Cerny v. CEDAR BLUFFS JR./SR. PUBLIC SCHOOL

679 N.W.2d 198, 267 Neb. 958
CourtNebraska Supreme Court
DecidedMay 7, 2004
DocketS-03-085
StatusPublished
Cited by4 cases

This text of 679 N.W.2d 198 (Cerny v. CEDAR BLUFFS JR./SR. PUBLIC SCHOOL) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cerny v. CEDAR BLUFFS JR./SR. PUBLIC SCHOOL, 679 N.W.2d 198, 267 Neb. 958 (Neb. 2004).

Opinion

679 N.W.2d 198 (2004)
267 Neb. 958

Brent CERNY, appellant,
v.
CEDAR BLUFFS JUNIOR/SENIOR PUBLIC SCHOOL, Saunders County District No. 107, appellee.

No. S-03-085.

Supreme Court of Nebraska.

May 7, 2004.

*200 Larry C. Johnson, of Johnson & Welch, P.C., Fremont, for appellant.

Stephen S. Gealy and Timothy E. Clarke, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., Lincoln, for appellee.

HENDRY, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

MILLER-LERMAN, J.

I. NATURE OF CASE

This is the second appearance of this case before this court. Brent Cerny, appellant, filed a personal injury action against Cedar Bluffs Junior and Senior High School (the School), appellee, under the Political Subdivisions Tort Claims Act, Neb.Rev.Stat. §§ 13-901 to 13-926 (Reissue 1991 & Cum.Supp.1994). In his lawsuit, Cerny alleged that while participating in athletics as a student at the School, he sustained personal injuries as a result of the negligence of the School and its coaching staff. Following the initial bench trial, the district court for Saunders County found that the School's coaches were not negligent and dismissed the petition. Cerny appealed.

On appeal, we concluded that the district court had erred in determining the applicable standard of care and in discounting certain expert witness testimony when applying that standard of care. We reversed the district court's decision and remanded the cause for a new trial. Cerny v. Cedar Bluffs Jr./Sr. Pub. Sch., 262 Neb. 66, 628 N.W.2d 697 (2001) (Cerny I).

Following remand, a second bench trial was held. After the second trial, the district court found that certain conduct was required to meet the standard of care and that the conduct of the School's football coaching staff comported with the standard of care required of a reasonably prudent person holding a Nebraska teaching certificate with a coaching endorsement. As a result, in its journal entry filed January 6, 2003, the district court found no negligence on the part of the School and dismissed the petition. Cerny appeals. We affirm the district court's decision on remand.

II. STATEMENT OF FACTS

Initially, we note that pursuant to the parties' stipulation, much of the trial record from the first trial of this case was received into evidence during the second trial. The following facts are established by that portion of the record which is before us now and which was before us in Cerny I, 262 Neb. at 67-69, 628 N.W.2d at 700-01, and are therefore reiterated from that opinion:

In the fall of 1995, Cerny was a student at the School and a member of its football team. On the evening of Friday, September 15, 1995, he participated in a football game between Cedar Bluffs and Beemer high schools. Mitchell R. Egger was the head coach of the Cedar Bluffs team, and Robert M. Bowman was the assistant coach. Both held Nebraska teaching certificates with coaching endorsements.

Cerny fell while attempting to make a tackle during the second quarter of the *201 Beemer game, striking his head on the ground. Although he felt dizzy and disoriented after the fall, Cerny initially remained in the game but took himself out after a few plays. He returned to the game during the third quarter. Subsequently, during football practice on Tuesday, September 19, Cerny was allegedly injured again when his helmet struck that of another player during a contact tackling drill.

There was conflicting evidence at trial regarding the symptoms experienced and communicated by Cerny during and after the Beemer game. Cerny testified that when he came out of the game, he told Egger and Bowman that he felt dizzy, disoriented, and extremely weak. Egger stated that Cerny complained of dizziness when he came off the field during the Beemer game. He also noted that Cerny was short of breath and had a tingling sensation in his neck. Egger stated that Bowman continued to monitor Cerny.
Bowman testified that Cerny did not complain of a headache when he left the game, but did state that he felt fuzzy or dizzy, that he had some burning in his shoulder, and that he could not catch his breath. Bowman attributed Cerny's dizziness to hyperventilation, not a head injury. Bowman stated that when Cerny came out of the game, Cerny made normal eye contact with Bowman and Cerny's speech and movement appeared normal. After catching his breath, Cerny appeared to Bowman to be in a normal emotional state. However, Bowman did recommend to Egger that Cerny should get medical attention, but to his knowledge, no medical personnel examined Cerny that evening.
When Cerny asked to re-enter the game during the third quarter, Bowman observed that he seemed completely normal, exhibiting neither confusion, disorientation, nor abnormal speech. Bowman also noted that Cerny did not complain of a headache. Egger allowed Cerny to re-enter the game after observing that his color looked good, his eyes looked clear, and his speech was normal.
Cerny testified that he had a headache continuously from Friday night until the practice on Tuesday. However, there is conflicting evidence as to whether he reported this to his coaches. Cerny testified he told Bowman he had a headache during the bus ride home after the Beemer game. However, Bowman testified that during the bus ride, he asked Cerny how he felt, and Cerny replied "I feel good, Coach" and did not complain of a headache.... Cerny testified that he told his coaches before the Tuesday practice that he had a nagging headache all weekend, but on cross-examination, he admitted that he did not remember if he had told the coaches that he was feeling bad before practice. Egger testified that he did not talk to Cerny before the Tuesday practice and permitted him to participate because "I thought he was okay, just—he was okay Friday. At least in our eyes he was okay."

Dr. Thomas A. McKnight, a family practice physician who has treated Cerny since September 1995, and Dr. Richard Andrews, a neurologist to whom Cerny was referred by McKnight, both expressed opinions that Cerny suffered a concussion during the Friday night game; that he was still symptomatic at the practice on the following Tuesday; and that during the practice, he suffered a closed-head injury with second concussion syndrome. Andrews testified that the second blow to the head sustained during the practice was "the principal *202 cause of [Cerny's] traumatic brain injury, and the sequelae as it exists now."

Cerny filed a personal injury action against the School under the Political Subdivisions Tort Claims Act, and in his amended petition (petition) alleged that the School, acting through its coaches, was negligent in a number of particulars, including "failing to adequately examine [Cerny] following his initial concussion ... to determine the need for immediate qualified medical attention" and "allowing [Cerny] to return to play ... without authorization from qualified medical personnel and without verifying it was safe to do so." The case was tried to the bench from June 28 to 30, 1999. On October 6, the district court entered judgment in favor of the School and dismissed Cerny's petition.

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Cite This Page — Counsel Stack

Bluebook (online)
679 N.W.2d 198, 267 Neb. 958, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cerny-v-cedar-bluffs-jrsr-public-school-neb-2004.