Woody Hayes-Wannabe Can be Sued for Alleged Gross Negligence in Tackle of His Own Player

An assistant middle school football coach in Botetourt County who thought it would be a great idea to demonstrate proper tackling techniques on an unsuspecting 13-year-old team member, injuring the boy in the process, may be sued for gross negligence according to the supreme court in Koffman v. Garnett, 265 Va. 12, 574 S.E.2d 258 (2003).

Garnett, the defensive coordinator of the middle school team told the boy, a third-team defensive player, to hold a football and stand upright and motionless. Garnett, who weighs 260 pounds, then tackled the boy, who weighs 144 pounds, and slammed him to the ground, breaking the boy's left arm.

The boy sued by his next friend, his father, alleging simple and gross negligence and assault and battery. The trial court granted Garnett's demurrer on the grounds that the coach had sovereign immunity because the boy did not plead sufficient facts to support a finding of lack of consent to the tackling demonstration. Sovereign immunity in Virginia may shield public employees from actions for simple negligence but not intentional torts and gross negligence.

On appeal, the boy did not challenge the trial court's finding that sovereign immunity could apply to the coach, but the boy argued that the facts as pleaded stated a cause of action for gross negligence, assault, and battery.

The supreme court held that since it was alleged that no coach had ever tackled any player previously, there was no reason for the boy to expect to be tackled in such a manner or to consent to the activity. The court also held that the allegations of the coach's knowledge of his superior size, his instruction to the boy to assume the position of a sitting duck, the force the coach used in making the tackle, and the fact that this was the coach's first use of a human tackling dummy stated a cause of action for gross negligence.

The court upheld the trial court's dismissal of the assault cause of action because the motion for judgment averred no facts which tended to show that the boy had any apprehension of the tackle prior to contact. However, the court ruled that reasonable persons could disagree as to whether the boy had consented to the coach's tackle and held that the boy had stated a cause of action for battery.

The court remanded the case back to the trial court for further proceedings, and, presumably, Garnett has been remanded back to the seats as a fan.

Brother, Can You Spare a Name?

In Hines v. Commonwealth, No. 0481-02-1 (Va. Ct. App. Feb. 25, 2003), Martin Levette Hines was arrested for committing numerous traffic offenses, but Martin gave the arresting officer his brother Antoine's name and social security number and signed his brother's name to his summonses. Well, his brother was a 15-year-old with only a learner's permit, and Martin eventually admitted his real name and stated that he had given his brother's name to evade an outstanding arrest warrant.

Martin was convicted of five counts of forging a public document. He appealed his conviction on the grounds that Va. Code § 18.2-168 should be interpreted to allow only one conviction under the facts of the case. Specifically, Martin argued that the "single larceny doctrine" should apply in this non-larceny case because Martin acted pursuant to "a single impulse and in execution of a general fraudulent scheme," citing Richardson v. Commonwealth, 25 Va. App. 491, 489 S.E.2d 697 (1997) (en banc).

The court of appeals noted Stephens v. Commonwealth, 263 Va. 58, 557 S.E.2d 227 (2002), in ruling that the doctrine did not apply to non-larceny cases. The court rejected Martin's reliance on a 10th Circuit case likening larceny to the forgery of a private document for theft purposes. The 10th Circuit court had held that under this analysis the single larceny rule could apply to convictions for forgery and uttering. The court of appeals, though, found that the crime of forgery of a public document does not involve a personal loss of property as in private forgery or larceny cases.

Second, the court of appeals held that Va. Code Ann. § 18.2-168 allows multiple prosecutions for contemporaneous forgeries of public documents. The court cited other Code sections treating each summons as relating to a separate traffic offense. The court found that the Code does not treat all five summonses as one public document but, rather, states that a person is guilty if he forges "a public record," not public records generally.