Fox v. Board of Sup'rs of Louisiana State University and Agr. and Mechanical College, 90-C-1200

• Citation: 576 So.2d 978,66 Ed. Law Rep. 1379
• Decision Date: 11 March 1991
• Docket Number: No. 90-C-1200,90-C-1200
• Parties: Timothy FOX, et al v. BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE, et al. 576 So.2d 978, 66 Ed. Law Rep. 1379
• Court: Supreme Court of Louisiana

Page 978

576 So.2d 978

Timothy FOX, et al v. BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE, et al.

No. 90-C-1200.

576 So.2d 978, 66 Ed. Law Rep. 1379

Supreme Court of Louisiana.

March 11, 1991.

Rehearing Denied April 25, 1991.

Paul H. Due, of Due, Smith, Caballero & Price, Charles William Roberts, David W. Robertson, Baton Rouge, for Timothy Fox, et al., plaintiffs-applicants.

J. Dwight LeBlanc, Jr., Kenneth J. Servay, New Orleans, amicus curiae.

Steven C. Judice, Adams & Reese, Baton Rouge, for Genstar Indem. Co., defendant-respondent.

H. Alston Johnson, III, F. Scott Kaiser, Phelps, Dunbar, Marks, Claverie & Sims, Baton Rouge, for Board of Sup'rs of LSU & Agricultural & Mechanical College and Employers Cas. Co., defendants-respondents.

James E. Moore, Franklin, Moore & Walsh, Baton Rouge, for Amer. Ins. Co. and Amer. Empire Surplus Lines Ins. Co., defendants-respondents.

Dan E. West, S. Jess Sperry, Valerie Seal Meiners, Rubin, Curry, Colvin & Joseph, Baton Rouge, for St. Olaf College and Pacific Employers Indem. Co., defendants-respondents.

William E. Willard, Powers, Vaughn & Clegg, Baton Rouge, for Illinois Nat. Ins Co. and Audubon Indem. Co., defendants-respondents.

Michael G. Cordes, Robert J. Young, Jr., Young, Richaud, Theard & Myers, New Orleans, for Amer. Empire Surplus Lines Co., defendant-respondent.

HALL, Justice.

Tim Fox and his parents, Denver and Nora Fox (hereinafter collectively referred to as plaintiff), brought this action for damages against St. Olaf College of Northfield, Minnesota; St. Olaf's insurers, Pacific Employers Insurance Company (Pacific) and American Empire Surplus Lines Insurance Co. (American); The Board of Supervisors of Louisiana State University (L.S.U.); and L.S.U.'s insurer, Employers Casualty Insurance Company (Employers). The trial court dismissed St. Olaf and its insurers on a declinatory exception of lack of in personam jurisdiction. The trial court also granted summary judgment in favor of L.S.U. and its insurer.

Plaintiff appealed and the court of appeal affirmed with respect to St. Olaf, L.S.U. and L.S.U.'s insurer. Fox v. Bd. of Sup'rs of La. State Univ., 559 So.2d 850 (La.App. 1st Cir.1990). However, the appellate court found that the trial court could assert personal jurisdiction over St. Olaf's insurer because they were doing business in Louisiana. Nonetheless, the appellate court dismissed the insurers under the doctrine of forum non conveniens.

On plaintiff's application, we granted writs to review those judgments. 565 So.2d 930 (La.1990). Writs were granted primarily to consider whether the doctrine of forum non conveniens is recognized in Louisiana as held by the First Circuit in this case, contrary to an earlier decision of the Fifth Circuit in Kassapas v. Arkon Shipping Agency, Inc., 485 So.2d 565 (La.App. 5th Cir.1986). There are other issues to be resolved, however, before the forum non conveniens issue is reached.

FACTS

Tim Fox, a student of St. Olaf College in Minnesota and member of the St. Olaf rugby club, was a participant in the 1986 Louisiana State Rugby Club Annual Mardi Gras Invitational Rugby Tournament held on the campus of L.S.U. in February of 1986. The St. Olaf club left Minnesota on February 5 in recreational vehicles and arrived in New Orleans on February 6, where they enjoyed the Mardi Gras festivities. The next day, the club traveled to Baton Rouge where they arrived at approximately 11:00 p.m. They attended a cocktail party hosted by the L.S.U. rugby club until about 2:00 in the morning. Later that morning, about 8:00 a.m., they played their first match of the day, and played a second match about 3:00 p.m. that afternoon. Near the end of the second match, Fox attempted to tackle an opposing ball carrier. Unfortunately, Fox missed the ball carrier, struck his head on the ground and broke his neck. He is now a quadriplegic and is confined to a wheelchair.

SUMMARY JUDGMENT (L.S.U.)

Plaintiff asserts in his brief that L.S.U. is liable for his injuries under two separate theories. First, L.S.U. is vicariously liable for the negligent conduct of the rugby club in:

(1) Throwing a cocktail party before the tournament;

(2) Scheduling two matches for the same day; and

(3) Failing to ascertain whether invitees were properly trained, coached or supervised.

Second, L.S.U. is liable in its own right for failing to ensure that the tournament was conducted with adequate safety. ¹

In support of these allegations and in opposition to defendants' motion for summary judgment, plaintiff offered the affidavit of L. Stanley Shulman, Director of Athletics and Sports Safety Division of Inner-City Testing & Consulting Corporation. It was his opinion that L.S.U. owed a duty to inform the participants in the tournament that each team should have a coach/trainer/manager. By requiring each team to have this person, L.S.U. could "lessen the degree of risk associated with injuries related to lack of rest or conditioning," because the coach would know the capabilities of his players and make substitutions when needed. Furthermore, Mr. Shulman opined that the scheduling of two contests for one team per day was not in accordance with "good and accepted practices and procedures in athletic competition." He stated that the athletes would be "tired and prone to making mistakes, and more susceptible to injury" after participating in one match. Simply, his premise was that a fatigued athlete is more susceptible to injury than a rested athlete.

Summary judgment is proper when the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. Art. 966. The appellate court found that summary judgment was proper in this case because a university has no affirmative duty to ascertain or inquire as to the level of fitness or preparedness of a visiting team participating in a tournament hosted by the university home team or club.

At issue in this case is whether L.S.U. owed a legal duty to plaintiff to protect him from harm. Generally, duty is defined as the obligation to conform to the standard of conduct associated with a reasonable man in like circumstances. Whether a legal duty is owed by one party to another depends on the facts and circumstances of the case and the relationship of the parties. Seals v. Morris, 410 So.2d 715 (La.1981), on rehearing 410 So.2d 717 (La.1982); Straley v. Calongne Drayage & Storage, Inc., 346 So.2d 171 (La.1977).

The duty-risk analysis is helpful in determining liability in negligence actions. Thus, for liability to attach, plaintiff must establish that:

(1) The conduct in question was a cause in fact of the resultant harm;

(2) The defendant owed a duty to plaintiff;

(3) The duty owed was breached; and

(4) The risk or harm caused was within the scope of the breached duty. Mart v. Hill, 505 So.2d 1120 (La.1987); Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972).

Plaintiff's theory of recovery against L.S.U. in a nutshell is that L.S.U. failed to sufficiently supervise the activities of the L.S.U. rugby club and is liable either vicariously for the club's negligence in conducting the tournament, or in its own right for failing to protect plaintiff from harm. Arguing that his injury was due to fatigue, he submits that if the L.S.U. rugby club had not held the cocktail party or scheduled two matches on the same day for his team, then he would not have been as fatigued and the injury would never have resulted. Furthermore, if L.S.U. had required the teams to have coaches/trainers, proper substitutions could have been made to avoid fatigue.

Typically, in cases such as this, where the alleged wrongful conduct of the defendant is a failure to act or "nonfeasance," courts have found it necessary for some definite relationship between the parties to exist, such that social policy justifies the imposition of a duty to act upon the defendant. W. Prosser & W. Keaton, The Law of Torts, Sec. 56 (5th ed.)

In this case, one of L.S.U.'s recognized sports clubs invited the plaintiff to participate in a rugby tournament. The choice to participate was wholly within the discretion of the plaintiff. The only connection between L.S.U. and the plaintiff is that the plaintiff was injured on the parade grounds at L.S.U. However, plaintiff does not allege that his injury arose out of a defect in the playing field. There is no evidence to show that L.S.U. was in some special relationship with the plaintiff which would require L.S.U. to act to ensure his safety. ² The fact that a club at L.S.U. invited plaintiff's team to L.S.U. does not make L.S.U. the guardian of all of the participants' safety. Of course, L.S.U. must ensure that its premises are free from defects and are suitable for activities conducted there. The parade ground is used often by students of L.S.U. and the general public for athletic activity. To require L.S.U. to ensure the athletic ability of everyone utilizing this area would be too onerous.

The plaintiff was not a student at L.S.U. and he fails to show any special relationship between himself and the university which would require the university to act on behalf of his safety. The petition does not allege that L.S.U. acted unreasonably, only that it failed to act, and for the above reasons we find that L.S.U. had no duty to act as contended by the plaintiff.

Insofar as the allegations against L.S.U. allege that L.S.U. should have controlled the conduct of the L.S.U. rugby club and is vicariously liable for the club's alleged negligent acts, we find the reasoning of the following cases persuasive.

In University of Denver v. Whitlock, 744 P.2d 54 (Colo.1987), plaintiff was rendered a quadriplegic in a trampoline accident. The issue presented by the case was whether the University...