State of New York
Supreme Court : County of Monroe

- against -

Index No. 95/4060

ANDREW V. SIRACUSE, J.

This action for personal injuries arises out of a collision and fall during a youth hockey game. The plaintiff, a thirteen-year-old girl playing in a mixed league whose rules allowed checking -- though not checking from behind -- was injured when she was struck from behind by defendant Justin Hapeman. The present summary judgment motions raise several points, but the dispositive issue is whether or not the contact between the two players fell within the ordinary and expected risks of playing hockey.

It is well established that players in a sport assume the normal and expected risks of the activity (see, among others, Turcotte v Fell, 68 NY2d 432). On the other hand, "participants [in sporting activities] will not be deemed to have assumed the risks of reckless or intentional conduct" (Morgan v State of New York, __NY2d__, decided July 2, 1997, slip op. at 5, citing Turcotte, supra, at 439). Thus, "in assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants' negligence are 'unique and created a dangerous condition over and above the usual dangers that are inherent in the sport'" (id., at 6, citing Owen v R.J.S. Safety Equipment, Inc., 79 NY2d 967, 970).

For purposes of this motion the complete transcripts of the examinations before trial were submitted. They show no evidence to support the plaintiff's claim that she was the victim of "a vicious blow to the back of her head with a hockey stick, recklessly administered by the defendant" (affirmation, � 12). Nor is there sufficient evidence in any of them that would sustain a finding that Hapeman was guilty of intentional or reckless conduct going beyond the normal risks of the game of hockey. The plaintiff does not remember the incident, and as she was hit from behind she would have been unable to observe anything in any event. Only one witness characterized the check as anything other than an unfortunate accident or a minor if illegal body check. Some witnesses thought that Hapeman pushed Barton with his hands, making contact with the numbers on the back of her jersey. (Thomas Steele, pp 95, 99; Thomas Spoonhower, p 55). Another thought that Hapeman collided with her after trying to slow down, his stick held motionless in front of him; this witness thought the point of impact was in the mid to lower back (Scott Zappia, p 23). Only one person said he saw the stick raised above Hapeman's shoulders (Klaassen, p 49) and he describes the accident as a collision; he said Hapeman did not slow down, and the stick hit Barton about 6 inches below the base of the skull (p 51).

Even considered most strongly, this does not seem to substantiate the plaintiff's claim. Perhaps recognizing the weakness of the depositions, the plaintiff supplies an affidavit by witness Klaassen. He now states that he saw Hapeman "forcefully strike Kimberly with the shaft of his hockey stick across her shoulder and neck area in a thrusting motion." In neither document does he testify that the stick hit Barton in the head.

It should be noted that Hapeman received a minor penalty, which was only increased to a major one because plaintiff was injured; the league rules require this increase in penalty without any consideration of the nature of the violation. It must be stressed the even illegal conduct may be part of the accepted risks of the game (see Turcotte v Fell, supra, and Marlowe v Rush-Henrietta Central School Dist., 167 AD2d 820, affd 78 NY2d 1092).

The only evidence genuinely supporting the plaintiff's position is Klaassen's. Summary judgment is not the time to weigh testimony, and the court is obligated to believe Klaassen's affidavit and reject the others. But the affidavit itself is highly dubious, especially because of the characterization of the blow as a "thrusting motion". Another witness saw the stick descend as Barton fell -- which is what one would expect if it hit her and was in part supported by her body after the collision. Klaassen saw the collision from behind and had no clear view of Hapeman's arms. His allegation that the the stick was thrust at Barton is not simply a statement of trajectory but an invalid conclusion as to intent. This court cannot accept the "thrusting" motion verbiage in the affidavit. Instead, the affidavit says only that Hapeman hit Barton from behind, as he was skating fairly rapidly and with his stick raised; the stick came down as she fell. This is consistent with some of the other testimony. But it does not mean that Hapeman hit her with the stick deliberately, or that he committed intentional or reckless conduct. There is no evidence here that Hapeman was anything other than negligent.

Moreover, the testimony showed that checking and collisions, as well as falls on the ice, were common occurrences in this hockey league, and that Barton was familiar with these facts. The present collision, however unfortunate the results, is consistent with the dangers common to the league's play. Barton has not shown that the acts which gave rise to her injuries were anything other than the ordinary risks of hockey, and she assumed those risks in deciding to participate in the sport. The complaint should therefore be dismissed. For purposes of completeness, however, the court will note its opinions on the other issues raised. The plaintiff also contends that the waiver of damages signed by her and her parents when she joined the league is ineffective because she is a minor. This is true as far as the plaintiff's claim is concerned, for a minor is generally permitted to disaffirm this particular contract; but it is not true for the parents' action (see, Kaufman v American Youth Hostels, 6 AD2d 223, 229; Cunningham v State of New York, 32 NYS2d 275). The child's claim therefore survives, but the parents' claim would be barred by the waiver.

The case for the infant plaintiff against the institutional defendants is also unfounded. The organizers of the league (Rochester Youth Hockey) and the umbrella organization (USA Hockey) are not guarantors of safety or vicariously liable for the acts of hockey players. The plaintiff claims that the two were negligent in failing to create and enforce adequate rules, in allowing dangerous conduct like Hapeman's allegedly aggressive play, in failing to supply proper safety equipment, and similarly. There is nothing in the record, however, that suggests that Hapeman was an especially aggressive player or that this tendency was known to the league's officials. Plaintiff states that this was a "dirty" game, but does not substantiate this allegation or show that dangerous conditions were permitted by the league. Nor does she show a failure to promulgate rules -- the check that injured her was illegal and Hapeman was penalized. There is no basis here for finding any negligence on these defendants' parts.

Finally, the issue as to insurance coverage is moot and at best would have abided the determination of damages.

Mr. Shaddock may prepare the order, with one bill of costs payable to institutional and individual defendants in two equal shares.

DATED: Rochester, New York

October 2, 1997

Andrew V. Siracuse, J.S.C.

Design © 1997 Michael Steinberg. No copyright subsists in the decision texts, which are government documents.

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