Harvey v. Ouachita Parish School Bd.

674 So. 2d 372, 1996 WL 229844
CourtLouisiana Court of Appeal
DecidedJune 20, 1996
Docket28400-CA
StatusPublished
Cited by1 cases

This text of 674 So. 2d 372 (Harvey v. Ouachita Parish School Bd.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harvey v. Ouachita Parish School Bd., 674 So. 2d 372, 1996 WL 229844 (La. Ct. App. 1996).

Opinion

674 So.2d 372 (1996)

Michael Todd HARVEY, Plaintiff-Appellee,
v.
OUACHITA PARISH SCHOOL BOARD, et al., Defendants-Appellants.

No. 28400-CA.

Court of Appeal of Louisiana, Second Circuit.

May 8, 1996.
Opinion Dissenting from Denial of Rehearing June 20, 1996.

*373 Elmer G. Noah, II, Monroe, for Appellants.

Anthony J. Bruscato, Monroe, for Appellee.

Before MARVIN, STEWART and HIGHTOWER, JJ.

Opinion Dissenting from Denial of Rehearing by Judge Hightower, June 20, 1996.

MARVIN, Chief Judge.

In this action against the head coach of the West Monroe High School football team and the Ouachita Parish School Board arising out of an injury sustained during a football game in 1986 by Michael Harvey, a WMHS player, the defendants, Coach Ross Davis and the School Board, appeal a judgment finding them 80 percent at fault for Harvey's injury, a ruptured cervical disc, and awarding Harvey about $215,000 in damages, subject to reduction by 20 percent for his share of fault.

While conceding they owed some vague legal duty to protect high school football players from the risk of injury, defendants primarily question the trial court's findings that Coach Davis had and breached a duty to protect Harvey from the injury to his neck, which he sustained when tackled by players on the opposing team. Alternatively, defendants ask us to modify the trial court's allocation of fault and the assessment of Harvey's monetary damages.

Harvey argues in brief that he should not have been assessed with any fault, but he did not appeal or answer the appeal to preserve this issue for review. CCP Art. 2133; Starnes v. Caddo Parish School Bd., 598 So.2d 472 (La.App. 2d Cir.1992).

Amending the judgment solely to correct what we believe is a mathematical error in the calculation of Harvey's damages, we reduce the total award to $180,866 and affirm the judgment as amended.

FACTS

Harvey was injured on September 12, 1986, early in his senior year at WMHS, during a football game played in Shreveport against Booker T. Washington High School. A videotape of the game is in the record. By all accounts, the 17-year-old Harvey established himself as a gifted athlete and a "star player" for WMHS during his sophomore and junior years. Harvey played running back on offense and linebacker on defense.

In the third quarter of the game with BTWHS in Shreveport, Harvey, as a linebacker, intercepted a pass thrown by the *374 BTW quarterback, successfully eluding BTW tacklers and returning the interception from the 10 to the 50 yard line. As Harvey approached mid-field, a BTW player grabbed Harvey's face mask, forcing his head downward and toward his left shoulder and placing Harvey on the ground in a seated position. A 15-yard penalty was assessed against BTW for this infraction.

As Harvey was forced to the ground by the face mask infraction and in the "seated" position, another BTW player, pursuing and seeking to ground Harvey, "piled on" the upper part of Harvey's body, slamming his body against Harvey, whose head and neck were being contorted downward and to the left by the face mask infraction. These combined forces caused a compression injury to Harvey's spine. This injury left Harvey lying on the field, fully conscious, but unable to feel or to move anything below his neck for about 15 minutes.

Fortunately, Harvey's paralysis was temporary. After he regained feeling and movement, Harvey was removed from the field and taken by ambulance to the emergency room at a Shreveport hospital. At the request of Harvey's parents he was released from the ER on the night of the injury to return to West Monroe.

Harvey was then hospitalized at a West Monroe hospital for ten days, September 13-22, 1986. The initial diagnostic tests there being inconclusive, Harvey was returned to Shreveport for an MRI of the cervical spine, which was performed September 16, 1986.

The MRI showed that Harvey had a ruptured cervical disc at the C4-C5 interspace. Harvey's West Monroe neurosurgeon, Dr. Greer, referred Harvey to Dr. James Robertson, a Memphis neurosurgeon specializing in sports injuries. Dr. Robertson surgically removed the disc and fused the C4-C5 vertebrae with bone taken from Harvey's hip in November 1986.

After recuperating from the surgery, Harvey played baseball for WMHS during the spring of 1987, as he had done the year before. After graduating with his class, Harvey entered Louisiana Tech as a freshman, on a football scholarship, in the fall of 1987. His treating physicians cautiously or conditionally approved for Louisiana Tech Harvey's continuing his football career.

Notwithstanding his medical release to play football, Harvey was informed by his doctors that he faced a greater risk of reinjuring his neck, and of potentially permanent paralysis, than did players who had not undergone a cervical fusion. The doctors recommended that Harvey cease playing football if he experienced tingling or stinging in his arms or hands, leaving the final decision to Harvey.

Like other freshmen football players at Tech, Harvey was "red-shirted," being required to participate only in practices and scrimmages and not playing against opposing teams. In deference to his cervical fusion, Harvey wore a "neck roll" at all times in practice sessions and when scrimmaging. He sometimes experienced pain in his neck, and a stinging or burning sensation in his shoulders and thumbs, particularly after contact with another player. Fearing another neck injury, Harvey became less aggressive in his play, sometimes "holding back" and performing below his usual capabilities to avoid contact.

Harvey satisfactorily participated in the Tech football program in the fall of 1988, according to a Tech coach. He continued to experience pain and stinging, however, ceasing his college football career during the 1988 season because of his experience and his concern of more serious injury.

Before the 1986 high school injury, Harvey was being heavily recruited by several universities and colleges in Louisiana and other states to play college football.

Harvey brought his action for damages in Caddo Parish, joining as defendants the Caddo and Ouachita Parish School Boards, their respective high school football coaches, and the Louisiana High School Athletic Association. The LHSAA was dismissed on summary judgment. See Harvey v. Ouachita Parish School Bd., 545 So.2d 1241 (La.App. 2d Cir.1989). The Caddo School Board and coach were also dismissed before the trial.

The issues in this appeal hinge heavily on the factual circumstances leading up to Harvey's *375 injury, as found by the trial court. Sometimes referring to appellants singularly as the Board, we summarize the trial court's findings, express and implied:

TRIAL COURT FINDINGS

— Before his September 1986 injury, Harvey had suffered two prior, albeit minor, neck injuries as a football player for WMHS. His first minor injury occurred in a scrimmage in the spring of 1986, and his second in a pre-season jamboree game that August, preceding the regular season games. In each instance, Harvey told his father, a West Monroe doctor of chiropractic (D.C.), that he had "jammed" or strained his neck. Harvey's father observed and treated him for both injuries, noting that Harvey was free of symptoms within a week of each injury. Opinion evidence agreed that these injuries were minor, but had the effect of weakening to some degree Harvey's neck and increasing his susceptibility to more serious or severe neck injury.

— The day after the August 1986 "jamboree" injury, Dr.

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