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You strap on your hockey skates, you take your chances, court rules

The Massachusetts Appeals Court ruled today that a player on a Pennsylvania teen hockey team owes nothing to a Massachusetts player he accidentally slashed in the wrist with one of his blades while checking him during a 2013 match in Marlboro - because checking's an integral part of the game and accidents happen, even if they sometimes mean the permanent loss of function in one hand.

The 2-1 ruling, which also means no penalties for the Pennsylvania player's coaches, the arena where the slicing happened and referees, upholds a ruling by a Middlesex Superior Court judge dismissing the suit.

The slash came during a July 14, 2013 match between the New England Renegades, on which Borella played, and Team Kanaly, up from Pennsylvania for "the Boston Selects 2013 AAA Tournament of Champions" for "Major Midget" players between 17 and 19 at the New England Sports Center.

In the third period, with his team leading 8-3, Borella had control of the puck when Lever skated at him at a high rate of speed, slamming into him and smashing him into the boards:

As a result of the check, Borella fell to the ice onto the puck. Lever continued to battle for the puck, and though the details are murky in part because Borella temporarily lost consciousness, Borella's wrist was sliced by one of the blades Lever wore on his feet in what Borella acknowledges was a "freak accident." Mahoney [a referee] called a minor penalty for "boarding," sending Lever into the penalty box. Borella, who was bleeding from the laceration, was carried from the ice, and the game ended before the official game clock had run. The injury resulted in the permanent partial loss of the use of Borella's dominant hand.

Lever was sent to the penalty box for "boarding," while Borella was carried off the ice.

The justices began their legal consideration by noting that in a 1988 decision, the Supreme Judicial Court ruled that "participants in sporting events owe each other a duty to not engage in 'reckless' misconduct."

So what is "reckless" misconduct? The court reached back to a definition set in a 1944 case in which the owner of the Cocoanut Grove nightclub was charged with manslaughter after 492 people died in a fire there, in part because most of the club's exits were either locked, hidden or not designed to handle a large number of people fleeing a fire.

But since the most fatal fire in American history is not directly comparable to a sporting match, the justices then had to consider the very nature of hockey - because what might be reckless in one sport would not be in another. And in so doing, the court ruled against Borella, despite his permanent injury:

No rational view of this record supports a finding that Lever's conduct was reckless -- that is, extreme misconduct outside the range of the ordinary activity inherent in ice hockey. The game of hockey at the level at issue in this case -- seventeen to nineteen year old high school Midget Major division players -- involves, as the parties agree, "a lot of body contact, which requires a player to be aggressive and physical." Checking (and even checking hard and deliberately) is not only allowed, but "is an inherent, fundamental part of the sport." Karas, 227 Ill. 2d at 456. Both Lever and Borella had been playing ice hockey for years, and both were well acquainted with the fact that an inherent part of the sport involves physical contact, such as checking (whether within the rules or in violation thereof), and the potential for injury from the same.

That, while vying for the puck, Lever aggressively engaged in conduct that constituted a penalty (such as boarding, charging, or hitting from behind) does not alter the analysis. ... As Borella acknowledges, a violation of a safety rule alone cannot establish recklessness. "Some injuries may result from such violations, but such violations are nonetheless an accepted part of any competition." Jaworski v. Kiernan, 241 Conn. 399, 408 (1997) ("That is why there are penalty boxes, foul shots, free kicks, and yellow cards"); Cole v. BSA, 397 S.C. 247, 253 (2011) ("If no one ever violated the rules, then there would be no need for penalty shots in basketball, a penalty box in hockey, or flags on the field in football"). Here, there is no dispute that, at the time of the check, Borella had possession of the puck and was skating towards Team Kanaly's goal. Compare Gauvin, 404 Mass. at 451-452 (violation of rule against butt-ending where players were no longer battling for puck could form basis for finding of recklessness). Unlike the butt-ending in Gauvin ... Lever's conduct directly related to obtaining a competitive advantage (stripping Borella of the puck and stopping his progress towards the Team Kanaly goal) and is not the type of extreme misconduct that a jury could rationally find was outside the range of the ordinary activity inherent in a competitive hockey game at this level. ... In these circumstances, although the subsequent injury to Borella's wrist is lamentable, summary judgment in favor of Lever was proper.

The court then concluded that if Lever is not guilty of reckless misconduct for his actions, then neither was anybody else involved in the incident. The justices added that the burden of proof against Lever's coaches was particularly high, because the SJC has ruled that to win an action against coaches, you have to prove that they knew the player involved was a goon, and there was no evidence that Lever had any particular discipline or penalty issues before the match.

Justice Peter Rubin dissented, saying the ruling sets a dangerous precedent that "strips children who play competitive sports of the protections against reckless violence to which they are entitled" and goes farther than the SJC did in its Gauvin decision in 1989, which set considerations for "reckless misconduct:"

Rather than preserving competitive youth sports in this Commonwealth, I fear that today's decision, which may leave children at the mercy of reckless and violent players with whom they come in contact, will instead lead both to serious injuries, and to some responsible parents withdrawing their children from competitive sports, diminishing rather than encouraging them.

PDF icon Complete Borella ruling149.31 KB


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Is the use of "midget"

Voting closed 19

Not Quidditch, dont think this group is the hypersensitive type.

Well, except for this kid and his family.

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And i bet you also think "Squirts" and "PEEwee" are sexual innuendos.

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And somehow I can hear the raunchiest phase in horse racing without even thinking of the innuendo meaning. And no, I won't write it.

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And having a sport be this aggro and violent at young ages of play is why more and more parents are taking a pass on hockey and football.

Even Trump can understand that as a parent.

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“Trigger” the left, but afaik Barron Trump plays soccer, which isn’t too far behind American football, hockey and rugby in terms of consussion rates.


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But I'll point out that the specific injury here - someone gets knocked down and gets stepped on - is something that could happen in pretty much any sport or really, any physical activity with other people around (I've had it happen to myself skiing, for instance).

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Sure, body checking can get rough, but when it's intense enough so that the person on the receiving end of that tactic permanently loses all or part of the function of a limb or extremity, especially the dominant one, it means that it's gone way out of bounds and controls need to be put on such sports so that injuries that permanently cripple, or even kill people, don't occur again.

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Funny that the "rough" aspect was being used to exclude female players, but a judge had the sense to confront a couple of sexist athletic directors with the facts: size matters in collisions, and the female in question was bigger than the average HS male player.

Even with size matching, the real issue isn't the individual but the game. Same problem in Pop Warner: kids this young shouldn't be playing the rough game just yet. It gets pressed down into younger ages due to "but they need to blah for the pros blah for the colleges blah" when that just means 99% collateral damage for those who never will and never would have played at the higher levels.

No checking, no tackling until age 14 sounds good. That's the old fashioned rules that my dad played by and my brother, too.

These were 17 to 19 year olds and this was, by all accounts, the sort of accident that happens when everyone is running on knives. It wasn't freak in any way, really, but it was an accident all the same.

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First of all, when I was growing up, girls never were encouraged to play hockey, plus I was not interested in it, either. Imho, one doesn't have to have played hockey at all to form the opinion that coaches often have a lot to do with the fact that kids that young were recruited for such rough sports such as hockey and tackle football, as well as the fact that such serious injuries do occur. Regardless of the age of the players (but especially kids under 14, since 14 is generally the age when the growth plates of the long bones close out), coaches should regulate their players, and insist that they display enough control so that permanently crippling injuries don't result.

I have engaged in sports myself (I have done Martial Arts (i. e. traditional Japanese Jiu-Jitsu and Judo (the sport version) in the past, and presently study Tae Kwon Do.), and know that sports injuries occur, but if they're the kind of injuries that result in the permanently crippling of people, then it's way out of bounds.

Voting closed 18

Some are playing pro hockey at that age.

And "crippling" injuries happen even in non-contact sports, sometimes for no reason other than somebody trips, falls, or collides with another person. Or dives in while somebody is surfacing. Or breaks a femur tripping while running on a playground. Or breaks their foot jumping off snow piles, or an arm while sledding.

The worst injuries I saw as a parent of two kids and a soccer coach involved two kids wearing glasses going for a ball in the air and not watching the other kid going for a ball in the air. Ditto for playground accidents - bodies in motion collide.

We can't bubble wrap them and put them in padded virtual reality rooms - and then you'd certainly be the first to scream fifty-seven sentences about "pampered brats", too, if we did that!

How many of your kids have hurt themselves doing mundane things?

Voting closed 18

There are plenty of people who get injured in non-contact sports. Torn meniscuses are quite common in tennis, due to the almost constant twisting of the entire body that's involved with tennis.

Nobody says to bubble-wrap kids and put them them in padded rooms. Nobody says that people don't break bones while sledding, falling while skating, jumping off snow piles, etc., or when they get into physical scuffles on the playground. What you saw in soccer, with two kids with glasses going for a ball in the air and not paying attention to each other sounds like a pretty serious accident. I still think that coaches can and should do what they can to minimize the chances of serious injuries occurring, especially since soccer is a contact sport. Btw, I also realize that people in their late teens are not little kids, either. It seems to me that kids that age should know enough to be more careful.

I still recall seeing a kid, years ago, who'd just had a cholera booster shot in one arm, fall out of a tree, right on his shoulder, where the medication was circulating through his body, and break his arm. He was in a cast for quite some time.

In my Tae Kwon Do class, everybody is required to wear their sparring gear, including helmets and mouthguard, as well as the torso protector (i. e. the Hogu), the shinbone, forearm and instep protectors and padded gloves during sparring, because accidents can and do happen. Since I'm a bit older, I'm more careful, and can't take head shots, but I enjoy the sport, and it provides a certain community, camaraderie, and rewards that other activities that I've tried fail to provide for me.

Voting closed 10

You forgot while brandishing long clubs. Great line though. I agree with you.

Voting closed 12

There's no way to body check someone such that you cut their arm with your skate (seriously, how would that even work? You're not allowed to do drop kicks in hockey, nor would you want to). He body-checked the other guy who got knocked down, and accidentally stepped on him. You can blame hockey for the body check, and the injury was probably worse than some other sports because ice skaters wear blades on their feet, but the overall setup could have happened in any number of activities.

Voting closed 12

I for one really enjoy and appreciate posts like these where you provide a more detailed summation of legal cases, with an outline of the arguments, the nuances and rationales for the decisions. I always learn something from them and they are enjoyable to read.

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