Hockey Player Responsible for Injury to Other Player?

In general, persons have a duty to use due care to avoid injury to others, and may be held liable if their careless conduct injures another person. This general rule, however, does not apply to co-participants in a sport, where conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself. In this respect, the nature of a sport is highly relevant in defining the duty of care owed by the particular defendant.

Although defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.

In some situations, the careless conduct of others is treated as an inherent risk of a sport, thus barring recovery by the plaintiff. Case law has held that sports participants should not be held liable to a co-participant for ordinary careless conduct committed during the sport because in the heat of an active sporting event, a participant’s normal energetic conduct often includes accidentally careless behavior. The reasoning for this is that it is believed that vigorous participation in such sporting events would be chilled if legal liability were to be imposed on a participant on the basis of his or her ordinary careless conduct.

Recently, this issue was raised in the case of Szarowicz v. Birenbaum (Dec. 4, 2020, No. A156312) ___Cal.App.5th___ [2020 Cal. App. LEXIS 1149].

The plaintiff, a recreational hockey player in a no-check league, brought an action for negligence and intentional tort against the defendant, a fellow recreational ice hockey player, after a violent, on-ice collision between the two left plaintiff with serious injuries.

The trial court granted defendant’s motion for summary judgment, concluding that checking is an inherent risk of the game, and that the primary assumption of risk doctrine barred plaintiff from recovering damages for his injuries. The trial court also granted defendant’s motion for summary adjudication of plaintiff’s cause of action for intentional tort and his prayer for punitive damages.

The plaintiff appealed this ruling.  On appeal, the Court reversed the grant of summary judgment and denied summary adjudication of the cause of action for intentional tort and of the prayer for punitive damages.

The Court held that summary judgment in defendant’s favor was error because a triable issue of material fact existed as to whether defendant breached a limited duty of care owed to plaintiff not to increase the risks to him over and above those inherent in the sport of no-check ice hockey.

While primary assumption of risk would shield defendant from liability if his check was within the scope of risks inherent in the sport of no-check hockey, he could be subject to liability if his check was intentionally injurious or so reckless as to constitute conduct outside the range of risks inherent to the sport or the check was a flagrant infraction or extreme misconduct.

The Court further ruled that the defendant did not establish that he was entitled to summary adjudication of plaintiff’s cause of action for intentional tort and of his prayer for punitive damages. The evidence raised a triable issue as to whether defendant intended to harm plaintiff or engaged in despicable conduct within the meaning of Civil Code, § 3294.