By Robert E. Freeman, Jonathan Mollod and Theresa Smith, of Proskauer
In a matchup unlikely to garner overzealous shouting from the infamous Hanson brothers, an ice rink operator and a referee recently took on an amateur hockey player who was allegedly injured when said referee intervened in a fight during a championship winter league game. In a final judgment that invoked every law student’s favorite tort doctrine of assumption of the risk, and that provided defendants with an early holiday gift, a New York state appellate court ruled that the Plaintiff, an experienced hockey player, effectively knew what he was doing when he skated toward and not away from a scrum that had replaced the hockey game previously being played. (
In September 2015, Robert Falcaro (“Plaintiff”) sued American Skating Centers, LLC, American Skating Entertainment Centers, LLC (together, the “Ice Rink”), and Michael Floru (“Referee”) (collectively, the “Defendants”) to recover damages for personal injuries he claimed to have sustained during a fight in an amateur hockey game between the Mustangs (Plaintiff’s squad) and the Budmen at a rink in Elmsford, New York. In his complaint, Plaintiff alleged that, while playing in a game overseen by the Referee, a fight erupted among several players and, as he was attempting to pull his teammate out of the scuffle, the Referee wrapped his arms around Plaintiff from behind and pulled him backwards, causing both Plaintiff and Referee to fall to the ice, with Plaintiff allegedly sustaining injuries.
The Referee had a different version of events from his side of the ice. He testified that Plaintiff had entered the fight by jumping on an opposing player’s back and, in response, he grabbed Plaintiff under his arms and shouted “[i]t’s the referee,” which the Referee asserted is understood by the players as an unwritten rule to stop fighting. However, according to the Referee, instead of stopping, Plaintiff screamed expletives and threw his elbows backwards, causing both Plaintiff and the Referee to fall to the ice in the ensuing struggle. The Referee also defended himself on the grounds that league rules permit a referee to make physical contact with players to break up a fight.
The Defendants quickly moved for summary judgment to dismiss the complaint, arguing that by skating toward the fight and inserting himself into the scuffle, Plaintiff assumed the risk of injury that might result. However, in June 2017, Plaintiff deked his way to a favorable verdict when the trial court held that the Defendants had failed to make a prima facie case that the Referee’s conduct was an inherent part of the game. With the Defendants’ motion iced, the matter moved past the blue line and was slated for trial.
On appeal, in December 2018, a New York appellate court disagreed with the lower court and, relying on the doctrine of primary assumption of risk, ruled that summary judgment should have been granted in favor of the Defendants. In its decision, the court emphasized that by engaging in a sport, a participant “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.”
According to the court, the Defendants had sufficiently established that the risks inherent in ice hockey — specifically that of involving oneself in an ongoing fight — were “fully comprehended” and “perfectly obvious” to Plaintiff, an individual who had played in the amateur hockey league for years. Moreover, the Defendants had established that, under league rules, a referee was permitted to make physical contact with players involved in a fight, and even accepting Plaintiff’s version of events, Plaintiff had voluntarily engaged with another player involved in the fight. Consequently, the appellate court found that Plaintiff had assumed the risk of his actions and “slapshotted” away Plaintiff’s case,
Interestingly, the Defendants’ victory at the appellate level may have amounted to an empty net goal. Although the Defendants had requested a stay during the pendency of their appeal, the appellate court denied the request, thereby refusing to blow the whistle on the parties’ preparations for trial. With the prospect of a trial looming, after some additional back and forth, in September 2018 — three months before the appellate court issued its decision — the parties had already unlaced their skates and settled the matter (and we could not find any court document referencing whether the settlement terms were in any way contingent on the appeal’s outcome).
