By Nicholas Barrios & Jeff Birren, Senior Writer
Few human activities are free from injuries, especially sports. So many injuries occur during athletic participation that many courts have increased the barrier for a plaintiff to be able to pursue redress for those injuries. It was so for Brooke Brandt, a college softball player at Suffolk University. Brandt was injured during practice and filed a civil case against Suffolk, her coach and the teammate who caused a serious concussion. The Superior Court granted the defendants’ summary judgment motions, and recently the Massachusetts Court of Appeals affirmed, holding that to prevail, a plaintiff must prove gross negligence or recklessness, but ordinary negligence was insufficient (Brooke A. Brandt v. Jaclyn Davis, Meredith Ball, and Suffolk University, 98 Mass. App. Ct. 734 (“Brandt”) (11-2-20)).
Brandt played four years of high school softball in St. Paul, Minnesota and was team captain her senior year. She entered Suffolk as a business major in 2013, and that year she played both infield and outfield while starting 37 games. At Suffolk “Brandt signed a participant waiver and release of liability form” that “released Suffolk University, and its employees and agents from liability for any claims arising from her participation in the athletic program to the extent ‘permitted by the law of the Commonwealth of Massachusetts’” (Id. at 735). That year, the waiver was irrelevant. Unfortunately, Brandt’s sophomore season was a different story.
The team often used an indoor practice facility. During such practices the “team engaged in the same general pattern of activities.” The players would warm up, leave the playing field to get their equipment that would be hung on a fence, and then meet on the field. They would “run through a series of rotating stations to develop their different skills” and each station required different personal equipment. When all were in position with the correct equipment at the next station, the coach would say “go” before the players resumed (Id.).
The batting tees were usually in the batting cages, but the tees were not in the cages on March 7, 2014. The movable screens that were typically there were also not present that day. The players entered that area from one side and hit balls into netting. Brandt’s first station that day was fielding, and batting was to be her second station. She left the field “to retrieve her batting helmet and began jogging back with her helmet in hand” (Id. at 736). When she returned to the batting area, teammate Ball “was practicing hitting” at the last tee “because of the additional time [she] spent practicing [her] footwork.” Ball was left-handed and “chose the tee nearest to the door so that the right-handed players in the station would not be within her swinging radius” (Id.).
Brandt testified “that she saw that the teammate had a bat in her hand…and was preparing to bat.” Ball’s back was to Brandt, and Brandt “did not know whether the teammate could see her” due to the limited peripheral vision caused by the batting helmet. Brandt also testified “that she yelled ‘Wait.’ However, she could not remember when she said wait or even whether she said it out loud. She admitted that it was possible that she ‘said wait only in [her] own head’” (Id.).
Ball testified in her deposition that “she did not begin swinging until instructed to do so by her coaches.” An assistant coach testified that the players in the batting area “were already swinging before the accident.” Ball also testified that “she ‘always look[ed] around… before… every single swing.’ She did not see” Brandt. Ball “hit the ball off the tee” and the “swing hit the plaintiff in the back of the head.” Brandt “suffered a concussion and required four stiches at a hospital.” She was released that evening and Ball, her best friend, “stayed with the plaintiff in her dormitory room that night.” Within a few days “it became evident that” Brandt “was suffering long-term effects from the accident, including difficulty reading” (Id.). Brandt left Suffolk and returned home. She graduated from the University of Minnesota-Twin Cities and became a digital marketer.
Brandt filed a civil case on March 1, 2017 asserting claims against Ball “for negligence, gross negligence and recklessness,” and against Suffolk and Coach Davis for gross negligence and recklessness. The defendants eventually filed summary judgment motions. The Superior Court determined that Brandt “needed to show recklessness on the part of the teammate to prevail” and that the record “did not raise a triable issue of recklessness or gross negligence on the part of either the teammate,” Suffolk or Coach Davis and dismissed the case. Brandt appealed (Id. at 737). Her opening brief was filed on 10-7-19 (Brandt, Court of Appeals Doc. No. 5), Ball responded on 12-16-19 (Brandt Doc. No. 15), Suffolk and Davis did so on 12-17-19 (Brandt Doc. #17) and Brandt filed a Reply (Brandt Doc. # 21 (1-6-20)). Oral argument was held on 5-22-20. It is available on the Court’s website: https://www.ma-appellatecourts.org/docket/2019-P-1189.
In the Court of Appeals
The Court reviews a summary judgment decision “de novo, because we examine the same record and decide the same questions of law.” The question “is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established” so that the moving party is entitled to judgment as a matter of law. Typically, “negligence and recklessness involve question of fact left for the jury” but “where no rational view of the evidence would permit” such a finding, “summary judgment is appropriate” (Id.).
Claims against Ball
The Court stated that “participants in an athletic event owe . . . to other participants” the duty to “refrain from reckless misconduct.” However, even in noncontact sports ordinary negligence is not comparable to reckless misconduct, and this standard applies to a participant’s duty towards fellow players. The issue was whether or not this standard of care regarding misconduct should be applied not only in a game setting but also in an athletic practice setting (Id.).
The Court determined that the duty “to refrain from reckless conduct applies to athletic practices as well as to athletic contests” (Id. at 738) because a stringent restriction on participants’ actions would likely reduce the physical competition amongst athletes. This same reasoning was determined to apply to athletic practices as well. Practices are opportunities for players to improve competitive performance through scrimmages and drills against fellow teammates. “Players, when they engage in sport, agree to undergo some physical contact which could amount to assault and battery absent the players’ consent” (Id.).
Batting practice allows players to “increase the strength and accuracy of their swings.” To prevent players from practicing as vigorously as they play in a game setting would under prepare them for the amount of physical activity expected in a game and increase the risk of injury. The Court “find[s] support for this conclusion in other states,” and cited cases from Indiana, Ohio and Michigan that had reached that conclusion. Consequently, the negligence claim asserted against Ball was properly dismissed on summary judgment (Id).
The Court then looked at the reckless conduct claim. When gauging the knowledge of the risk of harm, the burden of liability for reckless conduct can be either viewed from a subjective or object standard (Id. at 739). The plaintiff has to prove that “the actor knows, or has reason to know . . . of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act, or to fails to act, in conscious disregard of, or indifference to, that risk” (quoting the Restatement (Second) of Torts § 500 comment a, at 588 (1965)). Here, there is no evidence or testimony from Brandt that could lead a jury conclude that Ball “engaged in extreme misconduct outside the range of the ordinary activity inherent in the sport” (Brandt at 739).
Brandt testified that her “teammate had her back towards the entrance and had a batting helmet on that limited her peripheral vision.” She was also not able to remember certain facts concerning the incident including whether or not the teammate had looked around prior to swinging the bat or if Brandt told Ball to “wait” out loud. Due to the lack of evidentiary support, there is “no rational view of the evidence that the teammate in fact saw the plaintiff before the teammate swung the bat with enough time to prevent the accident . . . and as a matter of law did not rise to the level of recklessness.” Even with Brandt’s assertion that Ball was given permission by the coach to swing the bat right before the accident, the experience and skill level of the parties involved make the incident at most a negligent one, and thus summary judgment for Ball was appropriate (Id.).
Claims against Davis and Suffolk
The Court again began by stating the proper duty of care. A coach “has a duty of ordinary reasonable care to [her] own players” (Id.). However, it recognized that Suffolk requires its players to sign an enforceable liability waiver that bars players from bringing any ordinary negligence claims against the school or its coaches (Id. at 741). While this liability waiver is enforced for ordinary negligence, it does not extend to actions that are determined to be of gross negligence or reckless or intentional conduct. Thus, for these claims, the Court only examined “the plaintiff’s claims for gross negligence and recklessness.”
Actions that qualify as gross negligence are considered to be of a substantially higher magnitude than that of ordinary negligence. However, the only evidence Brandt could propose was “the positioning of the tee station near the entrance enhanced the risk of serious danger for the players when there were safer alternative locations for the drill.” Given the experience and knowledge of these collegiate players, it would be expected these athletes would know not to enter the field while teammates are “swinging their bats at the tee station.” Even if the coach’s positioning of the tee station is considered “inadequate planning, makes out at worst, ordinary negligence” and thus not gross negligence (Id.).
The final claim was for recklessness. “[I]n order to impose liability on a coach for the conduct of a player, there must be, at the least, evidence of ‘specific information about [the] player suggesting a propensity to engage in violent conduct, or some warning that [the] player . . . appeared headed toward such conduct as the game progressed’” (quoting Kavanagh v. Trustees of Boston University, 440 Mass. 195, 203 (2003) (Brandt at 741). Brandt testified that Ball was her best friend and that she did not believe Ball hit her on purpose. This testimony, along with the other evidence stated earlier, gives a jury no basis “to find that the head coach had acted recklessly in allowing the teammate to practice hitting off tees.” The same standard and reasoning also applied to Suffolk. With that, the Court affirmed the grant of summary judgment to all the defendants (Id.).
This is a sad case. Brandt was accidently injured by Ball, her best friend on the team, and the one person who spent the night with her after she was released from the hospital. Nevertheless, Brandt sued that best friend as well as her coach and Suffolk, and the case will forever bear Ball’s name. For Brandt, the accident led to a very serious head injury, the end of her athletic career and her time as a student at Suffolk.
Athletics will never be free from serious injuries and this is just another example. Courts across the country continue to wrestle with the proper standard of care and have been moving from a negligence standard towards a recklessness standard. Brandt has since filed for review in the Massachusetts Supreme Court (FAR-27928), but one can only hope that she is not overly optimistic that the Court will reverse the decision.
Mr. Barrios: It is hard to imagine this case going against the defendants given the relationship between Brandt and Ball and the evidence that was provided. The physical activity required to compete, especially in team sports requires a lot of training. It would be detrimental to the spirit of competition if participants feared facing legal action for every accident that occurs during the course of an athletic practice or game. I believe the Court came to the correct conclusion in this case.
Mr. Birren: Suffolk may also want to amend the liability waiver to bar claims for negligence against teammates. A failure to do so could lead to catastrophic results for college athletes that lack the requisite insurance to defend such cases.
Mr. Barrios is a first-year student at Southwestern University School of Law in Los Angeles. He graduated Cum Laude from Texas A&M University and is a member of Sports Law Society.
Mr. Birren is the former general counsel of the Oakland Raiders and taught sports law at Southwestern.