at Drew from the sidelines in apparent frustration over Drew's missed plays.
Drew's former teammate described the events in his affidavit:
Drew Swank started out the game playing like his normal self but his play
grew worse and worse as the game progressed. This was evidenced by
the fact that the coaches were yelling at Drew frequently during the game,
especially about his positioning. Drew was one of the better players on
Swank et al. v. Valley Christian School at ai., No. 93282-4
the team and it was uncommon for the coaches to be yelling at him. Drew
became sluggish during the game and was frequently out of position.
Drew's aunt said that she observed from the sidelines that "[Drew] wasn't the same
player he was the year before. He wasn't running fast. He wasn't quick, and he was
just kind of standing." She also recalled Drew's mother commenting to her after Drew's
apparent confusion on a kickoff play, "[Drew is] confused. He doesn't know, what is
wrong? He's not listening. Why isn't he listening?"
During the game. Coach Puryear called Drew over to the sidelines, where he
grabbed Drew's face mask and, according to Drew's father, "began to jerk it up and
down hard while he screamed at [Drew],'What are you doing out there, what are you
doing out there?"' Drew returned to the game, where he was hit by an opposing player.
He suffered head injuries and staggered to the sideline, where he collapsed. Drew died
two days later.
II. Procedural History
Three years after Drew's death, his parents^ filed suit against VCS, Coach
Puryear, and Dr. Burns.^ The Swanks brought common law negligence claims and
claimed that the parties violated the Lystedt law. VCS, Coach Puryear, and Dr. Burns
moved for summary judgment, which the trial court granted. The Swanks appealed.
The Court of Appeals affirmed the trial court's grants of summary judgment on
all but the general negligence claim against VCS. See Swank v. Valley Christian Sch.,
2 Drew's father filed individually and as the representative of Drew's estate.
3 The Swanks also filed suit against assistant coach Mike Heden and school principal Derick
Tabish. They are no longer parties to the suit.
Swank et al. v. Valley Christian School at al., No. 93282-4
194 Wash. App. 67, 374 P.3d 245 (2016). The Court of Appeals held that (1)the Lystedt
law did not create an implied statutory cause of action,(2) Coach Puryear was entitled
to volunteer immunity, (3) the Swanks' claim pertaining to Coach Puryear's jerking of
Drew's face mask (the face mask claim) was a claim for battery that is barred by the
two-year statute of limitations for battery, and (4) the trial court lacked personal
jurisdiction over Dr. Burns. Id. at 86-91. The Swanks then petitioned this court for
review, which we granted. VCS did not petition for review of the Court of Appeals'
decision to remand the general negligence claim against it, and we do not address that
claim in this opinion.
STANDARD OF REVIEW
"We review a trial court's grant of summary judgment de novo." Scrlvenerv. Clark
Coll., 181 Wash. 2d 439, 444, 334 P.3d 541 (2014). "Summary judgment is appropriate
only when there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law." Id.] see CR 56(c).
ANALYSIS
We reverse in part and affirm in part. First, we hold that the Lystedt law includes
an implied cause of action and reverse the grant of summary judgment on this point.
As a result, we reinstate the Swanks' claims that VCS and Coach Puryear violated the
Lystedt law. Second, we hold that summary judgment on the claims against Coach
Puryear was erroneous and reverse the grant of summary judgment on this point.
Consequently, the Swanks'common law negligence claims against Coach Puryear are
reinstated for further proceedings in superior court. Finally, we hold that the trial court
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lacked personal jurisdiction over Dr. Burns and affirm the grant of summary judgment
for the claims against him.
I. Implied Cause of Action
We hold that the Lystedt law includes an implied cause of action because, as
discussed below, the Lystedt law satisfies all the factors of the Bennetf test.
A. The Lystedt Law
In 2009, the Washington Legislature passed the Lystedt law,® "the nation's first
comprehensive concussion law." 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 Lystedt law's
purpose is to reduce the risk of injury or death to youth athletes who suffer concussions
by preventing them from returning to play too soon. ROW 28A.600.190.The three main
requirements of the law are as follows.
Subsection (2) of the Lystedt law requires school districts to educate coaches,
youth athletes, and the athletes' parents about the risk of concussions with a
"concussion and head information sheet." The statute provides:
Each school district's board of directors shall work in concert with the
Washington interscholastic activities association to develop the guidelines
and other pertinent information and forms to inform and educate coaches,
youth athletes, and their parents and/or guardians of the nature and risk
Bennett v. Hardy, 113 Wash. 2d 912, 784 P.2d 1258 (1990).
5 Zackery Lystedt suffered a brain injury in 2006 after he returned to play in a middle school
football game with a concussion. Find out more about Zackery Lystedt Law (Aug. 29, 2015),
http://www.nfi.eom/news/story/0ap2000000339066/article/find-out-more-about-zackery-
lystedt-law [https://perma.cc/wnx6-u24w]. Lystedt, his family, and several other groups
"lobbied the Washington state legislature for a law to protect young athletes in all sports from
returning to play too soon." Id.
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of concussion and head injury including continuing to play after
concussion or head injury. On a yearly basis, a concussion and head
injury information sheet shall be signed and returned by the youth athlete
and the athlete's parent and/or guardian prior to the youth athlete's
initiating practice or competition.
ROW 28A.600.190(2). Every year before a youth athlete starts play, he or she and his
or her parents must sign and return the concussion and head injury information sheet.
Subsection (3) of the Lystedt law requires that youth athletes be removed from
practices or games when they exhibit signs of a concussion. "A youth athlete who is
suspected of sustaining a concussion or head injury in a practice or game shall be
removed from competition at that time." RCW 28A.600.190(3). Thus, when a youth
athlete is suspected of sustaining a concussion or head injury, he or she must be
removed from play immediately.
Finally, subsection (4) of the Lystedt law requires clearance from a licensed
health care provider before a youth athlete returns to play. "A youth athlete who has
been removed from play may not return to play until the athlete is evaluated by a
licensed health care provider trained in the evaluation and management of concussion
and receives written clearance to return to play from that health care provider." RCW
28A.600.190(4). No student who has been removed from play on suspicion of a
concussion or head injury may return to play without medical clearance.
Swank etal. v. Valley Christian School at ai., No. 93282-4
If these requirements are not followed, the Swanks argue that the Lystedt law
includes an implied cause of action granting individuals® harmed by the noncompliance
a right to sue. We agree with the Swanks for the following reasons.
B. The Bennett Test for implied Causes of Action
This court created a test for determining whether a statute includes an implied
cause of action in Bennett, 113 Wash. 2d 912. The plaintiffs in Bennettsued their employer
for age discrimination under RCW 49.44.090. id. at 915. While that statute made age
discrimination an unfair employment practice, it did not create a remedy, id. The
plaintiffs argued that they should be able to recover from their employer via an implied
cause of action, id.
To determine whether the statute contained an implied cause of action, the court
adapted a federal approach, creating a new three-part test: "first, 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." id. at 920-21 (quoting in re Wash. Pub. Power Supply Sys. Sec. Litig., 823
F.2d 1349, 1353(9th Cir. 1987)). In creating this test, the court reasoned that
"we can assume that the legislature is aware of the doctrine of implied
statutory causes of action and also assume that the legislature would not
enact a remedial statute granting rights to an identifiable class without
® At oral argument, Dr. Burns argued for the first time that the Lystedt law does not apply to
private school students. "[A]n appellate court generally will not consider an issue raised for the
first time during oral argument where there is no argument presented on the issue and no
citation to authority provided." State v. Olson, 126 Wash. 2d 315, 319-20, 893 P.2d 629 (1995).
Here, the parties did not brief this argument, which was raised for the first time at oral argument.
As a result, we decline to address it.
Swank et al. v. Valley Christian School et ai., No. 93282-4
enabling members of that class to enforce those rights. Without an implicit
creation of a remedy, the statute is meaningless."
id. at 919-20 (quoting McNeai v. Alien, 95 Wash. 2d 265, 277, 621 P.2d 1285 (1980)
(Brachtenbach, J., dissenting)).
Since Bennett, the court has used the three-part test in several cases when
determining whether a statute creates an implied cause of action. See, e.g., Kim v.
Lakeside Adult Family Home, 185 Wash. 2d 532, 374 P.3d 121 (2016)(finding an implied
cause of action in the abuse of vulnerable adults act, ch. 74.34 RCW); Beggs v. State,
171 Wash. 2d 69, 247 P.3d 421 (2011)(finding an implied cause of action against persons
required to report child abuse in RCW 26.44.030); Tyner v. Dep't of Soc.& Health
Servs., 141 Wash. 2d 68, 1 P.3d 1148 (2000)(finding that parents have an implied cause
of action against the state under RCW 26.44.050). Contra Roe v. TeieTech Customer
Care Mgmt.(Colo.) LLC, 171 Wash. 2d 736, 257 P.3d 586(2011)(declining to find a cause
of action in the Washington State Medical Use of Marijuana Act, former ch. 69.51A
RCW (2010)); Adams v. King County, 164 Wash. 2d 640, 192 P.3d 891 (2008)(declining
to find a cause of action in the former Washington Uniform Anatomical Gift Act, RCW
68.50.520-.620), recodified at ch. 68.64 RCW. The three Senneff factors persuade us
that the Lystedt law gives rise to implied causes of action.
1. Protected Class
"We look to the language of the statute to ascertain whether the plaintiff is a
member of the protected class." Schooiey v. Pinch's Deli Mkt, inc., 134 Wash. 2d 468,
475, 951 P.2d 749 (1998). In the present case, there is no dispute that Drew was a
member of the class for whose special benefit the Lystedt law was enacted: youth
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athletes who sustain concussions or head injuries. See RCW 28A.600.190(1)(a), (3),
(4) (discussing "children and adolescents who participate in sports and recreational
activities" and "youth athlete[s]" with concussive injuries). Drew was a youth athlete
who sustained a concussion while playing in a football game. We can '"assume that the
legislature would not enact a remedial statute granting rights to an identifiable class
without enabling members of that class to enforce those rights.'" Bennett, 113 Wash. 2d
at 919-20 (quoting McNeal, 95 Wash. 2d at 277 (Brachtenbach, J., dissenting)). The first
factor of the Bennett test weighs in favor of implying a cause of action.
2. Legislative Intent
The second factor of the Bennett test requires us to consider whether the
legislature intended to grant a right of recovery for statutory violations. When examining
legislative intent, we "can assume that the legislature is aware of the doctrine of implied
statutory causes of action." Id.
The legislative concern with youth athlete concussions is clear in the Lystedt law.
The legislature recognized that concussions are "one of the most commonly reported
injuries" for youth athletes, and that "[tjhe risk of catastrophic injuries or death [is]
significant when a concussion or head injury is not properly evaluated and managed."
RCW 28A.600.190(1)(a). The legislature went on to recognize "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(1)(c). Despite this clear concern, there is no mechanism in the Lystedt
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Swank et al. v. Valley Christian School et al., No. 93282-4
law to enforce the requirements intended to address the risks of youth athlete
concussions. Given the dear legislative concern, it is logical to infer that the legislature
intended that there be some sort of enforcement mechanism.
In fact, the legislature appears to have contemplated the possibility of civil liability
under the Lystedt law since it exempts volunteer health care providers from liability. "A
volunteer who authorizes a youth athlete to return to play is not liable for civil damages
resulting from any act or omission in the rendering of such care, other than acts or
omissions constituting gross negligence or willful or wanton misconduct." RCW
28A.600.190(4). This is not a grant of complete immunity, but of limited immunity. A
partial immunity recognizes the need for protection against liability, but simultaneously
recognizes that the immunity should be limited. By implication, the grant of immunity is
evidence of the legislature's intent to imply a cause of action. See Jane Doe v. Corp.
ofPresident of Church of Jesus Christ of Latter-Day Saints, 141 Wash. App. 407, 422-23,
167 P.3d 1193(2007), review denied, 164 Wash. 2d 1009, 195 P.3d 87(2008).
This court has interpreted a grant of immunity in other statutes as evidence of
implicit legislative intent to create a remedy. See Beggs, 171 Wn.2d at 78("A grant of
immunity from liability clearly Implies that civil liability can exist in the first place.'"
(quoting Jane Doe, 141 Wash. App. at 422-23)). In Adams, however, this court declined
to interpret a grant of immunity as evidence of legislative intent to create a remedy. See
Adams, 164 Wash. 2d at 656. Relying heavily on Adams, the Court of Appeals concluded
that there was no implied cause of action in the Lystedt law. See Swank, 194 Wash. App.
at 81-82 (reasoning that "in Adams, the court specifically rejected the appellant's
argument that good faith immunity sufficed to establish legislative intent to create an
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Swank etal. v. Valley Christian School at al., No. 93282-4
implied cause of action for violations" of the Washington Uniform Anatomical Gift Act
(former RCW 68.50.520-.630, repealed by Laws of 2008, ch. 139,§ 31)).
However, the Court of Appeals incorrectly interpreted our language in Adams. In
Adams, we relied on the history of the Uniform Anatomical Gift Act(UAGA)in declining
to interpret the grant of immunity in the Washington Uniform Anatomical Gift Act
(WAGA)as evidence of legislative intent to create a cause of action. WAGA was based
on the UAGA. UAGA, 8A U.L.A. 62 (2014); 8A U.L.A. 84 (2014). The comment to the
revised UAGA of 2006 recognizes that "if a person acts in subjective 'bad faith,' the
common law provides remedies." UAGA § 18 cmt., 8A U.L.A. 164 (2014). Since the
UAGA did not imply a private cause of action, Washington's adoption of the WAGA did
not imply the existence of any cause of action either. Adams, 164 Wash. 2d at 656 ("[Tjhe
comment to the revised UAGA of 2006 recognizes that 'if a person acts in subjective
"bad faith," the common law provides remedies.' In this case, Adams has raised several
common law claims against Respondents for the failure to obtain her consent."(citation
omitted)(quoting UAGA§ 18 cmt., 8A U.L.A. 70(Supp. 2008))). Common law remained
the sole route to recovery.
Here, there is no legislative history referencing the common law remedies
available to those aggrieved by a violation of the Lystedt law. Therefore, unlike Adams,
the existence of alternative common law remedies does not answer the question of
whether the legislature intended to imply a cause of action in the Lystedt law, nor does
it negate the implicit legislative intent to create a remedy found in the statute. The
second factor of the Bennett test also weighs in favor of implying a cause of action.
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3. Underlying Purpose
The final Bennett factor^ requires the court to consider if implying a cause of action
is consistent with the purpose of the statute.® One of the major purposes of tort law is to
encourage people to act with reasonable care for the welfare of themselves and others.
See, e.g., Davis v. Baugh Indus. Contractors, Inc., 159 Wash. 2d 413, 420, 150 P.3d 545
(2007)(concluding that "'[a]n underlying purpose of tort law is to provide for public safety'"
(quoting Johnson v. Equip. Specialists, Inc., 58 III. App. 3d 133, 373 N.E.2d 837, 843, 15
III. Dec 491 (1978))); see also Stuart v. Coldwell Banker Commercial Grp., Inc., 109Wn.2d
406, 418-19, 745 P.2d 1284 (1987)("As a matter of public policy, it is entirely reasonable
to expect manufacturers of goods for sale to the general public to assume responsibility for
the safety of their product."). The purpose of the Lystedt law is to prevent further injury or
death to youth athletes suffering from concussions and head injuries. RCW 28A.600.190.
Implying a cause of action is consistent with the Lystedt law's purpose because these
injuries may be effectively prevented. A cause of action encourages people to act with
'' The Court of Appeals misstated the third factor of the Bennett test as "whether the legislative
purpose is best achieved by implying a cause of action." Swank, 194 Wn. App. at 82(emphasis
added). The third factor does not require the court to conclude that implying a cause of action
best achieves the legislative purpose of a statute. Rather, the third factor asks merely whether
implying a cause of action would be "consistent with the underlying purpose of the legislation."
Bennett, 113 Wash. 2d at 921.
® Dr. Burns appears to argue that we are prevented from implying a cause of action where a
statute's title fails to reference a cause of action. Here, the act's title is, "A[n] A[ct][rjelating to
requiring the adoption of policies for the management of concussion and head injury in youth
sports; amending RCW 4.24.660; and adding a new section to chapter 28A.600 RCW." Laws
OF 2009,ch. 475. While Dr. Burns is correct that an act's title defines the scope of what a statute
may include, a title does not preclude finding an implied cause of action when the action falls
within the title's scope. Here, we are unconvinced that the implied cause of action exceeds
the scope of the statute's title. As a result, the title does not preclude us from finding an implied
cause of action in the Lystedt law.
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due care for the welfare of youth athletes and gives youth athletes recourse when they
suffer injury or death due to improper management of their concussions. See Kim, 185
Wash. 2d at 546 ("Implying a cause of action for failing to report suspected abuse or neglect
is consistent with the legislature's intent to ensure that [government agencies] and law
enforcement investigate cases of suspected abuse, and are able to provide protective
services to abused vulnerable adults."). The third factor of the Bennett test weighs in favor
of implying a cause of action. Since all three factors of the Bennett test are satisfied, we
hold that the Lystedt law implies a cause of action.
C. Duties Enforced by the Lystedt Law's impiied Cause of Action
There is an implied cause of action in the Lystedt law, and the requirements in
subsections (2), (3), and (4) include three duties that can support a claim.® First, the
school district must create and distribute a concussion and head injury information
sheet on a yearly basis that is then signed by a youth athlete and his or her parent or
guardian and returned. RCW 28A.600.190(2). Second, a youth athlete must be
removed from play immediately when he or she is suspected of suffering from a
concussion or head injury. RCW 28A.600.190(3). Third, a youth athlete may not return
to play until he or she is examined by and receives written clearance from a licensed
health care provider. RCW 28A.600.190(4). Parties may enforce these three duties
through an implied cause of action.
Finding an implied cause of action in the Lystedt law gives its mandatory
provisions mandatory effect. "[W]e can assume that the legislature is aware of the
3 In addition to these three duties, the Swanks argued before the Court of Appeals that the
Lystedt law established '"generally recognized return to play standards'" for youth athletes after
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doctrine of implied statutory causes of action and also assume that the legislature would
not enact a remedial statute granting rights to an identifiable class without enabling
members of that class to enforce those rights." Bennett, 113 Wash. 2d at 919-20 (quoting
McNeal, 95 Wash. 2d at 277(Brachtenbach, J., dissenting)). Therefore, having concluded
that the Lystedt law includes an implied cause of action, we reverse the grant of
summary judgment on this point. As a result, the Swanks' claims that VCS and Coach
Puryear violated the Lystedt law may proceed.
II. The Claims against Coach Puryear
We hold that the trial court erred in granting summary judgment on the statutory
and common law claims against Coach Puryear. The Lystedt law's implied cause of
action applies to coaches. Coach Puryear is a volunteer and thus is not liable for acts
of simple negligence. However, he remains liable for acts that constitute gross
negligence or recklessness. See RCW 4.24.670(1 )(c). Here, the Swanks presented
evidence tending to show that Coach Puryear acted with gross negligence or
recklessness. Thus, genuine issues of material fact preclude summary judgment.
they suffer a concussion or head injury. Swank, 194 Wash. App. at 79-80 (quoting RCW
28A.600.190(1)(c)). The Court of Appeals disagreed, concluding that the law did not adopt a
specific return to play standard. Id. at 79. We agree with the Court of Appeals; the Lystedt law
does not mandate a specific, gradual return to piay standard. See RCW 28A.600.190(1)(c)
(recognizing "that, despite having generally recognized return to play standards," youth
athletes still suffer further injury and death); see also H.B. Rep. on H.B. 1824, at 2, 61st Leg.,
Reg. Sess.(Wash. 2009)(listing the three requirements of the Lystedt law with no mention of
adopting gradual return to play standards); Hr'g on H.B. 1824 Before the H. Educ. Comm.,61st
Leg., Reg. Sess.(Wash. Feb. 13, 2009), recording by T\/\N, Washington State's Public Affairs
Network, at 0 min.,0 sec. to 58 min., 30 sec., http://www.tvw.org/watch/ ?eventlD=2009021238
(legislative testimony focusing on the importance of removing a youth athlete from play and an
injured athlete's evaluation by and clearance to return to piay from a licensed medical
professional).
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A. Implied Cause of Action
As discussed above, we conclude that the Lystedt law includes an implied cause
of action relevant to football coaches. The law requires that players "suspected of
sustaining a concussion or head injury in a practice or game" be removed from play
immediately. RCW 28A.600.190(3). Thus, coaches must monitor student athletes for
signs of a concussion and remove athletes from play when signs of concussion
manifest. Coach Puryear himself acknowledged this obligation, describing his
responsibility under the Lystedt law as follows:
[l]f I even suspected they could maybe possibly have a concussion, I
mean, if there was anything that gave me any reason to believe there was
even a possibility of a concussion, that they needed, that they were to be
removed from play.. . .
[Wjhat it boiled down to . .. was if I even suspected there was a possibility,
then I needed to take care of it.
In their complaint, the Swanks asserted that Coach Puryear failed to monitor
Drew and further failed to remove Drew from the game after he showed signs consistent
with a concussion. These claims directly implicate the Lystedt law's implied cause of
action.
B. Volunteer Immunity
While the Swanks raise a cognizable claim under the Lystedt law. Coach Puryear
argues that he is entitled to immunity from liability as a volunteer. RCW 4.24.670 makes
volunteers immune from liability for simple negligence. However, volunteers are not
immune for acts that are grossly negligent or reckless. RCW 4.24.670 provides that:
(1) ... a volunteer of a nonprofit organization or governmental entity
shall not be personally liable for harm caused by an act or omission of the
volunteer on behalf of the organization or entity if:
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Swank etal. v. Valley Christian School at ai., No. 93282-4
(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.
Coach Puryear plainly meets the definition of a "volunteer."^" Therefore, he is
entitled to immunity if his conduct was simply negligent rather than grossly negligent or
reckless.
C. Negligence, Gross Negligence, and Reckless Misconduct
The Swanks presented evidence that Coach Puryear acted with gross
negligence or recklessness; the evidence is sufficient to create a genuine issue of
material fact.
Whether Coach Puryear acted negligently, grossly negligently, or recklessly
requires that we parse the distinction between these three terms. The distinction has
been notoriously challenging for courts to trace. See, e.g., Nist v. Tudor,67 Wn.2d 322,
328-29, 407 P.2d 798 (1965) ("[A]lthough the definition of gross negligence as the
The Swanks argue that Coach Puryear was not a volunteer. Instead, they claim that he was
engaged in a "joint venture" as a controlling party and thus was not acting as an individual. The
Swanks bolster their argument that Coach Puryear controlled this "joint venture" by noting that
the football program terminated when he withdrew as head coach. Even if true, this argument
is unpersuasive. Regardless of whether Coach Puryear operated the football program as a
"joint venture," he remains an individual. As the Court of Appeals noted, "The legal capacity in
which the individuai participates in an endeavor does not change the fact that the individual
still is an individual." Swank, 194 Wash. App. at 86. Nor does the statute exclude from protection
those voiunteers in ieadership roles, as it specifically protects directors, officers, and trustees.
See RCW 4.24.670(5)(e). Therefore, the fact that Coach Puryear shared control of the football
program with VCS and that the program terminated upon his withdrawal as head coach is not
dispositive of his status as a volunteer.
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Swank et al. v. Valley Christian School at al., No. 93282-4
failure to exercise slight care has remained constant, its application has not been
uniform."). We define "negligence" as
the act or omission which a person of ordinary prudence would do or fail
to do under like circumstances or conditions; it is that degree of care which
the reasonably prudent person would exercise in the same or similar
circumstances.
Id. at 331 (emphasis omitted); see also Simonetta v. Vlad Corp., 165 Wash. 2d 341,
348, 197 P.3d 127(2008)("Under the law of negligence, a defendant's duty is to
exercise ordinary care.").
"Gross negligence" is defined, in reference to this baseline, as "negligence
substantially and appreciably greater than ordinary negligence." NIst, 67 Wash. 2d at 331;
see also Eastwood v. Horse Harbor Found., Inc., 170 Wash. 2d 380, 401, 241 P.3d 1256
(2010)(plurality opinion)(approving of a trial court's finding of gross negligence where
'"the degree of neglect . . . was substantially and appreciably greater than ordinary
negligence'"). Stated more fully, it is the "failure to exercise slight care, mean[ing] not
the total absence of care but care substantially or appreciably less than the quantum
of care inhering in ordinary negligence." NIst, 67 Wash. 2d at 331; see a/so 6 Washington
Pattern Jury Instructions: Civil 10.07 (6th ed. 2012)(defining "gross negligence" in
the same way).
'"Reckless misconduct differs from negligence in several important particulars.'"
Adkisson v. City of Seattle, 42 Wash. 2d 676, 686, 258 P.2d 461 (1953) (quoting
Restatement of Torts § 500 cmt. g (Am. Law Inst. 1934)). To be reckless, "the
actor. .. must recognize that his conduct involves a risk substantially greater in amount
than that which is necessary to make his conduct negligent." Id. (quoting Restatement
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Swank et al. v. Valley Christian School at al., No. 93282-4
§ 500 cmt. g). Reckless misconduct, unlike gross negligence, "requires a conscious
choice of a course of action either with knowledge of the serious danger to others
involved in it or with knowledge of facts which would disclose this danger to any
reasonable man." Id. (quoting Restatement § 500 cmt. g); see also State v. Graham,
153 Wash. 2d 400, 408, 103 P.3d 1238(2005)(stating that '"[a] person Is reckless or acts
rec/f/ess/y when he knows of and disregards a substantial risk that a wrongful act may
occur and his disregard of such substantial risk is a gross deviation from conduct that
a reasonable man would exercise in the same situation'" (quoting former RCW
9A.08.010(1)(c)(1975))).
Because each of the three standards turns on a fine-grained factual analysis,
'"issues of negligence and proximate cause are generally not susceptible to summary
judgment.'" Owen v. Burlington N. Santa Fe R.R. Co., 153 Wash. 2d 780, 788, 108 P.3d
1220 (2005) (quoting Ruff v. County of King, 125 Wash. 2d 697, 703, 887 P.2d 886
(1995)).
Here, the Swanks presented evidence about Coach Puryear's conduct that a jury
could find to be gross negligence or reckless misconduct. The evidence would support
the Swanks' claims that Coach Puryear violated the Lystedt law, as well as their
common law negligence claims.
Ample testimony suggests that Coach Puryear failed to monitor Drew for
symptoms of a concussion during the game. The assistant coach stated that players
who suffered a head injury and were returned to play were not monitored any differently
from other players. CP at 75. Coach Puryear similarly stated in his deposition that he
was not looking at Drew during the game for the possibility of a concussion. CP at 154.
20
Swank et al. v. Valley Christian School at al., No. 93282-4
Substantial evidence contradicts Coach Puryear's statement that he believed
Drew's play was normal up until the injury. The Swanks, Drew's aunt, and one of Drew's
former teammates all described Drew's conduct during the game as highly unusual and
consistent with the "signs" of a concussion in VCS's CIS: "appears dazed; confused
about assignment; forgets plays; is unsure of game, score, or opponent; moves
clumsily or displays incoordination; any change in typical behavior or personality."
These parties characterized Drew as unusually "sluggish," confused, and slow to
respond. They recalled Drew missing plays, which was apparently out of character.
They further described Coach Puryear and the assistant coach yelling at Drew from the
sidelines in apparent frustration over his poor performance. And additional evidence
described Coach Puryear grabbing Drew's face mask and shaking it up and down while
yelling at Drew."'^
The Swanks submitted further evidence from an expert. Dr. Stanley Herring, who
concluded that Coach Puryear violated the relevant standard of care. Dr. Herring stated
that Drew's behavior at the game was "an indication that Drew . . . more likely than not
continued to suffer from the concussion he had been previously diagnosed with." He
conciuded that "the coaching staff should have removed Drew from play once he began
^■iThe Swanks made a separate claim for damages based on this conduct. They claimed that
Coach Puryear caused or contributed to Drew's second impact syndrome when he shook
Drew's face mask up and down. The Court of Appeals determined that this "face mask claim"
was barred by the two-year statute of limitations for battery. Swank, 194 Wash. App. at 86-87.
We agree that the face-mask-shaking incident cannot support a claim for damages in and of
itself. However, the fact that Coach Puryear shook Drew's face mask need not be walled off
from the entirety of Coach Puryear's allegedly reckless or grossly negligent conduct. The trier
of fact can evaluate the Implications of Coach Puryear's conduct in assessing whether he acted
grossly negligently or recklessly. Since the issue of summary judgment pertains to all of Coach
Puryear's conduct, we do not separately address the "face mask claim."
21
Swank etal. v. Valley Christian School at al., No. 93282-4
to exhibit the signs and symptoms [of a concussion] and kept Drew off the field until he
had been properly evaluated and cleared to return to play again."
Viewed in the light most favorable to the Swanks, this collective evidence could
suggest that Coach Puryear "substantially" failed to meet the standards of a reasonable
and prudent person under the circumstances. See Nist, 67 Wash. 2d at 328. Taken as a
whole, the evidence creates genuine issues of material fact regarding Coach Puryear's
degree of fault. A reasonable jury may conclude that Coach Puryear was grossly
negligent or reckless when he failed to monitor Drew and remove him from play. As a
result, we hold that summary judgment on the claims against Coach Puryear was
improper and we reverse.
III. Personal Jurisdiction over Dr. Burns
We hold that the trial court did not have personal jurisdiction over Dr. Burns and
affirm the grant of summary judgment on the claims against him. The trial court did not
have personal jurisdiction over Dr. Burns because Lewis v. Bours, 119 Wash. 2d 667, 835
P.2d 221 (1992), precludes the exercise of personal jurisdiction over Dr. Burns. Dr.
Burns provided medical care to Drew solely in Idaho; therefore, the tort is deemed to
have taken place in Idaho, not Washington.
A. Personai Jurisdiction in Washington
Washington courts' personal jurisdiction is governed by the State's long-arm
statute. Washington's long-arm statute reads, in relevant part:
(1) 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, and, if an individual, his or her
personal representative, to the jurisdiction of the courts of this state as to
any cause of action arising from the doing of any said acts:
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Swank et at. v. Valley Christian Schooi at al., No. 93282-4
(b) The commission of a tortious act within this state.
RCW 4.28.185(1 )(b). "Generally, '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.'" Lewis, 119 Wash. 2d at 670 (quoting Grange
Ins. Ass'n v. State, 110 Wash. 2d 752, 757, 757 P.2d 933(1988)). However, we have also
recognized an exception to this rule in the case of professional malpractice. Id. at 673.
In Lewis, this court held that "[i]n 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.
B. The Medical Care l/l/as Provided in Idaho
Here, all of the relevant medical care that Dr. Burns provided to Drew took place
in Idaho, even though Dr. Burns released Drew to play football in Washington, for a
Washington school, and pursuant to Washington law. We have emphasized that
provision of medical care, as a personal service, is strongly tied to the location where
those services are performed. In Grange Insurance, an Idaho veterinarian examined
cattle in Idaho and signed certificates of health in Idaho, which indicated that the cattle
were healthy and that the cattle were to be sent to an address of a Washington buyer.
110 Wash. 2d at 755. The inspected cattle were sent to Washington; they became sick
and infected some neighbors' cattle. Id. at 754. This court declined to exercise personal
jurisdiction over the Idaho veterinarian, reasoning that "the rendition of services is more
23
Swank et al. v. Valley Christian School et al., No. 93282-4
personal in nature than is the sale of goods, such that the location where the services
are performed is of greater jurisdictional importance than is the location where a product
is bought." Id. at 763.
In Grange Insurance, we further described a policy basis for refusing to find
jurisdiction for services performed out-of-state: the goal of "ensuring that medical
services are fully available to all people . . . might be inhibited if doctors were worried
about having to defend malpractice suits in distant states." Id. This public policy is also
the basis for the rule," established in Lewis, that a tort does not take place in
Washington when a medical provider gives allegedly deficient care in a different state.
See Lewis, 119 Wash. 2d at 674 (holding that "in the case of professional malpractice, a
tort is not committed in Washington if the alleged act of malpractice was committed out
of state even though the injuries may manifest themselves in Washington"). In Lewis,
a Washington resident mother gave birth at a clinic in Oregon. Id. at 668. The doctor
released the mother and baby to return home to Washington without instructing that
the baby was '"at high risk for neonatal distress.'" Id. On the way home, and in
Washington State, the baby suffered severe injuries. Id. at 669. The mother sued the
Oregon doctor, claiming that the doctor had committed a tort in Washington because
"•2 This rule Is also the majority rule. See, e.g., Harlow v. Children's Hasp., 432 F.Sd 50, 63-66,
69 (1st Cir. 2005)("The question is not whether hospitals may be held responsible in lawsuits
for their activities, but whether they may be haled into court out of state because they accept
out-of-state patients. It would be unreasonable to conclude that they could."); Zavala v. El Paso
County Hosp. Dist, 2007-NMCA-149, 143 N.M. 36, 172 P.3d 173, 181-83 (declining to
exercise personal jurisdiction over a Texas hospital and physician who accepted patients from
New Mexico); Vance v. Molina, 2001 OK 60, 28 P.3d 570, 573-74 (concluding that "requiring
a nonresident physician to defend a lawsuit in a forum to which the doctor's only connection is
foliowup care rendered to a patient who came to the doctor in the doctor's home state for
primary treatment would be unfair" and declining to exercise personal jurisdiction).
24
Swank et al. v. Valley Christian School et al., No. 93282-4
the injuries manifested themselves in Washington. Id. The court declined to exercise
personal jurisdiction over the doctor and created "an exception to the general rule that
the place of the tort is the place where the injury occurs." Id. at 673. Instead, claims for
medical malpractice originating from care provided in another state but the injury
manifests itself in Washington do not constitute a tortious act giving rise to the exercise
of personal jurisdiction in Washington. Id.
The Swanks do not ask the court to overrule Lewis. Instead, they attempt to
distinguish it, arguing that because Dr. Burns released Drew to play football in
Washington, for a Washington school, and pursuant to Washington law, the language
in Lewis does not apply. We reject these arguments because all the relevant medical
care provided by Dr. Burns was in Idaho.
Since Dr. Burns provided medical care solely in Idaho, Washington cannot
exercise personal jurisdiction. All relevant actions that Dr. Burns took occurred in Idaho:
Dr. Burns examined Drew in Idaho, he wrote and signed the note releasing Drew to
play football in Idaho, and he left that note in the Idaho office to be picked up by Drew's
mother. Even though Drew's injuries manifested in Washington, like the injuries in
Grange Insurance and in Lewis, personai jurisdiction is improper because the relevant
medical care Dr. Burns provided was rendered in Idaho and the tort is considered to
have taken place there." As a result, we hold that the trial court did not have personal
jurisdiction over Dr. Burns and affirm the trial court's grant of summary judgment.
13 vVe also note that the Swanks, Idaho residents, are suing Dr. Burns, also an Idaho resident.
This court has declined to exercise personal jurisdiction in cases where Washington residents
25
Swank et al. y. Valley Christian School at al., No. 93282-4
CONCLUSION
In conclusion, we reverse in part and affirm in part. First, we hold that the Lystedt
law includes an implied cause of action because (1) the plaintiff is a member of the
protected class,(2)the legislature intended to provide recovery for statutory violations,
and (3) the legislative purpose is consistent with finding an implied cause of action.
Thus, we reverse summary judgment on this point, and the Swanks' claims that VCS
and Coach Puryear violated the Lystedt law are reinstated and are remanded for further
proceedings consistent with this decision. Second, we reverse the grant of summary
judgment on the claims against Coach Puryear, as there remain material issues of fact
about whether his actions were grossly negligent or reckless. As a result, we reinstate
the Swanks' common law negligence claims against the coach. Finally, we affirm the
grant of summary judgment for the claims against Dr. Burns because the trial court
lacked personal jurisdiction over him. We remand for further proceedings consistent
with this opinion.
sued out-of-state defendants in similar circumstances. See, e.g., Lewis, 119 Wash. 2d 667;
Grange Ins., 110 Wash. 2d 752.
26
Swank et al. v. Valley Christian School at al., No. 93282-4
WE CONCUR.
u
V
I)
r
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