Law Review: Recreational ice hockey player liable for a vicious hit in a no-check league?
Recreational ice hockey is popular in our mountain communities. Ice hockey is also popular in the Bay Area which takes us to today’s case. Michael Szarowicz and Jeremey Birenbaum were both experienced players and members of the San Francisco Adult Hockey League, a recreational, no-check ice hockey league. On Jan. 30, 2017, Szarowicz and Birenbaum were playing at the Yerba Buena Ice Skating and Bowling Center and collided. Their collision gave rise to Szarowicz v. Birenbaum and this column.
In the final minutes of the game, 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 his 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 just as Szarowicz was about to make contact with the puck, Birenbaum raised his stick and with his shoulder viciously collided with Szarowicz, 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. Ice hockey players are tough. 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. Other than that, he was perfectly fine.
ASSUMPTION OF RISK DEFENSE
Birenbaum claimed he was not liable because Szarowicz assumed the risk of injury inherent in no-check ice hockey. We have written about assumption of the risk cases in bumper car rides, recreational golf, “beanball” baseball throws, snow skiing, skateboarding, commercial river rafting, Burning Man and the list goes on.
You legal beagles also know that a sports participant can be found liable if he or she increased the risks inherent in the sport, in this case, no-check hockey.
Birnbaum’s witnesses claimed that to reward Szarowicz would destroy no-check recreational hockey. Szarowicz’s experts testified that Birenbaum’s hit was totally outside the normal range of activity expected in a no-check hockey league. In fact, Birenbaum’s hit on Szarowicz was described as “vicious and completely unnecessary,” “violent and premeditated,” and at the very least “reckless and despicable.”
FIRST APPELLATE DISTRICT RULING
The trial court ruled for Birenbaum determining that Szarowicz assumed the risks inherent in no-check hockey which does not mean no contact.
The Court of Appeal kept Szarowicz’s case alive, overturning Birenbaum’s Summary Judgment adjudication, concluding that Birenbaum, instead of making a play on the puck made a play on Szarowicz, failing to make any attempt to slow down or avoid him, and in fact he remained standing after the collision because he had braced for the impact. “Based on this, a trier of fact could find that Birnbaum intended to harm Szarowicz.”
As a nonplayer, I have always, perhaps naively, been shocked at the amount of non-solicited checking and other violence, let alone fist fights, allowed during a professional hockey game. This case like other assumption of the risk cases is a balancing act: was the hit inherent in the game or did it unnecessarily increase the risk inherent in the game. The Court went with the latter.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at firstname.lastname@example.org or http://www.portersimon.com.
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