The parents of a 16-year-old youth who died after a football game last fall say he was forced to take the field wearing a substandard helmet and should have been pulled from the contest because he was visibly hurt.
The accusations are found in a notice of claim served on Westfield Academy and Central School by the mother and father of the late Damon W. Janes: Chautauqua County residents Dean Janes, of Brocton, and Penny L. Gilbert, of Portland.
Damon staggered to the sideline during his Westfield/Brocton football team’s lopsided loss at Portville, in Cattaraugus County, on Sept. 13. He collapsed there and died three days later in Buffalo’s Women & Children’s Hospital.
Initial reports had Damon suffering a serious helmet-to-helmet collision, which likely inflicted a fatal brain injury. But other theories have emerged, including that a serious blow to the head in the prior week’s game at Randolph left him vulnerable to a life-threatening hit in a later contest.
In their notice of claim, Damon’s parents and their lawyer – Dale C. Robbins, of Jamestown – seem to leave room for the second scenario. They say Westfield failed to monitor Damon “between games when it was apparent he had suffered an injury” and failed to examine him at the season’s start to establish a baseline for his balance and brain function.
With an estimated 1.7 million to 4 million sports-related concussions each year, many athletic coordinators conduct baseline tests to better measure the severity of any future brain injury. New York State does not mandate baseline tests for scholastic athletes, according to the State Public High School Athletic Association. But the state does require that players who are believed to have suffered a concussion immediately sit out and resume play only when symptom-free for at least 24 hours.
Not only did Damon suffer a serious helmet-to-helmet hit during a kickoff in the season opener at Randolph, according to a report in Upstate Football Weekly, the running back suffered two serious hits in the season’s second game, at Portville.
Damon, according to a report in the New York Daily News about his death, remarked to a teammate that he was smarting from the first collision at Portville. But he brushed aside a suggestion to take a breather on the sidelines. The second severe impact – a late hit in the third quarter, the Daily News reported – led to an unsteady walk off the field, where he collapsed.
The Westfield/Brocton season was canceled after his death.
In the notice of claim, Damon’s parents and their lawyer say Westfield failed to provide the young player with a proper-fitting helmet, failed to properly recondition its helmets and failed to replace helmets as necessary “to optimize player safety.”
A notice of claim is not a lawsuit. It signals an intent to sue and preserves the right to sue as time passes.
Westfield School Superintendent David J. Davison refused to talk about any of the accusations when contacted by The Buffalo News on Monday. His district managed the football team, which was fielded with students from the neighboring Brocton district.
Brocton, which Damon attended, also has received a notice of claim related to his death, according to an official there. But unlike Westfield, Brocton so far has refused to provide it to The News through New York’s Freedom of Information Law.
With so much about the death remaining unknown to the general public and to the young athletes who risk head injuries playing contact sports, The News requested other documents from Westfield. Chief among them were the district’s videos of last season’s football games.
But the district intends to keep those hidden. Westfield’s business manager and district clerk invoked the Family Educational Rights and Privacy Act – a federal law that protects a student’s centrally maintained academic records – to deny the request for the game videos.
“Oh, how ridiculous,” Frank D. LoMonte, an attorney and executive director of the Student Press Law Center in Alexandria, Va., said when told of the matter. The center serves as a legal resource for high school and college journalists and tracks attempts to keep public records secret by misusing the law, which is often referred to as FERPA.
“By its very name, FERPA protects things that are private,” LoMonte said. “What you look like playing football in front of a thousand people is not confidential. Committing something nonconfidential to film does not magically transform it into a secret. The school should be embarrassed to be using FERPA in that way.”
The News also requested correspondence about the death that the district may have sent to an outside entity, such as the state Department of Education. Alan L. Holbrook, the district’s business manager and district clerk, refused to release those documents, as well, citing FERPA and a state law that protects an attorney’s work product and materials prepared solely for litigation.
Robert J. Freeman, executive director of the State Committee on Public Access to Records and one of the foremost experts on New York’s sunshine laws, said the district should have better explained why it thinks its reports are protected by the state’s civil practice law.
When asked about the district’s refusal to make the game videos public, Freeman reacted much like the Student Law Center’s LoMonte did.
“That’s ridiculous,” he said. “You are talking about film during a game, during which hundreds or maybe thousands of people were present? No – doesn’t make sense.”
The News has turned to its lawyers to appeal to Davison, the district superintendent who serves as Westfield’s appeals officer for Freedom of Information matters. Should Davison continue to withhold the records, the lawyers will take the other steps necessary to obtain the videos and written records, including records that might indicate whether Damon had suffered other serious head injuries during his playing days.
While Westfield invoked FERPA to withhold records sought by The News, Brocton did not. So far, Brocton school officials have offered no legal reason for blocking access to records that might shed light on Damon’s fatal injury.
Betty A. DeLand, the district business executive who receives Freedom of Information requests for Brocton, never sent off a letter acknowledging receipt of the newspaper’s request, as the law requires. After weeks passed, The News filed an appeal with Superintendent John W. Hertlein, who called to say he would not provide The News with any of the documents.
“This is really sensitive stuff,” Hertlein said, “and I’m not messing with it.”