STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
TOM GALLAGHER, AS COMMISSIONER ) OF EDUCATION, )
)
Petitioner, )
)
vs. )
)
GLENN L. MARSH, )
)
Respondent. )
Case No. 00-3363PL
)
RECOMMENDED ORDER
Pursuant to notice, a final administrative hearing was held in the above-styled cause before Administrative Law Judge
Fred L. Buckine, Division of Administrative Hearings, on December 8, 2000, in Orlando, Florida.
For Petitioner: Wiley Horton, Esquire
Booth & Horton
522 Park Avenue
Post Office Drawer 840 Tallahassee, Florida 32302
For Respondent: Clayton D. Simmons, Esquire
Stenstrom, McIntosh, Colbert, Whigham & Simmons, P.A.
200 West First Street, Suite 22 Post Office Box 4848
Sanford, Florida 32772-4848 STATEMENT OF THE ISSUE
The complaint alleges that on or about September 7, 1998, Respondent, Glenn L. Marsh, failed to properly supervise a football practice and care for the safety of the students under
his supervision in that Glenn L. Marsh failed to provide the students water during the practice, causing the students to become dehydrated and causing one student (S.J.) to collapse and require hospitalization for severe dehydration.
Essentially, the factual issue in this case is whether during a two and one-half hour football practice session on September 7, 1998, Glenn L. Marsh, head football coach of Atlantic High school, who did not give a team water breaks to all 40 players at any one time, but instead gave his three assistants coaches unilateral authority to give groups of players under their individual supervision water breaks as they deemed necessary, caused students to become dehydrated and caused one student to become dehydrated and hospitalized, and thereby violated Sections 231.28(1)(f) and 231.28(1)(i), Florida Statutes, and Rules 6B-1.006(3)(a)and 6B-1.006(3)(e), Florida Administrative Code.
PRELIMINARY STATEMENT
On August 11, 2000, the Commissioner of Education (hereinafter the Agency), filed an Administrative Compliant against Respondent, Glenn L. Marsh (hereinafter Coach Marsh), seeking disciplinary sanction of Coach Marsh's educator's certificate.
On August 23, 2000, Notice of Hearing and Order of Prehearing Instructions issued.
On October 25, 2000, Respondent's Motion for Continuance was filed; on October 30, 2000, a continuance was granted; and a final hearing was rescheduled for December 8, 2000.
At the final hearing, Petitioner presented the testimony of Respondent, Glenn L. Marsh; Michael Beauregard; S.J. (student who collapsed); Joy James, mother of S.J.; and James L. Longerbeam. Petitioner's Exhibits 1, 2, 3, 4, and 5 were admitted into evidence.
Respondent adopted his testimony in Petitioner's case on his own behalf and presented the testimony of Joe Hampton; Ronnie Graydon, II; and Paul Greg Stanton. Respondent's Exhibits 1, 2, 3, 4, 5, and 6 were admitted into evidence.
The Transcript was filed on January 2, 2001. Respondent's Proposed Findings of Fact, Conclusions of Law and Recommended Order was filed on January 8, 2001. Petitioner's Proposed Recommended Order was filed on January 17, 2001.
On January 8, 2001, Respondent filed a Motion to Supplement the Record and a Motion For Judicial Notice of an Article, Sickle-cell Trait As A Risk Factor For Sudden Death in Physical Training, (Karl JA, Posel DM, et. al., N Eng. J Ed 1987;
317-782) from the New England Journal of Medicine. Petitioner, on January 9, 2001, filed a Notice of Opposition to Respondent's Motion to Supplement the Record and Motion For Judicial Notice. After review of the motions herein filed, review of the case law
cited and memoranda of counsel, Respondent's Motion to Supplement the Record and Motion For Judicial Notice are DENIED.
FINDINGS OF FACT
Petitioner is a state agency charged with the regulation of the teaching profession pursuant to Chapter 231, Florida Statutes, and Rule 6B-1.006, Florida Administrative Code.
Respondent, Glenn L. Marsh, is a certified teacher in the State of Florida, having been issued Teaching Certificate No. 702169 on July 1, 1990.
At all times material hereto, Glenn L. Marsh was employed by the Volusia County School Board and assigned to Atlantic High School as teacher/head football coach and continued these dual duties until resigning on or about September 24, 1998.
At all times material hereto, Glenn Marsh, head coach, was responsible for establishing policy governing training and operations of varsity football at Atlantic High School. Under Coach Marsh's direct supervision were three assistant teachers/coaches, Ron Grayton, Jim Longerbeam, and Steve Lawson.
Substantial and competent evidence establishes that each assistant coach understood his responsibility, when students were under his individual supervision and control, for the care and safety of students in his charge. The Assistant
coach's responsibilities included but were not limited to, training and conditioning of players, evaluation of players' strength and weaknesses, and other coaching assignments during training and during the playing of varsity football games.
At all times material hereto, Volusia county policy required every male or female student, prior to participation in sport activities, to undergo a physical examination at Halifax Medical Center. A list of students who were medically approved to participate in sports was provided to the high school's Athletic Director, who in turn gave this information to the high school head coach. Student S.J. underwent the required 1998 medical examination, was approved and permitted to participate in sport activities at Atlantic High School.
At all times material hereto, S.J. was a student attending Atlantic High School and a member of the Atlantic High School varsity football team.
The parties stipulated, with confirmation by S.J., and by his mother, Joy James, that S.J. is a carrier of the sickle cell trait.1
Upon the testimony of the parties, it is established that S.J.'s medical condition, sickle cell trait, was not made known to Duane R. Busse, Investigator, Volusia County Schools, Office of Professional Standards, nor to the Halifax Medical Center during S.J.'s physical examination, nor to Coach Glenn
Marsh nor to any other member of the coaching staff at Atlantic High School.
From or about 9:00 a.m. to 11:30-12:00 p.m., during the course of his employment, Glenn Marsh was primarily responsible for supervising the varsity football practice at Atlantic High School, Titusville, Florida.
On the morning of Monday, September 7, 1998 (Labor Day), at approximately 9:00-9:15 a.m., S.J. and approximately 39 other members of Atlantic High School football team reported to Atlantic High School athletic fields for a routine football practice session for approximately two and one-half hours.
Credible evidence shows that players, at their option, dressed in shorts, tee shirts, and helmets for the morning practice. Some players elected to wear girdles.2 Of the players wearing girdles, some inserted padding in the inner girdle pockets and other did not. This early morning practice was a no-contact session.3
The testimony of the witnesses establishes that the weather condition on the morning of September 7, 1998, was normal in Florida for that time of the year, hot and humid, no rain with temperatures in the high 80 to 90 degrees.
Credible evidence shows that on September 7, 1998, the no-contact practice session consisted of specific physical activities wherein players were grouped according the their
positions on the team. Those physical activities scheduled by Coach Marsh were of limited duration and consisted basically of the following:
Starting time: 9:30 AM
Stretching 10-15 min. (9:30-9:45)
warm ups 45 min (9:45-10:30)
special teams 25-30 min (10:30-11:00)
defense air 25-30 min (11:00-11:30)
offense air 10 min (11:30-11:40)
Conditioning runs 10 min (11:40-11:50)
knee down review 5 min (11:50-11:55)
Locker dress out 5 min (11:55-12:00).
Stretching consisted of wind-mills, jumping jacks and in-place running, followed by special teams4 (punt return, offense, defense, wide receivers and running backs, etc.) against air (phantom team) which begins with players doing a walk-through against an air opponent. All players who were not playing on the team engaged in practice were required to kneel on one knee and observe but could not sit down.
Conditioning practice, which followed special team practice, consists of running laps up and down the football field with one coach positioned in one end zone, another coach at mid-field to time players, and Head Coach Marsh in the other end zone, directing runs.
Credible evidence establishes that the head coach, Glenn Marsh, determines the numbers of laps team members are required to run. On the day in question, Coach Marsh recalled that players ran six 100-yard sprints and two 40-yard sprints
and the September 7, 1998, practice session which followed an established routine and pattern of prior practice sessions.
Prior to the date in question, team members had undergone some two-a-day practice sessions but at least one practice session had been held every week since the beginning of the 1998 football season without incident of any nature.
On September 7, 1998, at or near the conclusion of players running conditioning laps, S.J. experienced a near sycopal episode. S.J. was assisted into the locker room by other students and was treated by coaches and teammates who undressed him, iced him down, and attempted to get him to drink liquids. S.J. was subsequently transported by EVAC to Halifax Hospital, Daytona Beach, Florida, for treatment.
Medical evaluation of S.J. by Halifax Hospital staff reported a history consistent with heat exhaustion, dehydration, and a mild renal failure. Follow-up treatment by Dr. Norman D. Pryor, Division of Nephrology, from September 9, 1998 through July 30, 1999, at Nemours Children's Clinic, Orlando, Florida, revealed S.J. had sustained no permanent impairment of his renal function. On January 25, 1999, Dr. Pryor reported S.J.'s renal process resolved and released S.J. to resume sports activities with no anticipated residual over time. (Petitioner's
Exhibit 1).
On September 7, 1998, Coach Ronald Graydon, in charge of the offense and wide receivers which included S.J., testified that he distinctly recalled giving his group of skilled players a water break: "Okay guys, let's pride it out and go to the trough -- or let's pride it out and get some water, which means break out of a huddle and go get some water." He knows that the water trough was turned on and water was available to players. He does not, however, recall who went to the water trough nor does he recall who drank water at the water trough.5
S.J. testified to the contrary. He recalls that he was never offered water by any of the coaches on September 7, 1998. On cross-examination, S.J. admitted he does not remember how much water he drank on Saturday or on Sunday before the Monday morning football practice session. However, on redirect examination, S.J. remembered, "I had only one cup of water or two cups of water before I went to practice. I thought like they'll have water out there, you know. I wouldn't have liked, you know, chug down like a gallon before I went out there".
S.J. testified that though he did not personally go to the water trough (although he remembered that the water trough was not turned on that day), the water trough was not hooked up that day and was not running and that the only source of water they (team) had out there (the practice fields) was a water fountain6 that barely put out any water. S.J. further testified
that throughout the entire two and one-half hours of practice session he did not have a drop of water or a chance to get water.
According to S.J., as he was down on all fours at about the 10-yard line preparing for conditioning sprints, he asked Coach Marsh, who was standing about 10 to 20 yards away, for water and was told "No." S.J. does not recall if Coach Marsh heard his request. S.J. did not repeat his request to Coach Marsh, other coaches, or fellow students. No witness was presented to corroborate S.J.'s recollection of his being on his knees asking for water.
Michael Beauregard, a special team running back player who was in S.J.'s skills group and who, prior to Coach Marsh's becoming head coach, was the starting quarterback for the team, testified from a confused memory of events on September 7, 1998. Initially, Michael Beauregard recalled that
practice began in the afternoon. When asked the same question a second time, Mr. Beauregard testified, "I have to say the morning, chances are." Mr. Beauregard testified that to his knowledge, it was Coach Marsh's policy during practice sessions that assistant coaches would gave their individual player groups water breaks. However, on September 7, 1998, as he recalls, assistant coach Jim Longerbeam never gave his group (running backs and wide receivers, including S.J.) a water break. The
inconsistencies, contradictions and confusion in Michael Beauregard's testimony render it less than precise and explicit, not the result of distinct memory, confusing as to facts in issue, and therefore, it does not produce a firm belief of conviction.
Assistant Coach James Longerbeam, with a master's degree in education and bachelor's degree in physical education and health, took control and supervision of the offensive line, tight ends, and wide receiver players (including Beauregard and S.J.) during the practice session. During these individual skills sessions, Coach Longerbeam distinctly recalls giving his players a water break because he even went over and got water himself from the water trough.
The totality of Coach Longerbeam's testimony demonstrated an understanding by assistant coaches of Coach Marsh's policy and methods regarding water breaks during football practice. Assistant coaches understood it was their individual responsibility to send players for water when they were under their personal supervision and in fact, they routinely did so. Further, they understood that when on team breaks between offense and defense team practice sessions, should Coach Marsh blow his whistle, all players would be free to get water at that time, that is, a full-team water break.
Coach Longerbeam testified that during the September 7, 1998, football practice every player was in a group under an assistant coach at some point in time, but he does not recall when the other assistant coaches sent their players on water breaks.
Joe Hampton, with bachelor and master degrees in physical education, teacher/coach for 32 years, currently employed at Estero High School, Ft. Myers, Florida, and a
year officer of the Florida High School Athletic Association gave the following opinion testimony:
His studies in conditioning and effects of physical exercise on the human has lead him to conclude that it is important to maintain proper hydration for varsity students;
It is vitally important to drink the right kind of fluids, (non-caffeine), water primarily, and lots of it before engaging in physical exercise;
If one is not properly hydrated prior to practice requiring physical exercises, what you drink at or during practice will not be sufficient to hydrate you; it may maintain you, but not hydrate you;
Varsity students lose weight during varsity football practice and games, from one or two to seven or eight pounds, which is mainly water loss. It takes an average of 24 hours to replace water weight loss through hydration by constant hydration;
In his 32 years of experience it is very rare for varsity players to become dehydrated; he has experienced one of two; but it's most unusual;
Water breaks are routinely determined by the head coach and usually follow a simple pattern; i.e. one after teams and skills
portion of a two and one-half hour practice; another after a time interval determined by the coach who knows the weather conditions, type of practice and knowledge of his kids;
He is not aware of any rule or anything that says it is mandatory to have team water breaks. Water breaks are discretionary with each head coach;
Varsity players' complaints of hot, tired, hurting, dying, can't make another step, etc. are common players' complaints when players are being pushed by their coaches to reach a higher performance level and to enhance their physical capabilities;
He was not present at Atlantic High on September 7, 1998;
He had had one and one-half hour walk through sessions where no water breaks were given; but, he had never been in a two and one-half hour practice session where no water breaks were given, and
He opined that if a group of players were engaged in a two and one-half hour practice session and no water was made available, it would be inappropriate conduct on behalf of the coaches.
Respondent, Glenn L. Marsh, with a bachelor's degree (1990) in exceptional education and eight years' classroom teaching experience prior to accepting the teacher/coach position as Atlantic High School, received the highest rating on his assessment evaluations at each high school by which he has been employed.7
Coach Marsh testified that there were approximately 40 varsity players at the practice on September 7, 1998. Practice began at 9:00 a.m. in the morning, it was a light no-contact
practice with helmets only, and no student other than S.J. suffered dehydration or collapsed.
Coach Marsh further testified that the entire team, including S.J., endured two-a-day practice sessions beginning in August of 1998 until playing the first varsity game; that thereafter, one-a-day practice sessions were the usual pattern; that during the weeks of two-a-day practice sessions, no student suffered any problems, including dehydration, other than normal bumps and bruises associated with playing the game of football.
Coach Marsh's confirmed that his policy and method of supervision was to give his assistant coaches individual authority to give water breaks to students when in individual training/practice sessions. He recalls that during individual groups, Assistant Coach Longerbeam was in charge of managerial things while he, Coach Marsh, was coaching and teaching, and Coach Longerbeam sent those players on water breaks.8
Coach Marsh recalled offering team water breaks during practice in his usual manner of a general statement to all, "Guys, anybody that needs water, get it," which would normally be echoed by assistant coaches. On the day in question Coach Marsh recalls he offered a "guys, anybody need water, get it" team water break before the start of the conditioning exercise phase of the practice.
Coach Marsh does not recall any player personally asking him for water or a water break and heard no complaints from players about a lack of available water; nor does he recall seeing any group, other than the group of which he was in charge, actually going for water.
Coach Marsh testified that his general group response/comment, given to no one student in particular and given many times in the past to all players, when players would complain about running laps, that is, "I am tired," "golly coach I am dying," was, in effect, "Guys you are not dying. You will pass out before you die." This statement is his general motivational response to players' gripes when running. He does not specifically recall, however, if he made that statement on September 7, 1998, but, admitted on cross-examination that he may have.
Coach Marsh testified that his water availability policy change, removing the plastic water bottles and cups from the practice field and replacing them with the single-source water trough, was based upon several concerns: 1) students were distracted by playing and squirting each other; 2) not- withstanding his constant instructions against it, students continued to drink directly from the bottle, thereby increasing the health risk of passing colds, etc.; and 3) there was a lack of accessibility between the two practice fields.
Following the September 7, 1998, incident and before September 24, 1998, Coach Marsh testified he met with Ron Pagano, principal of Atlantic High School. Mr. Pagano informed Coach Marsh during that meeting that Atlantic High School's water policy would be "get water every ten minutes no matter what the amount of physical activity, whether running, sitting, or standing, every ten minutes."
There was no evidence proffered addressing whether Atlantic High School or Volusia County established, published or made known policy, standards, or guidelines regarding mandatory water breaks for students engaged in high school varsity sports, prior to and on September 7, 1998.
Based upon evidence of record and at all times material hereto, Atlantic High School did not have in place a policy, principle, or guideline relating to the issue of water for student athletics engaged in physical activities.
When questioned by Petitioner's attorney about newspaper articles containing allegations leveled against him, that players had not been provided with an adequate supply of water, Coach Marsh response was that he took the position that those allegations were untrue and unworthy of his making a public response.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings. Section 120.57(2), Section 230, and Section 231, Florida Statutes.
The Standard of proof required to discipline a licensee is that of clear and convincing evidence. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 935
(Fla. 1999); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987), quoting from Reid v. Florida Real Estate Commission, 188 So. 2d 846, 861 (Fla. 2nd DCA 1996) which stated that:
The power to revoke a license should be exercised with no less careful circumspection that the original granting of it. And the penal sanctions should be directed only toward those who by their conduct have forfeited their right to the privilege, and then only upon clear and convincing proof of substantial causes justifying the forfeiture.
The court further amplified the clear and convincing evidence standard. See In re Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the Slomowitz Court said:
Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witness testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses
must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
Disciplinary action taken against a licensee may be based only upon those offenses specifically alleged in the Administrative Complaint. Cottrill v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996); Kinney v. Department of State, 501 So. 2d 129, (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So. 2d 842, (Fla. 2nd DCA 1984).
The Administrative Compliant alleges that Glenn L. Marsh violated Sections 231.28(1)(f) and 231.28(1)(i), Florida Statutes, and violated Rule 6B-1.006(3)(a) and Rule
6B-1.006(3)(e), Florida Administrative Code, when the following material allegations occurred:
On or about September 4, 1998, Respondent, Glenn L. Marsh; 1) failed to properly supervise a football practice and care for the safety of the students under his supervision; 2) failed to provide the students water during the practice; 3) causing the students to become dehydrated, and 4) causing one student to collapse and require hospitalization for severe dehydration.
Section 231.28(1)(f), Florida Statutes (1998), grants disciplinary authority to the Education Practices Commission authorizing penalty of suspension, temporary revocation, or permanent revocation of one's teaching certificate.
Subsection (1)(f):
Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the school board.
Subsection (1)(i):
Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.
Rule 6B-1.006(3)(a), Florida Administrative Code (1998), provides, in part:
Obligation to the student requires that the individual:
Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety.
(e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.
The material allegation of failure to properly supervise a football practice and care for the safety of students under his supervision was made against Coach Marsh.
Upon the basis of competent and substantial evidence presented and the testimony of the parties, the credible evidence demonstrates that Coach Marsh's established supervision policy and practice was to give each assistant coach unilateral authority to give water brakes to players during football practice when under their direct supervision. One could differ
with the policy and method of Coach Marsh; however, there is no evidence of record that Coach Marsh's policy and method was not "reasonable" in his effort to protect the student-players, or that is did not serve its purpose to "protect students from conditions harmful to their physical health and safety."
The credible evidence also demonstrates that Coach Marsh's initial supervision policy and method made water available to students during football practice in plastic bottles located along the sidelines between the two football fields. This was the initial policy from the time Coach Marsh became head coach until a few weeks prior to September 7, 1998.
There is no question, based on the evidence of record, that Coach Marsh continued his supervision policy of making water available to students during football practice but in a different form. The new available water source was a water trough located some 15 to 20 feet from the football field exit gate and in the direct route players must take to enter the school locker room.
The evidence from the testimonies of Respondent, Beaurgard, Coach Longerbeam, and Coach Grayton, is undisputed, clear and firmly establishes that on the morning of September 7, 1998, Respondent, Glenn L. Marsh, caused water to be made available to all Atlantic High School football players by means of an operative water trough located between the football field
and the school locker rooms. Should one consider only "availability," S.J.'s written statement is conformation, "I went to the water fountain."
The overall policy of supervision and standard of care for the students during football practice was the responsibility of Coach Marsh. The actualization and implementation of this policy of standard of care was an equal responsibility of the three assistant coaches. Each assistant coach is a certified teacher and therefore held to the same exacting standards as Coach Marsh in matters of "care and safety of students under (during) their individual supervision."
Assistant Coach Ronnie Graydon had under his individual supervision and direction, the responsibility for the "care and safety of (those) student(s) under (his) supervision".
S.J. was for some period of time during the practice under the direct care and safety and supervision of Coach Ronnie Graydon. Coach Grayton distinctly remembered that he specifically gave his players (offensive lineman and wide receivers' players under his supervision to include S.J.), a water break during individual special skills session of practice, "Let's pride it out and go to the trough or go get some water". He was precise and explicit in his recollection that based upon personal observation he knows that the water trough was turned on and that some players were using it. Coach Graydon, however, does
not know whether, during the water break, S.J. actually drank water or not.
S.J., in his testimony at the final hearing, denies that the water trough was on, and he also denies that the water trough was operative. However, with respect to the issue of "availability of water," S.J. himself establishes that water was, in fact, available on September 7, 1998, when he wrote in his statement given to the school investigator, "I went to the water fountain."
In his written statement given to Investigator Duane R. Busse on September 21, 1998, S.J. wrote: "I went to
the water fountain . . ." S.J. stopped short, however, of any mentioning why he "went to the water fountain" or what he did when he got to the water fountain. Without more, and in view of the totality of circumstances at the time (high temperature, high humidity, taxing physical exercise, hot and flushed skin, lingering thirst, plus having drunk only one or two cups of water some four or more hours earlier at breakfast), it is reasonable to surmise that between 11:00 a.m. and 12:00 p.m. during practice, S.J. "went to the water fountain" to get himself a drink of water.
In those situations where the licensee is charged with violation of standards of professional conduct and the specific acts or conduct required are explicitly set forth in the statute
or rule promulgated pursuant thereto, the agency is required to prove only a deviation from the statutorily-required acts or conduct. Conversely, where the agency charges negligent violation of general standards of professional conduct, that is, professional negligence, the agency must then present expert testimony on two essential points: (a) the required professional standard of conduct; and (b) Respondent's deviation therefrom.
In this case Coach Marsh is charged with violation of general standards of professional conduct, that is, failure to properly supervise and failure to exercise the degree of care reasonably expected of a professional high school varsity football head coach. To prove these allegations, the agency must present expert testimony on two elements, the required professional conduct and the deviation therefrom. McDonald v. Department of Professional Regulation, Board of Pilot Commissioners, 582 So. 2d 660 (Fla. App. 1 Dist. 1991);
Purvis v. Department of Professional Regulations, 461 So. 2d 134 (Fla. 1st DCA 1984).
In Purvis, a disciplinary proceedings on the charges of negligence and incompetency, that is, failure to comply with the minimum standard of care or treatment required under the circumstances, the Court reversed the Board on the basis that the Board never introduced any evidence at the administrative
hearing to show the appropriate standard of care which it contends were not met. The Board introduced no expert testimony, statute, rule, nor any other type of evidence to establish the appropriate standard of care of that Respondent fell below.
In this case, Petitioner offered no expert testimony, statute, nor rule which clearly establishes the: (1) required professional standard of conduct expected of a high school head varsity football coach; and (2) the deviation therefrom. No expert witness testified, no agency claim of special insight and experience, nor any other authority was provided by Petitioner to impose upon Coach Marsh a duty to ascertain at each water break that each varsity football student under his supervision drinks water.
On the basis of the credible evidence presented and the testimony of the parties, Petitioner has failed to establish by clear and convincing evidence of record that Respondent, Glenn L. Marsh, failed to properly supervise a football practice and care for the safety of the students under his supervision on September 7, 1998.
Upon the same evidence, Petitioner likewise has failed to establish by clear and convincing evidence of record that Respondent failed to make reasonable effort to protect a student from conditions harmful to learning and/or to the
student's mental and/or physical health and/or safety. Having ascertained that water was available, players were properly dressed, practice drills were divided into several sessions, assistant coaches were assigned to groups of players, and opportunities for water breaks were given by assistant coaches, the duty to "protect from harmful conditions" is met.
There is conflicting evidence on the issue of whether or not Coach Marsh gave a "team water break" to all students at any one time, regardless of what phrase of practice they were in. There is likewise conflict in the evidence on the issue of whether Coach Marsh gave a "team (meaning quarter backs and running backs) water break" or to a select part of the 40-player team. The evidence presented by Petitioner failed to be clear and convincing that Coach Marsh did not give a team water break to either a skills team or the entire 40-member team.
Regarding the third allegation, numbered c, failure to provide students water during the practice, the credible evidence is substantial, competent and clear that under Coach Marsh's supervision, a water trough was operative, available and opportunities provided by assistant coaches for students to drink if they desired, throughout the practice session on September 7, 1998 and Coach Graydon's "let's pride it out and go get some water," is one occasion. Coach Marsh's general opportunity given to all players, "Okay guys, anybody need water
get it," is another occasion. Finally, Coach Longerbeam not only gave a water break, but he went with the players and got a drink himself. Students were provided water during the practice in the morning of September 7, 1998.
There was no claim nor evidence introduced of a "standard of care" which imposed upon Coach Marsh the obligation of "insuring that individual student athletics did, in fact, drink water when opportunities to drink were presented."
Regarding the fourth allegation numbered d, causing the students to become dehydrated, Petitioner offered no evidence "that any of the 39 plus students (save S.J.) were found or determined to be dehydrated at the close of the two and one-half hour practice of September 7, 1998." Michael Beauregard, the only student witness presented by Petitioner, testified that he was dressed in full pads during the practice session and at the end of the practice he was thirsty and "cotton-mouth." Michael Beauregard did not testify that he was dehydrated. Additionally, not in his written statement or in his testimony did "cotton mouth" Michael Beauregard mention drinking water at the end of the September 7, 1998 practice session. It is reasonable to expect a dehydrated young varsity player with dry, flushed skin, high body temperature, and a cotton mouth from lack of water would recall getting a drink of water at the end of his two and one/half practice ordeal.
Petitioner has failed to present clear and convincing evidence that Respondent caused students to become dehydrated on September 7, 1998.
With regard to the issue of "cause(ing) one student (S.J.) to collapse and (to) require hospitalization for severe dehydration," Petitioner has failed to carry its burden of proof. A possibility of causation is not sufficient for recovery is applicable standard for this issue.
In Phyllis D. McKinnon v. David Pengree, Department of
Health and Rehabilitative Services, 455 So. 2d 1134, 1135 (Fla. 2nd DCA 1984) following their decision in Greene v. Flewelling,
366 So. 2d. 777 (Fla. 2nd DCA 1978), the court held that "A possibility of causation is not sufficient to allow a claimant to recover".
The Flewelling case cited by the McKinnon court in a wrongful death matter offers guidance for evaluation of this case for two reasons. First, Flewelling involves allegations of
negligence or wrongful or malicious indifference (herein repeated "failures") as the cause of a resulting injury/death due to dehydration (herein severe dehydration).
In Flewelling, Plaintiff's baby was placed in foster
care and suffered with slight diarrhea and vomiting. After a change of formula ordered by the doctor, the conditions initially improved but subsequently worsened. The baby was
taken to the hospital and died from severe dehydration. In the wrongful suit, Plaintiff alleged wrongful disposal (Plaintiff did not believe in cremation and baby was cremated) and negligence in the death of the baby.
HRS's attempts to reach the mother at her last known locations regarding disposal of the baby's body proved fruitless. Addressing the wrongful disposal issue, the Court held that the record does not show wrongful or malicious indifference through its failure to tell the mother about the cremation. That a mere possibility of causation is not sufficient to allow recovery.
Addressing the wrongful death issue, the McKinnon court directed a verdict for HRS because Plaintiff failed to offer any evidence that the alleged negligence of HRS (failure to inform foster mother fully of baby's prior medical condition) was the legal cause of the baby's death (from severe diarrhea and resulting dehydration).
The court reasoned that proximate cause was not established because no evidence that the symptoms of dehydration was presented sufficiently in advance to provide an opportunity to help.
Here, regarding the issue of Coach Marsh's conduct regarding availability of water and availability of water breaks, could have resulted in "causing one student (S.J.) to
collapse and (to) require hospitalization" is subject to application of the McKinnon case holding of proximate cause.
It is undisputed that S.J. collapsed on the practice field at the end of football practice on September 7, 1998. What is unanswered is what was the proximate cause of S.J.'s collapse, injury, and hospitalization.
S.J.'s collapse occurred at the end of a series of events: 1) S.J. had one or two cups of water some four or more hours prior to collapsing; 2) S.J. had completed at least two hours of physical activities in the hot, humid weather; 3) S.J.'s body disposed of hydration through perspiration; and 4)
S.J. had no replacement hydration (water) for a minimum of two hours.
Assuming that the record does prove a lack of proper supervision or needless exposure to harm or unprofessional and/or unreasonable conduct on behalf of Coach Marsh, there remains a second link, proximate causation. Petitioner offered no expert or medical evidence to establish the proximate cause between the alleged negligent conduct of Coach Marsh and S.J.'s heat exhaustion, dehydration and mild renal failure.
Indeed, the competent and substantial evidence of record established that 1) water was available; 2) water breaks were given; 3) S.J. went, at least once, to the water fountain; and 4) other players and at least one coach drank water.
Respondent's witness, Coach Joe Hampton, a high school coach for more than 30 years, opined that, "You gotta be hydrated before you go to practice. What you drink at practice is not gonna -- you know, it's not gonna hydrate you to perform. It'll help you maintain a little bit but not enhance it."
That no water was made available to S.J. personally; that S.J. did not drink water during the two and one-half hours of practice; that S.J. did not get a water break when he was under Coach Marsh's direct supervision; that S.J. did not hear or heard and chose not to respond to coach Longerbeam's offered water breaks, are but mere possibilities as a proximate cause of S.J.'s injuries. As such, mere possibility(ies) of causation are insufficient to rise to the required clear and convincing standard necessary to hold Respondent accountable.
Upon the basis of the evidence presented, the testimony of the parties, exhibits admitted, proposed recommended orders and memoranda of law submitted, and consideration of the record, it is concluded that Petitioner failed to prove by clear and convincing evidence the material allegation of the complaint, to wit, that Respondent, Glenn L. Marsh, failed to properly supervise a football practice and care for the safety of the student under his supervision. Likewise, Petitioner failed to prove by clear and convincing evidence that Respondent failed to provide students water during practice,
causing the students to become dehydrated and causing one student (S.J.) to collapse and require hospitalization for severe dehydration. Accordingly, Petitioner has failed to prove that Respondent has violated Section 231.28(1)(f) and Section 231.28(1)(i), Florida Statutes, and Rule 6B-1.006(3)(a) and Rule 6B-1.006(3)(a), Florida Administrative Code.
Based upon the foregoing Findings of Fact and Conclusions of Law, it recommended that State of Florida Education Practices Commission issue a final order finding Respondent, Glenn L. Marsh, not guilty of violation of Section 231.28(1)(f) and Section 231.28(1)(i), Florida Statutes, and Rule 6B-1.006(3)(a) and Rule 6B-1.006(3)(e), Florida Administrative Code.
DONE AND ENTERED this 22nd day of January, 2001, in Tallahassee, Leon County, Florida.
FRED L. BUCKINE
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 2001.
ENDNOTES
1/ An oral stipulation may be recognized by the court when the terms of the stipulation are not in dispute. See
Compass Enterprises, Inc. v. Earls, 397 So. 2d (5th DCA 1981); Pineapple Orange Company v. Traveler's Ins. Company, 104 Fla. 600, 140 So. 471 (1932).
2/ A girdle is an elasticized, flexible undergarment reaching from waist height to knee length usually worn over jock straps and shorts and under the football uniform. Girdles have inner pockets located at the front thigh, knee, tail bone and hip positions areas where players may or may not insert padding made of foam rubber, heavy cloth or thin plastic pads into each pocket for protection during body to body contact during practice and game conditions.
3/ A no-contact practice session is one in which players do not engage in body-to-body contact and are usually given an option of dress. Conversely, a contact practice session is one in which all players will engage in body-to-body contact and are required to fully dress out, with padding and other safety gear.
4/ Special team is the term applied to 1) offense players, 2) defensive players, 3) quarterbacks and running backs, 4) offensive linemen and wide receivers. Some students play on offense and defense teams, therefore, when offense teams are practicing, other players take a knee and observe. Players who play both sides of the ball (offense and defense) are responsible for informing special team coaches of this fact.
5/ Petitioner's Exhibit No. 4, consisting of a one-page composite drawing by several witnesses depicting the two football fields with entrances, prior location of water bottles, and locations of coaches during periods of the practice session.
6/ The water fountain is located near the door to the entrance to the school, Petitioner's Exhibit No. 4, composite drawing.
7/ Respondent exhibits 3,4,5 and 6.
8/ Petitioner's Exhibit No. 2, is composite of 38 hand-written pages of students and coaches' statements of their recollection of the September 7, 1998 incident. Of that group, (11) said they either got water or was offered water at various periods during the practice by one or both an assistant coach and during skill team break(s) session. (10) Said they were never offered
water nor had an opportunity to get water during the entire 2 and 1/2 hours of practice. (3) Did not mention water or water breaks and (3) coaches said water breaks were given.
COPIES FURNISHED:
Wiley Horton, Esquire Booth & Horton
522 East Park Street Post Office Drawer 840
Tallahassee, Florida 32302
Kathleen M. Richards, Executive Director Education Practices Commission Department of Education
325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400
Clayton D. Simmons, Esquire Stenstrom, McIntosh, Colbert,
Whigham & Simmons, P.A.
200 West First Street, Suite 22 Post Office Box 4848
Sanford, Florida 32772-4848
Michael H. Olenick, General Counsel Department of Education
The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 20, 2001 | Agency Final Order | |
| Jan. 22, 2001 | Recommended Order | Coach charged with negligent failure to properly supervise football team. Agency failed to offer expert evidence on "standard" - general and deviation therefrom. |
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