Court: Massachusetts Appeals Court; October 19, 1995; Massachusetts; State Appellate Court
On March 22, 1985, eleven-year-old Dario Garcia was injured in the eye by a hockey stick during a gym class at Ashfield elementary school in Brockton, resulting in permanent eye damage. Garcia sued the city of Brockton and three corporate defendants that sold floor hockey equipment, specifically 'Cosom Hockey' or 'Safe-T-Play' hockey. His claims against the corporate defendants were not based on any defect in the hockey stick but rather on representations that 'Cosom Hockey' was safe for children without requiring eye protection. He alleged negligence, negligent misrepresentation, and breach of warranty.
Garcia settled with the city for $12,500, but a Superior Court judge granted summary judgment for the corporate defendants, ruling that they had provided evidence negating the essential element of identifying the manufacturer of the stick that injured Garcia. The judge found that Garcia failed to establish the manufacturer's identity, leading to the dismissal of his claims. The judge also rejected Garcia’s assertion that the game itself was the defective product causing his injury.
On appeal, Garcia argued that there was sufficient evidence linking the product sold by the defendants to his injury and that material factual issues existed regarding the identity of the stick's manufacturer. The appellate court upheld the lower court's judgment, stating that liability for failure to warn, negligent misrepresentation, or breach of warranty could not be imposed without evidence demonstrating that the injury was caused by equipment made or supplied by the defendants.
Three corporations produced the Cosom line of floor hockey equipment prior to the accident: Cosom Corporation until 1970, ITT Corporation from 1970 to 1976, and Kusan, Inc. thereafter. ITT assumed all liabilities of Cosom Corporation when it acquired its assets, thus being responsible for any indoor hockey sticks sold by Cosom Corporation. Additionally, marketing materials from Cosom Corporation promoting Safe-T-Play products and rules for indoor hockey were submitted by Garcia in opposition to the summary judgment motions. These materials were part of a marketing strategy aimed at encouraging schools to adopt indoor floor hockey.
Cosom Corporation's promotional pamphlet highlights the advantages of Cosom Hockey for schools, emphasizing its simplicity, affordability, and suitability for children as young as nine or ten. It boldly claims "Inexpensive. No Need for Protective Equipment," and notes the widespread use of Indoor Hockey Kits without any reported serious injuries. The pamphlet includes a letter from Thomas Harter, a civic recreation director, praising the sport's low cost and durability, particularly the Cosom Safe-T-Play Kit, which is designed for leagues of fifteen to twenty teams with minimal expenses. The kit contains multiple hockey sticks, fun balls, pucks, and an instruction book.
Marketing materials originated from Cosom in the late 1960s and early 1970s, before Kusan acquired the company, and there is no evidence that Kusan marketed the equipment as requiring no protective gear. Testimony indicates that since at least 1981, Kusan recommended protective eyewear for players.
In Brockton schools, hockey equipment was procured through a bidding process, with sticks commingled after delivery, making it impossible to identify the specific stick involved in an incident. James Lazour, the physical education director, selected a stick from a pile used during the gym class where the accident occurred, with his belief being that only Cosom sticks were in use that day. However, he could not confirm the manufacturer or age of the stick that struck Garcia.
The plaintiff argues that by creating the 'Safe-T-Play' indoor hockey game and promoting it as safe for children without the need for protective gear, the defendants are liable for breach of express and implied warranties as well as negligence, especially given that they were aware of prior eye injuries. The plaintiff contends that the game itself is the product sold, but there is no legal basis for liability regarding a non-tangible product, given the absence of a physical item sold alongside the instructions.
An analogy is drawn to cases that do not impose a duty on authors or publishers to provide complete and accurate information about their works, contrasting it with the obligations of product suppliers. In Winter v. G.P. Putnam’s Sons, the court ruled in favor of the publisher after plaintiffs, who became critically ill from consuming mushrooms based on the book "The Encyclopedia of Mushrooms," sought damages. The court emphasized that product liability law pertains to tangible products, and imposing liability for words and ideas could stifle innovation, thereby rejecting the plaintiffs' claims under strict liability and negligence theories. Similarly, it was noted that publishers cannot be held liable for negligent misrepresentation due to the impracticality of assuming responsibility for every potential misstatement to an indefinite audience. The conclusion drawn is that the plaintiff cannot recover damages based on the game’s concepts or instructions under strict liability, warranty, or negligence, unless they can demonstrate that a specific defendant's product caused their injury. Furthermore, in the context of Kourouvacilis v. General Motors Corp., a party seeking summary judgment must show, with supporting materials, that the opposing party lacks a reasonable expectation of proving an essential element of their case, which includes establishing the specific defendant as the manufacturer of the product at issue.
Lazour expressed his strong belief that only Cosom hockey sticks were used in Garcia's gym class, while Garcia's gym teacher indicated that the hockey equipment was purchased from Cosom Company. However, the gym teacher clarified that his responses were based on inquiries with colleagues and defense counsel, rather than personal knowledge. In a deposition, the gym teacher stated Lazour instructed him that participants were using Cosom hockey sets. The judge, when considering motions for summary judgment, determined that Lazour's belief could not be accepted as factual evidence. The judge noted that the city had purchased hockey sticks from multiple manufacturers, including Cooper, Inc. and Sportscraft, Inc., and concluded that the plaintiff did not meet the evidentiary standards required to establish liability. Even if Lazour's testimony indicated that all sticks used were from Cosom, Garcia could not identify which manufacturer, Kusan or ITT, produced the stick that caused his injury. As a result, the judgment in favor of the defendants was upheld.
Garcia described the accident occurring when a classmate lifted a hockey stick above shoulder level to hit a ball, inadvertently striking him in the face while he stood against the wall. An Athletic Institute publication characterized floor hockey as a version of ice hockey played without ice, using sneakers and a lightweight ball instead of a puck, and Cosom's rule book noted the game's origins in Michigan. The plaintiff claimed that Cosom invented the game, but the court did not resolve this issue, assuming for argument's sake that the game or its rules were sold. The city also acquired sticks from other manufacturers, and the inherent danger of misusing a hockey stick was acknowledged, suggesting that manufacturers may not need to issue warnings in such cases. Cosom's rules specifically prohibited raising the stick above waist level, yet the stick was raised above shoulder height during the incident. ITT was also held accountable for hockey sticks produced by Cosom Corporation.
