December 10, 2020

Szarowicz v. Birenbaum (2020) 58 Cal.App.5th 146

Plaintiff was a recreational hockey player in a no-check hockey league. Defendant played for an opposing team. During a game, defendant hit plaintiff in a violent, straight-on collision that left plaintiff seriously injured. Plaintiff sued for negligence and intentional tort, including a prayer for punitive damages. 

Defendant moved for summary judgment, and the trial court granted the motion, finding that the primary assumption of risk doctrine barred damages since “checking [“deliberate contact made with an opposing player”] is an inherent risk of the game.” 

The Court of Appeal reversed. The Court found a “triable issue of material fact exist[ed] as to whether [defendant] breached a limited duty of care owed to [plaintiff] not to increase the risks to him over and above those inherent in the game.” The Court reasoned it was “erroneous” to presume that all checking in recreational hockey is exempt from liability, simply because some checking is an inherent risk of the sport. 

The Court also denied defendant’s request for summary adjudication of the punitive damages prayer, finding defendant’s failure to dispute that his conduct was intentional, in and of itself, sufficient to defeat the motion. The Court added that the evidence defendant “intended to check an unaware [plaintiff] after taking at least six full strides to attain a high speed and made no effort to slow down before making contact—conduct that, according to [the evidence], ‘would be considered a dangerous and illegal hit even by NHL standards’—was ample evidence of despicable conduct with a willful and conscious disregard of [plaintiff’s] safety.”