Allen v. Dover Co-Recreational Softball League

• Decision Date: 30 September 2002
• Docket Number: No. 2001–457.,2001–457.
• Citation: Allen v. Dover Co-Recreational Softball League, 148 N.H. 407, 807 A.2d 1274 (N.H. 2002)
• Court: New Hampshire Supreme Court
• Parties: Carol and Gary ALLEN v. DOVER CO–RECREATIONAL SOFTBALL LEAGUE and another.

148 N.H. 407

807 A.2d 1274

Carol and Gary ALLEN

v.DOVER CO–RECREATIONAL SOFTBALL LEAGUE and another.

No. 2001–457.

Supreme Court of New Hampshire.

Submitted July 26, 2002.

Opinion Issued Sept. 30, 2002.

McDowell & Osburn, P.A., of Manchester (Joseph F. McDowell, III and Mark D. Morrissette on the brief), for the plaintiffs.

Backus, Meyer, Solomon, Rood & Branch, LLP, of Manchester (Erica Bodwell and Robert A. Backus on the brief), for defendants Dover Co–Recreational Softball League, Amateur Softball Association of America, Daniel's Sports Bar and Grill, Thompson Imports, and Martel–Roberge American Legion Post # 47.

Upton & Hatfield, LLP, of Concord for defendant Bollinger Fowler Company joins the brief submitted by the other defendants.

DUGGAN, J.

The plaintiffs, Carol and Gary Allen, appeal a Superior Court (T. Nadeau , J.) order dismissing all counts of their negligence action seeking recovery for injuries suffered when Carol Allen was hit in the head by an errantly thrown softball. We affirm.

The plaintiffs allege the following facts. On September 13, 1998, Carol Allen was injured while participating in a recreational softball game when an errantly thrown softball struck her in the head as she ran to first base. The game was part of an adult, co-recreational, slow-pitch softball tournament.

The defendants are all organizations associated with the softball tournament. The teams playing in the tournament were part of defendant Dover Co–Recreational Softball League (league), which is sponsored by defendant Amateur Softball Association, Inc. (ASA). The ASA promulgates rules that govern the play of its member leagues. The teams playing in this particular game were sponsored by defendant Daniel's Sports Bar and Grill (Daniel's) and defendant Thompson Imports (Thompson). Team sponsors provided t-shirts for the players. The game was played on a field owned by defendant Martel–Roberge American Legion Post # 47 (American Legion). Defendant Bollinger Fowler Company (Bollinger) provided liability insurance coverage for the league, ASA, the American Legion, the Daniel's team and the Thompson team.

On the day the plaintiff was injured, she was playing for the Daniel's team in a one-pitch tournament. As set forth in ASA official rules, the softball used when women batted was smaller than the softball used when men batted. This use of different balls is intended to allow the women to hit more competitively with the men. The defendants did not recommend, require or provide helmets for players. Although a slow-pitch game under the ASA official rules is played with five men and five women for each team, the game on September 13 was played with seven men and three women on each team.

When batting for the first time on September 13, Carol Allen hit a ball toward shortstop. A male player for the Thompson team fielded the ball and threw it toward first base. His throw, however, was inaccurate and struck Carol Allen in the head. As a result, she suffered head and brain injuries that caused cognitive deficiencies including impaired speech. At the time of the injury, the plaintiffs allege the smaller ball was used and Carol Allen was not wearing a helmet.

The plaintiffs subsequently filed a writ alleging several counts of negligence. First, the plaintiffs allege that the league and Daniel's acted negligently when they conducted the softball game "without utilizing all reasonable safety precautions including but not limited to recommending, requiring, or providing batting helmets for the players, using less dangerous softballs, and maintaining proper male/female player ratios." The plaintiffs further allege that ASA breached its duty to promulgate and enforce rules that required batting helmets to be worn in softball games, use of a less dangerous softball and each team to play with five men and five women, and to otherwise minimize the risk of injury to participants in co-recreational softball games. The plaintiffs also allege that ASA "had a duty to warn, advise, inform and instruct its members regarding the risk of injury to participants in co-recreational softball games and the manner in which such risks could be minimized." As for the American Legion, the plaintiffs claim that as the owner of the softball field, it "had a duty to require that softball games played on its field were played pursuant to rules and in a manner which minimized the risk of injury to participants." The plaintiffs further allege that Thompson "is vicariously liable for the negligence of its shortstop in errantly throwing the softball." Finally, the plaintiffs allege that because Bollinger provided risk management services to its insureds—the league, ASA, the American Legion, the Daniel's team and the Thompson team—"Bollinger had a duty to warn, advise, inform, and instruct its insureds regarding the risk of injury to participants in co-recreational softball games and the manner in which such risks could be minimized."

All of the defendants moved to dismiss the case arguing, among other things, that they owed no duty to protect Carol Allen from the inherent risks of injury that arose out of her participation in the softball game. In their objection, the plaintiffs argued that "[t]he sole basis for the Defendants' motion to dismiss is the doctrine of primary assumption of the risk." The plaintiffs maintained that the doctrine of primary assumption of the risk has been rejected by this court, and therefore "participants in recreational activities do not assume the risks inherent in the sport." They argued the "appropriate analysis to determine whether or not the Plaintiffs are entitled to recovery should be governed solely by the comparative fault statute, R.S.A. 507:7–d."

In its order, the trial court first considered whether the plaintiffs' allegation that Thompson is vicariously liable for the negligence of its shortstop stated a claim upon which relief may be granted. The court ruled that participants do not owe a duty to other participants to refrain from "injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation" but rather participants "in recreational sporting events owe a duty to other participants to refrain from reckless or intentional conduct [that may injure the other participants]." Because the plaintiffs alleged that Thompson's shortstop acted negligently, not recklessly or intentionally, when he errantly threw the ball, the court concluded, "Thompson Imports cannot be held vicariously liable under the circumstances of this case."

The trial court then examined the plaintiffs' allegations that the remaining defendants were negligent for various failures to take measures that would reduce the risk of injury to participants in co-recreational softball games. The court ruled that the league, ASA, Daniel's, and Thompson, as sponsors, and the American Legion, as owner of the field, owed the plaintiffs "a duty to refrain from reckless[ly] or intentional[ly causing injury to a participant]." Rather than acting recklessly or intentionally to create a risk of injury, the court observed that the defendants' alleged conduct involved the ordinary risks of injury inherent in playing recreational softball. Because the plaintiffs failed to allege anything "about the defendants' conduct which changed the obvious and inherent risk that the plaintiff could get hit by a ball during the softball game and that she could sustain serious injury if she failed to wear a helmet," the court concluded that plaintiffs' writ failed to state any claim upon which relief could be granted. Accordingly, the trial court dismissed all counts of the plaintiffs' writ.

On appeal, the plaintiffs argue that the trial court erred by applying the doctrine of assumption of the risk. Applying the doctrine, the plaintiffs contend, was error because under New Hampshire common law, the doctrine was historically applied only to employer-employee relationships and supplanted altogether when the legislature enacted the comparative fault statute. See RSA 507:7–d (1997).

"The standard of review in considering a motion to dismiss is whether the plaintiff's allegations are reasonably susceptible of a construction that would permit recovery." Dobe v. Comm'r, N.H. Dep't of Health & Human Services, 147 N.H. 458, 460, 791 A.2d 184 (2002) (quotation omitted). The facts alleged in the plaintiff's pleadings are assumed true and all reasonable inferences are construed in the light most favorable to the plaintiff. Id. We will uphold the granting of a motion to dismiss when the facts pled do not constitute a basis for legal relief. Id.

I. Comparative Fault Statute

We first examine the comparative fault statute and its effect upon common law negligence actions. RSA 507:7–d, in part, states:

Contributory fault shall not bar recovery in an action by any plaintiff or plaintiff's legal representative, to recover damages in tort for death, personal injury or property damage, if such fault was not greater than the fault of the defendant, or the defendants in the aggregate if recovery is allowed against more than one defendant, but the damages awarded shall be diminished in proportion to the amount of fault attributed to the plaintiff by general verdict.

At common law, a plaintiff's contributory negligence was a complete bar to the recovery of damages. See Lavoie v. Hollinracke, 127 N.H. 764, 769, 513 A.2d 316 (1986) (interpreting predecessor comparative negligence statute). "[I]n an effort to allocate more equitably the responsibility for injuries due to negligent conduct on the part of parties on both sides of a lawsuit," the legislature enacted the comparative negligence statute. Id. Thus, "[t]he applicability of the doctrine of comparative negligence is triggered by a plaintiff's negligence." Id. Where a plaintiff has not acted negligently in causing her own injury, there is no contributory negligence and the comparative fault statute does not apply. Id. The comparative...