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Liability concerns lead lawyer to advise against playing fall sports

Attorney Tom Waffenschmidt guarantees there are going to be lawsuits filed if the PIAA decides to proceed with the fall sports season. The South Williamsport lawyer who specializes in personal injury with the Waffenschmidt Law Firm said this week if the PIAA or schools are concerned about lawsuits or the cost of lawsuits, then they shouldn’t play.

The PIAA will vote on whether or not it will proceed with the start of the fall sports season Monday during its Board of Directors meeting Friday.

Liability seems to be one of the hang-ups for the PIAA in deciding whether or not to play its fall sports season. PIAA Executive Director Dr. Robert Lombardi even asked the Pennsylvania Athletic Oversight Committee to help his organization and the individual schools obtain some kind of COVID-19 immunity during Tuesday’s hearing at the state capitol.

“Many of our schools are requesting protection from legal challenges and (are asking) the administration to provide legal immunity from COVID-19,” Lombardi said during his testimony to the oversight committee. “That would really change the landscape for our schools.”

The only way schools and the PIAA could be given immunity from such COVID-19 related lawsuits would be for the state legislature to pass a law which was signed into effect by Gov. Tom Wolf. But Waffenschmidt said even if the state legislature could pass a law, it could still be challenged in court. And should it reach the state supreme court, depending on the wording of the law, Waffenschmidt believes the court would find such a law unconstitutional.

Recently, the Sun-Gazette sports department conducted an informal poll on social media of parents of high school athletes. The poll asked, “Would you, as the parent of a high school athlete, sign a waiver to absolve the school and the PIAA of any liability related to a COVID-19 illness if it was a requirement for your child to play high school sports?”

Of the 1,071 votes cast, 67% of respondents said they would sign such a waiver. Another 18% of respondents said they would not sign such a waiver. And 14% said they would have questions which would need to be answered first.

But Waffenschmidt said such a waiver likely wouldn’t hold up in court depending on the situation. He laid out a hypothetical situation where a student-athlete tells his coach prior to a game he tested positive for COVID-19, but the coach allowed the student to play because he was asymptomatic. Should that student infect others who would then take the disease home to their family which could lead to the death of an older relative, the waiver wouldn’t absolve the school, the coach or the PIAA of liability because of the negligence on the part of the coach for allowing the player to participate, despite saying he had tested positive.

“There would certainly be a recourse to sue because the other family members didn’t sign that waiver. Even the parents would have a good argument,” Waffenschmidt said. “They sign waivers for a situation where everyone did everything in their power to protect against contracting COVID-19. They didn’t sign a waiver for a situation where someone was being grossly negligent in allowing a player to play knowing full well they had tested positive.”

Not all possible on-field contractions are the same, though, Waffenschmidt said. Should a student-athlete test positive in the days following a game in which they played, and another player contracted the coronavirus from that player, the school and PIAA would not be liable because they had no way of knowing the student was positive for the virus when he played in the game.

“Just because somebody gets infected doesn’t mean it’s somebody else’s fault. It doesn’t mean somebody can be held liable,” Waffenschmidt said. “But even if all coaches, all kids and all parents sign waivers, it doesn’t matter. The PIAA and all schools are still exposed to significant liability.”

The Sovereign Immunity Act makes it difficult to sue public entities, including public schools. But there are exceptions to the law which make it possible for individuals to sue schools. But private schools, such as Williamsport’s St. John Neumann, do not enjoy that sovereignty. Only when one of the exceptions is applied, which include negligent acts, can a public school be sued, Waffenschmidt said.

But the bottom line is Waffenschmidt would advise against the PIAA or any school playing fall sports in the middle of a global pandemic. While lawsuits in this area may be minimal because Waffenschmidt said “this part of the state isn’t as litigious as Philadelphia or Pittsburgh,” he still guarantees lawsuits will happen.

“If you’re concerned somebody from the other team, a parent, a relative or someone on your own team is going to get COVID — and it will happen, there’s no question about it — and you have concern about lawsuits or the cost of lawsuits, then don’t play,” Waffenschmidt said. “I know kids are eager to do what they do in the fall, which is play sports. And I know parents want to go watch their kids play football on a Friday night, and that’s understandable. But you cannot lose sight of the fact that we’re still in the middle of a pandemic. Things have improved for us around here, but it’s still bad in other districts. (The spread of the virus) has happened even with professionals. We’ve seen it from pro baseball already. It will happen at the high school level. And if that’s what’s going to happen, someone will file a lawsuit because this will be preventive.”

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