## Facts

- Boston University (BU) hosted Manhattan College in a men’s intercollegiate basketball game on December 22, 1998.
- Kenneth Kavanagh played for Manhattan; Levar Folk played for BU on a full athletic scholarship.
- After a whistle for a foul in the second half, players began elbowing and shoving; as Kavanagh stepped in to break up a developing scuffle, Folk punched Kavanagh in the nose.
- Folk was immediately ejected; Kavanagh was treated for a broken nose and later returned to play in the same game.
- Folk had been recruited by BU’s coach, Dennis Wolff; Folk’s prior coaches reported no concerns about his behavior.
- Before the incident, Folk had no history of in-game altercations, ejections, or fights with teammates or opponents.
- Kavanagh alleged BU played with excessive physicality and that Wolff encouraged an overly aggressive style, but officials called a normal number of fouls; prior to the punch there were no ejections or technical fouls for unsportsmanlike conduct.
- Kavanagh sued BU’s trustees and Wolff asserting (1) vicarious liability for Folk’s act, (2) negligence in failing to prevent the harm, and (3) emotional-distress claims.
- The trial court dismissed vicarious liability and intentional infliction of emotional distress, and granted summary judgment to defendants on negligence and negligent infliction of emotional distress; the Supreme Judicial Court affirmed.

## Issues

1. Whether a university may be held vicariously liable under respondeat superior for an intentional tort committed during play by a scholarship student-athlete on the theory the athlete is the university’s employee or agent.
2. Whether the university and its coach owed a duty to protect an opposing player from an intentional in-game assault by the university’s student-athlete, and whether the assault was reasonably foreseeable.
3. Whether evidence that a coach encouraged aggressive play can establish reckless conduct sufficient to support negligence-based and emotional-distress claims.

## Decision

- The court affirmed dismissal of the respondeat superior claim, holding the scholarship athlete was not an employee or agent for vicarious-liability purposes.
- The court affirmed summary judgment for BU and Wolff on negligence and negligent infliction of emotional distress, finding no duty to protect an opposing player from this type of sudden intentional assault and no basis to find the assault foreseeable.
- The court affirmed dismissal of intentional infliction of emotional distress because the alleged conduct by BU and Wolff did not meet the required threshold for that tort.

## Legal Principles

- Respondeat superior requires an employment or agency relationship; a scholarship student-athlete is not, without more, an employee or agent of the university for tort vicarious liability.
- A university generally has no duty to protect an opposing team’s player from a sudden, intentional assault by one of its student-athletes during ordinary intercollegiate competition absent a legally recognized duty-creating relationship or comparable basis.
- Foreseeability is central to negligence; absent prior violent conduct or other warning signs, an impulsive in-game assault by a student-athlete is not reasonably foreseeable to the university or coach.
- Coaching that encourages physical or aggressive play, without evidence of conscious disregard of a substantial risk of serious harm, does not constitute reckless conduct sufficient to impose liability.

## Conclusion

The court rejected institutional and coaching liability for a scholarship athlete’s unexpected in-game punch, holding the athlete was not a university employee for respondeat superior and that, on the record presented, the university and coach neither owed a duty nor had reason to foresee the intentional assault.


Kavanagh v. Trs. of Bos. Univ., 440 Mass. 195, 795 N.E.2d 1170 (Mass. 2003)