Brandt v. Davis

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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).
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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
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'[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
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"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,
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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."
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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.