Are Laws Too Weak, Damages Too Low to Prevent Heat-Related Deaths?

On August 20, 2008, Coach Jason Stinson ended the day's high school practice by requiring his team to run 12 gassers, sprints up and down the field to build stamina.

It was 94 degrees.

Sophomore Max Gilpin, a 6-foot-2, 220 pound offensive lineman collapsed near the end of the sprints and never regained his feet. Three days later he died, the latest athlete to fall victim to heat stroke. But this all-too-familiar tragedy didn't end there. Gilpin's coach was charged with reckless homicide.

The charge tore the Louisville community apart at the seams. Players staged rallies for their former coach, a legal defense fund was set up online, and the everyone was left wondering, what responsibility should a coach bear in a situation such as this?

Is the criminal court system the best way to pursue anyone after the death of a child on a football field?

These aren't easy questions and many of the people in the community don't have easy answers. All it takes is reading a Facebook group called, "Supporters of Coach Jason Stinson" to see how raw the feelings remain. Over 2,700 people have joined the group and there are 242 posts on the wall supporting the coach. Most of the posts are like Benjamin Roehrig's:

"Coach I'm sorry I haven't come and saw you at all the events for you, but my parents have. They told me all about things, I might come and see you one of these days at Church. They also told me how you wanted me to play football and stuff, if you were still coachin I probably would have since I cant play soccer anymore but I decided not to. But I just wanted to let you know I'm behind you all the way and support you. You didnt deserve any of this and I hate it when people blame it on you. Your in everyones prayers."

Looking at how the law treats heat-related deaths in football helps us understand why these deaths continue to happen. There are both possible criminal and civil repercussions, yet these two combine to make it likely that nothing major will change, rather than making change inevitable.

Heat-related deaths for football players in high school, college, or the NFL are, of course, comparatively rare. Even taking the largest number generally accepted, 31 men have died in a little over a decade. That's less than three a year. But the shocking nature of these deaths, and the raw feeling that they could have been prevented so easily, makes the deaths difficult for any community.

Criminal charges, like the one against Stinson, are unique. But the civil lawsuit filed by Gilpin's parents is not. Virtually all of these cases end up being litigated civilly. A civil lawsuit concerning a heat-related death is a tort case, an action that arises when someone believes they have been wronged by another party.

The Gilpins have sued the coach, school officials, and other coaches alleging that they were negligent and acted with reckless disregard in bringing about the death of their son. Typically in tort cases, the plaintiff's attorneys work for a contingency fee, that is they take on the case without being paid up front or by the hour of work. For taking on the risk of the case, the plaintiff pledges a portion of the eventual recovery, if any, usually around one-third of the eventual recovery minus expenses, to the plaintiff's attorney.

Generally speaking, a plaintiff's attorney is motivated to take on the cases that have the greatest potential for recovery. Plaintiff's lawyers always bear the risk of litigating a case and receiving nothing in return for their labor so they prefer a potential pot of gold, a big verdict, dangling at the end of the litigation rainbow. But there's one problem in cases such as these, heat-related deaths don't typically have large recoveries.

Why not?

Because of something called governmental immunity from torts. Broken down, this means that governmental defendants are limited by statute in the amount that they have to pay out in damages, typically well beneath a half million dollars per incident. Often, depending on the state, much lower. Why do these limits exist? Because the taxpayer is effectively funding these payouts. As a policy decision, we have all determined that the taxpayer shouldn't be on the hook for big liabilities in publicly-owned high schools, hospitals, and the like.

Even if employees of those places happen to be negligent.

These lower limits of recovery mean that plaintiff's attorneys are not going to get rich by suing a public high school or university. And the vast majority of heat-related deaths take place at these two places. The practical impact is that no verdict is going to be so large as to send a message that heat-related deaths aren't to be trifled with.

Now the public marketplace can be outraged and disgusted by what they view as a preventable death, but the actual economic hit to the entity, if they're found liable, is not going to be crippling. So there isn't tremendous financial pressure to change.

Who else can be sued? Coaches, administrators and the like. But even if they're found to have acted outside the scope of their employment and be found personally liable, they don't typically have the deep pockets that plaintiff's lawyers like. They don't have doctor's salaries, none of these individuals are sitting on millions of dollars in assets. What's all that mean?

Lawyers don't get rich, neither do their clients, and the impetus for reform isn't fueled by the threat of major punitive awards.

That means there are two basic routes outside the civil courts to effect legal change, either enact more stringent training methods dealing with heat-related issues in the hope that this will change behavior (as the state of Kentucky has done in the wake of Gilpin's death--coaches are now required to complete a four-hour training session on heat-related issues) or charge coaches criminally in an effort to make an example of someone and scare coaches into behaving more reasonably on the field. (which Kentucky has also done).

What all of these legal routes show us is that they are, ultimately, as imperfect as the treatment is for players overcome by the heat. It also shows us that the legal system can't resolve the difficulties that ensue when players put on helmets and pads and toil beneath a broiling sun.

This keeps happening, effectively, because the law can't make it stop.