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September 5, 1978


Suffolk. Two actions of tort. Writs in the Superior Court dated October 15, 1970, and February 17, 1971, respectively. The actions were tried before Morse, J. The Supreme Judicial Court granted a request for direct appellate review.

Hennessey, C.j., Quirico, Kaplan, Wilkins, & Abrams, JJ.


Negligence, Manufacturer, Hockey helmet, Assumption of risk, Contributory, Defective product. Conflict of Laws. Practice, Civil, Special questions to jury. Evidence, Relevancy and materiality; Opinion: expert.

The opinion of the court was delivered by: Quirico

At the trial under Rhode Island law of actions for injuries sustained by a hockey player of a preparatory school when struck in the head by a puck shot by an opposing player which entered a gap in the three sections of the injured player's helmet, evidence that the manufacturer of the helmet designed it for ease of adjustment and not for safety, that he knew a puck could penetrate between the sections, and that he was aware one-section helmets were manufactured by others but made no safety tests warranted a Conclusion that he was negligent with respect to its design [287]; a Conclusion of negligence on the part of the school in supplying the helmet to the injured player was warranted by evidence that its experienced coach knew of the availability of one-section helmets and conceded them to be safer than the three-section helmet [287-288].

Gaps in a three-section helmet worn by a hockey player were not so large or so obvious as to require a Conclusion, as matter of law under Rhode Island law, that he assumed the risk of injury from a puck shot through a gap by an opposing player, and assumption of risk was not a bar to liability of the manufacturer of the helmet, or of the retailer, or of the preparatory school which supplied the helmet [288-289]; no exceptional circumstances would have justified a ruling in behalf of the manufacturer that as matter of law the injured player was contributorily negligent [289-290].

Findings, under the law of strict tort liability adopted in Rhode Island, that the three-section design of a hockey helmet, with gaps, was defective and "unreasonably dangerous," and that the manufacturer and retailer of the helmet were liable to a hockey player struck in the head by a puck shot by an opposing player, were warranted by substantial evidence, including evidence that safer one-section helmets were manufactured prior to the accident and were not economically unfeasible. [290-291]

At the trial for injuries sustained by a hockey player, who was wearing a three-section helmet when struck in the head by a puck which entered a gap in the sections, against the retailer who had sold the helmet to the defendant preparatory school which supplied the helmet to the player, there was no error in the trial Judge's refusal to submit a special question to the jury as to the retailer whether when injured the player was wearing its helmet where special questions answered as to negligence and causation necessarily encompassed the question refused [291-292]; there was no error, under strict liability counts, as to the school in the admission in evidence of its coach's comparison as to safety of the three-section helmet and one-section helmets available, and of the relative cost of the two helmet types [292].

Opinions of a neurosurgeon, carefully limited to a neurological point of view, as to the relative safety in design of the three-section helmet worn by a hockey player when hit in the head by a puck and a one-section helmet available and of the causal relationship between the injury and the helmet worn, were properly admitted in evidence in tort actions by the injured player. [293-294]

In this case the plaintiff seeks damages from the suppliers of a protective helmet he was wearing when, while playing in a hockey game, he was struck in the head by a puck and was seriously injured. The question before us is whether, on the various counts brought under both negligence and strict liability theories, *fn1 the evidence was sufficient to support the verdicts for the plaintiff.

We summarize the evidence that is most favorable to the plaintiff. Alholm v. Wareham, 371 Mass. 621, 626-627 (1976). Kelly v. Railway Express Agency, Inc., 315 Mass. 301, 302 (1943). *fn2 The controversies in this case revolve around the design of the protective helmet worn by the plaintiff when he was injured. It is described as a three-piece helmet because its protective components are three sections of high-impact plastic lined on the inside with shock foam. One piece covers the back of the head, extending from the nape up about six inches, and running horizontally between positions slightly behind each ear; the second piece, approximately two inches wide, rings the front of the head from the same positions, thus covering the forehead; and the third piece joins the tops of these two sections and covers the top of the head. This top piece is loosely connected to the other two sections by six strips of leather, each 1 1/2 to 1 3/4 inches in width and 1 1/2 to 2 inches in length. The side pieces are linked by a 3/4 inch wide elastic strap, whose length is adjustable. The result of this three-piece design and loose method of linking the sections is that there are gaps within the helmet where no plastic piece covers. The gap between the top piece and the two side pieces ranges from 1/2 to 3/4 of an inch. The gaps between the two side pieces vary with the size of the wearer's head and the tension with which the elastic straps are adjusted, and range from zero to 3/4 of an inch. This three-piece design, characterized by the internal gaps, was somewhat unique, and there were available at the time of the plaintiff's injury and for some time prior thereto helmets that were designed as one-piece units and were therefore without such gaps.

When the injury occurred the plaintiff, who was approximately nineteen years old, was a post-graduate student and a member of the hockey team at the defendant New Preparatory School (New Prep) in Cambridge, Massachusetts. On January 10, 1970, the New Prep team went to Providence, Rhode Island, to play the Brown University freshman team. During the game the plaintiff, a defenseman, attempted to block the shot of a Brown player by throwing himself into a horizontal position on the ice, about ten to fifteen feet in front of the shooting player and perpendicular to the intended line of flight of the puck. The puck struck the plaintiff above and slightly back from his right ear, and penetrated into the gap of the helmet formed where the three helmet sections came together. As a result of this penetration the puck hit his head and caused a fracture of the skull. This serious injury subsequently required that a plate be inserted in the plaintiff's skull, and caused the plaintiff to have headaches that will continue indefinitely.

The helmet was being worn by the plaintiff on the night of his injury as a result of its being supplied to him through the following process. The helmet was manufactured by J. E. Pender (Pender), a proprietorship engaged in the manufacture of sporting goods and represented in this action by the defendant George Whittie, executor of the will of James E. Pender. *fn3 In 1967 through 1969 Pender sold at least fourteen helmets of the type worn by the plaintiff to the defendant Bucky Warren, Inc. (Bucky Warren), a retailer in sporting goods, which in turn sold them to New Prep. The helmets had been specially ordered by Owen Hughes, the coach of the New Prep team, who was the person authorized by the school to make such purchases. They were painted in the colors of the school to match the team uniforms. Each player on the plaintiff's team was supplied with one of these helmets for practice and games use, although Hughes's testimony indicated that, had a player so wished, he could have worn a different helmet of his own choosing. Rather than purchasing his own helmet, the plaintiff chose to wear the one supplied to him by the school authorities.

The plaintiff brought this action *fn4 claiming that, because of the gaps, the Pender helmet was defectively designed, and that therefore all three defendants, Pender, Bucky Warren, and New Prep, were liable to him in negligence for supplying him the helmet, and that the defendants Pender and Bucky Warren were also liable to him in tort on a strict liability theory. At trial, motions for directed verdicts were denied, and fourteen special questions were submitted to the jury. The jury found that all three defendants were negligent, that the helmet was not in a reasonably safe condition when sold by Pender and Bucky Warren, that the plaintiff's injury was caused by the condition of the helmet and the negligence of the defendants, and that the plaintiff himself neither assumed the risk of the injury nor was contributorily negligent. *fn5 The plaintiff was awarded $85,000 in damages. After proper motions the Judge, notwithstanding the jury verdicts, entered judgments in favor of all defendants on the negligence counts, holding that, as matter of law, the plaintiff assumed the risk of his injury. He entered judgment for ...

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