440 Mass. 195 | Mass. | 2003
Having been punched by an opposing Boston University player during an intercollegiate basketball game, the plaintiff brought suit against the trustees of Boston University (university) and the coach of the university’s team, contending that the university was vicariously liable for the conduct of its “scholarship athlete,” and that the university and its coach were
1. Facts. On December 22, 1998, the university hosted a men’s intercollegiate basketball game against Manhattan College. The plaintiff, Kenneth Kavanagh, was a member of the Manhattan College team. Following a contested rebound during the second half, the referee blew his whistle to signal a foul, and some elbowing and shoving ensued among a few of the competing players. When Kavanagh intervened to break up a developing scuffle between one of his teammates and a university player, he was punched in the nose by another university player, Levar Folk. Folk was immediately ejected from the game. Kavanagh was treated for what turned out to be a broken nose and returned to play later in the same game.
At the time of this incident, Folk was in his senior year. He had been recruited for the university’s basketball team by its coach, Dennis Wolff, and came to the university on a full athletic scholarship. As part of the recruitment process, Wolff had met with Folk’s high school coaches, who described Folk as a “good kid” and expressed no reservations about his character or comportment on the basketball court. Until the incident involving Kavanagh, Folk had not been involved in any physical altercation during a game and had never been ejected from a game. He had no prior history of physical confrontations or fights with either his own teammates or opposing players.
In his junior year, one year prior to the assault on Kavanagh, Folk had had an argument with Coach Wolff about his manner of play (Wolff believed that Folk was taking too many shots) and about an academic issue (Wolff was concerned that Folk had missed an examination and had tried to secure an excuse for having done so). The argument was heated, but involved no physical contact. Wolff suspended Folk for a period of several
Folk’s disciplinary history with the university included the imposition of two periods of “residence probation” for violation of the university’s policies on noise and alcohol. Neither infraction involved any act of violence or threatened violence.
Although Kavanagh characterizes the December 22, 1998, game as “the most physical” he ever played, the number of penalties called by the referees was within a normal range. Up until the time he struck Kavanagh during the second half, no technical fouls had been called on Folk, and no university players had been ejected. Kavanagh describes the university team’s play as follows: “with reckless abandon,” “elbows to people’s faces, trying to steal the ball,” “after plays, bumping people,” “holding you with both their hands, walking by, getting the elbow.” He also claimed that Coach Wolff incited the team’s aggressiveness by yelling encouragement from the sideline, not substituting for players who were allegedly elbowing opposing players, and calling out praise for his players, despite the fact that they were, in Kavanagh’s view, committing fouls.
Pursuant to National Collegiate Athletic Association (NCAA) rules, Folk was automatically suspended from the following game. No form of penalty or discipline was imposed on the university team, on Coach Wolff, or on any of his assistants.
2. Discussion, a. Vicarious liability. Kavanagh contends that Folk’s status as a scholarship athlete playing for the university made him an agent of the university and that the university is therefore vicariously liable for any torts committed by Folk while playing for the university’s basketball team. We reject the proposition that the doctrine of respondeat superior renders schools liable for the acts of their students, and decline to treat scholarship students any differently from paying students for these purposes.
“Broadly speaking, respondeat superior is the proposition that an employer, or master, should be held vicariously liable for the torts of its employee, or servant, committed within the scope of employment.” Dias v. Brigham Med. Assocs., Inc., 438 Mass. 317, 319-320 (2002), citing Restatement (Third) of Agency § 2.04 (Tent. Draft No. 2 2001). In determining whether an employer-employee relationship exists, various factors are to be considered, including “the method of payment (e.g., whether the employee receives a W-2 form from the employer), and whether the parties themselves believe they have created an employer-employee relationship.” Id. at 322, citing Restatement (Second) of Agency § 220 (2) (1958).
A student’s status as student does not, by itself, make the student an “employee” or “servant” of the school the student attends.
The fact that a college or university has facilitated a student’s ability to attend that institution by providing a scholarship or other financial assistance does not transform the relationship between the academic institution and the student into any form of employment relationship. While scholarships may introduce some element of “payment” into the relationship, scholarships are not wages. See Rensing v. Indiana State Univ. Bd. of Trustees, 444 N.E.2d 1170, 1173 (Ind. 1983) (noting that NCAA rules prohibit payment to student athletes and that proceeds of athletic scholarships are not taxable as income). Rather, scholarships pay specific forms of expenses that the student would incur in attending school — tuition, books, room and board — and thereby provide the student with an education. Nor does a scholarship student “work for” the school in exchange for that scholarship. The benefits that may accrue to a school from the attendance of particularly talented athletes is conceptually no different from the benefits that schools obtain from the attendance of other forms of talented and successful students — both as undergraduates and later as alumni, such students enhance the school’s reputation, draw favorable attention to the school, and may increase the school’s ability to raise funds. A school recruits and provides financial aid to students that it thinks will be good for the school in some respect, and the fact that a particular recruited scholarship student may provide the expected benefit to the school does not affect the nature of the school’s legal relationship with the student. Again, scholarship or financial aid notwithstanding, neither side understands the relationship to be that of employer-employee or principal-agent. Thus, in various contexts, courts have rejected the theory that scholarship athletes are “employees” of their schools. See State Compensation Ins. Fund v. Industrial Comm’n of Colo., 135 Colo. 570 (1957) (rejecting workers’ compensation claim stemming from injury to student athlete, reasoning that student attending school under athletic scholarship is not “employee”);
It is undeniable that a successful athletic program, particularly in popular sports like basketball, can gamer substantial revenues for colleges and universities, both directly from the sporting activities themselves (e.g., gate receipts, sale of broadcasting rights) and indirectly from the attention those activities attract (e.g., increased alumni giving). In recent years, the enormity of the revenues at stake in collegiate sports has prompted some to recommend that colleges and universities be allowed to compensate student athletes for their “services” and thereby transform them into employees. See Goldman, Sports and Antitrust: Should College Students Be Paid to Play?, 65 Notre Dame L. Rev. 206 (1990); Whang, Necessary Roughness: Imposing a Heightened Duty of Care on Colleges for Injuries of Student-Athletes, 2 Sports Law. J. 25, 36-38 (1995).
Kavanagh argues that scholarship athletes should nevertheless be treated as “agents” of their schools because it is said that they “represent” their schools. When one speaks of an athlete, or any other student, as a “representative” of his or her school, the term is not being used in its legal sense. Rather, it connotes
b. Negligence. Kavanagh also claims that the university breached a duty to protect him from the allegedly foreseeable assault and battery by Folk. He acknowledges that, as a general rule, there is no duty to protect another from the criminal conduct of a third party. See Luoni v. Berube, 431 Mass. 729, 731 (2000); Anthony H. v. John G., 415 Mass. 196, 200 (1993); Mullins v. Pine Manor College, 389 Mass. 47, 50 (1983). However, such a duty arises when there is a “special relationship” between the defendant and the injured victim. See Luoni v. Berube, supra at 731-732, and cases cited. “[Sjpecial relationships exist in several situations, based either on responsibilities imposed by statute or common law (or both). A special relationship, when derived from common law, is predicated on a plaintiffs reasonable expectations and reliance that a defendant will anticipate harmful acts of third persons and take appropriate measures to protect the plaintiff from harm.” Id. at 732. See Restatement (Second) of Torts § 314A (1965) (one “who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection” has special relationship giving rise to duty to aid or protect). Kavanagh contends that his status as a student athlete on an opposing team created such a special relationship between himself and the university.
In recent years, courts and commentators have taken differing views as to what duties schools have to the scholarship athletes that they have recruited. Some are of the view that the unequal bargaining power in the recruitment process, the degree of influence that a school and its coaches have over a student athlete’s daily life, the pressures placed on student athletes to win at all costs (which may cause some students to risk their own health
For purposes of this case, we need not enter that debate, as none of the authorities favoring such a “special relationship” has opined that that relationship extends to athletes from another school. Here, the university did not recruit Kavanagh; Kavanagh did not depend on the university nor the university on him for any benefit; and the university did not exert any form of control or influence over Kavanagh, or affect his ability or motive to protect himself.
Kavanagh’s negligence claim also fails on the ground that any duty to protect him from the harm of another’s criminal acts extends only to those acts that are reasonably foreseeable. See Poskus v. Lombardo’s of Randolph, Inc., 423 Mass. 637, 639-640 (1996), and cases cited. However, “where there has been a showing that the risk of a criminal assault is foreseeable, the exact nature and source of the assault need not be shown in order for liability to attach.” Foley v. Boston Hous. Auth., 407 Mass. 640, 645 (1990). In a general sense, one can always foresee that, in the thrill of competition and the heat of battle inherent in a contact sport, any player might some day lose his or her temper and strike an opposing player. If that possibility alone sufficed to make an assault on the field of play reasonably “foreseeable,” schools and coaches would face liability every time they allowed their enthusiastic players to take the field against an opposing team. For these purposes, foreseeability must mean something more than awareness of the ever-present possibility that an athlete may become overly excited and engage in physical contact beyond the precise boundaries of acceptably aggressive play. Rather, a defendant would have to have specific information about a player suggesting a propensity to engage in violent conduct, or some warning that a player or players appeared headed toward such conduct as the game progressed. See Brown v. Day, 68 Ohio App. 3d 447, 449-450 (1990) (coach not liable for negligent supervision of player who kicked opposing player in absence of prior examples of violent behavior on part of offending player). See also Hanson v. Kynast, 24 Ohio St. 3d 171, 179 (1986) (Holmes, J., concurring) (“to state a cause of action against a university for injuries caused by one of its athletes, one must, at the very least, allege
No such evidence has been presented here. On the undisputed facts, neither the university nor its coach had any reason to foresee that Folk would engage in violent behavior. He had never done so before, he had no history suggestive of potential violence on or off the basketball court,
Kavanagh’s final theory of negligence alleges that Folk’s attack was incited by Coach Wolff’s own aggressive demeanor on the sidelines.
We must first address what standard is to be applied to claims that coaches are liable for causing their players to injure other players. Recognizing that, by their nature, competitive sports involve physical contact between opposing players, and that some degree of aggressiveness in play is essential to athletic
Here, Kavanagh cannot demonstrate any recklessness on the part of Coach Wolff. To the extent that Wolff’s demeanor was excited and aggressive, that is demeanor appropriate for a coach during a game. As to Kavanagh’s contention that Wolff encouraged violence by failing to send in substitute players for players who were allegedly committing fouls, that contention would effectively require Wolff to be more sensitive to possible fouls than the referees. Under the rules of any sport, fouls or other violations carry their own penalties, and it is up to the officials
Judgments affirmed.
Specifically, the first incident, on March 7, 1998, involved Folk consuming alcohol while at another student’s dormitory apartment. Neighbors had complained of students making noise and throwing bottles and cans out the window. Folk, who was not yet of age to consume alcohol legally, admitted that he had been drinking, but denied any involvement in throwing things out the window. The second incident, on October 25, 1998, arose when Folk was hosting two basketball recruits in his dormitory apartment. While Folk was running an errand, his guests turned up the volume on his stereo to the point that one of the speakers was damaged and neighbors complained about the noise. Folk also had alcohol in his apartment in an amount that exceeded that allowed by the university’s policies. (By then, Folk was of legal drinking age.)
In his deposition, Kavanagh identified two offending players who were allegedly being praised by their coach. Neither of them was Folk.
There are times, of course, when schools do hire students to perform services for the school (for example, work in a school cafeteria or maintenance work), and a school could be vicariously liable for the torts of such a student employee committed within the scope of that employment.
Other commentators suggest different approaches to address the vast discrepancy between the revenues schools receive on account of their star athletes and the value of the scholarships granted to those athletes, many of whom never graduate. See T. Davis, Examining Educational Malpractice Jurisprudence: Should a Cause of Action Be Created for Student-Athletes?, 69 Denv. U.L. Rev. 57 (1992) (recommending that student athletes should have cause of action for schools’ failure to provide them with adequate education); R. Davis, Academics and Athletics on a Collision Course, 66 N.D. L. Rev. 239 (1990) (recommending overhaul of NCAA rules to place primary importance on academics and reduce financial rewards to schools).
With respect to any reasonable expectations as to who will protect competitors from excessively rough play or violence during a game, one would ordinarily expect that the referees would perform that function, not the opposing coach, team, or school. It could be argued that players reasonably rely on game officials to protect them from the type of harm at issue here, and Ka
While Kavanagh makes much of the fact that Folk had previously been suspended from the team, and had been disciplined by university authorities, none of those prior incidents had anything to do with violence or threats of violence.
On appeal, Kavanagh does not press his claim against Wolff for intentional infliction of emotional distress.
Kavanagh contends that the videotape of the game would show both the extremely aggressive play of the university team and Coach Wolff’s conduct inciting that allegedly inappropriate aggression. However, Kavanagh did not submit the videotape as part of his opposition to the defendants’ motion for summary judgment, and it is therefore not part of the record on appeal. See Currens v. Assessors of Boston, 370 Mass. 249, 254 (1976); McIsaac v. Cedergren, 54 Mass. App. Ct. 607, 609 n.3 (2002). The record before us contains only Kavanagh’s description of the game and of Wolff’s behavior during the game. We therefore rely entirely on Kavanagh’s description.
At least one court has held that a player injured by an opponent’s violence does not state a claim against the opposing coach unless the coach taught or instructed the offending player to commit the attack. See Nydegger v. Don Bosco Preparatory High Sch., 202 N.J. Super. 535, 539 (1985). Because the facts of the present case do not support even a claim of recklessness, we need not decide whether liability should be imposed only in cases involving a coach’s express direction to assault or injure an opponent.
