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19-P-1189 Appeals Court
BROOKE A. BRANDT vs. JACLYN DAVIS & others.1
No. 19-P-1189.
Suffolk. May 22, 2020. - November 2, 2020.
Present: Wolohojian, Maldonado, & Ditkoff, JJ.
Negligence, Athletics, College, Gross negligence, Standard of care. Contract, Release from liability, Waiver. Release. Wilful, Wanton, or Reckless Conduct. Practice, Civil, Waiver, Summary judgment. Waiver.
Civil action commenced in the Superior Court Department on March 1, 2017.
The case was heard by Mark C. Gildea, J., on motions for summary judgment.
Robert A. Curley, Jr., for the plaintiff. Robert B. Smith for Jaclyn Davis & another. Paul F. Lynch for Meredith Ball.
DITKOFF, J. The plaintiff, Brooke A. Brandt, appeals from
a summary judgment dismissing her complaint against her softball
teammate, Meredith Ball (teammate), and Suffolk University and
1 Meredith Ball and Suffolk University. 2
her softball head coach Jaclyn Davis (collectively, the Suffolk
defendants), arising out of the plaintiff's injuries sustained
during softball practice. We conclude that, like players in an
athletic contest, players in an athletic practice owe a duty not
to engage in reckless conduct but are not subject to suit for
simple negligence. Because of a waiver signed by the plaintiff,
the Suffolk defendants are liable only for gross negligence or
recklessness. Concluding that the summary judgment record did
not raise a triable issue that either the teammate or the
Suffolk defendants engaged in reckless conduct or gross
negligence, we affirm.
1. Background. The plaintiff played softball as a member
of the Suffolk University women's team, a National Collegiate
Athletic Association Division III team. As a condition of her
participation on the team, the plaintiff signed a participant
waiver and release of liability form. The waiver released
Suffolk University and its employees and agents from liability
for any claims arising from her participation in the athletic
program to the extent "permitted by the law of the Commonwealth
of Massachusetts."
On the day of the accident, the team was practicing in an
indoor practice facility. The team engaged in the same general
pattern of activities during practices. After warming-up, the
team would leave the playing area to get their equipment, and 3
then meet on the field. The players had to leave the playing
area to get their equipment, because they hung their equipment
outside the playing area on a fence. During their practices,
the players would run through a series of rotating stations to
develop different skills, each requiring different personal
equipment. Before the players began their next station, the
head coach would say "go" when she was sure everyone was in
position and wearing the proper equipment.
Typically, the batting tees would be set up in batting
cages, but they were not on the day of the accident. Moveable
screens were available to use as protective barriers, but there
was no such barrier between the tees and the field entrance on
the day of the accident.
At one of the practice stations, players practiced hitti ng
balls off tees into the netting surrounding the field . The tees
were placed off to one side of an opening in the netting, which
is where players would enter the area. A portable divider was
placed on the opposite side of the opening to separate this
station from the live hitting station. The players rotated
among stations at the direction of the coaches, and were given
between two and five minutes to transition before the coaching
staff signaled them to start.
During the March 7, 2014, practice, when it was time for
the plaintiff to rotate to the live hitting station, she left 4
the field to retrieve her batting helmet and began jogging back
with her helmet in her hand. The plaintiff testified in a
deposition that she had to go retrieve her batting equipment,
because her first station had been fielding. The plaintiff was
"moving quickly" to get back to her station.
When the plaintiff returned to the practice area, the
teammate was practicing hitting at the "last tee near the door.
[The teammate] was the last to get to [her] tee because of the
additional time [she] spent practicing [her] footwork." The
teammate was a left-handed batter, and she chose the tee nearest
to the door so that the right-handed players in the station
would not be within her swinging radius.
In her deposition, the plaintiff testified that she saw
that the teammate had a bat in her hand at the tee station and
was preparing to bat. The teammate's back was to the plaintiff
when the plaintiff jogged back on the field. The plaintiff did
not know whether the teammate could see her because the
teammate's batting helmet limited her peripheral vision. The
plaintiff testified that she saw the teammate's face, but could
not say whether that was when she was leaving the field or upon
reentering it. She "didn't feel like [she] was going to get
hit" when she ran behind the teammate.
The plaintiff testified that she yelled, "Wait." However,
she could not remember when she said wait or even whether she 5
said it out loud. She admitted that it was possible tha t she
"said wait only in [her] own head."
The teammate testified in a deposition that she did not
begin swinging until instructed to do so by her coaches , and an
assistant coach testified that the players were already swinging
before the accident. The teammate stated that she "always
look[ed] around . . . before . . . every single swing." She did
not see the plaintiff.
After the teammate hit the ball off the tee, the teammate's
swing hit the plaintiff in the back of the head. As a result,
the plaintiff suffered a concussion and required four stitches
at a hospital. She was released from the emergency department
the same evening. Because the plaintiff and the teammate were
best friends, the teammate stayed with the plaintiff in her
dormitory room the night of the accident. A few days later,
however, it became evident that the plaintiff was suffering
long-term effects from the accident, including difficulty
reading.
The plaintiff asserted claims against the teammate for
negligence, gross negligence, and recklessness. The plaintiff
asserted claims against the Suffolk defendants for gross
negligence and recklessness. In a thoughtful decision, a
Superior Court judge determined that the plaintiff needed to
show recklessness on the part of the teammate to prevail. 6
Concluding that the summary judgment record did not raise a
triable issue of recklessness or gross negligence on the part of
either the teammate or the Suffolk defendants, the judge granted
summary judgment and dismissed the plaintiff's complaint. This
appeal followed.
2. Standard of review. "Our review of a motion judge's
decision on summary judgment is de novo, because we examine the
same record and decide the same questions of law." Boston Globe
Media Partners, LLC v. Department of Criminal Justice Info.
Servs., 484 Mass. 279, 286 (2020), quoting Kiribati Seafood Co.
v. Dechert LLP, 478 Mass. 111, 116 (2017). "The standard of
review of a grant of summary judgment is whether, viewing the
evidence in the light most favorable to the nonmoving party, all
material facts have been established and the moving par ty is
entitled to judgment as a matter of law." Bank of N.Y. Mellon
v. Morin, 96 Mass. App. Ct. 503, 506 (2019), quoting Molina v.
State Garden, Inc., 88 Mass. App. Ct. 173, 177 (2015). See
Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002).
"Usually, negligence and recklessness involve questions of fact
left for the jury. . . . However, where no rational view of the
evidence would permit a finding of negligence or recklessness,
summary judgment is appropriate." Borella v. Renfro, 96 Mass.
App. Ct. 617, 622 (2019). 7
3. Claims against the teammate. a. Standard of care. As
is well established, "participants in an athletic event owe a
duty to other participants to refrain from reckless misconduct."
Borella, 96 Mass. App. Ct. at 622, quoting Gauvin v. Clark, 404
Mass. 450, 451 (1989). Accord Gray v. Giroux, 49 Mass. App. Ct.
436, 439 (2000) ("wilful, wanton, or reckless standard of
conduct, and not ordinary negligence, is the appropriate
standard of care in noncontact sports"). We must determine
whether this standard, rather than the ordinary negligence
standard, applies to participants in an athletic practice.
"Whether a party owes a duty of care to another is a legal
question, 'determine[d] "by reference to existing social v alues
and customs and appropriate social policy."'" Williams v.
Steward Health Care Sys., LLC, 480 Mass. 286, 290 (2018),
quoting Jupin v. Kask, 447 Mass. 141, 143 (2006). We conclude
that the same level of duty -- to refrain from reckless conduct
-- applies to athletic practices as well as to athletic
contests.
In Gauvin, 404 Mass. at 454, the Supreme Judicial Court
determined that participants in an athletic event owe each other
only a duty to avoid reckless conduct. The court did so because
it was "wary of imposing wide tort liability on sports
participants, lest the law chill the vigor of athletic
competition." Id. This standard "furthers the policy that 8
'[v]igorous and active participation in sporting events should
not be chilled by the threat of litigation.'" Id., quoting
Kabella v. Bouschelle, 100 N.M. 461, 465 (1983).
The same reasoning applies to athletic practices. During
such practices, players train to improve their competitive
performance. Teammates often play against each other as though
it is a game through scrimmages and other drills at practice .
See Gauvin, 404 Mass. at 454 ("Players, when they engage in
sport, agree to undergo some physical contacts which could
amount to assault and battery absent the players' consent").
Batting practice, for example, requires focus for players to
increase the strength and accuracy of their swings. If the
players could not practice as vigorously as they play, they
would -- at best -- be unprepared for the challenges of actual
competition. At worst, their inability to practice vigorously
would expose them to an increased risk of injury during games,
especially if they competed against out-of-State teams not so
constrained. See Kavanagh v. Trustees of Boston Univ., 440
Mass. 195, 205 (2003).
We find support for this conclusion in decisions in other
States. In Bowman v. McNary, 853 N.E.2d 984, 991 (Ind. Ct. App.
2006), the Indiana Court of Appeals rejected the application of
ordinary negligence to an injury caused by an errant swing
during a practice for a high school golf team. See id. at 992 9
("the rule applies to injuries sustained by any co -participants
in a sporting activity, which would include teammates injured
during a practice").2 Moreover, other jurisdictions have applied
the recklessness standard for noncontact or noncompetitive
athletic activities. See, e.g., Ford v. Gouin, 3 Cal. 4th 339,
345 (1992) ("the general rule limiting the duty of care of a
coparticipant in active sports to the avoidance of intentional
and reckless misconduct, applies to participants engaged in
noncompetitive but active sports activity, such as a ski boat
driver towing a water-skier"); Pressler v. U, 70 Ohio App. 3d
204, 205-206 (1990) (yacht race). Accord Ritchie-Gamester v.
Berkley, 461 Mich. 73, 89 (1999) (declining to apply ordinary
negligence where ice skater skated backwards into plaintiff) .
b. Reckless conduct. "The imposition of tort liability
for reckless disregard of safety can be based on either a
subjective or objective standard for evaluating knowledge of the
risk of harm." Boyd v. National R.R. Passenger Corp., 446 Mass.
540, 546 (2006). The plaintiff has the burden to prove "the
actor knows, or has reason to know . . . of facts which create a
high degree of risk of physical harm to another, and
2 In Pfenning v. Lineman, 947 N.E.2d 392, 404 (Ind. 2011), the Supreme Court of Indiana took issue with some of the reasoning in Bowman, but ultimately approved of its conclusion that "intentional or reckless infliction of injury" is the proper standard. 10
deliberately proceeds to act, or to fail to act, in conscious
disregard of, or indifference to, that risk." Id. at 546-547,
quoting Restatement (Second) of Torts § 500 comment a, at 588
(1965). We examine the record to determine whether there is
evidence from which a jury could conclude that the teammate
"engaged in extreme misconduct outside the range of the ordinary
activity inherent in the sport." Borella, 96 Mass. App. Ct. at
624. Viewing the summary judgment record in the light most
favorable to the plaintiff, she had no reasonable expectation of
proving that the teammate's actions rose to this level of
misconduct.
Contrary to the plaintiff's claim, a jury could not find
that the teammate saw the plaintiff before the injury with
enough time to prevent the accident. The plaintiff jogged onto
the field near where the teammate was preparing to bat. The
plaintiff testified at a deposition that the teammate had her
back to the entrance, and she wore a batting helmet that limited
her peripheral vision. Although the players were supposed to
look around before swinging, the plaintiff did not remember
whether the teammate looked around. The plaintiff's failure of
memory in this regard does not directly contradict the
teammate's affirmative recollection that she looked around her
before she swung the bat. See Gray, 49 Mass. App. Ct. at 440
n.4 (plaintiff's assertion that golfer "could have and should 11
have been able to see the plaintiff" did not rebut defendant's
deposition testimony that he did not see plaintiff) . But even
were we to assume that there was a sufficient factual dispute
over whether the teammate looked before she swung, and that the
plaintiff was "capable of being seen from at least the time she
was passing by the chain link gate until she was hit" (as the
plaintiff's expert opined), there is no rational view of the
evidence that the teammate in fact saw the plaintiff before the
teammate swung the bat with enough time to prevent the accident.
Accordingly, this scenario, as a matter of law, did not rise to
the level of recklessness. See id. (golfer was not reckless
where he did not see plaintiff before taking his shot and
plaintiff was not in intended path of golfer's shot); Bowman,
853 N.E.2d at 996-997 (plaintiff's conduct was not reckless
where she struck coparticipant with backswing without
ascertaining coparticipant's precise location during high school
golf practice).
The plaintiff disputes that the coach had given the "go"
signal for the teammate to begin batting. Viewing the evidence
in favor of the nonmoving party, even if the teammate swung her
bat before the coach told players to start, the teammate's
actions were at most negligent. The plaintiff was a collegiate
softball player who had played for fourteen years at the time of
her injury. The plaintiff acknowledged that the coaches did 12
"not necessarily hav[e] to micromanage every part" of the
practice, and players could begin practicing at their station
before the coach said "go." Based on the players' experience
and skill level, this conduct, as a matter of law, was not
reckless. See Borella, 96 Mass. App. Ct. at 624.
The plaintiff claims she said "wait" before the incident .
In her deposition, however, the plaintiff did not remember
whether she said "wait" out loud or in her head. She did not
remember her exact location when she said "wait," the timing of
when she said it, or how loudly she said it. Indeed, the
plaintiff stated that she yelled "wait" "almost immediately"
before she was struck. Accordingly, there was no evidence that
the teammate could or did hear the plaintiff say "wait" before
the teammate swung her bat, let alone in enough time to stop her
swing. Indeed, the teammate testified in her deposition that
she did not hear the plaintiff say anything before the accident.
The plaintiff had no reasonable expectation of proving
recklessness from this evidence. See Patterson v. Liberty Mut.
Ins. Co., 48 Mass. App. Ct. 586, 592 (2000) (party "cannot
prevail if any critical element is left to surmise, conjecture
or speculation or otherwise lacks evidential support").
4. Claims against the Suffolk defendants. Although a
coach's duty of care to opposing players is the same
recklessness standard that applies to the players she coaches, 13
Borella, 96 Mass. App. Ct. at 628, we assume without deciding
that a coach ordinarily has a duty of ordinary reasonable care
to her own players. See Kavanagh, 440 Mass. at 202 (not
reaching this question). Cf. Moose v. Massachusetts Inst. of
Tech., 43 Mass. App. Ct. 420, 425 (1997) (university and coaches
liable in negligence to injured pole vaulter for unsafe
equipment and landing pit). Here, however, it is uncontested
that Suffolk University had an enforceable liability waiver
barring the plaintiff from bringing an ordinary negligence suit.
See Rafferty v. Merck & Co., 479 Mass. 141, 155 (2018), quoting
Maryland Cas. Co. v. NSTAR Elec. Co., 471 Mass. 416, 422 (2015)
("'while a party may contract against liability for harm caused
by its negligence, it may not do so with respect to its gross
negligence' or, for that matter, its reckless or intentional
conduct"). Thus, we analyze the plaintiff's claims only for
gross negligence and recklessness.
a. Gross negligence. "[G]ross negligence is substantially
and appreciably higher in magnitude than ordinary
negligence. . . . It is an act or omission respecting legal
duty of an aggravated character as distinguished from a mere
failure to exercise ordinary care." Parsons v. Ameri, 97 Mass.
App. Ct. 96, 106 (2020), quoting Altman v. Aronson, 231 Mass.
588, 591-592 (1919). "The 'voluntary incurring of obvious risk'
and 'persistence in a palpably negligent course of conduct over 14
an appreciable period of time' are among 'the more common
indicia of gross negligence.'" Parsons, supra, quoting Lynch v.
Springfield Safe Deposit & Trust Co., 294 Mass. 170, 172 (1936).
The plaintiff's expert stated that the positioning of the
tee station near the entrance enhanced the risk of seri ous
danger for the players when there were safer alternative
locations for the drill. The head coach gave the players
approximately five minutes to transition. The head coach had no
reason to believe that these trained collegiate athletes would
enter the field while players were swinging their bats at the
tee station. Based on the collegiate athletes' knowledge and
experience, the head coach's assertedly inadequate planning
makes out, at worst, only ordinary negligence. See Aleo v. SLB
Toys USA, Inc., 466 Mass. 398, 410 (2013), quoting Altman, 231
Mass. at 591 ("Gross negligence . . . is materially more want of
care than constitutes simple inadvertence").3
It remains a contested fact whether the coach told the
players to start their stations before everyone was in place.4
Taking all inferences in favor of the plaintiff, it was at most
3 Gross negligence, of course, takes into account the age, experience, and skill level of the players. A setup that is merely negligent for experienced collegiate athletes might well be grossly negligent for beginners or young children. 4 The teammate testified that she was told to start. The head coach said that she had already said "go." 15
negligent for the head coach to have prematurely yelled "go"
before all of the trained athletes were at their next station .
b. Recklessness. "[R]eckless conduct involves a degree of
risk and a voluntary taking of that risk so marked that,
compared to negligence, there is not just a difference in degree
but also a difference in kind." Gray, 49 Mass. App. Ct. at 440,
quoting Sandler v. Commonwealth, 419 Mass. 334, 337 (1995).
"[I]n order to impose liability on a coach for the conduct of a
player, there must be, at the least, evidence of 'specific
information about [the] player suggesting a propensity to engage
in violent conduct, or some warning that [the] player . . .
appeared headed toward such conduct as the game progressed .'"
Borella, 96 Mass. App. Ct. at 628, quoting Kavanagh, 440 Mass.
at 203. Here, there is no indication that the teammate
intentionally struck the plaintiff or that the teammate had a
history of reckless conduct. The plaintiff testified that she
and the teammate were best friends, and that she did not think
the teammate hit her on purpose. See Gray, supra. As a matter
of law, there is no basis for a jury to find that the head coach
acted recklessly in allowing the teammate to practice hitting
off tees.
Judgment affirmed.