Northern Indiana diocese gets summary judgment on student-athlete’s negligence claim

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The Catholic Diocese of Fort Wayne-South Bend will be awarded summary judgment after the Court of Appeals of Indiana found evidence to negate a student-athlete’s claim that the diocese was negligent in allowing her to compete following a “minor” injury.

The case of Diocese of Fort Wayne South Bend, Inc. v. Gabrielle Gallegos, 22A-CT-992, began in January 2018, when 17-year-old Gabriella Gallegos was competing at a swim meet at Washington High School in South Bend. Gallegos was competing for Marian High School, which is owned by the Fort-Wayne South Bend Diocese.

During warmups, Gallegos hit her head on a diving board and had to be helped out of the water. She had a knot on her head but didn’t indicate that she had a headache, and she was able to answer a series of questions correctly.

The Washington High athletic trainer told Marian’s head swim coach that Gallegos wasn’t displaying signs of a concussion, so she was allowed to compete in the meet, including several more dives.

But when Gallegos got home, she began to feel groggy and her head began to hurt. Her mother took her to the hospital, where she was diagnosed with a concussion and a broken nose.

Two years later, Gallegos filed a negligence complaint against the diocese, arguing she should not have been permitted to participate in the January 2018 swim meet. She claimed she suffered brain injuries and other damages as a result of competing that day.

The diocese responded with a motion for summary judgment, designating as evidence a report from Dr. E. Andy Akan, a neurologist who said Gallegos had a preexisting history of concussions, attention-deficit disorder and migraine headaches. Thus, Akan wrote, the January 2018 competition “did not exacerbate injuries related to a minor concussion Gallegos may have sustained when she hit her head on the diving board.”

Gallegos did not submit any medical or other expert opinion to contradict Akan. But she did designate her own affidavit, in which she claimed, “I believe continuing to dive after my head injury worsened my condition because my physician informed me that repetitive impact to my head aggravated my initial head injury.”

The St. Joseph Circuit Court ultimately denied the diocese’s summary judgment motion, so the case proceeded to interlocutory appeal, where the Court of Appeals reversed and remanded for the entry of summary judgment in the diocese’s favor.

“Gallegos claims that she was not required to present medical expert evidence because ‘it is clearly within the layman’s knowledge today that someone suffering a concussion is more likely than not to be vulnerable to additional injury from continued impact,’” Judge Elizabeth Tavitas wrote Wednesday. “Given, however, Gallegos’s pre-existing conditions and the nature of the injuries she now complains of, i.e., headaches, dizziness, and mental ‘fogginess,’ we conclude that her injuries are subjective in nature.

“… Because Gallegos’s injuries were subjective in nature, she was required to prove causation by way of expert medical testimony,” Tavitas continued. “… Dr. Akan specifically concluded that Gallegos’s post-accident diving did not cause any aggravation of any injury Gallegos suffered when she hit her head due to the low-impact nature of diving, and Gallegos failed to submit any expert medical evidence to counter Dr. Akan’s conclusions.”

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