Key Takeaways
- A traumatic brain injury does not require a blow to the head; violent acceleration and deceleration of the brain inside the skull can cause it.
- Gaps between what an injured person remembers and what witnesses saw can help prove a brain injury occurred.
- In assault cases, injured people often sue a third party, such as a property owner that failed to provide reasonable security, rather than the attacker.
What exactly is a traumatic brain injury, and when someone else causes one, how does the injured person prove it in court?
In this TalksOnLaw Brief, Joel Cohen talks with Kenneth I. Kolpan, a Massachusetts trial lawyer who concentrates on brain injury cases and a past president of the Brain Injury Association of Massachusetts, about what a traumatic brain injury is, its common causes, and how liability is established.
An Injury Without a Blow
Kolpan explains that the brain is a gelatin-like organ sitting in a skull with sharp internal edges. Trauma to the head or face can jar it, but a direct blow is not required. Violent shaking, as in shaken baby cases, or the repeated back-and-forth motion of subconcussive hits in football, can make the brain move, rotate, and tear against the inside of the skull. He describes this as an acceleration-deceleration injury.
Proving What Happened
Because injured people often lose consciousness, Kolpan says, they are not the best historians of their own accident. Instead of asking whether someone lost consciousness, he asks for their last memory before the crash and their first memory after it, then compares those answers with what witnesses and police officers saw. Gaps in memory, known as retrograde and anterograde amnesia, help diagnose and prove a traumatic brain injury.
Common Causes in Court
Car accidents and falling objects are the most familiar. Kolpan describes a client struck in the head on a Boston street by a safety bar that fell from scaffolding high above. The defense called it a glancing blow, but neuropsychological testing showed severe impairment in the brain functions that handle computation, which ended his work at a financial institution.
In sports, he points to second impact syndrome: a second injury before the brain has healed from the first can be far worse. Liability can turn on whether an athlete was properly evaluated on the sideline under return-to-play protocols, which some states have codified for school sports. He describes a soccer case alleging that repeated headers ordered by a coach preceded the injury that ended a young player's career.
For violent crime, Kolpan explains that attackers rarely have assets, so lawyers look for a third party. He describes a negligent security case against a condominium trust that failed to warn residents that a recently released, high-risk sex offender had moved in; a resident was assaulted and died months later. He also represented a family in a case involving former Patriots player Aaron Hernandez.
What to Know Now
These principles remain current. Massachusetts law has required concussion education and written medical clearance before a student athlete returns to play since 2010, and every state now has a youth sports concussion law. Massachusetts follows modified comparative negligence: an injured person can recover if his or her own negligence is not greater than that of the defendants, with damages reduced accordingly. Medical understanding of brain injury continues to develop, and the core legal task Kolpan describes, connecting the injury to the incident with careful evidence, is unchanged.
