Anderson v. Kansas City Baseball Club

Decision Date10 July 1950
Docket NumberNo. 1,No. 41820,41820,1
Citation231 S.W.2d 170
PartiesANDERSON v. KANSAS CITY BASEBALL CLUB
CourtMissouri Supreme Court

Alfred Kuraner, Irving Kuraner, Kuraner & Kuraner, all of Kansas City, for appellant.

John J. Alder, Herman M. Swafford, Kansas City, for respondent.

ASCHEMEYER, Commissioner.

Defendant's motion to dismiss plaintiff's first amended petition was sustained unless plaintiff filed an amended petition within twenty days. Plaintiff having failed to plead further within the time allowed, a judgment was entered dismissing the cause. This was a dismissal with prejudice and constitutes a final judgment from which an appeal may be taken. Laws 1943, p. 385, Sec. 101, Mo.R.S.A. Sec. 847.101; State ex rel. McMonigle v. Spears, 358 Mo. 23, 213 S.W.2d 210; Husser v. Markham, Mo.App., 210 S.W.2d 405. The petition prayed damages in the amount of $10,000.00. Jurisdiction is in this Court because of the amount involved.

The petition alleges that plaintiff attended a baseball game on September 5, 1947, at the premises operated by defendant; that she was directed to a seat in the stadium by one of defendant's employees; and that, while seated in the stadium, she was struck by a baseball which was driven with great force as a result of which she sustained certain injuries and incurred medical and hospital expense.

The petition charges the following acts of negligence:

'4. Plaintiff states that her said injuries were caused by the negligence of defendant, its agents, servants and employees in that defendant knew or in the exercise of reasonable care should have known that in the game of baseball there exists a constant hazard that balls may be driven into the seats occupied by spectators and inflict upon the spectators great bodily harm; that although plaintiff was wholly unaware and ignorant of such hazard the agents, servants and employees of the defendant seated her in a portion of the grandstand unprotected by wire screen or otherwise and in so doing were negligent in not adequately warning her of such hazard or providing screens or other safeguards.

'5. Plaintiff further states that defendant was negligent in that when she first entered the stadium, she occupied a seat behind a protective wire netting; that thereafter an usher, acting in the course and scope of his employment stated to her that she would have to move because the seat occupied by her was reserved; that she then asked where an unreserved seat was available and the said usher pointed one out to her some distance away; that plaintiff asked if it was safe to sit there since the said seat was unprotected by a wire netting; that the usher, acting as aforesaid then stated it was safe and that hundreds of people sat there every day. Plaintiff states that she relied upon said assurance of safety and occupied said seat, and was thereafter injured as aforesaid.'

The question presented upon this appeal is whether the petition states sufficient facts to constitute a claim against the defendat. At the outset, defendant insists that its motion to dismiss the petition was properly sustained because the petition fails to state any facts from which it may be inferred that plaintiff was an invitee upon defendant's premises and not simply a licensee; and that the allegations concerning the unawareness of plaintiff of being struck by balls driven into the spectators' seats and the assurance of safety given to plaintiff are conclusions of the pleader and not allegations of constitutive facts which are admitted by the motion to dismiss. In view of the conclusion we have reached concerning the insufficiency of the petition, it is not necessary to discuss or decide these contentions. For the purpose of this opinion we shall assume that plaintiff was a business invitee upon the premises of defendant and that the petition alleges facts and not merely conclusions of the pleader.

Defendant urges that the decision of this Court in Hudson v. Kansas City Baseball Club, 349 Mo. 1215, 164 S.W.2d 318, 142 A.L.R. 858, is decisive and controlling. We there said, 164 S.W.2d 318, loc. cit. 320:

'The rules as developed and applied to places of public amusement and upon which the parties here rely, whether as to the condition of the premises or the activity being carried on there, are neither more nor less than the usual rules of liability applicable to the possessor of land and his business invitee. 'A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he (a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and (b) has no reason to believe that they will discover the condition or realize the risk involved therein, and (c) invites or permits them to enter or remain upon the land without exercising reasonable care (1) to make the condition reasonably safe, or (2) to give a warning adequate to enable them to avoid the harm.' 2 Restatement, Law of Torts, Sec. 343; Brown v. Davenport Holding Co., 134 Neb. 455, 279 N.W. 161, 118 A.L.R. 425; J. C. Penny Co. v. Robison, 128 Ohio St. 626, 193 N.E. 401, 100 A.L.R. 710; 58 A.L.R. 136; Law v. Morris, 102 N.J.L. 650, 133 A. 427, 46 A.L.R. 1111; Markman v. Fred P. Bell Stores Co., 285 Pa. 378, 132 A. 178, 43 A.L.R. 866; 33 A.L.R. 181. Conversely and as applied to a place of public amusement as well as to a place of business 'the invitor is not an insurer of the safety of the invitee; neither is the invitee protected against all hazard, nor relieved of all duty to himself for his own safety. And to the extent that the duty of self-protection rests upon the invitee, the duty of the invitor to protect is reduced. The extent of these relative duties depends upon many factors involving the capacity and opportunity of the invitor to protect the invitee and the capacity and opportunity of the invitee to protect himself.' Ivory v. Cincinnati Baseball Club Co., 62 Ohio App. 514, 518, 24 N.E.2d 837, 839.'

In the Hudson case, plaintiff alleged that he was struck and injured by a foul ball while occupying a seat which was not protected by wire netting. He alleged that he intended to occupy a seat which was so protected and, because he had bought a reserved seat, was under the impression that he was seated behind the wire netting and his eyesight was not sufficiently acute to reveal the absence of protective netting before he was injured. The negligence charged was: failure to protect the place where plaintiff was seated with wire netting; offering for sale seats without notice to the public that some seats were protected and others were not protected by wire netting; offering for sale reserved seats, some of which were protected and others not protected, thus creating the impression that all reserved seats...

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    ...a screen), and it is not the result of negligence by the ball club." Gunther, 854 F.Supp. at 428 (citing Anderson v. Kansas City Baseball Club, 231 S.W.2d 170 (Mo.1950)). The court's statement, in this regard, was an implicit application of the doctrine of primary implied assumption of risk......
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    ...v. Allied Stores of Missouri, Mo., 308 S.W.2d 623, 628; Dixon v. General Grocery Co., Mo., 293 S.W.2d 415, 418; Anderson v. Kansas City Baseball Club, Mo., 231 S.W.2d 170, 171; Hudson v. Kansas City Baseball Club, 349 Mo. 1215, 164 S.W.2d 318, 320(3), 142 A.L.R. 858; Willis v. Rivermines I.......
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    ...Inc., 39 Ohio App.2d 199, 316 N.E.2d 924 (1972); Baker v. Topping, 15 A.D.2d 193, 196, 222 N.Y.S.2d 658 (1961); Anderson v. Kansas City Baseball Club, 231 S.W.2d 170 (Mo., 1950); Hunt v. Thomasville Baseball Co., 80 Ga.App. 572, 573, 56 S.E.2d 828 (1949). See also, generally, Neinstein v. L......
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