Szarowicz v. BirenbaumAnnotate this Case
Szarowicz and Birenbaum played on opposing recreational ice hockey teams in a no-check league. When the puck was hit laterally toward the players’ bench. Szarowicz followed the puck; Birenbaum, who was defending the goal, took several strides parallel to the side of the rink along the players’ bench. The puck ricocheted off the board. Szarowicz intended to slap toward the goal so that his offensive teammate could shoot. Birenbaum collided with him, propelling him into the air, causing him to fall to the ice. Szarowicz was briefly knocked unconscious. He left the ice with assistance and was taken to the hospital. He suffered extensive injuries, including six broken ribs, a dislocated shoulder with three fractured bones, a torn rotator cuff, a fractured sternum, a fractured scapula, and a collapsed lung.
Szarowicz sued Birenbaum for negligence and intentional tort. The trial court granted Birenbaum summary judgment, concluding checking is an inherent risk of the game and the assumption of risk doctrine barred Szarowicz from recovering damages. The court of appeal reversed. Summary judgment was inappropriate; a triable issue of material fact exists as to whether Birenbaum breached a limited duty of care owed to Szarowicz not to increase the risks to him beyond those inherent in the game. Szarowicz also raised triable issues of material fact as to his intentional tort claim and his prayer for punitive damages.