Injuries in sports are common, especially in contact sports such as football, rugby or ice hockey. But when can a player sue another player for a personal injury sustained during the course of a game?
On Dec. 2, 2019, a three-judge panel of the Massachusetts Court of Appeals ruled in a split decision that Daniel Borella, who was 17 when he was checked by another player and cut on the wrist by the player’s hockey blades, cannot sue the player, coaches, referees or rink owners and managers for his injuries.
The majority explained that checking is “a fundamental aspect of the way the game is played” and does not rise to the level of “reckless” misconduct required to trigger liability.
However, in a dissenting opinion, Judge Peter J. Rubin said the majority’s ruling “strips children who play competitive sports of the protections against reckless violence to which they are entitled.”
Judge Rubin said the decision “may leave children at the mercy of reckless and violent players,” lead to serious injuries and result in responsible parents pulling their children from competitive sports.
The divide is an indicator that the state’s highest court could take up the issue at a later date.
Permanent Hand Injury
According to the majority’s opinion, Borella played hockey for a Massachusetts-based ice hockey team known as the New England Renegades.
On July 14, 2013, the Renegades were playing a Pennsylvania-based called Team Kanaly in a tournament game in a rink in Marlborough. Both teams were in the “Midget Major division” for high school players aged 17 to 19. The division allowed checking.
With two minutes left in the game, Team Kanaly was leading 8-3. Borella had received the puck at mid-rink near the boards and was skating toward Team Kanaly’s goal. Julion Lever, a 17-year-old Team Kanaly player, checked Borella into the boards, causing Borella to fall to the ice onto the puck.
Witnesses described the hit as a “smash” and “ferocious,” the opinion said.
While Lever battled for the puck, Borella temporarily lost consciousness, and his wrist was sliced by one of Lever’s skate blades. The blade severed Borella’s blood vessels, nerves and tendons.
One of the referees called a minor penalty for “boarding,” Lever was sent to the penalty box and the game was called before time expired.
Borella, who suffered permanent partial loss of use of his dominant hand, acknowledged that the incident was a “freak accident,” the opinion said.
Negligence Allegations
Borella sued Lever in Middlesex County Superior Court for negligence and, alternatively, battery, alleging that Lever violently hit him from behind into the boards in violation of the rules and in reckless disregard for his safety.
Borella also sued coaches for Team Renegades and Team Kanaly, the two referees who officiated the game and the individual and corporate entities that owned and managed the ice rink where the injury occurred. Borella alleged that the referees acted negligently in failing to control the game and end the game before his injury occurred and that the coaches were negligent in failing to protect him from injury. He said the rink defendants failed to maintain a safe environment and had negligently hired and supervised the referees.
The trial court judge granted summary judgment in favor of the defendants. A summary judgment is a judgment entered by a court without the case going to a jury for a full trial.
Borella appealed.
Recklessness Standard
The appeals court panel agreed with the trial court’s summary judgment ruling.
The panel relied on the 1988 case of Gauvin v. Clark, another ice hockey case in which the Massachusetts Supreme Court held that participants in sporting events owe each other a duty not to engage in “reckless” misconduct.
In an opinion written by Judge Delila Wendladt, the panel said there is no evidence that Lever’s conduct constituted “extreme misconduct outside the range of the ordinary activity inherent in the sport.”
Instead, Lever’s conduct was “related to obtaining a competitive advantage,” the panel explained and is not the type of extreme misconduct that falls outside the range of ordinary activity in a hockey game played at this level.
The fact that Lever’s conduct resulted in a penalty “does not alter the analysis” as an infraction of a safety rule does not establish recklessness, the panel said.
The appeals court panel also pointed out that both Borella and Lever had been playing ice hockey for years and knew that the sport requires physical contact such as checking and that there is a potential for injury.
Referees, Coaches Not Liable
Similarly, the majority also ruled that Borella failed to make a case against the other defendants.
The Renegades fans believed that the referees missed calls and did not control the game, but the appeals court panel said there was no evidence that more penalty calls would have altered Lever’s conduct.
For liability to attach to the coaches, the panel said there would need to be evidence that specific information about Lever suggested that he had a propensity to engage in violence or that the coaches had some warning that Lever was headed toward violent conduct as the game progressed.
“Here, the undisputed record shows that Lever had been involved in no penalties prior to the check at issue, and there was no evidence that Lever was prone to violent behavior,” Judge Wendlandt wrote.
Further, the panel said there was no evidence that the coaches encouraged Lever’s conduct during the game or recklessly encouraged aggressive play without considering injuries to others.
The majority rejected Borella’s claims that the rink defendants were negligent in allowing the referees to officiate too many games and scheduling the Renegades to play against Team Kanaly, despite their different skill levels.
The game was one referee’s eighth game of the day and another referee’s fifth game of the day, according to the panel’s opinion.
Dissenting Opinion
In his dissenting opinion, Judge Rubin said the majority ruling deprives children of the protections of the Gauvin case.
The majority’s standard that conduct can only be actionable if it is “extreme misconduct” outside of ordinary activity essential to a sport “has no basis in Massachusetts law,” he said.
Judge Rubin said the new standard, which the majority said it based on analysis by courts in other states, constitutes “a rule of immunity for almost all reckless violence in youth sports.”
In rejecting the majority’s summary judgment ruling, the judge said a jury should determine whether Lever acted in reckless disregard of Borella’s safety.
“If the facts, in this case, don’t raise a jury question about recklessness, it is hard to imagine what will,” he said.
If you or a loved one have suffered personal injury in Massachusetts while playing sports or in some other capacity, call Jeffrey Glassman Injury Lawyers for a free and confidential appointment — (617) 777-7777. Or visit our website at https://www.jeffreysglassman.com/