Ennis Britton first reported about this case in the May 2018 issue of our newsletter, School Law Review, as it has implications for school districts and athletic organizations. Since then, this case has continued in court, and the Ohio Supreme Court has now weighed in as well.
Steve Schmitz was an NCAA athlete who, during the course of his football career in the 1970s, exhibited several symptoms related to repeated concussions. He was diagnosed with CTE in 2012 and alleged that this was the first time he knew he had suffered a bodily injury. He filed a lawsuit in 2014. Since his death in 2015, his widow has continued the lawsuit.
The Cuyahoga County Court of Common Pleas dismissed the case based on the statute of limitations as more than two years had passed since the bodily injury occurred.
A cause of action for a bodily injury generally accrues from the time the wrongful act that caused the injury was committed. Most often, the bodily injury and the wrongful act occur at the same time; in these cases, the statute of limitations clearly begins tolling at the time of injury. However, in some cases a person is not aware of a bodily injury at the time of the wrongful act. In these cases, it is not as clear when the two-year statute of limitations should begin running.
On October 31, 2018, the Ohio Supreme Court unanimously decided that the lower court had dismissed the case prematurely and that the case should continue. The Supreme Court developed a “discovery rule” for cases of latent bodily injury, in which the injury develops after the incident that caused it. The opinion stated, “[e]ssentially, the statute of limitations begins to run when the plaintiff knows or, in the exercise of reasonable diligence, should know that he has suffered a cognizable injury.”
A similar case previously decided by the Ohio Supreme Court held that the statute of limitations for a latent injury claim began tolling on the “date a competent medical authority” informed the man of his specific bodily injury. Liddell v. SCA Servs. of Ohio, 70 Ohio St. 3d 6 (Ohio 1994).
– Schmitz v. Natl. Collegiate Athletic Assn., Slip Opinion No. 2018-Ohio-4391.
In October, a flight from Charlotte to Cleveland was delayed when a woman carrying what she characterized as an emotional support animal refused to deplane from the aircraft. Although the airline permits air travel for emotional support animals, the passenger failed to tell employees that her support animal was a squirrel. The airline does not allow rodents of any kind – including squirrels – aboard their aircraft, so the passenger was asked to deplane prior to takeoff. When the woman refused to deplane, all other passengers were forced to do so until the woman and the squirrel could be removed.
Would an Ohio public school district be required to permit the squirrel to accompany an individual onto school property? The answer to this question is no, because the animal does not meet the definition of a service animal under state or federal law.
Although public school districts are not regulated by the same rules as airlines, they are generally required to permit service animals to accompany individuals with disabilities on school premises and at school-related functions. Emotional support animals may be treated differently, as discussed below. It is important for school district staff to know how state and federal law define the term service animal and also to understand when an animal may and may not accompany an individual.
What is a service animal under the law?
Under federal law, a service animal is defined as a dog that is trained to do work or perform tasks for the benefit of an individual with a disability. Although the definition restricts the meaning of “service animal” to only a dog, federal law also permits a miniature horse to accompany an individual with disabilities under limited circumstances.
To determine whether a miniature horse must be permitted to accompany an individual with a disability, a public entity may consider four factors:
- The type, size, and weight of the horse and whether the facility can accommodate based on these factors
- Whether the handler has sufficient control of the horse
- Whether the horse is housebroken
- Whether the presence of the horse compromises legitimate safety requirements that are necessary for safe operations
It is important to note that an emotional support animal is not defined as a service animal under federal law. Emotional support animals provide comfort by being with a person rather than being trained to perform a specific task for an individual with a disability. A public entity may therefore not be required to treat an emotional support animal in the same fashion.
Also understand that other species of animals, whether wild or domestic, trained or untrained, are not defined as service animals either.
State laws may also apply to service animals. Ohio further classifies dogs into four groups (R.C. 955.011):
- Assistance dog – a guide dog, hearing dog, or service dog that has been trained by a nonprofit special agency
- Guide dog – a dog that has been trained or is in training to assist a blind person
- Hearing dog – a dog that has been trained or is in training to assist a deaf or hearing-impaired person
- Service dog – a dog that has been trained or is in training to assist a mobility-impaired person
When may a school district exclude a service animal?
A school district may exclude a service animal in a few circumstances. For instance, if the presence of the animal would require the district to modify policies, practices, or procedures in a way that would “fundamentally alter” the district’s services, programs, or activities, it may be excluded. This is a very high threshold to meet. A district may also be able to exclude animals that present legitimate safety concerns, are not housebroken, or do not remain under effective control of the handler.
What about individuals who might be allergic to the service animal?
A school district is expected to carefully consider the risks to all parties involved, including those with a service animal and those who are allergic to one. A district should thoroughly explore ways to reasonably accommodate the needs of all individuals involved before it considers excluding a service animal because of an allergy.
Can a district restrict the animal’s access to certain areas?
Generally, a service animal must be permitted to accompany an individual in all areas where the public is permitted to go. This includes access to facilities and to all school-sponsored activities and events, even if they occur after hours, unless a legitimate reason for a restriction or exclusion applies (see above).
A school district’s obligation to permit service animals applies not only to students but also to parents and visitors. Generally, public entities must allow individuals with disabilities to be accompanied by service animals in all areas that are open to the public. You should contact your district’s legal counsel if you have questions about service animals in your school facilities and programs.