Szarowicz v. Birenbaum

Majority - Richman, Acting P.J.

No, the primary assumption of risk doctrine does not preclude liability for a recreational ice hockey player when there is a triable issue of material fact as to whether the player intentionally injured a co-participant or engaged in conduct so reckless as to be totally outside the range of the ordinary activity involved in the specific "no-check" sport, thereby increasing the inherent risks. The court conducted a de novo review of the trial court’s summary judgment. While recreational ice hockey falls under the primary assumption of risk doctrine, meaning Birenbaum generally owed no duty to prevent harm from risks inherent in the sport (citing Knight v. Jewett, 1992), a sports participant does have a limited duty to not increase the risks to a co-participant over and above those inherent in the sport by intentionally injuring them or engaging in reckless conduct totally outside the ordinary activity of the sport. The trial court erroneously accepted Birenbaum's position that all checking, regardless of its degree, is exempt from liability because checking is an inherent risk in no-check hockey. The appellate court clarified that Avila v. Citrus Community College Dist. (2006), which extended Knight's principles to some intentional conduct (like being intentionally hit by a pitch in baseball), did not overturn Knight's holding regarding intentional injury or reckless conduct totally outside the sport's ordinary activity. Avila itself noted that not every intentional hit is an inherent risk (e.g., hitting a batter not at the plate). Szarowicz presented substantial evidence (his own deposition, declarations from teammates, and his expert's declaration) from which a reasonable trier of fact could conclude that Birenbaum’s violent, high-speed, open-ice check on an unsuspecting opponent, with no apparent attempt to play the puck, was either an intentional injury or reckless conduct totally outside the range of ordinary activity in "no-check" hockey. This evidence suggests that prohibiting such conduct—which is already prohibited by league rules—would neither deter vigorous participation nor fundamentally alter the nature of "no-check" hockey. Therefore, a triable issue of material fact exists regarding whether Birenbaum breached his limited duty of care. Furthermore, the court denied summary adjudication for the intentional tort claim and punitive damages. It questioned whether primary assumption of risk even applies to intentional torts alleging intent to harm. Regardless, the evidence of Birenbaum’s prior crosschecks, his team losing in the championship, the high-speed nature of the hit, lack of attempt to play the puck, and testimony indicating intent to harm or "despicable conduct with a willful and conscious disregard of the rights or safety of others" (under Civil Code § 3294) was sufficient to create a triable issue for a jury to consider punitive damages under the clear and convincing evidence standard.