Opinion
No. CV 02-0470131 S
February 7, 2006
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
In this case a motion for summary judgment has been filed against the college and several agents and employees of the college. The suit has been brought by a young man and his parents for an allegedly severe head injury he suffered on October 3, 2000 while he was pitching batting practice behind a so-called L-screen. At the time he was a student.
The pitcher's mound is 60 feet from home plate. A person pitching to give players batting practice is located only 45 to 50 feet from home plate. The pitches are meant to be hit — the obvious purpose of such practice. The pitcher wears no helmet apparently and does not have a glove.
Under the circumstances the dangers that would be presented to the pitcher are apparent. To protect someone, such as the plaintiff, doing the pitching, a safety device is needed. It is called an L-screen, an L-shaped screen, placed between the pitcher and home plate. The screen of course leaves an opening so that the person doing the pitching can throw the ball to the batter. On the day in question a ball hit by a batter struck the plaintiff Andrew Zides, in the head causing certain serious alleged injuries. The plaintiff's claim the L-screen was defective at the time of the incident; it had been damaged, the netting was worn and cut, and it had been improperly repaired. Fasteners would break when struck by the balls hit by the batters. It is further claimed that the screening on the device had gaps and was loose and that the netting on the screen had been cut on two sides prior to the incident.
The defendants have moved for summary judgment against all counts brought by the plaintiff parents of Andrew Zides alleging in our state there is no cause of action under the circumstances alleged here for the parents of an adult child. Andrew was 19 years old when this incident occurred. The plaintiffs have agreed to withdraw so much of the amended complaint as pertains to counts brought by the parents.
The defendants also move for summary judgment on the counts brought by Andrew Zides since he "voluntarily and knowingly signed an Acceptance/Liability Waiver" that purported to release the college, its agents, and employees "from any liability caused by, or arising out of (his) participation in the colleges' athletic programs."
The motion is directed also against count three "alleging negligent infliction of emotional distress against Joseph Mattei as it is duplicative of a claim for emotional distress contained in the counts alleging general negligence." Mr. Mattei was the head coach of the college baseball team when this incident happened.
It is also argued that count five alleging recklessness against Jack McDonald, the athletic director, should be dismissed. The claim is that his conduct did not rise to the level of recklessness.
The motion is directed to counts eight and nine brought against the assistant baseball coach, Timothy Belcher. It is claimed to be "undisputed" that Belcher was not present on the date of the injury, had no control over the plaintiff's decision to pitch on October 3rd as a non-roster member of the team, and was not responsible for maintaining the L-screen.
Finally, the motion is directed against counts nine and ten. These counts lie against John Lahey, the college president. Negligence counts against Lahey were previously stricken by another judge. It is argued that the plaintiffs' attempt to replead these allegations fails because "the plaintiff has not alleged a special relationship of custody or control by Lahey over the athletic department that could amount to a legal or factual duty of care."
The standards to be applied in deciding a motion for summary judgment are well known. If there is no genuine material issue of fact in dispute such a motion should be granted to avoid the burdens and expense of litigation incurred by defending against meritless claims.
On the other hand if such an issue is in dispute the motion should not be granted since a plaintiff has a constitutional right to a jury trial.
Waiver Of Liability Form
The claim is made that Andrew Zides "cannot maintain an action against the defendants as he knowingly and voluntarily signed a waiver of liability for injuries arising out of his participation in (the college's) athletic program." The defendants do refer to Hyson v. White Water Mountain Resorts, 265 Conn. 636 (2003). That case held that as regards injuries to a skier at a resort a release from liability form not expressly using the word "negligence" did not protect the resort from a suit arising out of its own negligence, id., p. 643. The case presents obvious problems for a defendant trying to rely on a release which as here does not use the word or expressly refer to negligence. The defendants here try to confront this by using two approaches. They refer to the dissent in Hyson and its reasoning. But that will not suffice to avoid the applicability of Hyson — it is after all the dissent and for a trial court the majority opinion is controlling.
The defendants then try to argue that somehow the fact that a ski resort was involved is important and that "the applicability of Hyson remains unresolved in other contexts." That argument is equally not convincing. The Hyson court itself did say our Appellate Courts have not had occasion to determine whether these waiver agreements given to the proprietors of a recreation or service facility "prospectively may be applied to damages arising from that party's negligence in the absence of express language so indicating," id. p. 641. Its ruling, however, was not limited to that class of defendants, however. The actual holding of the court was that "we conclude that the better rule is that a party cannot be released from liability for injuries resulting from its future negligence in the absence of language that expressly so provides," id., p. 643.
Indeed in arriving at its decision in Hyson the court referred to Restatement (2d) Contracts, § 195, comment b which states that when passing on these waiver provisions "a court may require specific and conspicuous reference to negligence under the general principle that the language is interpreted against the draftsmen." — There is no qualification for particular types of defendants. The court refers to cases in several other jurisdictions which adopt a rule like the one it was to adopt holding that for a waiver agreement to pass muster "negligence" must be explicitly referred to, id., p. 642. See footnote 8. The cases cited in that footnote involve waiver clauses attempted to be enforced by a tanning salon, Alack v. Vic Tanny Int., 923 SW2d 330, 337 (MO, 1996); injury to an employee at a construction site, Warzel v. Boyles Galimizing Co., 920 F.2d 778, 781; claim against real estate broker for property loss, Adevo v. HT Brown Real Estate, Inc., 686 A.2d 298 (Md. 1996); damage suit brought for injury to oil well, Dresser Industries, Inc., v. Page Petroleum, 853 SW2d 505, 507 (Tex, 1993). Also see DeVito v. NYU College of Dentistry, 544 NYS2d 109 (1989) waiver agreement not enforced where no reference to negligence in suit for injuries allegedly sustained at dental clinic, id., p. 111.
The defendants also reference § 29-212 of the general statutes. That statute provides that each skier assumes the risk for any injury for any "hazards inherent in the sport of skiing" then interestingly says "unless the injury was caused by the negligent operation of the ski area." The statute then goes on to list five hazards. The defendants argue that here the plaintiff is a student at a private college, it does not involve a ski resort open to the public and "this is not a relationship that compelled the legislature to regulate the parties' liability by statute." All the statute did, however, was provide a defense no longer operative on our state and left the field open to the use of these waiver agreements. In Hyson itself § 29-212 was referred to by the court as a defense raised by the ski resort but in formulating the ultimate holding in the case, the statute was not mentioned at all.
Also, the defendants attempt to narrow Hyson by saying that ski resorts are visited by people who "visit for an isolated recreational activity" but the Hyson rule should not apply to well-thought out decisions on waiver made by an "educated adult" attending a university. For one thing the court would hazard a guess that many highly intelligent and sophisticated people take to the slopes and do so not only as an isolated recreational activity and the characterization of student athletes as educated adults does not belie the fact that these waiver clauses are often signed by 18-, 19-, and 20-year-old college students not experienced in the risks presented by the vicissitudes of daily activity and how they should deal with them. Besides, some courts in the school setting show a special concern for waivers that schools seek to have students sign, cf Wagenblast v. Odessa School District, 758 P2d 968 (Wash. 1988). There the state's Supreme Court said in a case apparently involving minors, that "exculpatory releases from any future school district negligence are invalid because they violate public policy." This court can see no reason why the concerns expressed in Hyson about waiver agreements not containing explicit reference to negligent conduct by the tortfeasor should not also apply, if not more so, to college students, whether adult or not, engaging in sports activity which present risk of injury.
But even if the foregoing observations of the court are incorrect and for some reason Hyson should be read as confined to its facts, i.e., the fact that a defendant ski resort is involved, there is reason in this particular case, given the wording of this particular waiver to hold it non-operable. The Hyson court recognized the general principle applicable to any situation in which waiver agreements are sought to be relied upon that "the law does not favor contract provisions which relieve a person from his (or her) own negligence," Griffin v. Nationwide Moving Storage Co., 187 Conn. 405, 413 (1913) ( Hyson at p. 643, also see Restatement (2d) Contracts, § 195, comment (b)). The waiver agreement signed by the plaintiff reads as follows in relevant part:
The signer:
5. Understands and accepts the risks of injury, permanent disability, and death are inherent in their sport. By signing below he/she pledges to do the best to reduce these risks by keeping in the best possible condition and following the advice of the team physician, attending physician, athletic trainer, and/or coach concerning the prevention, treatment, and rehabilitation of athletic injuries.
6. Understands even with the best of coaching, use of protective equipment, and strict observance of the rules, injuries are still a possibility. On rare occasion, these injuries can be so severe as to result in total disability, paralysis, quadriplegia, or even death.
Paragraph 6 contains what to a reasonable reader of the document can be or even should be construed as an affirmative representation that college officials and coaches would take every reasonable step to avoid student injury excluding any notion that a student reading this could rationally conclude that by signing the document he or she was waiving the right to bring suit caused by the negligence of the university or its agents.
The court rejects this position of the defendants for all of the foregoing reasons.
Duplicitous Claim For Negligent Infliction Of Emotional Distress
As to count three, the defendants' argument is straight forward and well laid out. They note in count one and all other counts that the plaintiff alleges he suffered "severe emotional distress" as a result of the defendant Mattei's negligence. Count three alleges a specific claim of negligent infliction of emotional distress against Mattei.
The defendants then argue that "damages under separate theories of liability that allege the same elements are duplicitous and will not be sustained." Tang v. Bon-Fakhreddine, 75 Conn.App. 334, 350 (2003) is cited in which the court said "A plaintiff cannot recover twice for the same elements of damage such as mental distress . . . growing out of the same transaction occurrence or event, id." Exactly, but that does not mean a motion such as this should be granted against a negligent infliction of emotional distress claim when negligence is also claimed in a separate count.
Pleading negligence in one count and negligent infliction of emotional distress seems to be a fairly frequent practice, Anderson v. Schoenbum, 891 Conn.App. 666, 668 (2005); McHenry v. Nusbaum 79 Conn.App. 343, 349 (2003); Tisdale v. Riverside Cemetery Assn., 78 Conn.App. 250, 252-53 (2003); Roach v. Ivari Int'l Centers, 77 Conn.App. 93, 98 (2003); Krevis v. Bridgeport, 262 Conn. 813, 815 (2003); Doe v. Marselle, 236 Conn. 848, 850 (1996).
The defendants' position fails to recognize that negligence and negligent infliction of emotional distress are two separate theories of liability. In Perodeau v. Hartford, 259 Conn. 729, 754 (2002) the court said that: "In negligent infliction of emotional distress claims, unlike general negligence claims, the forseeability of the precise 'nature of the harm to be anticipated (is) a prerequisite to recovery even where a breach of duty might otherwise be found'," also see Maloney v. Conroy, 208 Conn. 392, 398 (1988). This contradicts the defendants' assertion that both counts, negligence and negligent infliction of emotional distress "involve . . . identical theories of liability (and) the same underlying elements of proof." Thus, under a general negligence claim a plaintiff can recover for emotional distress if a jury finds this was a consequence of the injury, but under negligent infliction of emotional distress claim the plaintiff can recover for emotional distress but only if the plaintiff proves "the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that the distress if it were caused, might result in illness or bodily harm," Montinieri v. SNET, 175 Conn. 337, 345 (1978). To recover for emotional distress in an ordinary or general negligence claim the latter burden is not placed on a plaintiff.
Of course if the plaintiff cannot prove negligence he or she cannot recover for negligent infliction of emotional distress, Roach, supra at 77 Conn.App. pp 99-103. And of course there can be no double recovery for emotional distress if a verdict were to be returned on both counts, Tang v. Bon-Fakhreddine, supra. But all of this can be addressed in the jury charge and by way of interrogatories.
Furthermore, under our rules inconsistent claims can be plead, inconsistent claims for relief can be made, inconsistent factual claims may be made, and alternative pleadings are allowed, see Conn. Superior Court Rules, Horton Knox, 2006 ed., commentaries to Practice Book § 9-14, § 10-1, § 10-25.
In any event the court for the foregoing reasons will not strike the third count.
Claims Against Timothy Belcher
The eighth and ninth counts allege negligence and recklessness against Mr. Belcher. There is no dispute that at the time of this incident Belcher was the assistant coach of the baseball team and that he was not present on the day of the injury.
The court could not find any Connecticut cases dealing directly with the issue of school liability due to defective or absent equipment which result in accidents at sporting events and the general commentaries do not cite any Connecticut cases, see "Tort Liability of Public Schools and Institutions of Higher Learning For Accidents Occurring During School Athletic Events, "68 ALR 5th, 63;" Cause of Action to Recover For Injury to or Death of Student Participating In Physical Education Class or School Athletic Activity," 14 COA 505. But cases from other jurisdictions support a finding of liability under such circumstances, see for example Leahy v. School Bd. Of Hernando City, 450 SO2d 883, 885 (Fla.App. 1984); Everett v. Bucky Warren, Inc., 380 NE2d 653, 658 (Mass 1978); Bernan by Bernan v. Phil Bd. Of Education, 456 A.2d 545, 549 (Pa.Sup. 1983). Also under the factual circumstances of this case, although not on the team, the plaintiff was permitted to engage in team practice sessions which were held for the benefit of the team. He was using a device that was admittedly protective in nature, that device was supplied by the university and periodically repaired and worked upon by university employees. Under these circumstances the university "was required to exercise reasonable care not to provide a chattel which it knew or had reason to know was dangerous for its intended use," Restatement (2d) Torts § 388.
Our court has not specifically adopted or referred to this section, but Connecticut accepts § 401 of the Restatement (d) Torts, however, regarding the supplying of chattels which is based on principles similar to those embodied in § 388, Gugliemo v. Klausner Supply Co., 158 Conn. 308, 318 (1969), also see cases like Minicozzo v. Atlantic Refining Co., 143 Conn. 226 (1956). Although these cases involve commercial suppliers of chattels it would be surprising if our state did not accept the principle embodied in § 388 especially as it involves the supplying of equipment by a university to students participating in athletic events or practice which school policy brought about and allowed to go on to the school's benefit.
The foregoing sets forth the general law as to liability, at least in the court's view. It is necessary to do so in order to address the controlling issue raised by the defendants in the case of Mr. Belcher.
In other words, given the general duty of care operative in the case of students participating in athletic events, who or what entity is subject to that duty. The extensive article in 14 COA 505 at pp. 543-46 says the following:
There are two primary categories of defendants in actions to recover for an injury or death of a student in a physical education class or school athletic activity. One category includes teachers or coaches who were conducting or supervising the class or activity in which the student was participating when he or she was injured . . . The other category is the entity that is legally responsible for the operation of the school where the student was enrolled . . . A third possible category of defendants includes persons who are directly responsible for the operation of individuals schools or school athletic activities, such as principals or athletic directors and persons who are directly responsible for the operation of the school systems, such as superintendents or school administrators.
Mr. Belcher as an assistant coach should fall in the first primary category against whom the previously discussed duty would lie. A coach obviously would be directly involved in the student's athletic activities and is the school official best situated to prevent injuries which could result from a variety of causes ranging from over exuberant horseplay, violation of safety results or the examination of equipment for safety. Since the school has such has a duty, as just discussed, regarding not supplying defective equipment or allowing it to be used, the coach is in the best position to enforce that duty and imposing the duty on a coach will aid in ensuring the duty will be carried out — a primary mechanism of tort law and its objective.
In any event the COA article cites cases where liability has been imposed on teachers or coaches for such injuries as are being discussed, see Webber v. Yeo, 383 NW2d 230, 233 (Mich.App., 1986); Rutter v. NE Beaver County School District, 437 A.2d 1198 (Pa. 1981).
The motion presents the issue of Belcher's liability as one of fact; at least in this motion the general liability principle is not questioned as it applies generally to coaches and their duty of care. But the defendant Belcher points out that he was not present on the date of the injury, a fact which is uncontested. In his affidavit Belcher says he did not have control of the equipment used on the day of the injury, did not have authority to allow the plaintiff to play as a no-roster player, had no access to the L-screen or use the hardware involved with maintaining it and did not have authority to choose team equipment whether it be bats or items like the L-screen. Therefore, he, himself, could "not breach any duty to the defendant or depart from the standard of care." Finally, the defendant argues that, he cannot be liable "since he was not present when the defect in the screen allegedly arose." The problem with this position lies in the deposition testimony of Seth Lavigne who said the netting of the L-screen presented ongoing problems for days before the October 3rd incident. So the fact that Belcher was not present October 3rd is not controlling especially in light of the fact that he was present for fifty percent of the practice sessions that baseball season.
Also in his affidavit Belcher did not explicitly say he had no authority to bar the use of equipment he found to be defective or had no responsibility to bring such a situation to the coach's attention — that would be an odd stance for a coach to take even if he or she was an assistant coach.
In his response to paragraph 9 of interrogatories submitted to him by the plaintiffs, Belcher says the screen was not cut or damaged in the two-month period before October 3, 2000; this would seem to contradict Lavigne's deposition testimony. Also, in response to interrogatory 6, he was asked whether he made any repairs or directed anyone else to do so prior to the incident and he said he made repairs in September 2000 and described those repairs. Yet, in paragraph 8 of his affidavit he said in his role as assistant coach he was not responsible for maintaining the L-screen.
The court concludes there are disputed issues of material fact as regards to Timothy Belcher's liability.
Claim Against John Lahey
John Lahey is the president of Quinnipiac University and he has also been sued. The second amended complaint alleges that (1) he failed to supervise college employees, Mattei the head coach, assistant coaches Manzo and Belcher and the athletic director McDonald and (2) he failed to institute procedures, directives, rules and/or regulations which would prohibit college employees including those just mentioned from allowing individuals to participate in baseball practice when said individuals were not on the college baseball team.
A predicate to any claim of specific acts of negligence against someone which may have caused harm to another is the existence of duty by that person to not engage in activity which might harm another. Shore v. Stonington, 187 Conn. 147, 151 (1982); Frankovich v. Burton, 185 Conn. 14, 20 (1981).
The actual specifications of negligence against Lahey basically lie in a claim of negligent supervision. What then is the alleged basis of such a duty? The claim is made in paragraphs 21, 22, 23 of the second amended complaint that such a duty existed because Lahey:
(1) was the "direct supervisor" of the athletic director, McDonald;
(2) knew or should have known the skills of intercollegiate athletes far exceeded those of the general student population and non-athlete participation in practice for interscholastic games exposes such student to unnecessary risk of physical injury;
(3) had a "fiduciary responsibility" to non-athlete students which required him to promulgate rules and regulations to prevent non-athletes from participating in practice.
The last two specifications are somewhat difficult to relate to the basic negligence that is alleged to have caused the injury here, i.e., the defective L-screen. If the plaintiff had not been permitted to participate in practice he would not have been injured because he would not have been physically present to be injured. But anyone pitching, athlete or non-athlete, would have been subject to risk of injury according to the plaintiff's negligence claim. It is somewhat like trying to get a negligence per se charge for exceeding the posted speed limit in a motor vehicle case when the cause of the accident was passing in a no passing zone.
In the previous section discussing the claim against Mr. Belcher the court quoted from an article in 14 COA at 505, 546. There it is said that a possible category of defendants when a student is injured in an athletic activity "includes persons who are directly responsible for the operation of individual schools or school athletic activities, such as principals . . . and persons who are directly responsible for the operations of the school systems, such as superintendents or school administrators." Mr. Lahey would seem to fall into this category of possible defendants. The article goes on to say that "whether such persons are liable will depend primarily on the scope of their duties and responsibilities." Actual duties and responsibilities are what is meant and linguistic claims of "direct" supervisory responsibility and broad references to "fiduciary" responsibilities. In an affidavit submitted by Mr. Lahey he makes certain representations. He says in the fall of 2000 he was the president of Quinnipiac University and still is. Then he says:
4. In my role as Quinnipiac University president, I do not and did not oversee the day-to-day operations of the athletic department.
5. In my role as Quinnipiac University president, I did not and do not make any decisions concerning the use or purchase of equipment by the Quinnipiac University baseball team.
6. In my role as Quinnipiac University President, I am not and was not responsible for inspecting the equipment of the Quinnipiac University baseball tea.
7. In my roles as Quinnipiac University President, I do not and did not have any control over which students participated in Quinnipiac University baseball team's practice.
8. In my role as Quinnipiac University president, I am not and was not responsible for promulgating rules or regulations concerning Quinnipiac University's athletic department.
In the argument presented against the motion as it applies to Mr. Lahey the plaintiff makes no reference to any factual basis to question or contradict the statements of Lahey. In the exhibits the plaintiff attached to his motion only portions of the depositions of Lavigne, Manzo and Mattie are presented. Manzo does not refer to Lahey's activities and responsibilities whether exercised or not. Mattei, the head coach, references meetings he had with the athletic director, McDonald regarding what things were going on in the athletic department. McDonald would meet with all the coaches once a week, they would last an hour and ran the meetings. Mattei said his immediate supervisor however, was not McDonald but a man named Bill Mecca, the assistant athletic director — he was the one Mattei says that "I reported to." Mr. Lahey is not alluded to at all. The plaintiff also only attaches the interrogatory responses made by Belcher, Mattei, and McDonald. Mattei's response said there was a budget for baseball equipment, McDonald or his assistant Mecca "could better answer questions regarding this item." McDonald's response said as director "he oversees all department activities." Mr. Lahey is not mentioned at all in the responses made by these men. In this regard nothing is presented to indicate that in, hiring McDonald, Lahey (even assuming that under the university charter Lahey had that power) acted negligently — did not do a background check which would have revealed possible incompetence, or that McDonald, for example did not have the appropriate experience etc.
The case of Larson v. Indep. School District No. 314, 289 NW2d 112 (Minn. 1979) offers an interesting analysis of the problems before the court and is cited in the 14 COA article. There a student was injured while performing a gymnastic maneuver in a physical education class. The teacher running the class and the principal were sued and held liable. The school superintendent was also sued but not held liable. The teacher's liability was based on the fact that he conducted the class and was negligent in teaching the maneuver that caused the injury, and the principal had duties imposed on him.
6 The duties prescribed for a principal by manuals of the department of education and the school district included: (1) Administering the rules and regulations of the board of education and the rules of the state pertaining to education; (2) making recommendations to the superintendent regarding courses of study and changes in the curriculum; (3) developing, organizing, administering, and implementing the curricular activity program; (4) observing the work of teachers in classrooms and serving as a consultant for improving and revising the curriculum; (5) providing for the orientation of new teachers on school policies and classroom procedures; (6) holding staff meetings; (7) organizing the program of studies and preparing class schedules; and (8) maintaining conditions that would ensure the safety and welfare of pupils during the school day., id., page 116.
In Larsen, in effect, the principal did not comply with his manual obligations. He did not participate in developing or administering the physical education program but left this responsibility to the new and inexperienced teacher minimal guidance. He never met with the teacher while he was transitioning to the physical education job, no transition plan was developed, id., pp. 116-18. Thus, liability could be imposed on the principal.
But the court went on to hold that the trial court was correct in granting a directed verdict in favor of the superintendent using the following language (Lamont is superintendent, Petersen is principal);
Lamont had general supervisory and administrative authority over the school system and was ultimately responsible to the school board for the manner in which the school system was managed; however, the evidence at trial established that he was not required to personally develop a physical education curriculum and that the examples of negligence which plaintiff alleged occurred in the administration and supervision of the curriculum and in Lundquist's teaching and transition were responsibilities expressly and properly delegated to Principal Peterson. Except for matters of budgeting and financing, Peterson was the delegated administrator of Braham Junior-Senior High School. The school district's policy manual required Peterson to develop, organize, and implement the school's curriculum, including physical education classes. It further made Peterson responsible for assigning duties to teachers, supervision classroom instruction, providing orientation for new teachers, and administering the requirements of the board of education.
Superintendent Lamont was a level removed from these responsibilities. There is no showing in the record that Lamont had or should have had knowledge that Peterson had allowed an unsafe physical education curriculum to develop, that Peterson had improperly carried out the transition from Embretson to Lundquist, or that Person had failed to provide Lundquist with adequate supervision. There is no showing that Lamont was inadequately supervising Peterson's performance, or that Lamont had special knowledge of problems in the physical education curriculum or of Lundquist's teaching methods which would have put him on notice that the safety of students was being threatened.
Lamont was not sufficiently involved in the actions or inactions upon which plaintiffs based their cause of action. There was, therefore, insufficient evidence that a negligent act by Lamont caused Steven's accident. The trial court's directed verdict in favor of Lamont was proper.
Id., page 119
In this case Lahey is really like the superintendent as to the nature or existence of any "duty" he might have toward students. No specific directives have been brought to the court's attention which required or even should be expected to require Lahey himself to develop detailed and specific regulations for every college sport or even every academic and non-academic activity going on in a large university with numerous departments and separate operations. That responsibility is best exercised by heads of different departments or activities such as for athletics, Mr. McDonald.
As the Larson court said of the superintendent there, Lahey here "was a level removed from these responsibilities" (which should have been exercised by the coaches and the athletic director). The court will dismiss the count against Mr. Lahey.
References to corporate law are also helpful in analyzing the problem before the court. In Fletcher Encyclopedia of the Law of Private Corporations, Fletcher it says in Volume 3A at § 1070, pp. 106-08.
§ 1070 Inadequate supervision.
Ordinary care on the part of directors requires reasonable oversight and supervision, and directors have been held liable for negligence in failing to adequately supervise a corporation's officers or other employees.
Directors are liable for negligence, under ordinary circumstances, where the loss or injury is due to their entire failure to supervise in any way the acts of a recreant officer. This is especially true in the case of directors of banks.
On the other hand, directors are not obliged to investigate every minor detail of the business in order to see that the officers and agents arc properly performing their duties. To be held liable, directors must have had some knowledge of the misconduct or have been negligent in failing to exercise reasonable diligence. Directors are justified in committing the conduct of the main business to officers and subordinates and, in the absence of grounds for distrust, may assume that such persons will be upright in the performance of their duties.
Likewise a president of a university should be justified in committing the running of an athletic program to the director of such a program and its coaches, faced as he or she is with a myriad of problems in numerous areas of activity under the university umbrella.
Claim of Recklessness Against Athletic Director McDonald
The motion for summary judgment is also directed against count five which alleges Mr. McDonald was reckless and that recklessness caused the plaintiff injury. The following allegations are made in the complaint to establish recklessness.
a. By failing to adequately supervise Quinnipiac College athletic department employees, including Defendants Mattei Manzo, and Belcher;
b. By failing to institute procedures, directives, rules and/or regulations which would prohibit Quinnipiac College athletic department employees, including Defendants Mattei Manzo, and Belcher, from allowing individuals to participate in baseball practice when said individuals were not members of the Quinnipiac College baseball team;
c. By failing to institute procedures, directives, rules and/or regulations which would prohibit Quinnipiac College athletic department employees, including Defendants Mattei Manzo, and Belcher from utilizing protective equipment such as an L-screen when said equipment was defective, rendering said equipment hazardous and dangerous and maintained in said condition;
d. By failing to institute procedures, directives, rules and/or regulations which would require Quinnipiac College athletic department employees, including Defendants Mattei Manzo, and Belcher to adequately repair and/or replace protective equipment, including the L-screen used during batting practice;
e. By failing to institute procedures, directives, rules and/or regulations which would prohibit Quinnipiac College athletic department employees, including Defendants Mattei Manzo, and Belcher, from allowing this hazardous and dangerous condition to exist for an unreasonable period of time without any measures being taken to repair and correct the same;
f. By failing to institute procedures, directives, rules and/or regulations which would prohibit Quinnipiac College athletic department employees, including Defendants Mattei, Manzo, and Belcher, from allowing protective equipment, including the L-screen used during batting practice, to be dangerous, defective and unsafe for the uses and purposes intended;
g. By failing to institute procedures, directives, rules and/or regulations which would require Quinnipiac College athletic department employees, including Defendants Mattei, Manzo, and Belcher, to exercise reasonable care and inspect protective equipment, including the L-screen used during batting practice, and to remedy the dangerous, defective and unsafe condition of same;
h. By failing to institute procedures, directives, rules and/or regulations which would require Quinnipiac College athletic department employees, including Defendant Mattei, Manzo, and Belcher, to warn the plaintiff and other individuals of said dangerous and defective conditions.
Now the court will discuss the issue raised by the motion as it is directed to the reckless allegations of this court.
The defendant broadly claims that recklessness will not lie here. This will require the court to describe "recklessness" as it has been defined in the case law and various standard references. The leading case on this issue is Dubay v. Irish, 207 Conn. 518 (1988) which at pages 532-33 defines recklessness by quoting from other cases and from Prosser's work or Torts (5th ed., § 34, p. 214). Among other things the court says "recklessness is a state of consciousness with reference to the consequences of one's acts." It is more than even gross negligence and "more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them." It is as Prosser says "highly unreasonable conduct involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." Not quoted by Dubay but on page 213 of Prosser is language to the effect that:
The usual meaning assigned to 'willful,' 'wanton' or 'reckless', according to taste as to the word used, is that the actor had intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which is thus usually accompanied by a conscious indifference to the consequences.
Like Prosser Dubay treats these concepts as defining the same type of activity or mental state.
As to the just quoted comment Prosser refers to § 500 of Restatement (2d) Torts in a footnote on page 213, footnote 59. Section 500 of the Restatement says that:
§ 500. Reckless Disregard of Safety Defined
The actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.
For the court to at least comment as to the section presents an observation that is crucial to at least certain aspects of this recklessness claim.
a. Types of reckless conduct. Recklessness may consist of either of two different types of conduct. In one the actor knows, or has reason to know . . . of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act, or to fail to act, in conscious disregard of, or indifference to, that risk. In the other the actor has such knowledge, or reason to know, of the facts, but does not realize or appreciate the high degree of risk involved, although a reasonable man in his position would do so. An objective standard is applied to him, and he is held to the realization of the aggravated risk which a reasonable man in his place would have, although he does not himself have it.
For either type of reckless conduct, the actor must know, or have reason to know, the facts which create the risk. For either, the risk must itself be an unreasonable one under the circumstances. (Emphasis by court).
So much for general definitions; the court will now try to test them against the fact of this case.
The defendant's motion claims that the allegations of recklessness do not amount to recklessness. McDonald also has submitted an affidavit contesting the actual allegations and raising factual matters to establish that in any event there can be no basis for such a recklessness claim. The affidavit states in relevant part:
"4. In my roles as Director of Athletics and Recreation at Quinnipiac University, I am and was responsible primarily for administrative tasks unrelated to the day to day details of the university's varsity and recreational teams including the Division I baseball team.
5. In my roles as Director of Athletics and Recreation at Quinnipiac University, I am not and was not responsible for inspecting the equipment of the Quinnipiac University baseball team on a daily basis.
6. In the fall of 2000, I had no knowledge of any alleged defect in the pitching screens used by the Quinnipiac University baseball team.
7. In the fall of 2000, I had no knowledge of any danger posed by any alleged defect in a pitching screen as claimed by the plaintiff.
8. In my role as Director of Athletics and Recreation at Quinnipiac University, I did not attend or participate in the Quinnipiac University baseball team's practices.
9. I was not present at the Quinnipiac University baseball team's practice on October 3, 2000."
The plaintiff's opposition to the motion insofar as it is directed against the reckless count against McDonald consists of deposition testimony of the head coach Mattei and a response he made to an interrogatory and the response the university made to an interrogatory submitted to it by the plaintiff.
Referring to a previously discussed matter, in his deposition Mattei said he reported to Billy Mecca the assistant athletic director and McDonald was Mecca's supervisor. In the fall of 2000 McDonald met with all the coaches once a week, he and coaches and assistant coaches. The transcript is unclear whether just baseball coaches were at the meetings. About twenty people would attend suggesting more than one team was involved. The meetings lasted about an hour. General things were discussed such as "what's going on in the athletic department." Mr. McDonald ran the meetings.
Plaintiff's opposition brief also refers to Mattei's response to interrogatory 12 as showing that it is "clear" specific polices regarding participating in athletics by non-rostered players had not been established or had not been communicated to the baseball team's coaching staff. But that interrogatory concerned the budgets for equipment not the rules indicated or their absence. The plaintiff also notes that the university responded to interrogatories submitted to it by saying McDonald has been athletic director since 1955 and that "he oversees all department activities. He is not personally involved in the purchase of equipment." From these factual references the plaintiff seems to make broader claims that McDonald had "special knowledge" regarding athlete risks, was aware or should have been of the risks of using defective equipment, and was in a position to implement safety policies and to ensure that coaches were trained and familiar with safety regulations. (See page 11 of opposition brief.)
The problem with the recklessness claim here is that there is nothing that has been presented by the plaintiff to transform any of his factual allegations from simple negligence to recklessness. To be reckless "the actor must know or have reason to know the facts which create the risk" supra, comment (a) to Restatement; the actor must intentionally do an unreasonable act "in disregard of a known or obvious risk," Prosser, page 213. There must be a "state of consciousness with reference to the consequences of one's acts," Dubay id., p. 532. There is an absence of any deposition or other testimony that McDonald knew of the actual condition of the L-screen on the date of the accident or before it happened. Weekly meetings were held by him with all the coaches but there is no indication that the condition of equipment or need to replace it was brought to his attention. The university response to interrogatories was that he was not involved with the purchase of equipment.
Even assuming rules and procedures were not instituted to require inspection of and replacement of equipment, or long periods of time were allowed to pass without the repair of equipment, or any other of the rules or directives alleged were not instituted, how is this anything more than inattentiveness to what might be the requirements of an athletic director's job.
Perhaps more to the point coaches such as Mattei were in charge of college teams such as baseball. He had been an assistant baseball coach from 1990 to 1995, head coach for five years before the October 2000 accident. He was a member of three professional coaching organizations all of which provided coaching and workshops. He had attended clinics and workshops on coaching at high school and colleges including national conventions. He had coached baseball for 44 years upon his 2001 retirement. He attended a coaching certification course.
Given this background it is difficult to understand how failure to issue directives and rules to this particular coach could be reckless — it would seem to the court at least that an athletic director should be able to rely on an experienced coach taking common sense measures to protect athletes from harm due to defective equipment and any claim of unreasonableness in failing to formulate the rules suggested to ensure such measures are being taken cannot be described as anything more than inattention. They certainly do not indicate a reckless state of consciousness with reference to the possible consequences of this defendant's acts or failures to act.
Furthermore, Mattei in sworn responses to interrogatories said he repaired the equipment himself. He also said prior to the October 2000 accident he noticed no defects in the L-screen. Thus, any reporting requirement would not have led to information McDonald could have acted upon. Finally the court would observe that it is not enough to argue that whether recklessness occurred here is something that should be determined by the jury. Summary judgment has often been said to be difficult to appropriately grant in negligence cases. But this is a claim of recklessness and in Dubay itself the court upheld the granting of summary judgment as to a recklessness claim. Each side has presented facts to support its position and the court, if faced with these same facts at a trial would grant a directed verdict on a recklessness claim or perhaps more realistically would take it out of consideration at a charging conference.
The court has previously expressed its reservations about the argument to the effect that there could be negligence because Zides as non-rostered player was allowed to practice pitch, see footnote in Belcher section. It has even more problems in viewing that factor as a consideration in weighing viability of recklessness count.
Conclusion
Counts advanced by Marjorie and Richard Zides, the parents have been withdrawn.
The court denies the motion insofar as it seeks dismissal of all the counts brought by Andrew Zides.
The court denies the motion as it relates to counts three, eight and nine.
The court grants the motion for summary judgment as to count five and count four. The court will take no action on count ten except insofar as to note that it concludes that a respondeat superior claim cannot be made against the university insofar as it is based on any alleged negligence of Lahey.