Otstott and Pan Win MSJ on Primary Assumption of Risk in Videotaped Hockey Case

George A. Otstott and Lisa L. Pan of Demler, Armstrong & Rowland, LLP’s San Francisco office won summary judgment using a primary assumption of the risk defense involving a collision between two adult league hockey players on the ice during a game. Plaintiff testified that the collision resulted in multiple bone fractures (six ribs, scapula, sternum, clavicle, shoulder bones), a torn rotator cuff, and collapsed lung.  He filed a lawsuit for negligence, intentional tort and punitive damages.  The entire hockey game was recorded on video, which showed the moments before, during and after the collision, and was attached as an exhibit to the motion and played repeatedly at oral argument.

We argued that Defendant’s conduct leading up to the collision, the collision itself, and Plaintiff’s resulting injuries were not “totally outside the range of ordinary activity involved with the sport.”  As a consequence, whether intentionally or negligently caused, Defendant did not owe a duty to prevent that injury under Avila v. Citrus Cmty. Coll. Dist. (2006) 38 Cal.4th 148, 165 and Knight v. Jewett (1992) 3 Cal.4th 296, 308.  Although officials presiding over the game might impose penalties for Defendant’s conduct, it is not the function of tort law or the civil courts to police such conduct.  Plaintiff’s Opposition argued that the conduct of Defendant was “outside the range of ordinary activity involved in the sport” since the prohibition of that conduct would neither deter vigorous participation in the sport nor otherwise fundamentally alter the nature of the sport, per Freeman v. Hale (1994) 30 Cal.App.4th 1388, 1394.