Daphne Ingram, a single woman, individually; DWIGHT INGRAM v. United States of America, by

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAPHNE INGRAM, a single woman,
individually; DWIGHT INGRAM,
Plaintiffs-Appellants,
v.
UNITED STATES OF AMERICA, by and
through the Department of the Interior, and
Bureau of Indian Affairs,
Defendant-Appellee.
No. 14-35359
D.C. No. 3:12-cv-05892-RBL
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted October 3, 2016
Seattle, Washington
Before: W. FLETCHER, GOULD, and N.R. SMITH, Circuit Judges.
After oral argument, we determined this case would be appropriate for
mediation. We therefore referred the case to the Ninth Circuit Mediation Office
and withdrew submission in an order dated October 13, 2016. On January 27,
FILED
FEB 28 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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2017, the Circuit Mediator issued an order concluding that mediation efforts had
been exhausted and returning the case to the panel. We now resubmit the case for
decision and issue a memorandum disposition on the merits.
Daphne Ingram and her son Dwight Ingram brought suit against the United
States under the Federal Tort Claims Act (“FTCA”), alleging that employees of
Chief Leschi High School, a tribal school, were negligent in administering
eligibility requirements and in monitoring Dwight’s safety during a school football
game. After a bench trial, the district court entered judgment in favor of the United
States. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.
On September 10, 2011, sixteen-year-old Dwight Ingram collapsed while
playing football for Chief Leschi in Puyallup, Washington. School officials called
an ambulance and Dwight was taken to Mary Bridge Children’s Hospital, where he
was eventually diagnosed with a subacute infarct, or stroke.
Chief Leschi is a tribal school, and its employees are considered to be acting
within the scope of federal employment under the FTCA. In 2012, Daphne Ingram
filed a standard Form 95 claim with the Department of the Interior, Bureau of
Indian Affairs, alleging $15 million in damages for Dwight’s permanent brain
damage as a result of the stroke and her loss of Dwight’s consortium. The U.S.
denied her claim two months later. The Ingrams then filed a complaint for
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damages on both a personal injury theory and loss of consortium theory. The
parties stipulated to bifurcating the trial as to Dwight’s personal injury claim and
Daphne’s loss of consortium claim. Following a three-day bench trial, the district
court entered judgment in favor of the United States.
In Washington, football coaches “who know[], or in the exercise of
reasonable care should know, that one of the players is physically unfit to enter the
game,” have a duty not to “permit[], persuade[], or coerce[] such player to play.”
Morris v. Union High Sch. Dist. A, King Cty., 294 P. 998, 999 (Wash. 1931).
Washington’s “Zackery Lystedt law” further provides that “[a] youth athlete who
is suspected of sustaining a concussion or head injury in a practice or game shall be
removed from competition at that time,” and “may not return to play until [he or
she] is evaluated by a licensed health care provider trained in the evaluation and
management of concussion and receives written clearance to return to play from
that health care provider.” Wash. Rev. Code § 28A.600.190(3), (4). The Ingrams
argued, at trial and on appeal, that Chief Leschi employees breached both their
common law duty and duty under the Zackery Lystedt law by permitting Dwight to
play in the fall 2011 football season and by failing to remove him from the
September 10, 2011 game after he suffered two hits to the head.
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The district court, relying on Athletic Director Adams’s testimony, found
that Chief Leschi had received and reviewed “the appropriate authorizations” prior
to allowing Dwight to play in the fall 2011 season. In particular, Dwight’s October
2009 physical examination met the requirements of the Washington Interscholastic
Activities Association policy and Chief Leschi Handbook. Moreover, the district
court concluded that Dwight did not inform his coaches of his head injury
sustained during practice on June 13, 2011, and therefore Chief Leschi employees
were not on notice of the need to obtain medical clearance for Dwight prior to his
return to play. See Wash. Rev. Code § 28A.600.190. Although contested, these
factual conclusions were neither implausible nor illogical, and were supported by
testimony provided at trial.
The district court reasonably relied upon the testimony of three coaches that
Dwight did not inform them that his head hurt at the September 10 game. See
Newton v. Nat’l Broad. Co., Inc., 930 F.2d 662, 671 (9th Cir. 1990) (heightened
deference due to a trial court’s credibility determination). Neither the game video
nor witness testimony presented at trial established an observable decline in
Dwight’s play or affect. Cf. Swank v. Valley Christian Sch., 374 P.3d 245, 250
(Wash. Ct. App. 2016). Even assuming the Lystedt law created a duty to remove
players after a hit that could cause a concussion, without regard to a player’s lack
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of symptoms, it was not illogical, implausible, or without basis for the trial court to
conclude that the two hits Dwight sustained during play were not of the type to
lead a trained observer to suspect a head injury. Evidence supported the trial
court’s conclusion that a reasonable, trained coach would not have suspected that
Dwight had sustained a head injury prior to his collapse during the September 10,
2011 game.
AFFIRMED.
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