Mutrie v. McDonough
| Decision Date | 26 April 2016 |
| Docket Number | SUPERIOR COURT CIVIL ACTION DOCKET NO. CV-14-94 |
| Parties | PATRICK F. MUTRIE and JOHANNA M. MUTRIE, as parents and next best friend of ETHAN J. MUTRIE, a minor, Plaintiffs, v. ADAM MCDONOUGH and LINDSAY MCDONOUGH, individually and in their capacity as parents, legal guardians, and next best friend of TYLER MCDONOUGH, a minor, Defendants. |
| Court | Maine Superior Court |
STATE OF MAINE
YORK, SS.
This case arises out of an incident at a youth football game. Patrick and Johanna Mutrie, parents and next best friends of Ethan J. Mutrie ("the Mutries"), bring various tort claims against Adam and Lindsay McDonough, parents and next best friends of Tyler McDonough ("the McDonoughs"). The court previously denied a motion to dismiss Count II of the complaint, which asserts a claim for negligent infliction of emotional distress. Before the court is defendants' motion for summary judgment on all counts.
Plaintiff Ethan Mutrie and defendant Tyler McDonough were participants in a youth football game that occurred on October 21, 2012. (Def.'s S.M.F. ¶ 1.) Tyler played for the Saco Junior Trojans and Ethan played for the Scarborough "white team." (Def.'s S.M.F. ¶¶ 2-3.) Both were ten years old at the time of the game. (Def.'s S.M.F. ¶¶ 2-3.) Tyler was over 120 pounds and Ethan was approximately 70 pounds. (Def.'s S.M.F. ¶¶ 16, 18.)
Ethan, playing defensive line, was lined up against Tyler. During one play, the two began shoving each other after the ball was snapped and continued to push each other after the play had ended. (Def.'s S.M.F. ¶¶ 4-6.) Ethan turned and attempted to return to the huddle after the whistle blew, but Tyler grabbed his jersey and placed him in a headlock. (Def.'s S.M.F. ¶ 6.) Ethan's father witnessed this; he testified in his deposition that around ten to fifteen seconds after the whistle had blown, Tyler grabbed Ethan with his left arm on the back of his neck, almost like a "horse collar" and pulled Ethan into him. (Def.'s S.M.F. ¶ 9.) Tyler then wrapped his right arm underneath Ethan's helmet and swung his body approximately two and a half feet into the air before throwing him into the ground. (Def.'s S.M.F. ¶¶ 10-11.) Ethan "blanked out" after he was placed in the headlock. (Def.'s S.M.F. ¶¶ 6-7.) Ethan was hurt on the play and did not return. (Def.'s S.M.F. ¶ 19.) Referees ejected Tyler from the game and he was suspended for the following game. (Def.'s S.M.F. ¶¶ 21-22.) After he was ejected, Tyler removed his helmet and used profanities. (Pl.'s Add'tl S.M.F. ¶ 7.)
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no genuine issue as to any material fact . . . and that any party is entitled to a judgment as a matter of law." M.R. Civ. P. 56(c).
Plaintiffs' complaint alleges the following counts: (1) negligence, (2) negligent infliction of emotional distress, (3) assault and battery, (4) intentional infliction of emotional distress, and (5) battery.
Defendants move for summary judgment on all counts largely on the theory that plaintiffs cannot recover in tort because the conduct and injury suffered are inherent in a contact sport like football. Defendants thus argue that based on the undisputed facts, they are entitled to judgment as a matter of law.
Defendants primarily seek summary judgment urging the court to adopt the "contact sports exception." The contact sports exception is a doctrine applied in Illinois and several other jurisdictions that modifies the standard of care when the parties are playing a contact sport. It is closely related to assumption of the risk doctrine. Karas v. Strevell, 884 N.E.2d 122, 131 (Ill. 2008). The contact sports exception bars recovery in negligence for injuries suffered in a contact sport, unless "caused by willful and wanton or intentional misconduct." Pfister v. Shusta, 657 N.E.2d 1013, 1014 (Ill. 1995).
The rationale as it relates to football has been explained as follows:
The playing of football is a body-contact sport. The game demands that the players come into physical contact with each other constantly, frequently with great force. The linemen charge the opposing line vigorously, shoulder to shoulder. The tackier faces the risk of leaping at the swiftly moving legs of the ball-carrier and the latter must be prepared to strike the ground violently. Body contacts, bruises, and clashes are inherent in the game. There is no other way to play it.
Karas, 884 N.E.2d at 132 (quoting Vendrell v. School District No. 26C, 376 P.2d 406, 412 (1962)).1
The contact sports exception modifies the defendant's ordinary duty to exercise reasonable care, imposing only a duty to refrain from willful, wanton, or intentional conduct. Karas, 884 N.E.2d at 131 () (quoting Restatement (Third) of Torts: Apportionment of Liability, § 2 (3d ed. 2000)). Other jurisdictions modify duty and hold that individuals playing sports have a duty to refrain from reckless conduct. See Restatement (Third) of Torts: Liability for Physical and Emotional Harm, § 7 (3d ed. 2010) ()
The default rule is that a defendant owes a duty of reasonable care to avoid causing harm to reasonably foreseeable plaintiffs. See Cameron v. Pepin, 610 A.2d 279, 281 (Me. 1992). Duty presents a mixed question of law and fact, involving "a multi-factored analysis that necessarily evokes policy-based considerations including the just allocation of loss." Brown v. Delta Tau Delta, 2015 ME 75, ¶ 9, ___ A.2d ___.
The Law Court would likely apply ordinary duty and standard of care principles to the present case. First, the Legislature has seen fit to modify duty and the standard of care for skiing, but no other sports. Compare 32 M.R.S. § 15217 (), with Noffke v. Bakke, 2009 WI 10, ¶ 14, 760 N.W.2d 156 (). The Law Court has construed that statute narrowly and would likely hesitate to apply the same principle outside the skiing context, absent some legislative authority. See Merrill v. Sugarloaf Mt. Corp., 2000 ME 16, ¶¶ 10-12, 745 A.2d 378 ().
Second, the basis for the contact sport exception—limiting duty based on implied assumption of the risk—has generally limited viability in Maine law. As observed by a leading treatise, "the doctrine of assumption of the risk has been abolished in Maine except in certain limited circumstances." Simmons, Zillman & Gregory, Maine Tort Law § 17.03 at 581; see also Merrill, 2000 ME 16, ¶ 9 n.3, 745 A.2d 378 () To the extent voluntary implied (as opposed to contractual) assumption of the risk remains, the principle has been merged into comparative negligence, which replaced contributory negligence. See 14 M.R.S. § 156; Wilson v. Gordon, 354 A.2d 398, 401-02 (Me. 1976) ( )
Comparative negligence could limit a plaintiff's damages, but unlike contributory negligence, it is not an absolute bar to recovery. See Allen v. Dover Co-Recreational Softball League, 807 A.2d 1274, 1283 (N.H. 2002) (). Comparative negligence instead concerns the allocation of damages and is a question of fact. See Brown v. Crown Equip. Corp., 2008 ME 186, ¶ 24, 960 A.2d 1188 (); see also Down E. Energy Corp. v. RMR, Inc., 1997 ME 148, ¶ 7, 697 A.2d 417 () (citation omitted).
The court declines to apply the contact sports exception. But even assuming the Law Court would, notwithstanding the foregoing analysis, elect to adopt the doctrine, summary judgment would still be inappropriate. Construing the facts and drawing all reasonable inferences in favor of the plaintiff, a reasonable fact-finder could conclude the conduct was "willful or wanton" and thus not an inherent risk of playing football. Tyler's headlock occurred well after the whistle had blown. Ethan had turned away from Tyler and was no longer engaging him at the time of contact. While tackles and shoves are ordinary contact in football games, lifting a player by the neck to throw him through the air and into the ground is not ordinary, at least not as a matter of law. This presents anissue of fact that cannot be resolved on summary judgment. See Merrill v. Sugarloaf Mt. Corp., 1997 ME 180, ¶ 7, 698 A.2d 1042 ().3
In sum, the court declines to...
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