Szarowicz v. Birenbaum, A156312

CourtCalifornia Court of Appeals
Citation58 Cal.App.5th 146,272 Cal.Rptr.3d 272
Decision Date04 December 2020
Docket NumberA156312
Parties Michael SZAROWICZ, Plaintiff and Appellant, v. Jeremy BIRENBAUM, Defendant and Respondent.

58 Cal.App.5th 146
272 Cal.Rptr.3d 272

Michael SZAROWICZ, Plaintiff and Appellant,
Jeremy BIRENBAUM, Defendant and Respondent.


Court of Appeal, First District, Division 2, California.

Filed December 4, 2020

Tardiff Law Office, Neil S. Tardiff ; Law Offices of David S. Vogel, David S. Vogel, for Plaintiff and Appellant Michael Szarowicz.

Demler, Armstrong & Rowland, LLP, George A. Ostott, Jr., John R. Brydon, Lisa L. Pan, for Defendant and Respondent Jeremy Birenbaum

Richman, Acting P.J.

58 Cal.App.5th 150

Plaintiff Michael Szarowicz was a recreational ice hockey player in a no-check

272 Cal.Rptr.3d 274

league. He brought this action for negligence and intentional tort against fellow recreational ice hockey player Jeremy Birenbaum after a violent, on-ice collision between the two left Szarowicz with serious injuries. Birenbaum moved for summary judgment based on the primary assumption of risk doctrine. The trial court granted his motion, concluding checking is an inherent risk of the game and the doctrine barred Szarowicz from recovering damages for his injuries. Our de novo review leads us to conclude that summary judgment was error because a triable issue of material fact exists as to whether Birenbaum breached a limited duty of care owed to Szarowicz not to increase the risks to him over and above those inherent in the game. We thus reverse the summary judgment.

Birenbaum also moved for summary adjudication of Szarowicz's cause of action for intentional tort and his prayer for punitive damages. Although the

58 Cal.App.5th 151

trial court did not address summary adjudication in light of the summary judgment, we do so on our de novo review. And we deny Birenbaum's motions, concluding Szarowicz's evidence raised triable issues of material fact as to both his intentional tort claim and his prayer for punitive damages.


On August 18, 2017, Michael Szarowicz initiated this action against Jeremy Birenbaum. As twice amended, Szarowicz's complaint alleged two causes of action. The first, for intentional tort, alleged that during a "no-contact recreational" ice hockey game, Birenbaum intentionally harmed him when "without provocation [he] maliciously charged and illegally body-checked Plaintiff Michael Szarowicz after taking six full speed strides, blind-siding and knocking him into the air and then onto the ice, causing him to lose consciousness" and suffer "severe injuries." The second, for negligence, contained the same allegations, absent the allegations of intent to harm and malice. Szarowicz sought compensatory and punitive damages.

After filing his answer, Birenbaum moved for summary judgment or, in the alternative, summary adjudication, based on the primary assumption of risk doctrine recognized in Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696 ( Knight ). There, a plurality held that the primary assumption of risk precludes liability for injuries resulting from risks deemed inherent in a sport. ( Id. at pp. 315–316, 11 Cal.Rptr.2d 2, 834 P.2d 696.) Birenbaum argued that checking is an inherent risk in the sport of no-check ice hockey and thus he did not owe Szarowicz a duty to protect him from injuries resulting from a check. Relying on Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 41 Cal.Rptr.3d 299, 131 P.3d 383 ( Avila ), he contended this was true even if his conduct was intentional. Birenbaum alternatively sought summary adjudication of the intentional tort cause of action based on Avila , and also of the prayer for punitive damages, on the ground there was no clear and convincing evidence he acted with malice or oppression in causing Szarowicz's injuries.

Szarowicz filed opposition to Birenbaum's motion. He countered that under Knight and its progeny, including Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 4 Cal.Rptr.3d 103, 75 P.3d 30 ( Kahn ) and Shin v. Ahn (2007) 42 Cal.4th 482, 64 Cal.Rptr.3d 803, 165 P.3d 581 ( Shin ), there was a triable issue of material fact as to whether Birenbaum intentionally injured him or engaged in reckless conduct that was totally outside the range of the ordinary activity involved in no-check hockey, in which case the primary

272 Cal.Rptr.3d 275

assumption of risk doctrine would not preclude liability.

58 Cal.App.5th 152

The evidence submitted in support of and opposition to Birenbaum's motion included video footage of the incident1 and declarations with exhibits that included excerpts of deposition testimony and discovery responses.2 The evidence revealed the following facts:

In 2017, Szarowicz and Birenbaum were both members of the San Francisco Adult Hockey League (SFAHL), an adult, recreational, no-check ice hockey league. On January 30 of that year, at the Yerba Buena Ice Skating and Bowling Center (Yerba Buena), they were playing on opposing teams in game three of the three-game SFAHL championship series, Szarowicz for the Icehounds, Birenbaum for the Thousand Eyes. The teams were playing in Yerba Buena's C league, with A being the highest skill level and D the lowest.

In the final minutes of the game, with the Icehounds up five goals to two, the puck was hit laterally across the ice towards the players’ bench. Szarowicz followed the puck across the ice, while Birenbaum, who had been defending the Thousand Eyes’ goal, took at least six full strides parallel to the side of the rink along the players’ bench. The puck ricocheted off the board on the right side, and Szarowicz intended to "[k]ind of slap it down" towards the Thousand Eyes’ goal so one of his offensive teammates could shoot. Just as he was about to make contact with the puck, or was in fact making contact with it, Birenbaum collided with him, propelling him into the air, causing him to fall to the ice.

Szarowicz was briefly knocked unconscious but was eventually able to get up and leave the ice with assistance. He sat on the bench "kind of doubled over" and "having a hard time moving" until the end of the game, when he was taken to the hospital. He suffered extensive injuries, including six broken ribs, a dislocated shoulder with three fractured bones, a torn rotator cuff, a fractured sternum, a fractured scapula, and a collapsed lung.

Both sides submitted excerpts of Szarowicz's deposition testimony, which included the following:

Szarowicz began playing hockey in 1980 when he was four years old. He played in "village hockey leagues" until age 10, and then played travel and high school hockey from ages 10 to 18. During his college years, he took a hiatus from the sport, but resumed playing in 2000 or 2001 when he began

58 Cal.App.5th 153

playing recreational, no-check hockey. In 2014, he moved to San Francisco and played first in a league in Oakland and then also joined the SFAHL. He had played an estimated 2,000 games and described his skill level for the Bay Area adult recreational leagues as "average." With the exception of one season, all of his experience playing adult hockey was in no-check leagues. He had also been a referee for five years.

In his many years of playing hockey, Szarowicz had witnessed player-to-player collisions. He had only seen players break bones in check hockey games, and he did not think he had seen concussions in the adult leagues. While playing no-check

272 Cal.Rptr.3d 276

hockey, the worst injuries he suffered were "[b]umps and bruises," with a sprained knee on one occasion.

Szarowicz acknowledged that the SFAHL rules state, "The SFAHL is a non-check league, but ice hockey is a contact sport." He agreed ice hockey is a contact sport and it would be very difficult to play without any contact. The SFAHL rules provide graduated penalties for varying degrees of checking, as well as penalties for other forms of contact, like kneeing, elbowing, charging, and head-butting. According to Szarowicz, physical contact in a game does not necessarily result in a penalty, and once or twice a game there would be physical contact that did not result in a penalty.

As to the January 30, 2017 game, Szarowicz initially testified that he did not recall any contact or communication with Birenbaum prior to the collision. After a break in his deposition, he testified that his recollection had been refreshed by reviewing the pleadings in the case and he now recalled having seen Birenbaum crosscheck one of his teammates, prompting Szarowicz to ask him "why he was so angry."3 Later in the game, Birenbaum crosschecked Szarowicz by holding his stick horizontally and "he took it and kind of rammed it down into the back of my pants actually." Szarowicz did not say anything to Birenbaum or the referee, and no penalty was called.

Just prior to the collision, Szarowicz remembered "turning, going to turn up ice, and I remember hearing something and then I got hit and kind of blacked out for a bit and then was in a lot of pain on the ice and got off the ice." The sound he heard was someone skating "at a good...

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