A Connecticut state court has delivered a partial victory to a baseball coach, who was sued by the mother of youth (D.D.) after D.D. suffered a head injury during a practice when another youth carelessly swung his bat, striking D.D.
The incident occurred on September 5, 2017. D.D. and S.M. (the youth who swung the bat, were teammates on a team known as the Black Team in a youth baseball league known as Cheshire Youth Baseball, in Cheshire, Connecticut. The defendant baseball coach, Mountain MacGillivary, was also the parent of S.M.
During a practice, MacGillivar instructed the team to pick up the baseballs that were on the field and then meet in a dugout adjacent to the field. While D.D. was in the process of picking up baseballs in the field, S.M., who was walking or standing close by and holding a baseball bat, “suddenly and unnecessarily, and without warning, swung the bat he was holding full force, thereby striking D.D. directly in the head with the bat and causing serious and permanent injuries and damages,” according to the court.
Sandhya Desmond, on behalf of son D.D., sued five defendants. In count two, the plaintiff alleged that D.D.’s injuries were caused by “the negligence and carelessness of the defendant (MacGillivar).”
On June 24, 2021, the defendant moved for summary judgment.
In considering that motion, the court reviewed the plaintiff’s allegations that the defendant, as the coach, was negligent in numerous ways, including the:
- failure to establish reasonable and appropriate instructions, policies, guidelines, rules, and regulations concerning the use and non-use of baseball bats;
- failure to train and instruct his players;
- failure to properly supervise his players;
- failure to enforce reasonable and appropriate instructions, policies, guidelines, rules, and regulations;
- failure to take reasonable measures to avoid harm to the plaintiff; and
- failure to have an adequate number of coaches, instructors, or assistants to assist in supervision of players.
The defendant argued in his motion for summary judgment that the plaintiffs’ claim is absolutely barred by the Volunteer Protection Act, 42 U.S.C. § 14503 (a).
The plaintiffs, in their objection, argued that the Act only protects against ordinary negligence, but not gross negligence and that there is a genuine issue of material fact as to whether the defendant’s conduct rises to the level of gross negligence. The defendant, in his reply, made two arguments: (1) the plaintiffs cannot raise an allegation of gross negligence for the first time in their opposition to a motion for summary judgment, and (2) the conduct alleged by the defendant does not rise to the level of gross negligence as a matter of law.
42 U.S.C. § 14503 (a) provides in relevant part: “[N]o volunteer of a nonprofit organization or governmental entity shall be liable for harm caused by an act or omission of the volunteer on behalf of the organization or entity if—(1) the volunteer was acting within the scope of the volunteer’s responsibilities in the nonprofit organization or governmental entity at the time of the act or omission; (2) if appropriate or required, the volunteer was properly licensed, certified, or authorized by the appropriate authorities for the activities or practice in the State in which the harm occurred, where the activities were or practice was undertaken within the scope of the volunteer’s responsibilities in the nonprofit organization or governmental entity; (3) the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the volunteer; and (4) the harm was not caused by the volunteer operating a motor vehicle, vessel, aircraft, or other vehicle for which the State requires the operator or the owner of the vehicle, craft, or vessel to—(A) possess an operator’s license; or (B) maintain insurance.”
The defendant first argues that the plaintiffs cannot avail themselves of the exception to the Act because they did not allege gross negligence in the complaint. The defendant specifically argues that the plaintiffs did not allege anything beyond ordinary negligence in their complaint, thus, the plaintiffs’ argument that the defendant’s conduct exceeded ordinary negligence should be summarily rejected. The plaintiffs, at oral argument, argued that there is no special pleading requirement for gross negligence, allegations of ordinary negligence adequately address gross negligence and the determination of degrees of negligence are for the trier of fact.
“Because Connecticut does not recognize a separate cause of action for gross negligence, it would have been improper for the plaintiff to allege gross negligence,” wrote the court, citing Bost v. Hamden, Superior Court, judicial district of New Haven, Docket No. CV-09-5031935-S (August 29, 2013, Nazzaro, J.)
“Moreover, gross negligence and ordinary negligence are merely varying degrees, (citing Commerce Park Associates, LLC v. Robbins, 193 Conn. App. 697, 730, 220 A.3d 86 (2019), cert. denied, 334 Conn. 912, 221 A.3d 448 (2020)). Thus, by pleading negligence in the complaint, the plaintiff encompasses all degrees of negligence, including gross negligence.
The defendant’s alternative argument is that the allegations in the plaintiffs’ complaint do not, as a matter of law, rise to the level of gross negligence. The plaintiffs argue in response that there is a genuine issue of material fact as to whether the defendant’s conduct rises to the level of gross negligence.
“Viewing the allegations in the light most favorable to the plaintiff, the determination of whether the defendant’s alleged conduct rises to the level of gross negligence is not suitable for summary judgment,” wrote the court, denying the defendant’s motion on this point.
In count two of the plaintiffs’ amended complaint, the plaintiffs alleged that the defendant failed to exercise control over his son, S.M., creating parental liability. The defendant argued, in his motion for summary judgment, that he cannot be held liable for his son’s negligence because there is no evidence to suggest S.M. had a propensity to strike others with a baseball bat.
“The plaintiffs, in their objection, concede that there is no evidence that S.M. had a propensity to strike others with a baseball bat,” wrote the court. “However, the plaintiffs argue that the defendant failed to exercise reasonable control over his son while he entrusted his son with a dangerous instrumentality. In reply, the defendant argues that the plaintiffs did not allege in their complaint that the defendant negligently entrusted a dangerous instrument to his son, thus, without such an allegation any parental liability claim fails as a matter of law. Alternatively, the defendant argues that a baseball bat at a little league baseball practice is not a dangerous instrumentality as a matter of law.”
In the court’s analysis, it noted that the plaintiffs “specifically allege that the defendant is negligent for the acts of his son by claiming that he ‘knew, or in the exercise of due care should have known, that his son was swinging a bat while the other players were picking up baseballs on the field but failed to instruct his son to drop the bat or otherwise move to an area where there were no other players nearby . . . failed to exercise proper control over his son, the defendant, [S.M.].’
“The plaintiffs do not allege anywhere in the complaint that the defendant negligently entrusted a dangerous instrumentality to his son. See Santagata v. Woodbridge, Superior Court, judicial district of New Haven, Docket No. CV-96-0384914-S (December 26, 1997, Zoarski, IT.R.) (striking parental liability claim where plaintiff did not allege that parent negligently entrusted child with dangerous instrumentality). The plaintiffs have conceded that the defendant did not have a duty to restrain his son from a known dangerous propensity. Thus, without an allegation that the defendant negligently entrusted his son with a dangerous instrumentality, any claim that the defendant is liable for the alleged negligence of his son must fail as a matter of law.”
Desmond et al. v. Macgillivray et al.; Super. Ct. Conn., Judicial District of New Haven; DOCKET NO.: NNH-CV-19-6103788; 4/12/22
