ALYSSIA MARIBEL BENEJAM,
DETROIT TIGERS, INC.
July 10, 2001
LC No. 96-618356-NI
Michigan Court of Appeals
Before: Bandstra, C.J., and Zahra and Meter, JJ.
Plaintiff Alyssia, a young girl, attended a Tigers game with a friend and members of the friend’s family and was seated quite close to the playing field along the third baseline. The stadium was equipped with a net behind home plate which extended part of the way down the first and third baselines. Although Alyssia was behind the net, she was injured when a player’s bat broke and a fragment of it curved around the net. There was no evidence, and plaintiffs do not contend, that the fragment of the bat went through the net, that there was a hole in the net, or that the net was otherwise defective.
Plaintiffs sued the Tigers claiming primarily that the net was insufficiently long and that warnings about the possibility of projectiles leaving the field were inadequate. The Tigers responded with motions before, during and after trial arguing that, as a matter of law, plaintiffs could not or did not present any viable legal claim. Those motions were all denied by the trial court. Alyssia suffered crushed fingers as a result of the accident and the jury awarded plaintiffs noneconomic damages (past and future) totaling $917,000, lost earning capacity of $56,700 and $35,000 for past and future medical expenses. Damages are not at issue on appeal.
Plaintiffs also sued the maker of the bat, Hillerich and Bradsby, but settled that claim before trial.
STANDARD OF REVIEW
Defendant’s arguments concern the duty of care and duty to warn applicable in this case. Questions regarding the nature and extent of a tortfeasor’s duty are issues of law subject to de novo review. Groncki v Detroit Edison Co, 453 Mich 644, 649; 557 NW2d 289 (1996).
STANDARD OF CARE/ PROTECTIVE SCREENING
Defendant argues that although there is no Michigan law directly on point, other jurisdictions have balanced the safety benefits of providing a protective screen against the fact that such screening detracts from the allure of attending a live baseball game by placing an obstacle or insulation between fans and the playing field. The rule that emerges in these cases is that a stadium proprietor cannot be liable for spectator injuries if it has satisfied a "limited duty" – to erect a screen that will protect the most dangerous area of the spectator stands, behind home plate, and to provide a number of seats in this area sufficient to meet the ordinary demand for protected seats. In this case, there is no dispute that the Tigers constructed a protective screen behind home plate, and there was no evidence that the screen was insufficient to meet the ordinary demand for protected seating. Defendant argues the circuit court erred in failing to recognize the limited duty doctrine and in denying the Tigers’ motions for summary disposition, directed verdict, and judgment notwithstanding the verdict on the basis of that doctrine.
Plaintiffs argue against application of the limited duty doctrine and contend that, under usual principles of premises liability, the circuit court correctly concluded that a jury question was presented. Defendant (an invitor) had a duty to exercise ordinary care and prudence and maintain premises reasonably safe for invitees like Alyssia. Plaintiffs argue that the jury verdict was supported by sufficient evidence that the defendant failed to fulfill this duty because it did not provide a screen extending long enough along the third (and first) baselines.
There is no Michigan case law directly on point. Our review of precedents from other jurisdictions finds overwhelming, if not universal, support for the limited duty rule that defendant advocates. See... Swagger v City of Crystal, 379 NW2d 183, 185 (Minn App, 1986); Rudnick v Golden West Broadcasters, 156 Cal App 3d 793, 796; 202 Cal Rptr 900 (1984)...
The logic of these precedents is that there is an inherent risk of objects leaving the playing field that people know about when they attend baseball games. See, e.g., Swagger, supra at 185 ("[n]o one of ordinary intelligence could see many innings of the ordinary league [baseball] game without coming to a full realization that batters cannot and do not control the direction of the ball"), quoting Brisson v Minneapolis Baseball & Athletic Ass’n, 185 Minn 507, 509-510; 240 NW 903, 904 (1932). Also, there is inherent value in having most seats unprotected by a screen because baseball patrons generally want to be involved with the game in an intimate way and are even hoping that they will come in contact with some projectile from the field (in the form of a souvenir baseball)... In other words, spectators know about the risk of being in the stands and, in fact, welcome that risk to a certain extent. On the other hand, the area behind home plate is especially dangerous and spectators who want protected seats should be able to find them in this area. Balancing all of these concerns, courts generally have adopted the limited duty doctrine that prevents liability if there are a sufficient number of protected seats behind home plate to meet the ordinary demand for that kind of seating. If that seating is provided, the baseball stadium owner has fulfilled its duty and there can be no liability for spectators who are injured by a projectile from the field...
It seems axiomatic that baseball fans attend games knowing that, as a natural result of play, objects may leave the field with the potential of causing injury in the stands. It is equally clear that most spectators, nonetheless, prefer to be as "close to the play" as possible, without an insulating and obstructive screen between them and action. In contrast, a smaller number of spectators prefer the protection offered by screening. The most dangerous part of the spectator stands is the area in the lower deck behind home plate and along each of the baselines. Certainly home plate is the center of the most activity on the field. Most notably, it is there that pitched balls, traveling at great speeds in a line that would extend into the stands, are often deflected or squarely hit into those stands. Quite logically, the limited duty rule protects a stadium owner that provides screening for this most dangerous area and, in so doing, accommodates baseball patrons who seek protected seating. Because the limited duty rule is based on the desires of spectators, it further makes sense to define the extent of screening that should be provided behind home plate on the basis of consumer demand.
Plaintiffs do nothing to argue substantively against the limited duty rule, but merely argue that baseball stadium cases should be governed by usual invitor-invitee principles, not any special "baseball rule." Thus, plaintiffs argue that the jury properly determined that defendant failed to exercise "ordinary care" and failed to provide "reasonably safe" premises. However, the limited duty rule does not ignore or abrogate usual premises liability principles. Instead, it identifies the duty of baseball stadium proprietors with greater specificity than the usual "ordinary care/reasonably safe" standard provides... Applying the limited duty rule here, we conclude that plaintiffs have failed to provide any proof sufficient to find that liability could be imposed. Clearly, there was a screen behind home plate and there was no proof whatsoever that persons wanting seats protected by the screen could not be accommodated. To the contrary, uncontested testimony by Tigers ticket personnel established that protected seating is generally open and available to fans who want it. Accordingly, we conclude that the screening provided by defendant was sufficient under the limited duty doctrine applicable in this case.
DUTY TO WARN
Plaintiffs also argue that defendant failed to provide an adequate warning regarding the possibility that some object might come flying off of the field and cause injury in the stands. However, we conclude that defendant did not have any duty to warn regarding this well-known risk...
Having concluded that, under the facts of this case, defendant did not breach any duty to provide screening and was under no duty to provide a warning to plaintiffs regarding the risk of injury from objects leaving the field, we reverse the jury verdict and remand this matter for entry of an order finding no cause of action against defendant. We need not consider other arguments advanced by defendant in support of that result.
We reverse and remand. We do not retain jurisdiction.
/s/ Richard A. Bandstra
/s/ Brian K. Zahra
/s/ Patrick M. Meter
Julian Claudio Nabozny, a Minor, by His Father and Next Friend, Edward J. Nabozny, Plaintiff-Appellant, v. David Barnhill, Defendant-Appellee
Appellate Court of Illinois, First District, Fourth Division
July 23, 1975, Filed
JUDGES: Mr. JUSTICE ADESKO delivered the opinion of the court. DIERINGER, P. J.,and JOHNSON, J., concur.
OPINION: Plaintiff, Julian Claudio Nabozny, a minor, by Edward J. Nabozny, his father, commenced this action to recover damages for personal injuries allegedly caused by the negligence of defendant, David Barnhill. Trial was before a jury. At the close of plaintiff's case on motion of defendant, the trial court directed a verdict in favor of the defendant. Plaintiff appeals from the order granting the motion.
Plaintiff contends on appeal that the trial judge erred in granting defendant's motion for a directed verdict and that plaintiff's actions as a participant do not prohibit the establishment of a prima facie case of negligence. Defendant argues in support of the trial court's ruling that defendant was free from negligence as a matter of law (lacking a duty to plaintiff) and that plaintiff was contributorily negligent as a matter of law…
A soccer match began between two amateur teams at Duke Child's Field in Winnetka, Illinois. Plaintiff was playing the position of goalkeeper for the Hansa team. Defendant was playing the position of forward for the Winnetka team. Members of both teams were of high-school age. Approximately 20 minutes after play had begun, a Winnetka player kicked the ball over the midfield line. Two players, Jim Gallos (for Hansa) and the defendant (for Winnetka) chased the free ball. Gallos reached the ball first. Since he was closely pursued by the defendant, Gallos passed the ball to the plaintiff, the Hansa goalkeeper. Gallos then turned away and prepared to receive a pass from the plaintiff. The plaintiff, in the meantime, went down on his left knee, received the pass, and pulled the ball to his chest. The defendant did not turn away when Gallos did, but continued to run in the direction of the plaintiff and kicked the left side of plaintiff's head causing plaintiff severe injuries.
All of the occurrence witnesses agreed that the defendant had time to avoid contact with plaintiff and that the plaintiff remained at all times within the "penalty area," a rectangular area between the 18th yard line and the goal. Four witnesses testified that they saw plaintiff in a crouched position on his left knee inside the penalty zone. Plaintiff testified that he actually had possession of the ball when he was struck by defendant. One witness, Marie Shekem, stated that plaintiff had the ball when he was kicked. All other occurrence witnesses stated that they thought plaintiff was in possession of the ball.
Plaintiff called three expert witnesses. Julius Roth, coach of the Hansa team, testified that the game in question was being played under "F.I.F.A." rules. The three experts agreed that those rules prohibited all players from making contact with the goalkeeper when he is in possession of the ball in the penalty area. Possession is defined in the Chicago area as referring to the goalkeeper having his hands on the ball. Under "F.I.F.A." rules, any contact with a goalkeeper in possession in the penalty area is an infraction of the rules, even if such contact is unintentional. The goalkeeper is the only member of a team who is allowed to touch a ball in play so long as he remains in the penalty area. The only legal contact permitted in soccer is shoulder to shoulder contact between players going for a ball within playing distance. The three experts agreed that the contact in question in this case should not have occurred. Additionally, goalkeeper head injuries are extremely rare in soccer. As a result of being struck, plaintiff suffered permanent damage to his skull and brain.
The initial question presented by this appeal is whether, under the facts in evidence, such a relationship existed between the parties that the court will impose a legal duty upon one for the benefit of the other. "[M]ore simply, whether the interest of the plaintiff which has suffered invasion was entitled to legal protection at the hands of the defendant." Prosser, Law of Torts § 37, at 206 (4th ed. 1971).
There is a dearth of case law involving organized athletic competition wherein one of the participants is charged with negligence. There [***5] are no such Illinois cases. A number of other jurisdictions prohibit recovery generally for reasons of public policy. (Eg., Gaspard v. Grain Dealers Mutual [*215] Insurance Co. (La. App. 1961), 131 So. 2d 831.) We can find no American cases dealing with the game of soccer.
This court believes that the law should not place unreasonable burdens on the free and vigorous participation in sports by our youth. However, we also believe that organized, athletic competition does not exist in a vacuum. Rather, some of the restraints of civilization must accompany every athlete on to the playing field. One of the educational benefits of organized athletic competition to our youth is the development of discipline and self-control.
Individual sports are advanced and competition enhanced by a comprehensive set of rules. Some rules secure the better playing of the game as a test of skill. Other rules are primarily designed to protect participants from serious injury. Restatement (Second) of Torts § 50, comment b (4th ed. 1971).
For these reasons, this court believes that when athletes are engaged in an athletic competition; all teams involved are trained and coached by knowledgeable personnel; a recognized set of rules governs the conduct of the competition; and a safety rule is contained therein which is primarily designed to protect players from serious injury, a player is then charged with a legal duty to every other player on the field to refrain from conduct proscribed by a safety rule. A reckless disregard for the safety of other players cannot be excused. To engage in such conduct is to create an intolerable and unreasonable risk of serious injury to other participants. We have carefully drawn the rule announced herein in order to control a new field of personal injury litigation. Under the facts presented in the case at bar, we find such a duty clearly arose. Plaintiff was entitled to legal protection at the hands of the defendant. The defendant contends he is immune from tort action for any injury to another player that happens during the course of a game, to which theory we do not subscribe.
It is our opinion that a player is liable for injury in a tort action if his conduct is such that it is either deliberate, wilful or with a reckless disregard for the safety of the other player so as to cause injury to that player, the same being a question of fact to be decided by a jury.
Defendant also asserts that plaintiff was contributorily negligent as a matter of law, and, therefore, the trial court's direction of a verdict in defendant's favor was correct. We do not agree. The evidence presented tended to show that plaintiff was in the exercise of ordinary care for his own safety. While playing his position, he remained in the penalty area and took possession of the ball in a proper manner. Plaintiff had no reason to know of the danger created by defendant. Without this knowledge, it cannot be said that plaintiff unreasonably exposed himself to such danger or failed to discover or appreciate the risk. The facts in evidence revealed that the play in question was of a kind commonly executed in this sport. Frank Longo, one of plaintiff's expert witnesses, testified that once the goalkeeper gets possession of the ball in the penalty area, "the instinct should be there [in an opposing player pursuing the ball] through training and knowledge of the rules to avoid contact [with the goalkeeper]." All of plaintiff's expert witnesses agreed that a player charging an opposition goaltender, under circumstances similar to those which existed during the play in question, should be able to avoid all contact. Furthermore, it is a violation of the rules for a player simply to kick at the ball when a goalkeeper has possession in the penalty area even if no contact is made with the goalkeeper.
Using the standard set out in Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504, for determining both freedom from negligence and contributory negligence as matters of law, we conclude that the trial court erred in directing a verdict in favor of defendant. It is a fact question for the jury.
This cause, therefore, is reversed and remanded to the Circuit Court of Cook County for a new trial consistent with the views expressed in this opinion.
Reversed and remanded.
DALE HACKBART, Plaintiff, v. CINCINNATI BENGALS, INC. and CHARLES "BOOBY" CLARK, Defendants
Civil Action No. 75 M 437
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
435 F. Supp. 352; 1977 U.S. Dist. LEXIS 14408
August 18, 1977
JUDGES: Matsch, Judge.
OPINION: [*353] FINDINGS, CONCLUSIONS AND ORDER
The incident which gave rise to this lawsuit occurred near the end of the first half of the game at a time when the Denver [Broncos football] team was leading by a score of 21 to 3. Dale Hackbart was playing a free safety position on the Broncos' defensive team and Charles Clark was playing fullback on the [Cincinnati] Bengals' offensive team. The Cincinnati team attempted a forward pass play during which Charles Clark ran into a corner of the north end zone as a prospective receiver. That took him into an area which was the defensive responsibility of Mr. Hackbart. The thrown pass was intercepted near the goal line by a Denver linebacker who then began to run the ball upfield. The interception reversed the offensive and defensive roles of the two teams. As a result of an attempt to block Charles Clark in the end zone, Dale Hackbart fell to the ground. He then turned and, with one knee on the ground and the other leg extended, watched the play continue upfield. Acting out of anger and frustration, but without a specific intent to injure, Charles Clark stepped forward and struck a blow with his right forearm to the back of the kneeling plaintiff's head with sufficient force to cause both players to fall forward to the ground. Both players arose and, without comment, went to their respective teams along the sidelines. They both returned to play during the second half of the game.
Because no official observed it, no foul was called on the disputed play and Dale Hackbart made no report of this incident to his coaches or to anyone else during the game. Mr. Hackbart experienced pain and soreness to the extent that he was unable to play golf as he had planned on the day after the game. He did not seek any medical attention and, although he continued to feel pain, he played on specialty team assignments for the Denver Broncos in games against the Chicago Bears and the San Francisco Forty-Niners on successive Sundays. The Denver Broncos then released Mr. Hackbart on waivers and he was not claimed by any other team. After losing his employment, Mr. Hackbart sought medical assistance, at which time it was discovered that he had a neck injury. When that information was given to the Denver Broncos Football Club, Mr. Hackbart received his full payment for the 1973 season pursuant to an injury clause in his contract...
Plaintiff's Theories of Liability
This case is controlled by the law of Colorado. While a theory of intentional misconduct is barred by the applicable statute of limitations, the plaintiff contends that Charles Clark's foul was so far outside of the rules of play and accepted practices of professional football that it should be characterized as reckless misconduct within the principles of Section 500 of the Restatement of Torts, 2d. A reckless disregard for the safety of a goalkeeper in a schoolboy soccer game was the basis for recovery in Nabozny v. Barnhill, 31 Ill. App. 3rd 212, 334 N.E.2d 258 (1975).
Alternatively, the plaintiff claims that his injury was at least the result of a negligent act by the defendant. The difference in these contentions is but a difference in degree. Both theories are dependent upon a definition of a duty to the plaintiff and an objective standard of conduct based upon the hypothetical reasonably prudent person. Thus, the question is what would a reasonably prudent professional football player be expected to do under the circumstances confronting Charles Clark in this incident?
Two coaches testified at the trial of this case. Paul Brown has had 40 years of experience at all levels of organized football, with 20 years of coaching professional football. Both Mr. Brown and Mr. Ralston emphasized that the coaching and instructing of professional football players did not include any training with respect to a responsibility or even any regard for the safety of opposing players. They both said that aggressiveness was the primary attribute which they sought in the selection of players. Both emphasized the importance of emotional preparation of the teams. Mr. Brown said that flare-up fighting often occurred, even in practice sessions of his teams.
It is wholly incongruous to talk about a professional football player's duty of care for the safety of opposing players when he has been trained and motivated to be heedless of injury to himself. The character of NFL competition negates any notion that the playing conduct can be circumscribed by any standard of reasonableness.
Both theories of liability are also subject to the recognized defenses of consent and assumption of the risk. Here the question is what would a professional football player in the plaintiff's circumstances reasonably expect to encounter in a professional contest?
All of the witnesses with playing or coaching experience in the NFL agreed that players are urged to avoid penalties. The emphasis, however, is on the unfavorable effects of the loss of yardage, not the safety of the players. It is undisputed that no game is without penalties and that players frequently lose control in surges of emotion.
The conflict in the testimony is the difference in the witnesses' opinions as to whether Mr. Clark's act of striking the plaintiff on the back of the head in reaction to anger and frustration can be considered as "a part of the game." Several former players denounced this incident and said that Mr. Clark's conduct could not be considered customary or acceptable.
It is noteworthy that while this incident was clearly shown on the Denver Broncos' defensive game films, which were routinely reviewed by the defensive players and coaching staff, none of them made it a matter of special attention or concern.
Upon all of the evidence, my finding is that the level of violence and the frequency of emotional outbursts in NFL football games are such that Dale Hackbart must have recognized and accepted the risk that he would be injured by such an act as that committed by the defendant Clark on September 16, 1973. Accordingly, the plaintiff must be held to have assumed the risk of such an occurrence. Therefore, even if the defendant breached a duty which he owed to the plaintiff, there can be no recovery because of assumption of the risk.
The plaintiff has also claimed that he is a beneficiary of a contract made for his protection. That is based on a provision of the standard player contract whereby the player agrees to conform to the rules and regulations of the NFL. Thus, it is argued that the rules of play include safety rules for the benefit of opposing players. That is a strained interpretation of the contractual provisions. In context, the rules and regulations referred to are those relating to the employment relationship and not the conduct of play. To hold otherwise would create a potential for contract liability for every infraction of every playing rule.
The plaintiff asserts that Mr. Clark was guilty of outrageous conduct. That doctrine is inapplicable to this case. Outrageous conduct has been the basis for liability where severe emotional distress resulted from some behavior which was considered to be so extraordinary and so far from societal norms as to be regarded as atrocious and utterly intolerable... Dale Hackbart did not suffer such emotional distress and Charles Clark's action was not outside applicable norms of NFL football.
Finally, plaintiff seeks recovery on a theory of an interference with contract. That tort was defined in Comtrol, Inc. v. Mountain States Telephone & Telegraph Co., 32 Colo. App. 384, 513 P.2d 1082 (1973) to include an intent to cause a breach of contract and some action which does induce a breach as necessary elements. Neither is shown in the evidence in this case. The Denver Broncos fully performed the Hackbart contract and an intent to interfere with it was certainly not what caused the blow by Charles Clark.
Liability of the defendant Cincinnati Bengals, Inc. is based upon a contention that the Bengals failed to instruct and control their rookie fullback. The record, however, reflects that what he did is, unfortunately, an example of the excesses of violence which have become expectable as a result of the style of play in the NFL. The question of liability of the employer under the doctrine of respondeat superior is not presented because Charles Clark is not liable to the plaintiff...
[T]he evidentiary record now before me clearly reveal the density of the thicket in which the courts would become entangled if they undertook the task of allocation of fault in professional football games. The NFL rules of play are so legalistic in their statement and so difficult of application because of the speed and violence of the play that the differences between violations which could fairly be called deliberate, reckless or outrageous and those which are "fair play" would be so small and subjective as to be incapable of articulation. The question of causation would be extremely difficult in view of the frequency of forceful collisions. The volume of such litigation would be enormous and it is reasonable to expect that the court systems of the many states in which NFL games are played would develop differing and conflicting principles of law. It is highly unlikely that the NFL could continue to produce anything like the present games under such multiple systems of overview by judges and juries. If there is to be any governmental involvement in this industry, it is a matter which can be best considered by the legislative branch.
My conclusion that the civil courts cannot be expected to control the violence in professional football is limited by the facts of the case before me. I have considered only a claim for an injury resulting from a blow, without weaponry, delivered emotionally without a specific intent to injure, in the course of regular play in a league-approved game involving adult, contract players. Football as a commercial enterprise is something quite different from athletics as an extension of the academic experience and what I have said here may have no applicability in other areas of physical competition.
Upon the foregoing findings of fact and conclusions of law, it is
ORDERED that judgment shall enter for the defendants, with costs to be taxed.
BY THE COURT:
Richard P. Matsch, Judge United States District Court
DALE HACKBART, Plaintiff-Appellant, v. CINCINNATI BENGALS, INC., and CHARLES "BOOBY" CLARK, Defendants-Appellees.
UNITED STATES COURT OF APPEALS, TENTH CIRCUIT
601 F.2d 516; 1979 U.S. App. LEXIS 14111; 4 Fed. R. Evid. Serv. (Callaghan) 1042
March 13, 1979, Argued
June 11, 1979, Decided
JUDGES: Before DOYLE, McKAY and LOGAN, Circuit Judges.
...The evidence at the trial uniformly supported the proposition that the intentional striking of a player in the head from the rear is not an accepted part of either the playing rules or the general customs of the game of professional football. The trial court, however, believed that the unusual nature of the case called for the consideration of underlying policy which it defined as common law principles which have evolved as a result of the case to case process and which necessarily affect behavior in various contexts. From these considerations the belief was expressed that even Intentional injuries incurred in football games should be outside the framework of the law. The court recognized that the potential threat of legal liability has a significant deterrent effect, and further said that private civil actions constitute an important mechanism for societal control of human conduct. Due to the increase in severity of human conflicts, a need existed to expand the body of governing law more rapidly and with more certainty, but that this had to be accomplished by legislation and administrative regulation. The judge compared football to coal mining and railroading insofar as all are inherently hazardous. Judge Matsch said that in the case of football it was questionable whether social values would be improved by limiting the violence.
Thus the district court's assumption was that Clark had inflicted an intentional blow which would ordinarily generate civil liability and which might bring about a criminal sanction as well, but that since it had occurred in the course of a football game, it should not be subject to the restraints of the law; that if it were it would place unreasonable impediments and restraints on the activity. The judge also pointed out that courts are ill-suited to decide the different social questions and to administer conflicts on what is much like a battlefield where the restraints of civilization have been left on the sidelines.
We are forced to conclude that the result reached is not supported by evidence...
Plaintiff, of course, maintains that tort law applicable to the injury in this case applies on the football field as well as in other places. On the other hand, plaintiff does not rely on the theory of negligence being applicable. This is in recognition of the fact that subjecting another to unreasonable risk of harm, the essence of negligence, is inherent in the game of football, for admittedly it is violent. Plaintiff maintains that in the area of contributory fault, a vacuum exists in relationship to intentional infliction of injury. Since negligence does not apply, contributory negligence is inapplicable. Intentional or reckless contributory fault could theoretically at least apply to infliction of injuries in reckless disregard of the rights of others. This has some similarity to contributory negligence and undoubtedly it would apply if the evidence would justify it. But it is highly questionable whether a professional football player consents or submits to injuries caused by conduct not within the rules, and there is no evidence which we have seen which shows this. However, the trial court did not consider this question and we are not deciding it.
Contrary to the position of the court then, there are no principles of law which allow a court to rule out certain tortious conduct by reason of general roughness of the game or difficulty of administering it.
Indeed, the evidence shows that there are rules of the game which prohibit the intentional striking of blows. Thus, Article 1, Item 1, Subsection C, provides that:
All players are prohibited from striking on the head, face or neck with the heel, back or side of the hand, wrist, forearm, elbow or clasped hands.
Thus the very conduct which was present here is expressly prohibited by the rule which is quoted above.
The general customs of football do not approve the intentional punching or striking of others. That this is prohibited was supported by the testimony of all of the witnesses. They testified that the intentional striking of a player in the face or from the rear is prohibited by the playing rules as well as the general customs of the game. Punching or hitting with the arms is prohibited. Undoubtedly these restraints are intended to establish reasonable boundaries so that one football player cannot intentionally inflict a serious injury on another. Therefore, the notion is not correct that all reason has been abandoned, whereby the only possible remedy for the person who has been the victim of an unlawful blow is retaliation...
The Restatement of Torts Second, § 500, distinguishes between reckless and negligent misconduct. Reckless misconduct differs from negligence, according to the authors, in that negligence consists of mere inadvertence, lack of skillfulness or failure to take precautions; reckless misconduct, on the other hand, involves a choice or adoption of a course of action either with knowledge of the danger or with knowledge of facts which would disclose this danger to a reasonable man. Recklessness also differs in that it consists of intentionally doing an act with knowledge not only that it contains a risk of harm to others as does negligence, but that it actually involves a risk substantially greater in magnitude than is necessary in the case of negligence. The authors explain the difference, therefore, in the degree of risk by saying that the difference is so significant as to amount to a difference in kind.
Subsection (f) also distinguishes between reckless misconduct and intentional wrongdoing. To be reckless the Act must have been intended by the actor. At the same time, the actor does not intend to cause the harm which results from it. It is enough that he realized, or from the facts should have realized, that there was a strong probability that harm would result even though he may hope or expect that this conduct will prove harmless. Nevertheless, existence of probability is different from substantial certainty which is an ingredient of intent to cause the harm which results from the act.
Therefore, recklessness exists where a person knows that the act is harmful but fails to realize that it will produce the extreme harm which it did produce. It is in this respect that recklessness and intentional conduct differ in degree.
In the case at bar the defendant Clark admittedly acted impulsively and in the heat of anger, and even though it could be said from the admitted facts that he intended the act, it could also be said that he did not intend to inflict serious injury which resulted from the blow which he struck.
In ruling that recklessness is the appropriate standard and that assault and battery is not the exclusive one, we are saying that these two liability concepts are not necessarily opposed one to the other. Rather, recklessness under § 500 of the Restatement might be regarded, for the purpose of analysis at least, a lesser included act.
Assault and battery, having originated in a common law writ, is narrower than recklessness in its scope. In essence, two definitions enter into it. The assault is an attempt coupled with the present ability to commit a violent harm against another. Battery is the unprivileged or unlawful touching of another. Assault and battery then call for an intent, as does recklessness. But in recklessness the intent is to do the act, but without an intent to cause the particular harm. It is enough if the actor knows that there is a strong probability that harm will result. Thus, the definition fits perfectly the fact situation here. Surely, then, no reason exists to compel appellant to employ the assault and battery standard which does not comfortably apply fully in preference to the standard which meets this fact situation...
In sum, having concluded that the trial court did not limit the case to a trial of the evidence bearing on defendant's liability but rather determined that as a matter of social policy the game was so violent and unlawful that valid lines could not be drawn, we take the view that this was not a proper issue for determination and that plaintiff was entitled to have the case tried on an assessment of his rights and whether they had been violated.
The trial court has heard the evidence and has made findings. The findings of fact based on the evidence presented are not an issue on this appeal. Thus, it would not seem that the court would have to repeat the areas of evidence that have already been fully considered. The need is for a reconsideration of that evidence in the light of that which is taken up by this court in its opinion. We are not to be understood as limiting the trial court's consideration of supplemental evidence if it deems it necessary.
[*527] The cause is reversed and remanded for a new trial in accordance with the foregoing views.
CINCINNATI BENGALS, INC., ET AL. v. HACKBART.
SUPREME COURT OF THE UNITED STATES
444 U.S. 931; 100 S. Ct. 275; 62 L. Ed. 2d 188; 1979 U.S. LEXIS 3532
October 29, 1979
PRIOR HISTORY: [*1]
C.A. 10th Cir.
Reported below: 601 F. 2d 516.
OPINION: Certiorari denied.
TOWNSLEY ET AL., APPELLEES, v. CINCINNATI GARDENS, INC., APPELLANT
No. C. A. 73147
Court of Appeals of Ohio, First Appellate District, Hamilton County
39 Ohio App. 2d 5; 314 N.E.2d 409; 1974 Ohio App. LEXIS 2669; 68 Ohio Op. 2d 72
January 14, 1974, Decided
JUDGES: HOLMES, J. SHANNON and STRAUSBAUGH, JJ., concur. HOLMES and STRAUSBAUGH, JJ., of the Tenth Appellate District sitting by designation in the First Appellate District.
...The facts of the case in brief are that on November 2, 1969, the plaintiff Harry A. Townsley, a minor at such time, along with a friend, by the name of Gary Kasee, went to the Cincinnati Gardens in Cincinnati, Ohio, to view a performance of the Harlem Globetrotters. After purchasing their tickets, they went to their seats and remained there until about the third quarter of the exhibition basketball game, at which time the boys went to the concession stand in order to get some soft drinks.
Shortly therafter, Harry A. Townsley went to a nearby washroom upon such level of the Cincinnati Gardens, and while in such washroom he was approached by a young man who demanded money from him, whereupon the plaintiff informed the person that he had no money. Immediately thereafter, the person seeking money from the plaintiff was joined by other friends who thereupon set themselves upon the plaintiff and proceeded to assault him and beat him up. Such beating by his assailants resulted in the laceration of the face and lips of the plaintiff as well as the loss of two of his front teeth.
The plaintiff, a minor, and his father as next friend, brought an action in the Court of Common Pleas of Hamilton County, Ohio, seeking damages by way of the injuries sustained by the young man, and also by way of the doctor and medical bills sustained by the father.
The case was tried before the court, the jury having been waived, and after testimony was taken on behalf of the plaintiffs and defendant, the matter was taken under advisement by the trial court, and subsequently such court issued its decision, including its findings of fact and conclusions of law.
The trial court held, in effect, that where an incident such as the instant matter occurred in a large metropolitan sports arena with approximately 5,000 persons present; where such incident took place in an isolated, dimly-lighted public restroom; where, on the night of such incident, the security guard was made up of five patrolmen, specifically the captain and four others; where two of such patrolmen were stationed on the main level and; where the responsibilities of the other three included supervising the entire remainder of the Gardens, the defendant either knew, or, in the exercise of ordinary care, should have known, of the danger which victimized the plaintiff.
The court, thereupon, entered a judgment for the father in the sum of $ 381 for dental expenses, and for the son in the amount of $ 346 for future dental expenses, and the sum of $ 1,750 to reasonably compensate the plaintiff son for pain and suffering growing out of the injuries sustained in the incident.
The defendant appeals, alleging two assignments of error: one, that the trial court erred when it failed to grant defendant's motion to dismiss; two, that the trial court erred when it pronounced the judgment for the plaintiff, such being against the manifest weight of the evidence.
The defendant, to substantiate its position on this appeal, relies in the main upon the case of Howard v. Rogers (1969), 19 Ohio St. 2d 42. The second and third paragraphs of the syllabus of such case, which we feel are applicable to the matter before us, are as follows:
"2. An occupier of premises for business purposes is not an insurer of the safety of his business invitees while they are on those premises.
"3. Where an occupier of premises for business purposes does not, and could not in the exercise of ordinary care, know of a danger which causes injury to his business invitees, he is not liable therefor."
We feel that the case of Howard v. Rogers presents the law on the subject as it remains today. It is that there must appear from the facts and the circumstances of the case presented that the defendant had some prior knowledge or experience of the type of occurrence which occasioned the plaintiff's injuries, as alleged, or that the defendant should reasonably have known of or anticipated the type of danger or acts of third persons which resulted in the injuries sustained by the plaintiff.
Let us look at the facts in order to determine whether the defendant either knew, or, in the exercise of ordinary care, should have known of the danger which resulted in the injuries to this plaintiff. Plaintiff Harry Townsley stated that he had been in the Cincinnati Gardens on other occasions and had never seen any fights or anything of that nature in the Gardens before.
The plaintiff's friend testified that he saw what appeared to be mothers and fathers of children in attendance, and that he did not observe any fights or disturbances in the Gardens that evening.
Mr. Joseph Aldrich, who was the captain of the private police association that was employed to supply the police protection for Cincinnati Gardens at the time, testified that he had been associated in this private police association for some sixteen years and had participated in the planning for police protection for various events taking place in the Gardens. He stated that it was a common practice to patrol the halls and washrooms in the Gardens, to see that property was not damaged and patrons were safe. He stated that among the things taken into consideration in the type of protection provided and the numbers of men offering such protection was the nature of the event, which would determine the probability of any trouble as well as the anticipated attendance. He testified that he would anticipate a greater possibility of trouble during a rock-and-roll show, and wrestling or boxing matches, or that type of affair, rather than a family show such as the Globetrotters exhibition. He further testified that during such considerations he had determined that five men, being present for security duty, was ample protection for the evening.
There was some evidence of a few instances where patrons had been assaulted by other patrons in the Gardens while attending other types of shows but there was no specific evidence of any assaults in washrooms during which boys may have been seeking money, and upon being refused had beaten up the ones approached.
Although it might be true that, in general, courts may take judicial notice that crime has been on the increase in the last number of years, it does not follow that we may at this juncture take judicial notice that the numbers of crimes that have taken place in public washrooms of exhibition halls have markedly increased. Neither can we, as a matter of law, in the absence of clear evidence in support thereof, state that it is necessary for management to place any given number of security guards at certain locations for the care and safety of its invitees.
We hold that the case law pronounced in Howard v. Rogers, supra, is in fact applicable to the case that was before the trial court herein and before this court, even though the injury received by the plaintiff in Howard took place in a small town junior high school gymnasium where a dance was being conducted and an admission fee charged.
Further, the case of Mason v. Roberts (1973), 33 Ohio St. 2d 29, may, on the other hand, be distinguished from [***8] the instant case in that the fact situation in Roberts presented the issue of whether the proprietor, in continuing to sell a drunken patron drinks, knowing the propensity of such patron to be violent when inebriated, may be chargeable with a failure to use due care for the protection of his business invitees from physical injury as a result of the violent acts of third persons, when an injury or death occurs to another patron.
Mason v. Roberts presents an entirely different fact situation from the one before us at this time. The Supreme Court quite understandably held that such issues were ordinarily questions for the trier of the facts.
However, in the instant matter, there is no evidence in the record that would show that the defendant, because of prior activities upon the premises during any given performance, could have anticipated the act of the assailants in injuring the plaintiff herein. The law does not exact upon a business proprietor a degree of duty to anticipate that which could occur upon his premises to the distress or damage of his invitees, beyond that which could reasonably be foreseen.
It is true at this point in time that such an incident has taken place in the Cincinnati Gardens, and the proprietor has now become aware of the potential of such an incident; therefore, it may be that the necessity of adding additional security forces to protect the business invitees becomes a reality of life. However, it cannot be said that upon the state of the record as provided to the trial court, and to this court upon appeal, the defendant proprietor had knowledge of prior incidents which would have occasioned the necessity for having additional security forces stationed at the washrooms, or would have necessitated the making of rather frequent periodic visitations to such areas, in order to protect their business invitees.
Here, there being no evidence adduced from which reasonable minds could have concluded that the defendant Cincinnati Gardens knew of, or could reasonably have anticipated, the danger to this plaintiff, the trial court should have entered a judgment for the defendant. For the trial court not to have done so was manifestly against the weight of the evidence.
Based upon all of the foregoing, the judgment of the Common Pleas Court of Hamilton County is hereby reversed, and judgment is hereby entered for the defendant as such judgment should have been entered by the trial court.
Document 1 of 1.
James BEARMAN & Christenna Bearman, Appellants-Plaintiffs, v. UNIVERSITY OF NOTRE DAME, Appellee-Defendant
No. 3-882 A 223
Court of Appeals of Indiana, Third District
453 N.E.2d 1196; 1983 Ind. App. LEXIS 3387
September 22, 1983, Filed
JUDGES: Staton, J. Hoffman, P.J., concurs. Conover, P.J. (by designation) concurs.
OPINION: Christenna Bearman suffered a broken leg when she was knocked down by a drunk as she was returning to her car after a Notre Dame football game. Bearman and her husband sued the University of Notre Dame for damages resulting from that injury. After the close of all evidence, the trial court granted Notre Dame's motion for judgment on the evidence. Bearman appeals, raising one issue:
Whether Notre Dame had a duty to protect Mrs. Bearman from injury caused by the acts of third persons.
Reversed and remanded.
evidence and inferences most favorable to Bearman shows that on October 27,
1979, Mr. and Mrs. Bearman attended a football game at the University of Notre
Dame. The Bearmans left the game shortly before it ended. As they were walking
through a parking lot toward their car, they observed two men who appeared to
be drunk. The men were fighting, one of them fell down, and then they walked
away from each other. One of the men walked past the Bearmans. A few moments
later, the man fell into Mrs. Bearman from behind, knocking her to the ground.
Mrs. Bearman suffered a broken leg from the fall. There were no ushers or
security people in the area when the incident occurred.
When the trial court considers a motion for judgment on the evidence, it must consider only the evidence most favorable to the non-moving party. The motion may be granted only if there is no substantial evidence, or reasonable inference to be drawn therefrom, which supports an essential element of the claim. If reasonable persons might differ as to the inferences to be drawn from the evidence, then judgment on the evidence is not proper…
Bearman argues that she was a business invitee of the University of Notre Dame; therefore, Notre Dame owed to her a duty to protect her from injury caused by the acts of other persons on the premises. On the other hand, Notre Dame argues that absent notice or knowledge of any particular danger to a patron, the University cannot be held liable for the acts of third persons.
It is axiomatic that the conduct of a person will give rise to an action for negligence only if that person owed a duty to the plaintiff to conform his actions to the standard of care. The existence of such a duty is a question of law…
Generally, the operator of a place of public entertainment owes a duty to keep the premises safe for its invitees… This duty includes a duty to provide a safe and suitable means of ingress and egress, and a duty to exercise ordinary and reasonable care to protect a patron from injury caused by third persons. However, the invitor is not the insuror of the invitee's safety. Before liability may be imposed on the invitor, it must have actual or constructive knowledge of the danger.
The Restatement of Torts (Second) § 344 (1965) sets forth the applicable rule:
"A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
"(a) discover that such acts are being done or are likely to be done, or
"(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it."
Comment (f) of this section is particularly pertinent to this case:
"f. Duty to police premises. Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection."
The University is aware that
alcoholic beverages are consumed on the premises before and during football
games. The University is also aware that "tailgate" parties are held
in the parking areas around the stadium. Thus, even though there was no showing
that the University had reason to know of the particular danger posed by the
drunk who injured Mrs. Bearman, it had reason to know that some people will
become intoxicated and pose a general threat to the safety of other patrons.
Therefore, Notre Dame is under a duty to take reasonable precautions to protect
those who attend its football games from injury caused by the acts of third
The questions whether the protective measures employed by Notre Dame were inadequate and, if so, whether such inadequacy contributed to Mrs. Bearman's injury are questions for the jury… Therefore, we reverse the judgment of the trial court and remand this case for proceedings consistent with this opinion.
Reversed and remanded.
HOFFMAN, P.J., Concurs.
CONOVER, P.J. (by designation) Concurs.
Thomas H. Eddy, Respondent, v. Syracuse University, Appellant
[NO NUMBER IN ORIGINAL]
Supreme Court of New York, Appellate Division, Fourth Department
78 A.D.2d 989; 433 N.Y.S.2d 923; 1980 N.Y. App. Div. LEXIS 13761
November 13, 1980
JUDGES: Dillon, P. J., Schnepp, Callahan, Doerr and Witmer, JJ.
OPINION: Judgment unanimously affirmed, with costs. Memorandum: Defendant appeals from a judgment awarding damages for personal injuries sustained by plaintiff on March 27, 1977 in a gymnasium on defendant's campus. Defendant offered no proof at trial and argues here, as it did before the trial court, that as a matter of law the facts do not support a finding of negligence, and that plaintiff's assumption of risk in playing in the gymnasium in the manner he did was the proximate cause of the accident. Plaintiff, a student from Harpur College, was injured while playing in a game called "ultimate frisbee" between a Harpur team and one from Syracuse University. Ultimate frisbee, described as being much like soccer, is a running game in which team members attempt to pass the frisbee to one another, the object being to advance the frisbee over the opponent's goal line. The two teams were admitted to the gymnasium building by a person believed by plaintiff to have been the janitor. The players changed clothes in a locker room, entered the gymnasium and thereupon established the game's playing area to run the length of the gymnasium, using as the goal lines the outermost sidelines of two basketball courts which were laid out across the width of the gymnasium. The west goal line thus established was located approximately five to eight feet from the gymnasium's west wall which was of masonary construction with glass doors in the center. Plaintiff, running toward the west wall and looking back over his shoulder for a thrown frisbee, was unable to stop before striking one of the doors. He turned and saw the door, however, in time to raise his right arm in an attempt to protect himself. His body struck the handlebar across the door but because the door was locked, it did not open. The glass shattered and as plaintiff's upper torso went through the door his right arm was severely lacerated. Plaintiff acknowledged that he was aware of the presence of the walls and the doors when he participated in the game. He also testified that such frisbee games are played on an "informal" basis; and there was no proof that the Syracuse team was officially recognized or sponsored by defendant. In support of its assertion that the evidence was insufficient to submit the case to the jury, defendant argues that it did not authorize the use of the gymnasium; had no foreknowledge of plaintiff's use; could not foresee the manner in which it would be used and, finally, that the gymnasium was not defective in its construction or design, nor was it unsuited for its ordinary purposes. Common-law classifications of the status of one injured when on the land of another are no longer determinative in assessing the duty of care owed by the landowner, and it is now well established that the duty owed is one of "reasonable care under the circumstances [with] foreseeability [as] a measure of liability" (Basso v Miller, 40 NY2d 233, 241). The injured party's status remains relevant, however, in assessing the foreseeability of his presence on the land and the probability that he might suffer injury (Basso v Miller, supra). In determining whether the evidence is sufficient to submit to the jury, the court must examine the facts to ascertain "whether the foreseeability of the presence of an entrant on land is too remote, given the nature of the risk and the burdens that would be imposed on the landowner to guard against it." (Quinlan v Cecchini, 41 NY2d 686, 689.) Additionally, the court should weigh "the probability of the harm, the gravity of the harm against the burden of precaution, and other relevant and material considerations from which it can determine whether reasonable persons can differ as to whether the defendant was negligent". It is only when the court concludes that there is no reasonable view of the evidence upon which to assess liability that the issue should be decided as one of law. Where varying inferences are possible, however, the issue is one for the jury (Paslgraf v Long Is. R. R. Co., 248 NY 339, 345). Applying those principles, we conclude that it was proper here for the court to submit the issue of negligence to the jury. Surely the jury could have concluded that defendant should reasonably have foreseen plaintiff's presence in the gymnasium, located as it is on the campus of a large university, and that some of its students, and their guests, might use the facility without express permission. Also properly left to the jury was the question of whether the glass doors, located as they were in a building intended to be used for strenuous physical activity, constituted a dangerous condition. The close proximity of the doors to the basketball court sideline could be found to present a danger to a player in a hotly contested basketball game. Their danger is enhanced, of course, with the playing of a running game employing the length of the gymnasium. Thus the question arises of whether defendant should have foreseen that students might use the gymnasium for the playing of games other than those for which the basketball courts had been laid out. Here again, because of the propensity of college students to engage in novel games, a jury question was presented, and if such foreseeability was found, the probability and gravity of harm was readily apparent. The jury could also reasonably have found that the risk presented by the glass doors could have been obviated without imposing an undue burden upon defendant. The obvious danger could have been protected against, for example, by replacement of the glass with a solid material, or by placing a metal grill or a strong wire mesh over the glass. The court properly presented the issues to the jury in a charge which was rendered without request or exception by either party. Implicit in the jury verdict is its finding that defendant had a duty to protect users of the gymnasium, including plaintiff, from the dangers of the glass and that the breach of that duty was the proximate cause of the accident (Leone v City of Utica, 66 AD2d 463, affd 49 NY2d 811). Finally, we note that the jury was correctly instructed on the law of comparative negligence and assumption of risk (CPLR 1411).
DONNA DeMAURO, Plaintiff-Appellant, v. TUSCULUM COLLEGE, INC., Defendant-Appellee
[NO NUMBER IN ORIGINAL]
Supreme Court of Tennessee, at Knoxville
603 S.W.2d 115; 1980 Tenn. LEXIS 476
July 28, 1980
JUDGES: Harbison, J. wrote the opinion. Brock, C.J., Fones and Cooper, JJ., concur.
OPINION: This case involves an action by a student against a private college for personal injuries sustained while she was receiving instruction in a physical education class. Plaintiff, a freshman and a beginner at golf, was struck by a golf ball driven by a senior student who was majoring in physical education and who was taking a course designated as "Teaching Assistant."
The jury returned a verdict for the plaintiff, appellant here, which was approved by the trial judge. The Court of Appeals, in a split decision, reversed and dismissed, holding that there was no material evidence of causative negligence. The Court held that while the accident was "an unfortunate occurrence" it was, as a matter of law, one for which the educational institution could not be held responsible...
Plaintiff, Donna DeMauro, was eighteen years old at the time of the accident on March 31, 1977. She was entering the third quarter of her freshman year at Tusculum College, a private liberal arts college located near Greeneville, Tennessee. She was required to take courses in physical education during her first year, including one course each quarter in "Activities." During the spring quarter she had elected to take a course designated as Physical Education No. 171, entitled "Golf." This course was offered in the fall and spring quarters of each year, and the college provided a member of its staff, a Dr. Shasby, as the instructor for the course. Plaintiff had never played golf before, nor had she ever received any instruction in the sport. The college apparently does not have a golf course on its campus, but it had made arrangements for the students to play on a course operated by a local country club...
On Thursday, March 31, 1977, the students went to the golf course for the first time to engage in practice consisting of actual play on a regular course. Again the record is silent as to how many students went. Plaintiff was a member of a foursome, consisting of three other freshmen girls, only one of whom appears to have had any substantial previous playing experience. There is reference in the record to another group or groups of students, some of whom were accompanied by Dr. Shasby [instructor]. Dr. Shasby was not with the foursome which included the plaintiff at the time of the accident.
In his place and stead a senior student, James Hunter, accompanied the four girls. Hunter was attending Tusculum College on an athletic scholarship in basketball. Golf was not his major sport. He had taken an introductory course in golf at a junior college a few years previously and had occasionally played the game, but the jury could easily infer from the testimony that he was by no means an expert in the sport.
Hunter, who was twenty-two years of age, testified that he was majoring in physical education and that he took for credit during the spring quarter a course designated as Physical Education No. 400, entitled "Teaching Assistant." The college catalogue, which was introduced in evidence, described this course as follows:
"Offered as needed. Students will be expected to assist in all aspects of the instruction of an activity course and, on occasion, to conduct the class. Prerequisites: Senior or junior P. E. major status only, approval of the instructor and of the division chairperson."
Hunter described his duties as follows:
"Get the clubs, take over if Dr. Shasby wasn't there, and helping with the class."
was not paid for his services, and it is clear that these services were a part
of his own course of instruction in becoming a physical education teacher.
Although the phrase was not used in the record, at oral argument it was stated
that he might be considered as a sort of "practice teacher." He had
assisted in a tennis class during the previous quarter but had never before
assisted in instruction in golf. He testified that he had not played "a
lot of golf" on his own since taking freshman instruction in the sport as
previously mentioned. Plaintiff testified that she was not aware that Hunter
"had little or no experience," that she knew he was a "student
assistant" and thought "Jim perhaps knew about the game."
Hunter accompanied plaintiff and three other freshmen girls to the No. 5 tee on the Twin Creeks Golf Course near Greeneville. This was a 425-yard hole, bordered on the left by a creek. The rules of the course stated that a stroke to the left of the creek was out of bounds. As one faced the fairway, the green was to the left around a "dog-leg." A large tree was situated at the turn in the fairway. It would have been possible for a person driving from the men's tee, as Hunter undertook to do, to drive to the left of this tree in a straight line toward the green. The usual method of playing the hole, however, was to drive straight down the center of the fairway to the right of the tree. It is unclear from the record which way Hunter intended to drive, although he thought that he probably meant to drive to the right of the tree.
Hunter was a left-handed golfer. He approached the men's tee with the girls standing at about a ninety-degree angle opposite him and several yards away. All of them testified that they had generally been instructed to stand in this position. An instruction book in golf, which the students purchased, generally confirmed that this was the correct area for players to stand and watch in safety, or at least the jury could so conclude from the evidence.
There is little testimony in the record as to the manner or method in which Hunter struck the ball or as to what he actually did, except that he apparently "shanked" the shot, striking the ball with the toe of his driver. The ball veered off at an angle of about ninety degrees from the fairway, and it struck the plaintiff in the face. She received severe and painful injuries from which she suffered extensive bleeding and for which she had to undergo at least two different surgical operations about a year apart. She was given immediate first aid and assistance by Hunter and other persons. The degree and extent of her injuries and the amount of the jury award are not involved in this appeal.
It appears from the evidence that plaintiff had not read the book of instructions issued to her when she enrolled in the course, nor had she been assigned any reading therein. Neither party offered expert testimony as to the standards or customs of instruction in the game of golf...
The record is silent as to the qualifications or experience
of Dr. Shasby, the instructor assigned to teaching the course. The jury could
infer from the evidence that Dr. Shasby had placed Hunter in charge of the
group which included plaintiff. They could also have concluded that Hunter was
acting as a golfing instructor, although he was admittedly an inexperienced
player. Obviously he improperly struck the ball and injured one of the very
persons whom he was supposed to be instructing in the game. It seems to us that
reasonable persons might find that Dr. Shasby, and through him the college, was
negligent in placing a person of Hunter's experience in a position of sole
responsibility and that Hunter's lack of experience was at least a factor which
made injury to one of the students foreseeable. Regardless of whether Hunter
himself was or was not negligent in the way he struck the ball, we are of the
opinion that the Court of Appeals was in error in directing a verdict for the
defendant college. The jury could have found that the likelihood of accidental
injury was enhanced by placing such an inexperienced person in charge of the
The status of the student, Hunter, was ambiguous, and a trier of fact might, as the defendant insists, conclude that he was only a fellow student playing a few holes of golf with other adult students in a situation where the college had no legal responsibility. On the other hand, a trier of fact might conclude that the plaintiff, a beginner and a novice at the sport, was receiving instructions as to how golf should be played. She was observing Hunter as he attempted to drive the ball and was then expecting to drive for the first time under actual playing conditions. The regular instructor was absent, and the duty of supervision which the school legally owed under these circumstances had apparently been delegated to Hunter. A jury might conclude that the latter was the instructor or was standing in the place and stead of an instructor who had a non-delegable responsibility. Negligence could have been found, predicated not so much on Hunter's improperly addressing the ball, as upon breach of the duty of supervision and instruction which the school owed to the student.
It could be inferred from the proof that the defendant felt that some supervision and instruction in the game of golf were needed, at least for beginning players. The jury could have found that under the circumstances this was not merely an informal group game... On the other hand, golf perhaps is not as high-risk sport as some others, and the reasonableness of the conduct of defendant commensurate with the risks involved, in our opinion, was for the trier of fact to determine. The case does not turn entirely, however, on whether Hunter's own stroke of the ball was or was not "a negligent act," as concluded by the Court of Appeals, nor solely upon whether he was or was not a servant of the college.
It is entirely possible that under proper instructions, a trier of fact would conclude that the accident was completely unavoidable, as insisted by appellee. Certain risks, obviously, inhere in any sport or physical educational activity. In connection with golf, such risks include that of a ball being driven upon an unintended path. There is testimony that plaintiff was aware of that risk, and we are of the opinion, as previously stated, that there was sufficient evidence to justify a charge to the jury on assumption of risk. Since the plaintiff was standing in an area where she had been instructed to stand, however, and in which the evidence indicates an observer properly should stand, she could not be said, as a matter of law, to have necessarily assumed the risk that her own instructor would strike the ball in such a way as to injure her. We are of the opinion that all of the issues, including that of unavoidable accident, should have been submitted to the jury under proper instructions and that these instructions should have delineated the nature of the duty of a private school toward its students...
It is insisted by appellee that it would have had no duty or responsibility whatever to appellant had she simply been struck by a fellow student while engaged in a game of golf. Under some circumstances, of course, this may be correct. It is also true that participants in sporting activities occupy a somewhat different legal position from mere observers or passers-by... Where, however, students are novices and are receiving courses of instruction in sports held out and offered for credit by an educational institution, a duty of supervision and instruction arises from the relationship which is not terminated or abrogated merely by reason of the fact that one student participant injures another...
Each case of this nature turns upon all of the facts and circumstances. Hard and fast criteria are difficult to establish. Frequently expert testimony is helpful to show what the accepted standards and practices are in a particular sport. There may indeed be many instances where a directed verdict is proper. Where, however, different and varied conclusions could be drawn from the proof, a jury issue is usually presented. We are convinced that such is the present case and that neither party was entitled to a directed verdict on any issue upon the trial record. Of course a different situation may be presented upon re-trial.
The judgment of the Court of Appeals is reversed and the cause is remanded for a new trial under more complete and appropriate jury instructions consistent with the issues presented. Costs incident to this appeal will be taxed equally to the parties. All other costs will abide the results of a new trial.
Brock, C.J., Fones and Cooper, JJ., concur.
Patricia A. Kane, as Parent and Guardian of Emmalee Kane, an Infant, Appellant, v. North Colonie Central School District, Respondent.
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
273 A.D.2d 526; 708 N.Y.S.2d 203; 2000 N.Y. App. Div. LEXIS 6445
June 8, 2000, Decided
June 8, 2000, Entered
JUDGES: Carpinello, Mugglin, Rose and Lahtinen, JJ., concur.
Spain, J. P.
Plaintiff commenced this action to recover damages arising out of an ankle injury sustained by her daughter, Emmalee Kane, who tripped and fell during an indoor track practice conducted in a hallway in defendant's high school building. After joinder of issue and discovery, defendant moved for summary judgment dismissing the complaint. Supreme Court concluded that, by voluntarily participating in the sport of indoor track, Kane assumed the risk of tripping and falling. Accordingly, the court granted the motion and dismissed the complaint, prompting this appeal by plaintiff.
By voluntarily participating in an interscholastic sport, Kane is deemed to have assumed "those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation" (Morgan v State of New York, 90 NY2d 471, 484). Her assumption of those risks is not an absolute defense but a measure of defendant's duty of care (see, Benitez v New York City Bd. of Educ., 73 NY2d 650, 657). Accordingly, defendant was obligated to "exercise ordinary reasonable care to protect [Kane] from unassumed, concealed or unreasonably increased risks" (id., at 658).
It is undisputed that Kane was not engaged in a competitive track event when she was injured, but instead she and her teammates were engaged in an "easy run" practice in which they were directed by their coach, an employee of defendant, to run continuously for 30 minutes back and forth in the hallway. Nevertheless, the risk of contact with another runner and falling is inherent even in noncompetitive running in a confined space and there is evidence that Kane, who was beginning her third year on the team, was aware of that risk. Plaintiff, however, submitted expert evidence to demonstrate that the risk of contact and falling is unreasonably increased where the runners do not maintain a safe and appropriate distance, typically at least a stride, from one another. Defendant was aware of this increased risk and, therefore, the coach established rules for running in the hallway, which included the requirement that runners maintain a safe distance and respect each other's running space. The coach supervised the practices, often repeating the rules, and if she saw the runners "bunch up" she would direct them to spread out.
Kane alleged that she fell when the runner behind her stepped on her heel and that the fall occurred immediately after the group of runners she was with had passed the coach. The coach alleged that on the day of Kane's injury, she observed no instances of runners "bunching up" and if she had she would have directed them to spread out. Plaintiff, however, submitted an affidavit in which Kane alleged that teammates were running only one foot behind her and that her group "had been running in this close fashion for almost all of the twenty minutes" preceding her fall. Plaintiff's expert opined that "[p]ermitting one runner to run approximately one foot behind another runner in a school hallway creates an unreasonable and dangerous risk of contact and physical injury between runners which is simply unnecessary in the context of an 'easy run', noncompetitive track practice." The allegations of Kane and the expert are, in our view, sufficient to raise a question of fact as to whether defendant's supervision was inadequate and resulted in the failure to exercise reasonable care to protect Kane from an unreasonably increased risk...
Defendant contends that Kane's affidavit contradicts her deposition testimony regarding the length of time that her group had been running in close proximity to one another. According to defendant, the affidavit was created solely for the purpose of defeating summary judgment. This Court has acknowledged that a plaintiff cannot "avoid summary judgment by alleging issues of fact created by self-serving affidavits contradicting prior sworn deposition testimony..." Contrary to defendant's claim, however, Kane's deposition includes testimony that is consistent with the allegations in her affidavit. When asked how her group came to be so close together at the time of her injury, she testified that "[w]e all started out together, and since we're all about the same speed we all stuck together." When asked whether they had been running that close for the entire 20 minutes prior to her fall, Kane testified that "[t]here may have been a point when somebody like stopped and then there would be a space, but we stayed about that close." Plaintiff submitted sufficient evidence to defeat defendant's motion for summary judgment and, therefore, Supreme Court's order must be reversed.
Carpinello, Mugglin, Rose and Lahtinen, JJ., concur.
Ordered that the order is reversed, on the law, with costs, and motion denied.
CALDWELL v. GRIFFIN SPALDING COUNTY BOARD OF EDUCATION et al.
COURT OF APPEALS OF GEORGIA
232 Ga. App. 892; 503 S.E.2d 43; 1998 Ga. App. LEXIS 808; 98 Fulton County DR 2320
June 2, 1998, Decided
JUDGES: POPE, Presiding Judge. Beasley, J., concurs. Ruffin, J., concurs specially.
[The] evidence shows Antwan was a freshman who accompanied the football team to its 1994 annual summer camp at Troy State University in Alabama. According to affidavits provided by former football players, older players at each year's football camp traditionally "initiated" freshman players by "shaving [the] heads of first year players and general 'horseplaying,' such as trashing players' rooms." The evidence conflicts as to whether the coaching staff was aware of this tradition and implicitly condoned it, but no witness testified that the coaching staff or other school officials explicitly encouraged or approved this behavior. For the 1994 camp, players were housed in a dormitory with adult chaperones or coaches in rooms at the end of each hall. Bohannon testified that he warned the players that any horseplay would be punished. Nonetheless, during an afternoon break in activities a group of players, their faces masked, attacked Antwan in an empty dormitory room and beat him severely, knocking him unconscious and requiring hospital care. Antwan testified that he had witnessed other initiations that week and had seen older players shave younger players' heads, spray them with shaving cream, and mess up their rooms, but had not seen anyone physically attacked. In fact, no witness testified that any prior initiation had involved physical beatings such as the one Antwan sustained.
Applying the standards set forth in Lau's Corp. v. Haskins, 261 Ga. 491 (405 S.E.2d 474) (1991), we affirm the grants of summary judgment. We first note that this case is one alleging the negligent failure of school officials to protect Antwan from an attack by other students. The appellate courts of this state have consistently held that the supervision of student safety is a discretionary function, the proper exercise of which entitles school officials to immunity….
Caldwell argues that a state criminal statute against hazing (O.C.G.A. § 16-5-61) transforms this discretionary policing function into a ministerial one and that Bohannon and White had a ministerial duty not to aid and abet the crime of hazing. A school official does not have legal discretion to participate in a crime or to allow students under his supervision to commit a crime. O.C.G.A. §§ 16-2-20 and 16-2-21. Compliance with the law is mandatory, and in that sense arguably "ministerial." However, in this case there is no evidence that Bohannon and White were parties to a crime or allowed a crime to occur. Even assuming that the beating in this case amounted to criminal hazing, it is undisputed that this activity was unknown to Bohannon and White before and at the time it occurred, and that nothing had happened on that trip or in prior years to make it foreseeable that such conduct would transpire. Bohannon and White, therefore, could not be aiders and abettors to the hazing in this instance. O.C.G.A. § 16-2-20…
Furthermore, no evidence in the record indicates Bohannon or White acted with "actual malice" towards Antwan. Caldwell's argument, at best, is one of "implied malice": that by failing to stop the prior incidents involving shaved heads and shaving cream attacks, Bohannon and White exhibited a reckless disregard for the rights of students such as Antwan by creating a climate in which this attack could occur. Merrow rejected this theory of liability… Considering the lack of any evidence showing that either defendant actively condoned, encouraged, or took part in any of these initiation rites, or the violent attack on Antwan, Caldwell's claim of actual malice must fail.
Judgment affirmed. Beasley, J., concurs. Ruffin, J., concurs specially.
CONCUR: RUFFIN, Judge, concurring specially.
I concur with the Court's judgment, but only because I am compelled to do so by Georgia law. Moreover, I write separately to highlight certain facts in the record and to suggest that the appellate courts and the legislature reconsider whether supervision of students should be considered a discretionary rather than a ministerial act.
From my review of the record it is clear that the football summer camp was a school-sponsored event and Bohannon, the high school football coach, was responsible for supervising the players, including Antwan Caldwell and his assailants. Four members of the football team provided affidavits, stating that "upperclassmen [were] allowed to haze first year football players," including Caldwell. All four members of the team stated that the "hazing consisted of incidents such as shaving heads of first year players and general 'horseplaying,' such as trashing players' rooms." One of the affiants stated that he was the target of the hazing and he informed Bohannon and other members of the coaching staff that he did not want to participate in this ritual. The three other affiants stated that "Coach Bohannon and the other members of the coaching staff were aware of these incidents and never attempted to stop them." One of the affiants added that he "was the recipient of this hazing on a couple of occasions and [he] was involved in a couple of fights as a result of these incidents."
Bohannon testified in a deposition that he had seen incidents where the players had their hair cut, but other than that, he had never seen any incidents of hazing. Bohannon said that he investigated Caldwell's attack, but did not investigate whether hazing was a routine part of the summer camp. He also admitted that after the Caldwell attack, he did not discuss hazing with the football players. Furthermore, while Bohannon said that at the beginning of the camp a lecture was given about camp procedures, he never stated that he or any other camp official spoke to the players about hazing. According to Bohannon, he only spoke with the players after the Caldwell attack about horseplay among teammates.
Given the above, I believe there is sufficient evidence to conclude that Bohannon was aware of the incidents and condoned them, despite the potential for harm. However, Georgia law is clear that "the general task imposed on teachers to monitor, supervise, and control students has . . . been held to be a discretionary action which is protected by the doctrine of official immunity. [Cits.]" Wright v. Ashe, 220 Ga. App. 91, 94 (469 S.E.2d 268) (1996). And as the majority points out, when an action is based on a discretionary act of a public employee, actual malice, which does not include implied malice or reckless disregard, must be shown. See Ga. Const. 1983, Art. I, Sec. II, Par. IX (d); Merrow v. Hawkins, 266 Ga. 390 (467 S.E.2d 336) (1996). In this case, Bohannon's conduct at most represents reckless disregard for the safety of his players; there is no evidence that Bohannon acted with the intent to harm Caldwell specifically. Accordingly, the majority is correct that under Georgia law Bohannon is entitled to official immunity….
CHARLES CALDWELL et al. v. GRIFFIN SPALDING COUNTY BOARD OF EDUCATION et al.
Case No. S98C1610
SUPREME COURT OF GEORGIA
1998 Ga. LEXIS 1173
November 20, 1998, Decided
PRIOR HISTORY: [*1] COURT OF APPEALS CASE NO. A98A0441. Original Opinion of June 2, 1998, Reported at: 1998 Ga. App. LEXIS 808.
JUDGES: All the Justices concur, except Sears, J., who dissents.
OPINION: The Supreme Court today denied the petition for certiorari in this case.
All the Justices concur, except Sears, J., who dissents.