Borella v. Renfro

• Decision Date: 02 December 2019
• Docket Number: No. 18-P-322,18-P-322
• Citation: 96 Mass.App.Ct. 617,137 N.E.3d 431
• Court: Appeals Court of Massachusetts
• Parties: Daniel J. BORELLA v. H. Larue RENFRO & others.

96 Mass.App.Ct. 617

137 N.E.3d 431

Daniel J. BORELLA

v.H. Larue RENFRO ¹ & others.²

No. 18-P-322

Appeals Court of Massachusetts, Middlesex..

Argued April 2, 2019.

Decided December 2, 2019.

Dallas W. Haines, III, Amesbury, for the plaintiff.

Kevin D. McElaney, Waltham, for Julion Scott Lever.

Michael E. Barris for Bernard J. Brun.

Michael R. Byrne for Daniel J. Mahoney, Sr.

Jennifer C. Sheehan, Boston, for H. Larue Renfro & others.

Present: Rubin, Henry, & Wendlandt, JJ.

WENDLANDT, J.

In a game where the players wear sharpened steel blades on their feet and are garbed in protective gear from head to toe, the playing field is a glossy ice rink, checking not only is allowed but a fundamental aspect of the way the game is played, and the object of the game is to put a puck into a goal (or to prevent the same), the plaintiff, seventeen year old Daniel J. Borella, was cut on the wrist by one of the blades worn by the defendant, Julion Scott Lever, in what Borella acknowledges was a "freak accident" occurring moments after Lever checked Borella hard from behind into the boards and took the puck away. Borella appeals from the decision of the Superior Court judge granting summary judgment in favor of the defendants, pursuant to Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002).

The Supreme Judicial Court has held that participants in sporting events owe each other a duty to not engage in "reckless" misconduct. Gauvin v. Clark, 404 Mass. 450, 451, 537 N.E.2d 94 (1988). Reckless conduct, in turn, is defined as "intentional conduct ... involv[ing] a high degree of likelihood that substantial harm will result to another." Commonwealth v. Welansky, 316 Mass. 383, 399, 55 N.E.2d 902 (1944). In this case, we apply that standard to the game of ice hockey in which physical contact between players standing on two thin metal blades atop a sheet of ice is not simply an unavoidable by-product of vigorous play, but is a fundamental part of the way the game is played. We hold that where, as here, the record is devoid of evidence from which a jury rationally could conclude that the player's conduct is extreme misconduct outside the range of the ordinary activity inherent in the sport, there is no legal liability under the recklessness standard. For that reason, we affirm summary judgment in favor of Lever. Because, in addition, no rational view of the evidence would permit finding a causal nexus between Borella's injury and any breach by the other defendants -- coaches, referees, rink manager, and owners -- of their respective duties of care to Borella, we affirm.

Background. We set forth the facts in the light most favorable to Borella, the nonmoving party. See Mass. R. Civ. P. 56 (c) ; Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711-712, 575 N.E.2d 734 (1991). On July 14, 2013, Borella was injured during an ice hockey game between his³ team, the New England Renegades (a Massachusetts-based team coached by the defendant Bernard Brun, a parent volunteer) and Lever's team, Team Kanaly (a Pennsylvania-based team coached by the defendant Justin Grevious).

Both teams were in the Midget Major division for high school players aged seventeen to nineteen years old -- a division where checking was allowed.

The game was part of "The Boston Selects 2013 AAA Tournament of Champions," a tournament hosted and organized by the New England Sports Center (sports center), and occurred at a rink in Marlborough owned and managed by the defendants, H. Larue Renfro, New England Sports Management Corporation (NESMC), and H. Wesley Tuttle (collectively, rink defendants). The tournament was one of many tournaments that Team Kanaly attends routinely in an effort to showcase its players to recruiters and scouts.

Like Borella, Lever was seventeen years old. Both boys were approximately five feet, eight inches in height, with Lever weighing between 165 and 170 pounds and Borella between 150 and 160 pounds. Each player had played ice hockey for over a decade at the time of the incident, was familiar with the rules of hockey, and understood that physical contact (including penalties therefor) was an inherent aspect of the game.

The defendants, Daniel J. Mahoney, Sr., and Steven M. Lerner, were the referees for the game.⁴ Mahoney was refereeing his eighth game of the day, and Lerner was refereeing his fifth game of the day. They called eight penalties during the course of the game in question -- five against the Renegades, and three against Team Kanaly.

Prior to the injury, both teams engaged in verbal jousting, which referee Mahoney described as "pretty typical for this age group." The referees cautioned both coaches to instruct their players to stop the taunting, and both coaches did so. The referees were unbiased in their officiating; however, some Renegades team spectators believed that the referees did not control the game and failed to call some rule violations.⁵ There was no evidence as to which particular calls were missed, and nothing tying Lever or Borella to any missed call.

The score was tied after the first period.⁶ After two periods, Team Kanaly led by a score of four to three. In the third and final period, Team Kanaly pulled ahead eight to three.⁷

With two minutes left on the clock, Borella received the puck at approximately mid-rink, near the boards, turned and was skating towards Team Kanaly's goal in possession of the puck. Lever, who was near the Renegades' goal, skated towards Borella at a "[h]igh rated speed" without slowing down.⁸ Catching Borella, who was still close to the boards, Lever checked him hard, propelling Borella into the boards.

A parent of a Renegades player (who watched the game from the stands near center ice) described the hit as a "smash" and a "tremendous hit" with Lever hitting Borella with his "whole front side." The parent opined that the hit was a "charge" in violation of the rules of hockey.⁹ Another Renegades parent, who was also in the stands, described that Lever's shoulder hit Borella's back; she testified that she would have called a "hitting from behind" penalty.¹⁰ See note 8, supra. A fifteen year old Renegades player described that Lever hit Borella with his shoulder with a force he pegged as a "[t]en"¹¹ on a ten-point scale; this same teammate opined that the hit was with "intent to injure." A grandparent of a Renegades player, see note 5, supra, characterized the check as "a deliberate hit."¹²

As a result of the check, Borella fell to the ice onto the puck. Lever continued to battle for the puck, and though the details are murky in part because Borella temporarily lost consciousness,¹³ Borella's wrist was sliced by one of the blades Lever wore on his feet in what Borella acknowledges was a "freak accident." Mahoney called a minor penalty for "boarding,"¹⁴ sending Lever into the penalty box.¹⁵ Borella, who was bleeding from the laceration, was carried from the ice, and the game ended before the official game clock had run. The injury resulted in the permanent partial loss of the use of Borella's dominant hand.

Borella filed an action against multiple defendants. Against Lever, he asserted claims for negligence and alternatively for battery, alleging that Lever violently struck him from behind and into the boards in violation of the rules and in reckless disregard for his safety. Against the referees, Mahoney and Lerner, Borella asserted claims for negligence and gross negligence for failing to control the game and failing to end the game prior to the injury. Against Brun, Grevious, and Christopher M. Kanaly (another Team Kanaly coach who was not coaching the team during the game at issue), Borella asserted claims for negligence, gross negligence, and recklessness for failing to protect the players on the ice from injury. Finally, as against the rink defendants, Borella asserted claims for negligence and gross negligence for failing to maintain a safe environment, as well as claims for negligent hiring and supervision of the referee defendants.

The judge granted summary judgment in favor of the defendants. This appeal followed.

Discussion. "We review the allowance of a motion for summary judgment de novo to determine whether the moving party has established that, viewing the evidence in the light most favorable to the opposing party, ‘there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ " Scarlett v. Boston, 93 Mass. App. Ct. 593, 596-597, 107 N.E.3d 1179 (2018), quoting Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 680, 46 N.E.3d 24 (2016). See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991) ; Mass. R. Civ. P. 56 (c). "Conclusory statements, general denials, and factual allegations not based on personal knowledge [are] insufficient to avoid summary judgment" (citation omitted). See Cannata v. Berkshire Natural Resources Council, Inc., 73 Mass. App. Ct. 789, 792, 901 N.E.2d 1250 (2009).

Usually, negligence and recklessness involve questions of fact left for the jury. See Manning v. Nobile, 411 Mass. 382, 388, 582 N.E.2d 942 (1991) ; Doe v. Boston Med. Ctr. Corp., 88 Mass. App. Ct. 289, 291, 36 N.E.3d 1258 (2015). However, where no rational view of the evidence would permit a finding of negligence or recklessness, summary judgment is appropriate. See Manning, supra at 388-389, 582 N.E.2d 942 ; Roderick v. Brandy Hill Co., 36 Mass. App. Ct. 948, 949, 631 N.E.2d 559 (1994). See, e.g., Gray v. Giroux, 49 Mass. App. Ct. 436, 440, 730 N.E.2d 338 (2000) (affirming summary judgment in favor of defendant golfer who struck golf ball injuring plaintiff in head as she searched for ball in woods).

1. Participants in contact sports. We begin with Borella's claims against Lever. At the onset, it is clear that summary judgment in Lever's favor properly entered with regard to Borella's negligence claim. As set forth in Gauvin, "participants in an athletic event owe a duty to other participants to refrain from...