Concussions are a common sports injury among children. In recent years there has been growing consensus that policies are needed for “concussion management” and “return to play” guidelines – to protect our children. In 2013 Georgia became the 44th State to enact a law that requires schools to create a policy on how to respond to head impacts during sports and other recreational activities.

The Georgia law, The Return to Play Act of 2013, mandates that all public and private schools must adopt and implement a concussion management and return to play policy. The rationale behind the law is that school officials are in the best position to prevent children and teens from returning to play after a blow to the head. Continuing to play with a concussion or symptoms of head injury leaves a child vulnerable to severe injuries like post-concussive syndrome and chronic traumatic encephalopathy (CTE), or death.

Under the new law each local Board of Education and the governing board of every non-public elementary school, middle school, and high school must:

• Provide written warnings to coaches, students and parents that educate and inform of the risks of concussion and head injury to children who participate in athletic activities (this notice must be provided prior to the start of each athletic season and all pre-season practices)
• Require each coach to complete an annual concussion recognition course and be certified in recognition of concussions in student athletes
• Require coaches and school officials to comply with a uniform return to play protocol in the event of an injury or suspected injury to a child

What if your child was injured and school officials failed to follow the law and even greater harm happened to your child? How can the school be held accountable?

The answer to this question is unfortunately complex. Georgia law does not treat all students equally. If your child is injured while attending public schools your rights are fewer than if the injury happens at a private school. For a full treatment of how the law works in this area, read my post on Public School Injury Law In Georgia. If you don’t have time to read the full version, the law in Georgia is basically this:

In the State of Georgia the rule is that you can not sue a governmental employee (which includes school teachers, coaches, and school administrators) unless the governmental entity that employs them has waived Sovereign Immunity.

Sovereign Immunity is a shield that stops cold most injury claims against school districts and public school teachers/coaches, etc . . . Sovereign Immunity means that you can not sue the government without it’s consent. And as you might imagine, the government is not often inclined to give that consent.

Thankfully, there are exceptions to the rule. One exception is that under Georgia law, a suit against a public officer acting in his or her official capacity will NOT be barred by official immunity if the public officer negligently performed a ministerial duty. Suit IS barred, however, if the public officer negligently performed a discretionary duty. In other words, public officials are immune from damages that result from their performance of discretionary functions (GENERALLY, there is an exception that has to do with when those functions were undertaken with malice or intent to cause injury, read my full blog post on Public School Liability in Georgia if you want to learn more about that.)

What does all this mean? A ministerial duty is one that is commonly simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary duty is one that calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.

So the question is whether the Courts will interpret the new duties created by Georgia’s Return To Play Act as ministerial (no immunity – you can sue for negligence) or discretionary (immunity – you generally can’t sue.) Over the last decade or so the Georgia Court of Appeals has shown a tendency to interpret duties as discretionary (thereby barring suit). It is unknown how the Courts will interpret this new law.

I believe the Courts should interpret the duties under the new law as ministerial. The duties concern matters that are simple, absolute and definite – a blow to the head occurs and a duty arises at that point in time to act on the duty created by this new law. No discretion is needed – the coach or school official needs to remove the child from play and not allow return to play until the appropriate health provider has examined the child and cleared them to return. Failure to follow this simple protocol would be a violation of a ministerial duty. Similarly, a school district who fails to provide the required warning notices or required training for coaches would be in violation of a ministerial duty.

That’s my take on the proper interpretation of the new law. What the Courts will do is in the future. If your child has been injured at school, please call me. Navigating these waters alone is treacherous. Public school officials are well aware of the law of sovereign immunity. Private school officials already have lawyers working to defend them. Shouldn’t you too?

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Attorney Pete Pearson practices Child Injury and Wrongful Death Law in the State of Georgia. Located in the Greater Atlanta Metro Area, he is available to help families all over the State of Georgia. He can be contacted directly at Six-Seven-Eight 358-2564 or by Email.