SAN FRANCISCO (Legal Newsline) – A hockey player who sustained serious injuries in a no-check rec league can continue his lawsuit against the opponent he says cheap-shotted him.
California’s First Appellate District court said judgment in a San Francisco trial court for defendant Jeremy Birenbaum was inappropriate, rejecting Birenbaum’s argument that plaintiff Michael Szarowicz assumed the risk of being injured when he stepped on the ice.
But the appeals court says there still exist questions of whether Birenbaum breached a duty of care owed to Szarowicz not to increase that risk. Szarowicz will also get to pursue punitive damages.
“(B)irenbaum does not dispute that his conduct was intentional,” Justice James Richman wrote. “This concession alone defeats summary adjudication of the prayer for punitive damages.
“That Birenbaum intended to check an unaware Szarowicz after taking at least six full strides to attain a high speed and made no effort to slow down before making contact — conduct that, according to (expert witness Carlos) Valdebenito, ‘would be considered a dangerous and illegal hit even by NHL standards’—was ample evidence of despicable conduct with a willful and conscious disregard of Szarowicz’s safety.”
Valdebenito based his opinion off of reports and video of the hit, which was called “violent and premeditated” and “reckless and despicable” by another of Szarowicz’s experts.
The hit happened in January 2017 in a championship series game in the San Francisco Adult Hockey League.
Szarowicz’s team was up 5-2 in the final minutes when Birenbaum slammed into him while Szarowicz was attempting to deflect the puck, briefly knocking him unconscious. He suffered six broken ribs, a dislocated shoulder with three broken bones in it, a torn rotator cuff, a fractured sternum, a fractured scapula and a collapsed lung.