The Massachusetts Appeals Court ruled in a split decision that a high school-age hockey player cannot sue a fellow player or other officials for a serious injury he suffered as a result of an illegal hit.

In July 2013, hockey player Daniel Borella was injured by opposing player Julion Scott Lever near the end of a game between the New England Renegades and Team Kanaly. After being checked by Lever, Borella briefly lost consciousness and had his hand slashed by Lever’s skate. Borella permanently lost some of the function in his dominant hand as a result of the injury. A penalty was called on Lever for the hit.

Borella responded by making a variety of legal claims. In addition to suing Lever for negligence and battery, Borella sued the game’s referees for negligently failing to control the game. In addition, Borella sued the opposing team’s coaches and the owners/managers of the New England Sports Center, where the game was played, for negligence.

On Dec. 2, 2019, the Massachusetts Appeals Court concluded, in a 2-1 opinion, that this injury is not actionable since it was a normal part of a hockey game. Even with Lever being called for a penalty, the court found that he did not breach his duty to avoid reckless misconduct. This standard was created by the Massachusetts Supreme Judicial Court in the 1988 case of Gauvin v. Clark.

After discussing how physical contact is a fundamental part of hockey, Associate Justice Dalila Wendlendt stated in her majority opinion that there is no legal liability since “the record is devoid of evidence from which a jury rationally could conclude that the player’s conduct is extreme misconduct outside the range of the ordinary activity inherent in the sport.” Justice Wendlendt also found that there was no causal nexus between the injury and any breach by the coaches, referees, managers, and owners.

Associate Justice Peter J. Rubin, however, strongly disagreed with the majority’s ruling, issuing a rare dissenting opinion. He argued that the majority “improperly and without authority” replaced the recklessness standard established by Gauvin with one used in other states. Justice Rubin stated that the majority eliminated protections against reckless violence in youth sports that the Gauvin decision provided for them. Further, he warned that this decision could have a wide-ranging impact on youth sports, potentially resulting in serious injuries and parents withdrawing their children from competitive sports.

This case is not the only recent Massachusetts case involving hockey injuries. As we reported last year, a high school field hockey player sued her school district after suffering a head injury at practice. A Massachusetts court dismissed her case, which was upheld on appeal.

Considering that there was a strong dissent in Borella’s case, it is possible that this case could reach the Massachusetts Supreme Judicial Court. There, the court could either overturn the appeals court’s decision, reconcile its decision with the Gauvin standard, or even replace Gauvin altogether. We will continue to monitor the situation.