A state court judge has dismissed a negligence claim brought by the mother of a sixth grader, after her son suffered a concussion during a physical education class, while executing the butterfly stroke.
In so ruling, the court found that “the accident was outside the practical ability of the district to prevent even in the exercise of highly intensive supervision.”
The instructional exercise, in which the plaintiff participated along with his classmates, centered on the basic movement of the butterfly stroke. “The students were thus instructed to swim the width of the pool with their arms at their sides, while kicking through the water with flippers and bobbing their heads and upper torsos up and down in an undulating manner,” wrote the court.
The plaintiff successfully completed his first four passes of the pool without incident. On the fifth pass, the plaintiff, who was swimming with his eyes closed, struck his face on the far wall of the pool, sustaining a compound fracture of his nose and allegedly a concussion, “which caused him to experience headaches for a few weeks, but no residual brain injury,” according to the court.
(An extensive analysis of this judicial opinion, as well as others that are relevant to sports concussions, will appear in the upcoming September issue of Concussion Litigation Reporter. To subscribe, visit https://concussionpolicyandthelaw.com/subscribe/)