Applying recklessness doctrine in a non-competitive context, the Massachusetts Appeals Court yesterday
affirmed non-liability for a collegiate softballer and Suffolk University in the case of a player hit in the head by a bat during practice.
Tort and Sport
Personal injury in sport offers fertile ground for exploring tort law, because athletic competition represents a suspension of the social contract. Ordinarily, everyone in an orderly society knows not to push, tackle, or punch other people. But in a sport, that can be exactly what you're supposed to do. So a special, carefully designed standard of conduct, "the rules of the game," supersedes the usual web of unwritten norms, conveniently yielding a laboratory for socio-legal study.
If one fails to recognize the aberrant nature of the sport context, anomalous legal results pertain. For example, every injury resulting from a collision of players on the football field is accidental, so a potential source of negligence liability. Alternatively, many such injuries are batteries, because the defendant bore subjective intent to cause offensive contact. At the same time, the defenses of assumption of risk and consent raise frame-of-reference problems in application. An athlete generally assumes a risk of injury, a defendant argues, but not necessarily injury specifically in the way that it happened, the plaintiff counters. The usual tort doctrines just don't work well to solve conflict over sporting injury.
To overcome this problem, courts in many states, including Massachusetts, have employed the tort standard of recklessness in sport cases. Recklessness focuses on a defendant's indifference to a risk of high probability or magnitude (tests vary). For its culpability analysis, recklessness hybridizes subjective and objective tests for culpability, thereby balancing the prohibitive prerequisite of defendant's intent with slim proof of carelessness. The test is not a perfect tool for sporting-injury cases, but it works much better than intent and negligence rules to help courts patrol the outer boundaries of social-normative conduct in an exceptional situation.
In
Borella v. Renfro, in December 2019, the Massachusetts Appeals Court applied the recklessness standard to a case of ice-hockey injury, relying on
precedent of the Supreme Judicial Court dating to 1989. The court explained in
Borella:
In a game where the players wear sharpened steel blades on their feet and are garbed in protective gear from head to toe, the playing field is a glossy ice rink, checking not only is allowed but a fundamental aspect of the way the game is played, and the object of the game is to put a puck into a goal (or to prevent the same), the plaintiff, seventeen year old Daniel J. Borella, was cut on the wrist by one of the blades worn by the defendant, Julion Scott Lever, in what Borella acknowledges was a "freak accident" occurring moments after Lever checked Borella hard from behind into the boards and took the puck away.
.... In this case, we apply [the recklessness] standard to the game of ice hockey[,] in which physical contact between players standing on two thin metal blades atop a sheet of ice is not simply an unavoidable by-product of vigorous play, but is a fundamental part of the way the game is played. We hold that where, as here, the record is devoid of evidence from which a jury rationally could conclude that the player's conduct is extreme misconduct outside the range of the ordinary activity inherent in the sport, there is no legal liability under the recklessness standard. For that reason, we affirm summary judgment in favor of Lever.
Dissenting, Justice Peter J. Rubin would have sent arguable questions of fact to the jury. But he did not disagree, for jury instruction, that recklessness was the correct standard.
Batting Practice
Despite the efficacy of the recklessness standard in sport cases, things get tricky at the margins, especially when injury occurs off field, or outside the narrow context of competitive conflict between players in the course of the game. The instant case presented such a challenge, as one player was hit in the head by a teammate accidentally, while the teammate was engaged in batting practice.
Should the recklessness analysis pertain to "friendly fire" in practice, too? Yes, the Appeals Court answered, consistently with precedent in other states. Recklessness is the appropriate standard for athletic practice.
In the instant case, the unfortunate accident occurred between friends on the Suffolk University softball team. The plaintiff-player walked too close to the swinging defendant-player at just the wrong time. Their testimonies, and that of the supervising coach, might have supported findings for or against fault-based liability in negligence, but no matter. The defendant's conduct did not rise to the recklessness standard, and the trial court correctly awarded summary judgment to the defense.
The court framed its choice of the recklessness standard as a problem in duty. Duty in tort law is determined "by reference to existing social values and customs and appropriate social policy," the court quoted precedent. This point is significant for reasons related to the deeper mechanics of tort law. Without diving into the problem here, it will suffice to say that the interrelationship of duty and fault standards sometimes matters, especially when a change in the relevant law occurs, whether through common law evolution or legislative enactment.
Co-defendant Suffolk University also won summary judgment. The players had signed waivers of university liability in negligence, and the evidence failed to support gross negligence or recklessness in the coach's and university's supervision of the softball practice.
Superior Court Decision
In affirming, the Appeals Court opinion described the Superior Court's application of recklessness doctrine as "thoughtful." That appraisal prompted me to seek a copy of the trial court opinion.
Regrettably, Massachusetts is a jurisdiction that thrives on secrecy in trial court records. The Superior Court for Suffolk County, which includes the metropolis of Boston, puts dockets online, and the interface looks like the same software used by my home bar jurisdiction of Washington, D.C. But links to document images, which D.C. has offered for a few years, are not available from the Massachusetts system. Given the state of technology in the courts and in the country, I can attribute this omission only to willful obscurity.
Graciously, attorney Robert B. Smith (LinkedIn, Twitter), Demoura|Smith LLP, who represented Suffolk University softball head coach Jaclyn Davis, shared with me a copy of the memorandum decision in the Superior Court. The court wrote:
[Defendant-player] Ball argues that because Brandt's injury occurred while she and Brandt were participating in an athletic event, she may only be liable for conduct that was willful, wanton, or reckless. Ball contends that she is entitled to summary judgment because Brandt has no reasonable expectation of proving her conduct was willful, wanton, or reckless. The court agrees.
"Players, when they engage in sport, agree to undergo some physical contacts which could amount to assault and battery absent the players' consent." Gauvin v. Clark, 404 Mass. 450, 454 (1989). "The courts are wary of imposing wide tort liability on sports participants, lest the law chill the vigor of athletic competition." Id. Therefore, "a participant in an athletic event can be liable to another participant only when his or her actions amount to a willful, wanton, or reckless disregard for the safety of the other participant." Gray v. Giroux, 49 Mass. App. Ct. 436, 438 (2000) [affirming summary judgment for defendant in golf-club-to-head case].
Brandt argues that the present case is distinguishable from those requiring a showing of willful, wanton, or reckless conduct because her injury was not caused by an opponent during a competition. However, the court declines to construe the broad language of the controlling cases in a manner that excludes Brandt's claim from their purview. Members of the same athletic team participating in a team practice are no less "participant[s] in an athletic event" than members of opposing teams during a game. [Cf.] Dugan v. Thayer Academy, [32 Mass. L. Rep. 657] (Mass. Super. Ct. 2015) (willful, wanton, or reckless standard did not apply where alleged negligence occurred before and after, but not during, athletic event [field hockey]). Accordingly, the willful, wanton, or reckless standard of care applies to Brandt's claim against Ball.
The appellate case is Brandt v. Davis, No. 19-P-1189 (Mass. App. Ct. Nov. 2, 2020). Justice Joseph M. Ditkoff wrote the opinion for a unanimous panel that also comprised Justices Wolohojian and Maldonado. The case below was Brandt v. Davis, No. 2017-00641-B (Mass. Super. Ct. Suffolk County Apr. 16, 2019). Presiding in the Superior Court was Justice Mark C. Gildea, an alumnus of Suffolk Law.
