The Massachusetts Appeals Court ruled today that a player on a Pennsylvania teen hockey team owes nothing to a Massachusetts player he accidentally slashed in the wrist with one of his blades while checking him during a 2013 match in Marlboro - because checking's an integral part of the game and accidents happen, even if they sometimes mean the permanent loss of function in one hand.
The 2-1 ruling, which also means no penalties for the Pennsylvania player's coaches, the arena where the slicing happened and referees, upholds a ruling by a Middlesex Superior Court judge dismissing the suit.
The slash came during a July 14, 2013 match between the New England Renegades, on which Borella played, and Team Kanaly, up from Pennsylvania for "the Boston Selects 2013 AAA Tournament of Champions" for "Major Midget" players between 17 and 19 at the New England Sports Center.
In the third period, with his team leading 8-3, Borella had control of the puck when Lever skated at him at a high rate of speed, slamming into him and smashing him into the boards:
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, Borella's wrist was sliced by one of the blades Lever wore on his feet in what Borella acknowledges was a "freak accident." Mahoney [a referee] called a minor penalty for "boarding," sending Lever into the penalty box. 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.
Lever was sent to the penalty box for "boarding," while Borella was carried off the ice.
The justices began their legal consideration by noting that in a 1988 decision, the Supreme Judicial Court ruled that "participants in sporting events owe each other a duty to not engage in 'reckless' misconduct."
So what is "reckless" misconduct? The court reached back to a definition set in a 1944 case in which the owner of the Cocoanut Grove nightclub was charged with manslaughter after 492 people died in a fire there, in part because most of the club's exits were either locked, hidden or not designed to handle a large number of people fleeing a fire.
But since the most fatal fire in American history is not directly comparable to a sporting match, the justices then had to consider the very nature of hockey - because what might be reckless in one sport would not be in another. And in so doing, the court ruled against Borella, despite his permanent injury:
No rational view of this record supports a finding that Lever's conduct was reckless -- that is, extreme misconduct outside the range of the ordinary activity inherent in ice hockey. The game of hockey at the level at issue in this case -- seventeen to nineteen year old high school Midget Major division players -- involves, as the parties agree, "a lot of body contact, which requires a player to be aggressive and physical." Checking (and even checking hard and deliberately) is not only allowed, but "is an inherent, fundamental part of the sport." Karas, 227 Ill. 2d at 456. Both Lever and Borella had been playing ice hockey for years, and both were well acquainted with the fact that an inherent part of the sport involves physical contact, such as checking (whether within the rules or in violation thereof), and the potential for injury from the same.
That, while vying for the puck, Lever aggressively engaged in conduct that constituted a penalty (such as boarding, charging, or hitting from behind) does not alter the analysis. ... As Borella acknowledges, a violation of a safety rule alone cannot establish recklessness. "Some injuries may result from such violations, but such violations are nonetheless an accepted part of any competition." Jaworski v. Kiernan, 241 Conn. 399, 408 (1997) ("That is why there are penalty boxes, foul shots, free kicks, and yellow cards"); Cole v. BSA, 397 S.C. 247, 253 (2011) ("If no one ever violated the rules, then there would be no need for penalty shots in basketball, a penalty box in hockey, or flags on the field in football"). Here, there is no dispute that, at the time of the check, Borella had possession of the puck and was skating towards Team Kanaly's goal. Compare Gauvin, 404 Mass. at 451-452 (violation of rule against butt-ending where players were no longer battling for puck could form basis for finding of recklessness). Unlike the butt-ending in Gauvin ... Lever's conduct directly related to obtaining a competitive advantage (stripping Borella of the puck and stopping his progress towards the Team Kanaly goal) and is not the type of extreme misconduct that a jury could rationally find was outside the range of the ordinary activity inherent in a competitive hockey game at this level. ... In these circumstances, although the subsequent injury to Borella's wrist is lamentable, summary judgment in favor of Lever was proper.
The court then concluded that if Lever is not guilty of reckless misconduct for his actions, then neither was anybody else involved in the incident. The justices added that the burden of proof against Lever's coaches was particularly high, because the SJC has ruled that to win an action against coaches, you have to prove that they knew the player involved was a goon, and there was no evidence that Lever had any particular discipline or penalty issues before the match.
Justice Peter Rubin dissented, saying the ruling sets a dangerous precedent that "strips children who play competitive sports of the protections against reckless violence to which they are entitled" and goes farther than the SJC did in its Gauvin decision in 1989, which set considerations for "reckless misconduct:"
Rather than preserving competitive youth sports in this Commonwealth, I fear that today's decision, which may leave children at the mercy of reckless and violent players with whom they come in contact, will instead lead both to serious injuries, and to some responsible parents withdrawing their children from competitive sports, diminishing rather than encouraging them.