Massachusetts accepts releases and in this case, there was no argument about the validity of the release.

College softball player struck in the head during batting practice. No negligence because a release stopped simple negligence claims and there was no proof of gross negligence.

Brandt v. Davis, 98 Mass. App. Ct. 734, 159 N.E.3d 191 (Mass. App. 2020)

State: Massachusetts: Appeals Court of Massachusetts, Suffolk

Plaintiff: Brooke A. Brandt

Defendant: Jaclyn Davis & others

Plaintiff Claims: negligence, gross negligence, and recklessness

Defendant Defenses: Release and no duty

Holding: For the Defendants

Year: 2020


Massachusetts law allows a trial court to dismiss a case when a release is used, and the pleadings do not have the facts necessary to prove reckless conduct or gross negligence on the part of the defendant.

In this case, a batter, the coaches and a university were not liable for the injuries of a player when she walked into the range of a batter.


The plaintiff played softball as a member of the Suffolk University women’s team, a National Collegiate Athletic Association Division III team. As a condition of her participation on the team, the plaintiff signed a participant waiver and release of liability form. The waiver released Suffolk University and its employees and agents from liability for any claims arising from her participation in the athletic program to the extent “permitted by the law of the Commonwealth of Massachusetts.”

On the day of the accident, the team was practicing in an indoor practice facility. The team engaged in the same general pattern of activities during practices. After warming-up, the team would leave the playing area to get their equipment, and then meet on the field. The players had to leave the playing area to get their equipment, because they hung their equipment outside the playing area on a fence. During their practices, the players would run through a series of rotating stations to develop different skills, each requiring different personal equipment. Before the players began their next station, the head coach would say “go” when she was sure everyone was in position and wearing the proper equipment.

Typically, the batting tees would be set up in batting cages, but they were not on the day of the accident. Moveable screens were available to use as protective barriers, but there was no such barrier between the tees and the field entrance on the day of the accident.

At one of the practice stations, players practiced hitting balls off tees into the netting surrounding the field. The tees were placed off to one side of an opening in the netting, which is where players would enter the area. A portable divider was placed on the opposite side of the opening to separate this station from the live hitting station. The players rotated among stations at the direction of the coaches, and were given between two and five minutes to transition before the coaching staff signaled them to start.

During the March 7, 2014, practice, when it was time for the plaintiff to rotate to the live hitting station, she left the field to retrieve her batting helmet and began jogging back with her helmet in her hand. The plaintiff testified in a deposition that she had to go retrieve her batting equipment, because her first station had been fielding. The plaintiff was “moving quickly” to get back to her station.

When the plaintiff returned to the practice area, the teammate was practicing hitting at the “last tee near the door. [The teammate] was the last to get to [her] tee because of the additional time [she] spent practicing [her] footwork.” The teammate was a left-handed batter, and she chose the tee nearest to the door so that the right-handed players in the station would not be within her swinging radius.

In her deposition, the plaintiff testified that she saw that the teammate had a bat in her hand at the tee station and was preparing to bat. The teammate’s back was to the plaintiff when the plaintiff jogged back on the field. The plaintiff did not know whether the teammate could see her because the teammate’s batting helmet limited her peripheral vision. The plaintiff testified that she saw the teammate’s face, but could not say whether that was when she was leaving the field or upon reentering it. She “didn’t feel like [she] was going to get hit” when she ran behind the teammate.

The plaintiff testified that she yelled, “Wait.” However, she could not remember when she said wait or even whether she said it out loud. She admitted that it was possible that she “said wait only in [her] own head.”

The teammate testified in a deposition that she did not begin swinging until instructed to do so by her coaches, and an assistant coach testified that the players were already swinging before the accident. The teammate stated that she “always look[ed] around … before … every single swing.” She did not see the plaintiff.

After the teammate hit the ball off the tee, the teammate’s swing hit the plaintiff in the back of the head. As a result, the plaintiff suffered a concussion and required four stitches at a hospital. She was released from the emergency department the same evening. Because the plaintiff and the teammate were best friends, the teammate stayed with the plaintiff in her dormitory room the night of the accident. A few days later, however, it became evident that the plaintiff was suffering long-term effects from the accident, including difficulty reading.

Analysis: making sense of the law based on these facts.

The court only looked at whether the summary judgment was correct. The trial court found the plaintiff had not pled or proven any claims that would rise to the level of gross negligence or recklessness. The release was presumed valid and was enforced eliminating any basic claims.

The appellate court first looked at the duty owed by participants in athletic events. That means participants must refrain from reckless conduct. “As is well established, “participants in an athletic event owe a duty to other participants to refrain from reckless misconduct.””

This higher level of care is required because to have a lower standard of care would create litigation anytime players interacted physically. When one engages in a sport, one must accept the level of physical contact to be higher. Failure to do so takes the fun out of the play.

The court found that this same level of care or standard also applied to practices. If the players did not practice at a high level, they would not compete at a higher level.

…the Supreme Judicial Court determined that participants in an athletic event owe each other only a duty to avoid reckless conduct. The court did so because it was “wary of imposing wide tort liability on sports participants, lest the law chill the vigor of athletic competition.”

The same reasoning applies to athletic practices. During such practices, players train to improve their competitive performance. Teammates often play against each other as though it is a game through scrimmages and other drills at practice.

The court then proceeded to exam the claims of the plaintiff that the conduct was reckless. Reckless conduct is one person knowing that their actions create a high degree of risk of physical harm and still proceeds to act.

The plaintiff has the burden to prove “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.”

The court reviewed the facts and found there was no reckless conduct on the part of the teammate. The actions of the batter were such that there was no time from when she attempted to swing at the ball until when she made contact with the plaintiff to alter her actions. There was no knowledge of the high degree of physical harm because the batter did not know the plaintiff was behind her. And without that knowledge, there is no recklessness.

The final issue reviewed was whether to the coach, and the universities’ actions were grossly negligent or reckless. The plaintiff’s ordinary or simple negligence claims were barred by the release. Therefore, only the gross negligence claim remained against the university and coaches.

Massachusetts law defines gross negligence as:

“[G]ross negligence is substantially and appreciably higher in magnitude than ordinary negligence. … It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care” The ‘voluntary incurring of obvious risk’ and ‘persistence in a palpably negligent course of conduct over an appreciable period of time’ are among ‘the more common indicia of gross negligence.’ ”

“Gross negligence … is materially more want of care than constitutes simple inadvertence”

Recklessness in this context was defined as:

“[R]eckless conduct involves a degree of risk and a voluntary taking of that risk so marked that, compared to negligence, there is not just a difference in degree but also a difference in kind.”

For the coaches and thus their employer the university to be found liable, the coaches had to have known of the propensity of the batter to act reckless or with intent to harm.

“[I]n order to impose liability on a coach for the conduct of a player, there must be, at the least, evidence of ‘specific information about [the] player suggesting a propensity to engage in violent conduct, or some warning that [the] player … appeared headed toward such conduct as the game progressed.

The trial court and the appellate court found none of the facts necessary to apply either a reckless or gross negligence definition to the actions of the batter or the coaches. In fact, the court found just the opposite.

Here, there is no indication that the teammate intentionally struck the plaintiff or that the teammate had a history of reckless conduct. The plaintiff testified that she and the teammate were best friends, and that she did not think the teammate hit her on purpose.

So Now What?

In some states, releases are part of the law and are rarely challenged unless the release is poorly written. Because of that, colleges and universities are using release to stop claims by student athletes for their injuries.

However, several other courts have indicated they are not sure that releases are the way proceed fearing a release will allow the defendants not to keep their businesses as risk free as possible. It is a constantly changing legal landscape.

For other articles about student athletes see:

Release and assumption of the risk are both used to defeat a para-athlete’s claims when she collided with a runner on the cycling portion of the course

PA Supreme Court determines colleges owe a duty to provide medical care to student-athletes and releases are valid for stopping claims by student athletes.

For other articles about Massachusetts and releases see:

Massachusetts’s Supreme Court holds that wrongful-death claims are derivative.

Poorly written release in Massachusetts stop lawsuit for falling off a horse during riding lessons.

Releases work for exercise programs when a mall, for free, opens up early to help people age in Massachusetts

Duty of care for a Massachusetts campground is to warn of dangerous conditions.

A federal district court in Massachusetts upholds indemnification clause in a release.

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

Copyright 2022 Recreation Law (720) 334 8529

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