Bellezzo v. State

• Decision Date: 29 October 1992
• Docket Number: CA-CV,No. 1,1
• Citation: 174 Ariz. 548,851 P.2d 847
• Parties: , 82 Ed. Law Rep. 947 Jeanne BELLEZZO, Plaintiff-Appellant, v. STATE of Arizona and Arizona Board of Regents, Defendants-Appellees. 90-636.
• Court: Arizona Court of Appeals

Page 847

851 P.2d 847

174 Ariz. 548, 82 Ed. Law Rep. 947

Jeanne BELLEZZO, Plaintiff-Appellant, v. STATE of Arizona and Arizona Board of Regents, Defendants-Appellees.

No. 1 CA-CV 90-636.

Court of Appeals of Arizona Division 1, Department D.

Oct. 29, 1992.

Review Denied June 2, 1993.

[174 Ariz. 549] Langerman, Begam, Lewis & Marks by Elliot G. Wolfe, Michael R. Golder, Cora Perez, Phoenix, for plaintiff-appellant.

Grant Woods, Atty. Gen. by Thomas J. Dennis, Michelle Mills, Asst. Attys. Gen., Phoenix, for defendants-appellees.

OPINION

McGREGOR, Judge.

Plaintiff-appellant Jeanne Bellezzo (Bellezzo) appeals from the summary judgment granted to defendants-appellees State of Arizona and Arizona Board of Regents (appellees) in her negligence action for injuries she suffered when struck in the head by a foul ball at her son's college baseball game. The central issue presented is whether appellees, as owners/operators of a baseball stadium, exposed spectators to a foreseeable, unreasonable risk of injury from foul balls and therefore breached the applicable standard of conduct.

I.

In March 1988, Bellezzo and her husband attended baseball games between Arizona State University (ASU) and the University of Nevada at Las Vegas (UNLV) at Packard Stadium (the stadium) in Tempe, Arizona. Their son was UNLV's catcher. Bellezzo had attended her son's baseball games for more than thirteen years.

On March 21, Bellezzo and her husband arrived at the baseball game early and entered the stadium without obtaining tickets. They sat directly behind home plate until they were asked to move to other seats, at which time they moved approximately thirty feet to one side. Both sites were protected by a backstop, the large screen located behind home plate and designed to protect spectators from foul balls.

On March 22, Bellezzo and her husband arrived at the baseball game after the admission booths opened. Because their names were not on the list for free tickets, Bellezzo's husband requested that an employee ask ASU's baseball coach to authorize their free admission. The employee subsequently obtained a note from ASU's coach instructing that Bellezzos be given two free tickets.

As Bellezzo and her husband entered the stadium, they asked an employee if they were required to sit in the seats designated in their complimentary tickets. The employee told them he did not expect a large crowd at the game. The Bellezzos interpreted the employee's statement as permission to sit in any available seat and sat in the screened area behind home plate. Subsequently, an usher informed them that the seats in which they were sitting were reserved for season ticket holders and that they would have to sit in their assigned seats. Bellezzo and her husband then moved to the vicinity of their assigned seats, located in an unscreened area behind the visitors' dugout along the first base line. During the game, a foul ball ricocheted off a pole at the edge of the backstop and hit Bellezzo in the head.

Bellezzo and her husband sued ASU, the National Collegiate Athletic Association (NCAA), ¹ and appellees for negligence (1) "in designing, creating, installing and/or maintaining an inadequate backstop, fence or screening protection for spectators; [and] (2) in failing to make Packard Stadium reasonably safe for spectators by either constructing or adding adequate protection or warning of the danger and risk involved at the location where Mrs. Bellezzo was injured."

Upon motion, the court dismissed ASU as a defendant and Bellezzo's husband as a plaintiff. Appellees filed a motion for summary judgment, contending they complied with the standard of conduct required of a baseball stadium's proprietor by erecting the existing backstop to protect spectators from the open and obvious danger of foul balls. The trial court determined "as a matter of law the acts of defendant[s] were reasonable, the defendant[s] took reasonable care, and plaintiff was aware of the risks" and granted summary judgment.

Bellezzo timely appealed, contending that whether appellees breached the applicable standard of conduct necessarily raises genuine questions of material fact that preclude summary judgment. See Ariz.R.Civ.P. 56(c). ² We have jurisdiction pursuant to Ariz.Rev.Stat.Ann. § 12-2101B.

II.

The first question in this action, as in any negligence action, is whether appellees owed any duty of care to Bellezzo. That is, was the relationship of the parties "such that [appellees were] under an obligation to use some care to avoid or prevent injury to [Bellezzo]"? Markowitz v. Arizona Parks Bd., 146 Ariz. 352, 356, 706 P.2d 364, 368 (1985). Whether a defendant owes a duty to a plaintiff generally presents an issue of law for the trial court and is therefore appropriate for summary judgment. Id. For purposes of this appeal, the parties agree Bellezzo was an invitee ³ and appellees therefore owed her a duty to conform to a particular standard of conduct to protect her against foreseeable and unreasonable risks of harm. See Rogers v. Retrum, 170 Ariz. 399, 403, 825 P.2d 20, 24 (App.1991); see also W. PAGE KEETON, ET AL., PROSSER AND KEETON ON THE LAW OF TORTS §§ 30-31, at 164-73 (5th ed. 1984).

III.

Having concluded appellees owed some duty of care to Bellezzo, we turn to the issue central to this appeal: did the trial court err in concluding as a matter of law that appellees conformed to the required standard of conduct?

Because Bellezzo was an invitee, the applicable standard of care obligated appellees to discover and warn or protect Bellezzo against unreasonable risks of harm. Markowitz, 146 Ariz. at 355, 706 P.2d at 367. See PROSSER AND KEETON, supra, § 31 at 169 ("Negligence is ... 'conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.' " (footnote omitted)). ⁴ Although the question of breach of duty generally presents an issue of fact for the jury,

[o]bviously, it may be said in some cases as a matter of law that defendant's actions or inactions do not breach the applicable standard of conduct.

Markowitz, 146 Ariz. at 357, 706 P.2d at 369; see also Coburn v. Tucson, 143 Ariz. 50, 691 P.2d 1078 (1985) (court finds no breach of duty as a matter of law and therefore upholds summary judgment for defendant).

We recently applied the principles set forth in Markowitz in Rogers v. Retrum. In Rogers, a high school student who was injured in a car accident after leaving the school's campus during classroom hours sued the high school district for negligence in maintaining an open-campus policy. In determining whether the school district's decision to adopt an open-campus policy exposed its students to a foreseeable, unreasonable risk of harm, we acknowledged that "[t]o decide whether a risk [is] unreasonable requires an evaluative judgment ordinarily left to the jury." 170 Ariz. at 402, 825 P.2d at 23. We also recognized, however, that not every foreseeable risk is an unreasonable risk and that whether a risk is unreasonable "merges with foreseeability to set the scope of reasonable care." Id. In defining the role of the court in setting the scope of reasonable care, we stated:

[I]n approaching the question of negligence or unreasonable risk, "the courts set the outer limits. A jury will not be permitted to require a party to take a precaution that is clearly unreasonable."

Id. (citation omitted). We concluded that even though the risk that students who leave the school's campus during classroom hours may be involved in car accidents is foreseeable, it is not unreasonable. We therefore determined as a matter of law the school district was not negligent and affirmed summary judgment in favor of the school district. Id. at 403, 825 P.2d at 24.

Applying that same analysis to these facts, we conclude that because appellees' conduct did not expose their invitees to an unreasonable risk of injury, appellees are not negligent as a matter of law.

A.

Although Arizona courts have not previously considered the scope of the duty of reasonable care applicable to baseball stadium operators, many other jurisdictions have considered the question. The overwhelming majority have concluded, as a matter of law, that a stadium operator is not liable for injury to a spectator struck by a batted or thrown ball if the spectator was seated in an unscreened area of the stadium. In reaching this conclusion, some courts have held that the stadium operator complied with a particularized standard of care, while other courts have found no duty to protect spectators from the open and obvious risk of being struck by a batted or thrown ball. See James L. Rigelhaupt, Jr., Annotation, Liability to Spectator at Baseball Game Who Is Hit by Ball or Injured as Result of Other Hazards of Game, 91 A.L.R.3d 24 (1979). Although our analysis varies somewhat from the analysis relied upon by other jurisdictions, we believe the factors considered by other courts provide assistance in determining whether these appellees exposed Bellezzo to an unreasonable risk of harm.

B.

In analyzing the scope of appellees' duty to spectators, we first consider whether the risk of injury from foul balls is open and obvious. ⁵ Although this factor is not always determinative, a land possessor "is not ordinarily found negligent for injuries to ... invitees from conditions which are open and obvious, nor for those which are known to the invitee." Markowitz, 146 Ariz. at 356, 706 P.2d at 368. The underpinnings of that general principle are self-evident: when a danger is open and obvious, the risk of harm generally is slight because the condition is easily perceived and therefore does not pose an unreasonable risk against which the landowner must protect invitees. See McFarland v. Kahn, 123 Ariz. 62, 63, 597 P.2d 544, 545 (1979) (condition on land that is open and obvious generally is not unreasonably dangerous).

Other jurisdictions implicitly recognize the risk of...