Bruckler, Joseph et al vs. Robert DeFelice, in his capacity as Athletic Director Of Bentley University et al

Party(s) file Stipulation of Dismissal Now come the parties in the above-entitled consolidated actions, third party action and fourth party action, and hereby stipulate, pursuant to the provisions of Massachusetts Rules of Civil Procedure, Rule 41 (a)(l)(ii), that all claims in the consolidated actions, third party actions and fourth party actions, noted above against all Defendants, including any and all crossclaims and counterclaims, be dismissed with prejudice and without costs, with all rights to appeal waived. Applies To: Bruckler, Joseph (Plaintiff); Bruckler, Carolyn (Plaintiff); Bruckler, Peter (Plaintiff); Robert DeFelice, in his capacity as Athletic Director Of Bentley University (Defendant); Town of Watertown (Defendant)

ORDER of dismissal nisi entered after action was reported settled; Agreement or Stipulation shall be filed in this court by 12/02/2019 Request from Attorney Donahue via email

Joint Pre-Trial Memorandum filed:

MEMORANDUM ORDER: MEMORANDUM OF DECISION AND ORDER ON ROBERT DEFELICE, ATHLETICE SPORTS SYSTEMS, INC., ATHLETICA, INC. AND THE TOWN OF WATERTOWNS MOTIONS FOR SUMMARY JUDGMENT Judge: Yarashus, Hon. Valerie A Copied from linked case: 1781CV00231 The plaintiff Joseph Bruckler and his parents allege that he sustained severe and permanent injuries, including traumatic brain injury, on February 15, 2014 due to the combined negligence and breach of warranty of the defendants. The incident occurred when he struck his head on protective padding affixed to a post at the John A. Ryan Skating Arena in Watertown, Massachusetts (Arena) during an intercollegiate NCAA Division I hockey game as a student-athlete for United States Military Academy at West Point, New York (West Point) against Bentley University (Bentley). As a result of his traumatic brain injury, Bruckler was discharged from the United States Army and lost his appointment to West Point. In 2015, Bruckler brought an action against Robert DeFelice (DeFelice), in his capacity as Bentleys Athletic Director, and against the Town of Watertown (Town) alleging negligence in the ownership, inspection, maintenance, upkeep, supervision, oversight, use, and control of the Arena; Josephs parents, Carolyn and Peter Bruckler also alleged loss of consortium against DeFelice. The Town and DeFelice filed cross-claims against each other for contribution under G.L. c. 231B, 1, and for indemnification. In 2017, Joseph and his parents, Carolyn and Peter Bruckler (collectively, plaintiffs) commenced this action against defendants Athletica, Inc. (Athletica) and John Doe, asserting claims of negligence, breach of warranty, and loss of consortium with respect to the allegedly inadequate protective padding that Athletica sold to the Town. In Count IV, the plaintiffs also alleged a claim of successor and assumed liability against defendant Athletica Sport Systems, Inc. (ASSI), contending that Athleticas liabilities in this case should be imposed on ASSI. This court (Krupp, J.) consolidated the 2017 action with the 2015 action on March 30, 2017. This case is before the court on two motions for summary judgment, which raise four significant issues in total. First, DeFelice has moved for summary judgment on the plaintiffs claim and the Towns cross-claims against him, arguing that he owed the plaintiffs no duty as Bentleys Athletic Director. Second, ASSI has moved for summary judgment on the basis that the plaintiffs will be unable to prove their successor liability claim at trial. Third, Athletica and ASSI contend that the statute of repose bars the plaintiffs claims against Athletica (and ASSI, if there is successor liability). Fourth, the Town (as owner of the Area) has joined in ASSIs summary judgment motion, while the plaintiffs, DeFelice, and Bentley oppose it. For the following reasons, all of these motions for summary judgment are DENIED. DISCUSSION I. Standard of Review Summary judgment is granted where there are no genuine issues of material fact and where the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Cassesso v. Commissioner of Corr., 390 Mass. 419, 422 (1983); Community Natl Bank v. Dawes, 369 Mass. 550, 553 (1976). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue, and that the summary judgment record entitles the moving party to judgment as a matter of law. Flesner v. Technical Commcns Corp., 410 Mass. 805, 808-809 (1991); Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989); see Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). The court considers the evidence presented in the light most favorable to the nonmoving party. Mass. R. Civ. P. 56(c); Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991); Parent v. Stone Webster Engg Corp., 408 Mass. 108, 113 (1990). Bare assertions and conclusions . . . are not enough to withstand a well-pleaded motion for summary judgment. Polaroid Corp. v. Rollins Envtl. Servs., Inc., 416 Mass. 684, 696 (1993). However, any doubt as to the existence of a material fact must be resolved against the moving party. Parent v. Stone Webster Engg Corp., 408 Mass. at 113. II. DeFelices Motion for Summary Judgment - Duty of Care of Athletic Director Before liability for negligence can be imposed, there must first be a legal duty owed by the defendant to the plaintiff, and a breach of that duty proximately resulting in the injury. Dos Santos v. Coleta, 465 Mass. 148, 154 (2013) (citation omitted); Afarian v. Massachusetts Elec. Co., 449 Mass. 257, 261 (2007) (An essential element of every negligence claim is the existence of a legal duty . . . .). If no such duty exists, a claim of negligence cannot be brought. Remy v. MacDonald, 440 Mass. 675, 677 (2004). Whether a defendant has a duty of care to the plaintiff in the circumstances is a question of law for the court, to be determined by reference to existing social values and customs and appropriate social policy. Medina v. Hochberg, 465 Mass. 102, 105-106 (2013) (citations omitted). While DeFelice concedes that he had supervisory responsibility for Bentleys compliance with the NCAA requirement that Bentley provide a safe environment for athletes, he argues that this responsibility is insufficient to constitute participation in the acts allegedly causing Joseph harm such that he owed him a duty of care. The plaintiffs and the Town oppose this motion. A. Background The Town owned and operated the Arena which was constructed in 1972. In or around 2014, the Town employed Daniel Brothers as Rink Director. His responsibilities included the scheduling and billing of ice time . . . and coordinating rink upkeep and maintenance. DeFelice Exhibit 2, Answer No. 5. Owen Jones served as the Assistant Rink Director. The Town permitted Bentley and other high schools and youth hockey programs to use the Arena. Bentleys hockey team has used the Arena for its ice hockey games since the mid-1970s. DeFelice alleges, and the plaintiffs dispute, that the Town and Bentley did not have a written agreement governing Bentleys use of the Arena in 2014. In its answers to the plaintiffs interrogatories, the Town states that while, for several years, the agreements for use of the Arena were oral, the Town did enter into a number of agreements and contracts with Bentley University for Bentleys use of the . . . Arena over an approximately thirty-year period. DeFelice Exhibit 15, Answer No. 10. The Town further alleges that the license agreement it sent to Bentley prior to the 2014 season contained provisions making Bentley responsible for inspecting the Arena prior to each use and for bringing any problems or defects to the Towns attention, as well as for any injuries. DeFelice became Bentleys Athletic Director in 1991. In this position, DeFelice was responsible for overseeing Bentleys twenty-three varsity athletic teams and the Athletic Department staff. Although he regularly attended Bentleys hockey games at the Arena, he never conducted any inspections with respect to the safety of the Arena. During a hockey game at the Arena between the West Point and Bentley on February 15, 2014, a Bentley player body-checked Joseph, and he struck the termination post or stanchion at the end of the penalty box. At the time, there was no glass shielding in front of the penalty box, and the foam padding that was attached to the post was insufficient to prevent the traumatic brain injury suffered by the plaintiff. The NCAA has issued requirements regarding ice rinks. Specifically, section 1.3 of the NCAAs 2012-13 and 2013-14 Rules and Interpretations states, The rink should be surrounded by a wooden or fiberglass wall known as the boards that shall extend not less than 40 inches and not more than 48 inches above the level of the ice surface. The ideal height of the boards above the ice surface shall be 42 inches. It is recommended boards be constructed so that the surface facing the ice shall be smooth. The boards shall be free of any object that could cause injury to players. All doors providing access to the playing surface must swing away from the ice surface. All glass shall be mounted on the boards on the side away from the playing surface. DeFelice Exhibit 16. Additionally, the NCAAs 2013-14 Division I Manual provides, Intercollegiate athletics programs shall be conducted in a manner designed to protect and enhance the physical and educational well-being of student athletes, and it is the responsibility of each member institution to protect the health of, and provide a safe environment for, each of its participating student-athletes. Exhibit 4 to DeFelice Exhibit 9, 2.2, 2.2.3. No glass shielding existed in front of the penalty boxes at the time of this incident. However, foam padding, which was sold and installed by the defendant, Athletica, was affixed to the posts or stanchions. The plaintiffs allege that the inadequate Athletica foam padding fastened to the stanchions constituted a major safety hazard that was not only a foreseeable risk, but a known risk of serious injury to hockey players. The plaintiff was at least the third hockey player in the recent past to suffer injuries as a result of striking the exposed termination stanchions at the end of the penalty box during games hosted by Bentley at the Arena. In December 2013 (two months before the injury in this case), a visiting hockey player was checked into an open penalty box at the Arena and suffered a bruised spleen. In January 2014 (one month before the injury in this case), another visiting hockey player struck his head and sustained a severe concussion due to the same condition. During both of these prior incidents, the defendant DeFelice was the Athletic Director at Bentley. At no time prior to the incident in this case did DeFelice ever institute any policy or procedure within his Athletic Department to require the reporting of any injuries (regardless of severity) sustained during Bentley games, in an effort to review whether the facilities contributed in any way to the injuries. Consequently, no reporting occurred and no remedial measures were undertaken by DeFelice or his staff before the plaintiff was injured in this case. B. Analysis DeFelice does not dispute that Bentley is responsible for complying with NCAA recommendations with respect to the construction of ice rinks and with NCAA rules requiring institutions to conduct their intercollegiate athletic programs in a manner designed to protect and enhance the physical and educational well-being of student athletes, and to protect the health of, and provide a safe environment for, each of its participating student-athletes. He further does not dispute that Bentley is responsible, as the host team, to provide a facility that complies with NCAA regulations. In moving for summary judgment, DeFelice, relying heavily on Lyon v. Morphew, 424 Mass. 828 (1997), argues that he cannot be held individually liable for Bentleys conduct. In Lyon, the court considered, in pertinent part, whether a hospitals director and assistant director of engineering were individually liable for the plaintiffs injuries. Id. at 829-830. There, the plaintiff was working on the roof of a hospital when he fell off the roof; prior to that fall, the hospitals director of engineering had removed the old, worn safety railing from the roof and did not replace it. Id. at 830. In determining whether the plaintiff could hold the director and assistant director of engineering liable for his injuries, the court noted that they could not be held liable merely by virtue of the position they held in the corporation. Id. at 831. Rather, employees are liable for torts in which they personally participated. Id. at 831-832. Given that the director and assistant director were responsible for safety policy and programs in their department,. . . . it could be inferred that they played a role in determining whether the hospital should replace the railing or install an alternative safety device . . . . Id. at 833. On the facts before it, however, the court held that the director and assistant director had no common law or statutory duty to do either because there is no duty to protect lawful visitors from dangers obvious to persons of ordinary intelligence. Id. Further, they were not obliged to supply a place of maximum safety, but only one which would be safe to a person who exercises such minimum care as the circumstances reasonably indicate. Id. The circumstances of Lyon involved performing work on a roof. See id. at 830. The hazardous nature of ascending a roof is readily apparent to a reasonably intelligent person exercising a minimal care for his own safety. Courts have never recognized a common law duty of building owners to place or maintain fall protection safety devices on roofs. Id. at 834 (footnote omitted). Here, the NCAA requires intercollegiate athletic programs to be conducted in a way that protects the physical well-being of the athletes and requires institutions to provide a safe environment for the participating athletes. To that end, the NCAA issued recommendations with respect to, inter alia, the boards and glass in ice rinks. DeFelice does not dispute that, as Athletic Director, he was responsible for determining that the Arena was a safe facility to play Division I hockey games, and that he did not undertake to determine (or delegate to someone else) the Arenas safety because he believed it to be safe. DeFelice Exhibit 9, at 30-32. Where the NCAA has issued recommendations relating to safety and DeFelice does not dispute that he failed to make an affirmative determination as to the Arenas safety, the circumstances are such that the court cannot conclude that, as in Lyon, DeFelice owed no duty of care to the plaintiffs with respect to the safety of the Arena. , See 424 Mass. at 833; cf. Murray v. Hudson, 472 Mass. 376, 382 (2015) (equating duty of care owed to own students to duty owed to students on the visiting team in context of safety of facility). With the affidavit of University of Minnesota Associate Athletic Director Scott Ellison, combined with the NCAA regulations and the admissions of DeFelice, the plaintiffs have evidence to establish the relevant standard of care for university athletic directors, which is easily sufficient to withstand a motion for summary judgment. DeFelices motion for summary judgment is accordingly DENIED. III. ASSIs Motion for Summary Judgment - Successor Liability In Count IV, the plaintiffs seek to impose Athleticas liabilities upon ASSI under the theory of successor liability. ASSI has moved for summary judgment on this count arguing that the plaintiffs will not be able to prove this claim at trial. In order for one corporation to be deemed a successor corporation in the first place, it must be a successor to all, or substantially all, of another corporations assets. Premier Capital, LLC v. KMZ, Inc., 464 Mass. 467, 475 (2013) (citation omitted). Massachusetts follows the traditional corporate law principle that the liabilities of a selling predecessor corporation are not imposed upon the successor corporation which purchases its assets, unless (1) the successor expressly or impliedly assumes liability of the predecessor, (2) the transaction is a de facto merger or consolidation, (3) the successor is a mere continuation of the predecessor, or (4) the transaction is a fraudulent effort to avoid liabilities of the predecessor. Milliken Co. v. Duro Textiles, LLC, 451 Mass. 547, 556 (2008) (citation omitted). In opposing ASSIs summary judgment motion, the plaintiffs specify that they are proceeding under the second and fourth theories, and DeFelice and Bentley contend that the plaintiffs are proceeding under the second and third theories. A. Background David Battel (Battel) and Robert Naegele III (Naegele III) were partners in In-Line Sport Systems, Inc., a business that initially built in-line skating rinks, then began building ice rinks for municipalities. In January 1999, In-Line Sport Systems, Inc., changed its name to Athletica. Robert Naegele, Jr. (Naegele Jr.) is the sole shareholder of Naegele Communications, Inc. (NCI), a holding company that invests in profitable companies, and John Thomas (Thomas) was its president. In January 1999, NCI provided financing in the amount of 2,000,000.00 to Athletica through a revolving line of credit; to secure its loans, NCI took a security interest in Athleticas assets, receivables, intangibles, equipment, furniture, fixtures, and the proceeds and products of the collateral. ASSI Exhibit 37 (Revolving Credit Agreement). NCI increased the credit agreement in October 1999 and again in April 2001, bringing the total amount of credit to 3,975,000.00. ASSI Exhibit 24 (Second Amendment to Revolving Credit Agreement). The April 2001 loan was secured by an aggregate of fifty shares of the capital stock of Athletica that Battel owned, an aggregate of fifty shares of the capital stock of Athletica that Naegele III owned, and the original security agreement, as amended in October 1999. Id. Athletica never made any payments on the NCI loans, and Athleticas financial statements for 1998, 1999, and 2000, reflected losses. ASSI Exhibit 40 (financial statements). In April 2004, NCI created Premier Rinks LLC (Premier). Premiers president and chief executive officer was Ed Van Pelt, and Thomas was its secretary and treasurer. Premiers board of directors consisted of Thomas and Brian Kovalchuk. Premier operated in the commercial ice arena business from 2004 to 2009. NCI defaulted Athletica on April 8, 2004 and, on April 30, 2004, Athletica and NCI entered into a Voluntary Surrender Agreement (Voluntary Surrender Agreement) by which Athletica admitted it was in default to NCI in the amount of 3,975,000.00 plus interest in the amount of 1,028,784.90, and NCI agreed to accept the collateral in full satisfaction of that indebtedness. ASSI Exhibit 18. On that same date, NCI assigned its right, title, and interest in the Voluntary Surrender Agreement to Marquette Holdings, LLC (Marquette), a company that had been formed on April 2, 2004 and of which NCI owned 99 and Naegele Jr. owned 1, Exhibit 19; then Marquette assigned all of those rights to Premier. ASSI Exhibit 20. Also on April 30, 2004, at 10:00 p.m., Athletica and Premier executed the Bill of Sale, Assignment and Assumption Agreement (Athletica-Premier Agreement) pursuant to which Athletica transferred to Premier all of its assets all as the same shall exist on the date of that agreement. Exhibit A to ASSI Exhibit 3, at 1. Premier also assumed Athleticas liabilities and obligations that appeared on the four-page attachment; Premier expressly did not assume any liability or obligation to pay, satisfy, discharge, perform or fulfill any debts, obligations, contracts, leases or liabilities of Athletica not included in the attached list. Exhibit A to ASSI Exhibit 3, at 2. At this time, Battel and Naegele III were Athleticas sole shareholders, officers, and directors; neither of them became shareholders, officers, directors, or employees of Premier. While Premier operated with the acquired assets, Naegele Jr. was on Premiers board of directors along with Thomas, Brian Kovalchuk, and Jim Mahoney. On December 28, 2004, Marquette merged into NCI. ASSI Exhibit 42. Also on this date, Premier changed its name from Premier Rinks LLC to Premier Rinks, Inc. ASSI Exhibit 62. In 2009, Premier formed a new company with Sport Systems Unlimited Corp. (SSU), a Canadian company engaged in manufacturing dasher board systems for ice rinks. Pursuant to an Asset Purchase Agreement executed on April 1, 2009, Premier merged into SSU, NCI became a 49 owner of SSU, and SSU retained 51 ownership. ASSI Exhibit 25 (Asset Purchase Agreement). NCI eventually became the sole owner of SSU. In 2004, Premier had acquired the rights to the Athletica brand name as part of the Athletica-Premier Agreement. The Athletica brand name was one of the assets SSU acquired in April 2009. In 2015, SSU changed its executive management team and changed its name to Athletica Sport Systems, Inc., or ASSI. B. Analysis It is undisputed that a number of transactions occurred on April 30, 2004. First, after Athletica defaulted on its loan from NCI, Athletica surrendered its collateral to NCI under the Voluntary Surrender Agreement. Second, NCI assigned its rights in the Voluntary Surrender Agreement to Marquette. Third, Marquette assigned its rights in the Voluntary Surrender Agreement to Premier. Fourth, Athletica transferred to Premier all of its assets existing on that date pursuant to the Athletica-Premier Agreement. Thereafter, in December 2004, Marquette merged into NCI; in April 2009, Premier merged into SSU and NCI became SSUs 49 owner; and, eventually, NCI became the sole owner of SSU, which changed its name to ASSI in 2015. 1. De Facto Merger or Consolidation and Mere Continuation The de facto merger theory of successor liability has usually been applied to situations in which the ownership, assets and management of one corporation are combined with those of another, preexisting entity. Milliken Co., 451 Mass. at 557 (citation omitted). In determining whether an asset sale is a de facto merger or consolidation, the court may consider whether (1) there is a continuation of the enterprise of the seller corporation so that there is continuity of management, personnel, physical location, assets, and general business operations; whether (2) there is a continuity of shareholders which results from the purchasing corporation paying for the acquired assets with shares of its own stock, this stock ultimately coming to be held by the shareholders of the seller corporation so that they become a constituent part of the purchasing corporation; whether (3) the seller corporation ceases its ordinary business operations, liquidates, and dissolves as soon as legally and practically possible; and whether (4) the purchasing corporation assumes those obligations of the seller ordinarily necessary for the uninterrupted continuation of normal business operations of the seller corporation. Cargill, Inc. v. Beaver Coal Oil, Inc., 424 Mass. 356, 359-360 (1997). Similarly, the mere continuation theory of successor liability envisions a reorganization transforming a single company from one corporate entity into another with the indicators being, at a minimum: continuity of directors, officers, and stockholders; and the continued existence of only one corporation after the sale of assets. Milliken Co., 451 Mass. at 557 (citations omitted). As to both theories, no single factor is dispositive, and the facts of each case must be examined independently. Id. at 558; Cargill, Inc., 424 Mass. at 360 (No single factor is necessary or sufficient to establish a de facto merger.). The plaintiffs argue that, upon acquiring Athleticas assets, Premier continued, without interruption, Athleticas business of installing Crystaplex dasher board systems, and used Athleticas facilities and employees. ASSI does not dispute that, after obtaining Athleticas assets, Premier operated a business similar to Athleticas business, but it alleges that Premier did so using different management and using the name Premier Rinks, Inc., d/b/a Athletica. The summary judgment record reveals an apparent interrelatedness among the individuals involved in NCI, Athletica, Marquette, Premier, and SSU. Additionally, the plaintiffs have demonstrated that they may be able to prove at trial that, after Athleticas default, virtually all of Athleticas employees continued to work for Premier, see ASSI Exhibit 11, at 57-58 (John Thomass deposition), and that ASSIs current vice president of NHL and Product Development, Bruce W. Irving, served as Athleticas Manager of Production from 1999 to 2001. ASSI Exhibit 2, pars. 1, 3. Given this evidence, the court cannot conclude as a matter of law that the plaintiffs will be unable to prove at trial that the April 30, 2004, transaction was a de facto merger or consolidation. 2. Fraudulent Transfer The plaintiffs focus on the timing of NCIs decision in seeking to hold Athletica in default in April 2004 after Athletica had never made any payments to NCI since receiving the loan in 1999. Specifically, the plaintiffs allege that Naegele Jr. and Thomas of NCI were aware that, in February 2004, an arbitration award was entered against Athletica in California for around 1 million. ASSI Exhibit 10, at 61-62; ASSI Exhibit 11, at 34-36. In April 2004, NCI defaulted Athletica for failure to make payments on the loans even though Athletica had never made any payments on the loans since obtaining the loans in 1999 and Athletica had been operating at a loss since 1998. Athletica and NCI entered into the Voluntary Surrender Agreement rather than go through a foreclosure procedure in court which Athleticas arbitration creditor could have challenged. The plaintiffs further allege that, by the time Athletica and Premier executed the Athletica-Premier Agreement at 10:00 p.m. on April 30, 2004, Athletica had no assets to transfer to Premier because Athletica had already transferred all of its assets to NCI under the Voluntary Surrender Agreement, which agreement NCI assigned to Marquette, and which Marquette, in turn, assigned to Premier. Based on these facts, the court cannot conclude as a matter of law that the plaintiffs will be unable to prove at trial that the Voluntary Surrender Agreement and the concomitant transactions were a fraudulent effort to avoid liabilities of Athletica with respect to the February 2004 arbitration award. This issue, too, should be decided by a jury. See Cargill, 424 Mass. at 359. C. Conclusion ASSIs motion for summary judgment on Count IV is therefore DENIED such that the plaintiffs attempt to hold ASSI liable for Athleticas conduct survives. IV. ASSIs Motion for Summary Judgment - Statute of Repose ASSI argues that the statute of repose, G.L. c. 260, 2B, bars the plaintiffs claims against Athletica. The Town joins in this motion, arguing that the statute bars the plaintiffs claims against it as well. Not only the plaintiff, but also defendants DeFelice and Bentley, oppose this motion based upon the existence of material facts in dispute. A. Background Athletica was a manufacturer, distributor and seller of equipment and accessories used in ice arenas. In its services catalog, Athletica described itself as the worlds largest manufacturer of ice and in-line hockey dasher board systems. With its Crystaplex Ice Rink Systems and Border Patrol In-Line Rink Systems, it provided the most comprehensive range of arena facility and maintenance products showcased in this catalog. ASSI Exhibit 52. Crystaplexs dasher board systems were prefabricated but could be customized to any arena. ASSI Exhibit 15, at 1. All prefabricated sections were assembled and inspected in a controlled environment, and pre-assembled to ensure the shield layout and sections are as specified. ASSI Exhibit 15, at 2. Between 1999 and 2001, the Arena underwent renovations. The Town hired DiLullo Associates, Inc. (DiLullo), to serve as architect on the project and to prepare specifications for the renovations. The Town also hired Paul J. Rogan Co., Inc. (Rogan) to serve as general contractor on the project. Rogan subcontracted with Athleticas Crystaplex division to complete the dasher board system (i.e., the system of boards, typically made of metal, that are affixed around the perimeter of a hockey rink). This contract included materials, equipment, labor, services and other items necessary to complete the installation. As part of the installation, Athletical was also required to install safety padding . . . at all corners and where glass terminates. Exhibit A to ASSI Exhibit 2, at 4. In or around November 2000, Crystaplex supplied, delivered and installed the dasher board system at the Arena. In addition, they supplied, delivered and affixed safety foam padding to the termination stanchions at the end of the penalty boxes. Athletica had purchased this padding from a third-party vendor. When Bruckler was injured on February 15, 2014, the Arenas penalty boxes did not have a glass shielding, but the safety foam padding at issue was affixed to the termination stanchions at the end of the penalty box. The parties dispute the details of the manner in which Bruckler sustained his injuries. The plaintiffs assert that while in contact with an opposing player, Bruckler slid along the dasher boards and glass shielding around the perimeter of the rink; when he reached the open penalty box, his face and head impacted the exposed termination stanchion at the end of the penalty box. They allege that the protective padding that Athleticas Crystaplex division installed in the Arena was inadequate to protect hockey players from serious injury. The plaintiffs claim that both the dasher board system and the safety foam padding were defective products, and that the defendant seller/distributor is liable under products liability law, including counts for negligence and breach of warranty of merchantability under G.L. c. 106, 2-318. The defendants, Athletica and ASSI, claim that this case is time-barred because of the statute of repose, G.L. c. 260, 2B. B. Analysis Pursuant to the statute of repose, Actions of tort for damages arising out of any deficiency or neglect in the design, planning, construction or general administration of an improvement to real property . . . shall be commenced only within three years next after the cause of action accrues; provided, however, that in no event shall such actions be commenced more than six years after the earlier of the dates of: (1) the opening of the improvement to use; or (2) substantial completion of the improvement and the taking of possession for occupancy by the owner. G.L. c. 260, 2B. Generally, whether a defendants activities fall within the statute is a question of law. Snow v. Harnischfeger Corp., 12 F.3d 1154, 1158 (1st Cir. 1993). However, when a matter is before the court on a motion for summary judgment, the standard for summary judgment must still be satisfied as to whether or not there are genuine material issues of fact in dispute. ASSI and the Town argue that the plaintiffs claims are untimely under the statute of repose. The plaintiffs, DeFelice, and Bentley counter that the plaintiffs claims arise out of the inadequacies of the padding that Athletica supplied, and that Athletica is a seller of goods under G.L. c. 106, 2-318, rather than a protected actor under the statute of repose. A statute of repose is different, and much harsher, than a statute of limitation While statutes of limitation govern the time in which an action can be brought after a cause of action accrues, a statute of repose provides an absolute bar to recovery based solely on the dates of a defendants conduct, unrelated to when a cause of action accrues. The injury need not have occurred, much less have been discovered. Klein v. Catalano, 386 Mass. 701, 702 (1982) (citations omitted). As a statute of repose, G. L. c. 260, 2B, precludes recovery against those within the protection of the statute for any injury which occurs more than six years after the performance or furnishing of the design, planning, construction, or general administration of an improvement to real property. Simply put, after six years, the statute completely eliminates a cause of action against certain persons in the construction industry. Id. In upholding the constitutionality of the statute of repose in this case, the Supreme Judicial Court has held: We agree that G. L. c. 260, 2B, has the effect of granting immunity from suit only to architects, engineers, contractors, and others involved in the design, planning, construction, or general administration of improvements to real property and of denying that protection to suppliers, owners, tenants, and others in possession or control. Id. at 715 (emphasis added). We hold that G. L. c. 260, 2B, does not violate the equal protection guarantees of the United States and Massachusetts Constitutions although it grants immunity only to architects, engineers, contractors and others involved in the design, planning, construction, or general administration of improvements to real property and denies the same protection to materialmen, owners, tenants and others in possession or control. Id. at 717 (emphasis added). There is generally a two-part analysis under this statute of repose. The first question is whether there is an improvement to real property. The statute does not define improvement, Dighton v. Federal Pacific Electric Co., 399 Mass. 687, 696 (1987) citing Raffel v. Perley, 14 Mass. App. Ct. 242, 243 (1982), and the legislative history of G. L. c. 260, 2B, does not indicate precisely what the Legislature meant the term to encompass. Milligan v. Tibbetts Engg Corp. 391 Mass. 364, 366 (1984). Dighton v. Federal Pacific Electric Co., 399 Mass. 687, 696 (1987). Therefore, the interpretation has been developed by case law since the statute of repose went into effect. The second question is whether the conduct of a defendant is considered protected activity within the statute. For this analysis, the Legislature, by enacting 2B, meant to protect providers of individual expertise in the business of designing, planning, constructing, and administering improvements to real estate. We reiterate that 2B was intended not to apply to mere suppliers of standardized products, but only to the kinds of economic actors who perform acts of individual expertise akin to those commonly thought to be performed by architects and contractors -- that is to say, to parties who render particularized services for the design and construction of particular improvements to particular pieces of real property. Dighton, 399 Mass. at 696. Just as there is considerable legitimate debate concerning what constitutes an improvement to real property, there is also a wide range of results concerning what is considered to be individual expertise within the scope of this statute of repose and what is not. Cases that have applied the statute of repose to bar claims as untimely include: v Fine v. Huygens, DiMella, Shaffer Assoc., 57 Mass. App. Ct. 397 (2003) (installation of component wall systems was protected); v Rosario v. M.D. Knowlton Co., 54 Mass. App. Ct. 796 (2002) (a custom-made material hydraulic lift designed and manufactured by defendant fell under the statute of repose); v McDonough v. Marr Scaffolding Co., 412 Mass. 636 (1992) (contractor who performed particularized construction services in assembling and installing bleachers at a skating rink was protected); v Sullivan v. Iantosca, 409 Mass. 796 (1991) (construction of a house on improper foundation material was a protected act); v Conley v. Scott Products, Inc., 401 Mass. 645 (1988) (installation of foam insulation was a protected act); v Salinsky v. Perma-Home Corp., 15 Mass. App. Ct. 193, 198-199 (1983) (contractors installation of siding was a protected act); v Klein v. Catalano, 386 Mass. 701, 702 (1982) (design of glass door at M.I.T. by architect is protected act) On the other hand, cases that have found the actions or products to fall outside the statute of repose - and were therefore allowed to proceed beyond the time limitation contained in the statute of repose - include: v Colomba v. Fulchini Plumbing, 58 Mass. App. Ct. 901 (2003) (installation of a new boiler was not a protected act); v Fine, 57 Mass. App. Ct. 397 (2003) (installation of windows did not fall under the statute of repose, even with sill receptors that were custom made); v Dighton, 399 Mass. 687 (1987) (acts of designing, manufacturing, and supplying a circuit breaker panel that became an integral part of a building did not constitute the design, planning, construction or general administration of an improvement to real property). In addition to these cases which made determinations of whether the statute of repose applied or not, on the same date that the Klein case was decided, the SJC remanded another case in which some but not all defendants were properly dismissed for further factual determinations: In addition, from the record, it is not clear whether Boston Steel Fabricators, Inc., and Standard International Corp. were materialmen, whether they rendered architectural or engineering services for the construction of the building during 1961 and 1962, or whether they furnished both supplies and engineering or architectural services. To the extent that these defendants are materialmen, they are not within the protection of G.L.c. 260, 2B. We remand this matter to the Superior Court for further proceedings. Kings Dept Stores v. Poley-Abrams Corporation, 386 Mass. 1008, 1009 (1982). The central question under the cases becomes whether a defendant is best described as a distributor/materialman/supplier of goods, governed by G. L. c. 106, 2-318, or an actor with individual expertise (providers of individual expertise in the business of designing, planning, constructing, and administering improvements to real estate) whose conduct is protected by G.L. c. 260 2B. It is significant whether the product/improvement is custom-made to precise specifications or off the shelf. Rosario, 54 Mass. App. Ct. at 801. Section 2B was intended not to apply to mere suppliers of standardized products . . . . Dighton, 399 Mass. at 696. Massachusetts has not limited products liability actions with a statute of repose. Cosme v. Whitin Machine Works, Inc., 417 Mass. 643, 648 (1994). Even where a mass produced good is produced to order and cut to fit the needs of a particular project, that is not sufficient to bring a supplier within the purview of G.L. c. 260, 2B. Fine, 57 Mass. App. Ct. at 401. 1. Athletica The plaintiffs contend that Athletica was essentially a supplier and/or manufacturer that supplied and installed the protective padding as well as the dasher board system, which were both mass-produced products with universal application. See, e.g., Klein, 386 Mass. at 716 (contrasting suppliers and manufacturers, who typically supply and produce components in large quantities, make standard goods and develop standard processes enabling them to maintain high quality control standards in the controlled environment of the factory and the architect or contractor who can pre-test and standardize construction designs and plans only in a limited fashion and whose inspection, supervision and observation of construction . . . . involves individual expertise not susceptible to the quality control standards of the factory); Fine, 57 Mass. App. Ct. at 402-403 (Suppliers of building components have been determined to be protected actors entitled to protection by the repose provision of 2B only where the role of supplier was incidental and the actors primary function was to provide individual expertise and particularized services relating to design and construction.). Here, in the light most favorable to the non-moving parties, the foam padding was shipped and sold to the Town of Watertown and Paul J. Rogan Company by the defendant, Athletica, for use at the Arena. It had been purchased by Athletica from a third-party vendor, and then Athletica re-sold the padding to the Town and the contractor for use at the Arena. At no time did Athletica design, engineer or manufacture the foam padding to any precise specifications provided by the Town or contractor. Indeed, as DeFelice and Bentley point out, while the architects specifications provide that safety padding shall be installed at all corners and where the glass terminates, there are no specifications for the padding, nor any indication as to the size, shape, thickness, manufacture, supply or installation of the padding. No one knows who manufactured, designed, inspected or tested the padding, and so there is nothing to indicate that this is an act of individual expertise of anyone. Athletica inventoried the foam padding at its facilities to sell to any customer, and subsequently sold and shipped padding to the Arena, then affixed it to exposed termination stanchions around the perimeter of the ring. ASSI has admitted that the foam padding is a standard product offering in discovery for this case. SOF 36 - 38. It is not the installation, as such, which the plaintiffs contend was negligent (for example, the plaintiff does not contend that the Velcro attachment slipped and allowed the foam padding to become dislodged), but rather the thickness and material composition of the foam padding which is the focus of the plaintiffs allegations in this regard. The plaintiffs claims, at their essence, appear to be directed at Athletica in its capacity as a supplier of building components. Suppliers of building components have been determined to be protected actors entitled to protection by the repose provision of 2B only where the role of supplier was incidental and the actors primary function was to provide individual expertise and particularized services relating to design and construction. Fine, 57 Mass. App. Ct. at 402-403. Taken in that light, this is much more similar to a product liability case than to a negligent design or construction case, as it relates to the claims against Athletica. The safety foam padding sold, supplied and installed by Athletica appears to constitute, in the light most favorable to the non-moving parties, a fungible commodity which can be purchased from a number of different manufacturers and later affixed to the exposed termination stanchions of any dasher board system at any rink. The plaintiffs have also submitted evidence that dasher board systems themselves are not only sold new, by make and model, but are also sold in used condition as a fungible commodity that can be re-installed at any ice arena, hockey rink or similar facility (SOF 39 - 42). It is interesting to note that defendants DeFelice and Bentley support the plaintiffs position with respect to denying the motion for summary judgment as to ASSI: ASSIs Motion for Summary Judgment must be denied on the grounds that the supply and installation of standardized, mass-produced items such as dasher boards, glass and padding are not acts of individual expertise of an architect, engineer and/or design professional for which the Massachusetts Statute of Repose, M.G.L. G. L. c. 260, 2B, provides protection. See Dighton v. Federal Pacific Electric Company, 399 Mass. 687, 698 (1987) (emphasis added). Thus, the defendants who ran the Division One hockey team and were responsible for the safety of the rink agree with the plaintiffs that the dasher boards and safety foam padding were standardized, mass-produced items which are governed by products liability law rather than the statute of repose. Taken in the light most favorable to the multiple non-moving parties, the non-moving parties have produced evidence in opposing the motion for summary judgment sufficient to create genuine issues of material facts in dispute, including but not limited to: 1. whether the foam padding and/or dasher board systems were custom-designed, engineered and fabricated for the Arena with individual expertise and particularized services relating to design and construction; 2. whether the foam padding and/or dasher board systems were a permanent structure or a fungible commodity which could be removed or installed with velcro; 3. whether the foam padding and/or dasher board systems could be dismantled and re-sold to others as a fungible commodity; 4. whether the product that was installed was considered to be mass-produced and off the shelf; and 5. whether the defendant Athletica acted primarily as a supplier of a mass-produced product. Therefore, because there are genuine issues of material facts in dispute, and because the court does not conclude as a matter of law that the actions of Athletica in this case fall within the statute of repose, G.L. c. 260, 2B, Athletica and ASSIs motion for summary judgment is DENIED. 2. The Town In moving for summary judgment, the Town argues that it is also entitled to the protection of G.L. c. 260, 2B. For the reasons set forth above, this court cannot conclude as a matter of law, based on this record, that the actions at issue constitute an improvement to real property. Even if the affixing of these products to the Arena were found to be an improvement to real property, the Town as owner of the Arena would only be entitled to this protection if it participated in the design or construction of the improvement . . . . Sonin v. Massachusetts Turnpike Auth., 61 Mass. App. Ct. 287, 290 (2004); see Klein, 386 Mass. at 715 (holding that G.L. c. 260, 2B, denies protection to suppliers, owners, tenants, and others in possession or control) (emphasis added). Although the Town hired DiLullo as the architect and Rogan as the general contractor, the Town has not demonstrated that it participated in the Arenas design or construction of the dasher board system or foam padding. See, e.g., Milligan, 391 Mass. at 365, 368 (holding statute of repose barred plaintiffs claim for negligent design of road construction against engineering firm in case where plaintiff also brought claim for negligent maintenance of road against city). The Towns motion for summary judgment on the basis that G.L. c. 260, 2B, bars the plaintiffs claims against it is accordingly DENIED. ORDER For the foregoing reasons, each of the motions for summary judgment is DENIED. Valerie A. Yarashus Justice of the Superior Court DATED: January Judge: Yarashus, Hon. Valerie A Dated: 1/3/19 Entered and copies sent 1/3/19

Opposition to Defendant Athletica Sport Systems, Inc.s Motion For Summary Judgment (Paper 18 case No. 17cv231) and Incorporated Memorandum of Law filed by Robert DeFelice, in his capacity as Athletic Director Of Bentley University, Bentey University(Limited Opposition)

Defendant, Plaintiff in a 3rd Party Claim Town of Watertowns Notice of Joining Athletica Sport Systems, Inc.s Motion For Summary Judgment (see Paper 18 on case 1781CV231)

Affidavit of compliance with Superior Court Rule 9A Applies To: McGough, Esq., David W (Attorney) on behalf of Robert DeFelice, in his capacity as Athletic Director Of Bentley University (Defendant)

Defendant Robert DeFelice, in his capacity as Athletic Director Of Bentley Universitys Statement of Material Facts, Plaintiffs Responses and Statement of Additional Facts

Opposition to Defendant Robert DeFelices Motion For Summary Judgment on Towns Cross-Claims filed by Town of Watertown

Joseph Bruckler, Carolyn Bruckler, Peter Brucklers Memorandum in opposition to the Motion of the Defendant, Robert DeFelice, For Summary Judgment

Opposition to To The Motion of the Defendant, Robert DeFelice, For Summary Judgment filed by Joseph Bruckler, Carolyn Bruckler, Peter Bruckler

Robert DeFelice, in his capacity as Athletic Director Of Bentley Universitys Memorandum in support of Motion For Summary Judgment of the Defendant Robert DeFelice, In His Capacity as Athletic Director of Bentley University

Defendant Robert DeFelice, in his capacity as Athletic Director Of Bentley Universitys Motion for summary judgment, MRCP 56

Endorsement on Motion to Extend Time For Filing the Motion of the Defendant, Robert DeFelice, For Summary Judgment and Opposition (35.0): ALLOWED (Dated: 10/4/18) notice sent 10/5/18 Judge: Henry, Hon. Bruce R

Endorsement on Motion to Extend Deadline For Filing Superior Court Rule 9A Package Relating to Defendants Motions For Summary Judgment (34.0): ALLOWED (Dated: 10/3/18) notice sent 10/5/18 Judge: Henry, Hon. Bruce R

Joseph Bruckler, Carolyn Bruckler, Peter Brucklers Memorandum in opposition to the motion of the defendant, Town of Watertown, for summary judgment Applies To: Donahue, Jr., Esq., Roger J (Attorney) on behalf of Bruckler, Joseph (Plaintiff)

Plaintiff, Defendant Joseph Bruckler, Carolyn Bruckler, Peter Brucklers Assented to Motion of The Plaintiffs To Extend Time For Filing The Motion Of The Defendant, Robert Defelice, For Summary Judgment And Opposition

Opposition to the motion of the defendant, Town of Watertown, for summary judgment filed by Applies To: Donahue, Jr., Esq., Roger J (Attorney) on behalf of Bruckler, Joseph (Plaintiff)

Plaintiffs, Defendants Joseph Bruckler, Carolyn Bruckler, Peter Bruckler, Robert DeFelice, in his capacity as Athletic Director Of Bentley University, Town of Watertowns EMERGENCY Joint Motion to Extend deadline for filing Superior Court Rule 9A Package relating to Defendants Motions for Summary Judgment Applies To: Robert DeFelice, in his capacity as Athletic Director Of Bentley University (Defendant); Bentey University (Defendant)

Endorsement on Motion to Extend Tracking Order (Partially Assented To) (33.0): ALLOWED (Dated: 5/11/18) notice sent 5/14/18 Judge: Leibensperger, Hon. Edward P

Plaintiff, Defendant Joseph Bruckler, Carolyn Bruckler, Peter Bruckler, Robert DeFelice, in his capacity as Athletic Director Of Bentley University, Robert DeFelice, in his capacity as Athletic Director Of Bentley Universitys Assented to Motion to Extend Tracking Order

Affidavit of compliance with Superior Court Rule 9A Applies To: Bruckler, Joseph (Plaintiff); Bruckler, Carolyn (Plaintiff); Bruckler, Peter (Plaintiff); Robert DeFelice, in his capacity as Athletic Director Of Bentley University (Defendant); Robert M DeGregorio, in his capacity as, Jr. Commissioner of The Atlantic Hockey Association (Defendant)

General correspondence regarding Letter received from Plaintiffs attorney withdrawing the Motion of the Plaintiffs to Further Amend Complaint Against Athletica Defendants without prejudice.

Endorsement on Motion of Plaintiff to Continue Hearing (31.0): ALLOWED Motion is allowed after receiving no opposition. (Dated: 10/3/17) notice sent 10/3/17

Affidavit of compliance with Superior Court Rule 9A Applies To: Donahue, Jr., Esq., Roger J (Attorney) on behalf of Bruckler, Carolyn, Bruckler, Joseph, Bruckler, Peter (Plaintiff)

General correspondence regarding Defendant Athletica Sport Systems, Inc.s OPPOSITION to plaintiffs motion to further amend complaint (re: 30)

Joseph Bruckler, Carolyn Bruckler, Peter Brucklers Memorandum in support of their motion to amend

Plaintiffs Joseph Bruckler, Carolyn Bruckler, Peter Brucklers Motion to amend the amended complaint Complaint pending against the Athletica defendants

Endorsement on Motion to extend time for Service of Amended Complaint (29.1): ALLOWED Allowed seeing no opposition. (Dated: 5/8/17) notice sent 5/9/17

Endorsement on Motion of the plaintiffs to consolidate (28.0): ALLOWED After hearing. Bruckler vs. Athletica, Inc., 17-231 is consolidated with this case. Plaintiffs counsel shall provide a copy of all depositions taken in 15-5851 to counsel for defendant in 17-731 within the next three weeks. The court will conduct a Rule 16 Conference on 5/2/17 at 2pm in the consolidated case to set an efficient schedule a for completing discovery and for resolution of the dispute.

Affidavit of compliance with Superior Court Rule 9A Applies To: Donahue, Jr., Esq., Roger J (Attorney) on behalf of Bruckler, Joseph (Plaintiff)

Opposition to Plaintiffs Motion to Consolidate filed by Applies To: Town of Watertown (Defendant)

Joseph Bruckler, Carolyn Bruckler, Peter Brucklers Memorandum in support of Motion to Consolidate

Plaintiffs Joseph Bruckler, Carolyn Bruckler, Peter Brucklers Motion to Consolidate

Affidavit of compliance with Superior Court Rule 9A Applies To: Donahue, Jr., Esq., Roger J (Attorney) on behalf of Bruckler, Joseph (Plaintiff)

Plaintiff Joseph Bruckler, Carolyn Bruckler, Peter Brucklers Motion to amend the Scheduling Order

Service Returned for Third-Party Defendant Bentey University: Service accepted by counsel; Thomas M. Franco

Received from Defendant Town of Watertown: Answer to the Crossclaim;

Service Returned for Defendant Town of Watertown: Service accepted by counsel;

Amended: Second amended complaint filed by Joseph Bruckler

ORDER: SCHEDULING ORDER The case came before me today for a Rule 16 conference following a ruling by me extending non-expert discovery to the end of November, 2016. Plaintiffs indicated an intention to serve and file a motion to amend their complaint to name third-party defendant Town of Watertown as a defendant. After consultation with counsel, it is hereby ORDERED as follows: Any motion to amend shall be served and filed promptly. The Court shall consider the motion to amend when received and will likely act on the papers pursuant to Superior Court Rule 9A. Plaintiffs shall make their expert disclosures by January 16, 2017. Defendants shall make their expert disclosures by February 16, 2017. Any Rule 56 motion shall be served by March 15, 2017 and filed in compliance with Superior Court Rule 9A(b)(5) by April 14, 2017. The Court shall conduct a Final Pretrial Conference on May 16, 2017 at 2 PM. If a Rule 56 motion is filed, it shall be heard at the time set for, and in addition to, the Final Pretrial Conference. Dated: August 15, 2016 Peter B. Krupp Justice of the Superior Court Entered and copies sent 8/22/16

Party(s) file Stipulation of Dismissal without prejudice, without costs. Applies To: Robert M DeGregorio, in his capacity as, Jr. Commissioner of The Atlantic Hockey Association (Defendant)

Service Returned for Defendant Bentey University: Service accepted by counsel; Fourth Party Summons 3/9/16

Service Returned for Third-Party Defendant Town of Watertown: Service made in hand to John Flynn, agent, 149 Main Street, Watertown, MA 02472

Service Returned for Defendant Robert M DeGregorio, in his capacity as, Jr. Commissioner of The Atlantic Hockey Association: Service through person in charge / agent; on 10/28/15

Service Returned for Defendant Robert DeFelice, in his capacity as Athletic Director Of Bentley University: Service made in hand to Deanna Chiampi, agent, 175 Forest Street, Waltham, MA

Original civil complaint filed.