By Mailise Marks, of Segal McCambridge
In a recent reported Appeals Court opinion, Massachusetts extended the recklessness standard of care to apply equally to practices as athletic games, even in noncontact sports.
The facts of the case are simple, plaintiff Brandt, a Sophomore on the 2014 Suffolk University softball team sustained a concussion during softball practice while retrieving her batting equipment.[1]
According to plaintiff’s testimony, her and her teammates were participating in regular station based practice wherein the athletes would focus on discrete skills for a period of time signaled by the coaching staff.[2] Plaintiff was transitioning to batting practice when her teammate and friend, Defendant Ball, the only left handed hitter, struck plaintiff in the back of her head after completing a hit off the tee.[3] At the time, plaintiff was retrieving her batting equipment from outside and went by the last batting station toward the door where Ball had positioned herself to avoid striking her other teammates at that station.[4] Thereafter, plaintiff asserted claims against her teammate for negligence, gross negligence, and recklessness as well as allegations of gross negligence and recklessness against Suffolk University.[5]
The Appeals Court in upholding the trial courts “thoughtful decision” observed that the appropriate standard of care for athletic practice was not ordinary negligence, but recklessness or gross negligence.[6]
The Massachusetts Supreme Court first announced the appropriate standard of care for cause of action for teammates participating in athletic events in Gauvin v. Clark, 404 Mass. 450, 454 (1989)(“The majority of jurisdictions which have considered this issue have concluded that personal injury cases arising out of an athletic event must be predicated on reckless disregard of safety.”) In Gauvin, plaintiff sustained a ruptured spleen when he was struck by an opposing player’s butt-end of his hockey stick following a face-off.[7] The Supreme Court observed “[t]he courts are wary of imposing wide tort liability on sports participants, lest the law chill the vigor of athletic competition.”[8] In so doing the Supreme Court held that “participants in an athletic event owe a duty to other participants to refrain from reckless misconduct and liability may result from injuries caused a player by reason of the breach of that duty.”[9] The Appeals Court similarly applied the reckless standard to traditionally non-contact sports as well in Gray v. Giroux, 49 Mass. App. Ct. 436, 439 (2000)(“However, there does not appear to be any language in Gauvin that would foreclose the application of the wilful, wanton, or reckless standard to noncontact sports such as golf.”) This was based on the observation that the “promotion of vigorous participation in athletic activities would be threatened by a flood of litigation if the standard were ordinary negligence.”[10]
In Brandt, the Appeals Court found that intention to foster vigorous competition applied to athletic practices.[11] “If the players could not practice as vigorously as they play, they would — at best — be unprepared for the challenges of actual competition. At worst, their inability to practice vigorously would expose them to an increased risk of injury during games, especially if they competed against out-of-State teams not so constrained.”[12]
Massachusetts has defined wilful, wanton, or reckless conduct as “intentional conduct, by way either of commission or of omission where there is a duty to act, which conduct involves a high degree of likelihood that substantial harm will result to another.”[13] Put another way, “reckless conduct involves a degree of risk and a voluntary taking of that risk so marked that, compared to negligence, there is not just a difference in degree but also a difference in kind.”[14]
While the recklessness standard is widely recognized as the appropriate standard of care to apply from those injuries sustained during the game- including more traditionally recreational games such as golf.[15] However, in the realm of practice participation, the real question will be how far the courts would be willing to extend the concept of “practice” for the purpose of limiting teammate liability. For example, in the instance of a teammate performing spotting duties during weight training during football practice. However, it is unclear how far this theory will be tested since collegiate and professional sports alike have placed, rightfully so, more importance on player safety than ever before. This is evidenced with the development of such entities as the NCAA’s Sport Science Institute, established in 2013.[16]
Mailise Marks is an associate attorney in the firm’s Jersey City office. Her practice centers on complex commercial litigation, cyber risk and technology, construction litigation, and premises liability, including New York Labor Law claims.
[1] See Brandt v. Davis, 98 Mass. App. Ct. 734, 735 (2020)
[2] See id.
[3] See id. at 736.
[4] See id.
[5] See id. at 737.
[6] Id.
[7] See id. at 452-53.
[8] Id. at 454.
[9] Id. at 451.
[10] Gray v. Giroux, 49 Mass. App. Ct. 436, 439 (2000)
[11] Brandt v. Davis, 98 Mass. App. Ct. 734, 738 (2020)
[12] Id. at 738.
[13] Gray, 49 Mass. App. Ct. at 439-40; quoting Manning v. Nobile, 411 Mass. 382, 387, (1991), quoting from Commonwealth v. Catalina, 407 Mass. 779, 789, (1990).
[14] Sandler v. Commonwealth, 419 Mass. 334, 337, (1995).
[15] See e.g. Pfenning v. Lineman, 947 N.E.2d 392, 401 (Ind. 2011)
[16] About SSI, http://www.ncaa.org/sport-science-institute/about-ssi (accessed on December 13, 2020).
