Bond v. Cartwright Little League, Inc.

• Decision Date: 06 June 1975
• Docket Number: No. 11703,11703
• Citation: 112 Ariz. 9,536 P.2d 697
• Parties: James Lee BOND and Eiko Bond, his wife, Appellants, v. CARTWRIGHT LITTLE LEAGUE, INC., an Arizona Non-Profit Corporation, Appellee.
• Court: Arizona Supreme Court

Page 697

536 P.2d 697

112 Ariz. 9

James Lee BOND and Eiko Bond, his wife, Appellants, v. CARTWRIGHT LITTLE LEAGUE, INC., an Arizona Non-Profit Corporation, Appellee.

No. 11703.

Supreme Court of Arizona, In Division.

June 6, 1975.

Rehearing Denied July 8, 1975.

Tupper, Rapp, Salcito & Schlosser, P.A. by Daniel R. Salcito, Divelbiss & Gage, by G. David Gage, Phoenix, for appellants

Scoville & Hoffman, P.C. by Leroy W. Hofmann, Robbins, Green, O'Grady & Abbuhl, P.A. by John D. Lyons, Jr., Phoenix, for appellee.

CAMERON, Chief Justice.

This is an appeal by the plaintiff James Lee Bond from the granting of a motion of the defendant Cartwright Little League, Inc., for judgment notwithstanding the verdict or in the alternative granting a motion for a new trial.

We must answer the following questions on appeal:

1. Was the plaintiff Bond a grantuitous employee of the Cartwright Little League, Inc., or a volunteer and what was the duty of care owed to him by the Cartwright Little League, Inc.?

2. Did the trial judge properly grant a judgment notwithstanding the verdict?

3. Did the trial judge properly grant the motion for new trial?

4. Did the court properly deny the plaintiff's motion for additur?

The facts necessary for a determination of this motion on appeal are as follows. In the spring of 1970 the Cartwright Little League, Inc., an Arizona nonprofit corporation, through its authorized representatives, was the high bidder at an auction to purchase the stadium flood lights located at Phoenix Municipal Stadium. It was understood that the lights were sold on the poles and that the successful bidder was to remove the lights by a certain time. After the bid was accepted a written agreement for the removal of the stadium lights was entered into between Cartwright Little League, Inc., and the City of Phoenix. The agreement contained the following provision:

'2. It is understood and agreed that all said surplus stadium playing field flood lights (excluding the standards and crossarms) will be removed at purchaser's cost during the period commencing June 20, 1970 and ending June 24, 1970, said lights to be removed by qualified persons in accordance with a standard set by the Electrical Maintenance Superintendent intendent of the City of Phoenix, to-wit: In accordance with the verbal instructions given by Mr. Joe Protis, Electrical Maintenance Superintendent of the City of Phoenix, at the auction, on April 10, 1970, the lights are required to be removed by experienced linesmen or others used to working at heights, and a minimum of three-inch wire tails shall be left for reconnections; and in compliance with all codes, ordinances and government regulations, and further shall leave the standards and crossarms in a manner acceptable to the City.'

The lights were on the top of 100 foot metal poles surrounding the Phoenix Municipal Stadium. At the top of the pole there was a platform with a guard rail so that once the person climbing the pole reached the top he had a safe position from which to work. The metal pole itself contained metal steps or rungs protruding from both sides of the metal pole, said rungs commencing some eight feet off the ground. It was necessary to reach the first rung by way of a ladder and then to climb to the platform at the top of the pole where, once the platform was reached, the lights could be dismantled and lowered by a line to the ground.

The officers of the Cartwright Little League, Inc., decided to remove the lights with the help of volunteers. Mr. Raymond Roger, President of the Cartwright Little 'A Jim had just come into the ballfield through the fence from the side of the road, standing behind the grandstand and I was walking down the field and I saw Jim, so, of course, Jim was helped the league in previous projects so I walked up to Jim and I says, 'Hi, Jim', I says, 'This weekend we're going to start taking down the lights at the ballpark.' I said, 'If you--if you get a free weekend if you could come down and help us I'd be glad to have you come down.' And Jim hesitated a minute, and I says, 'Look, I'm not asking you to climb poles.' I said, 'I got people to climb the poles.' I says, 'We need more people on the ground really.'

League, Inc., testified that he asked for volunteers at a general meeting of parents in April which had been called for the purpose of selecting managers, coaches, and umpires. He announced that assistance was needed to remove the lights. Sgt. Bond did not respond to this request for help and later Mr. Roger approached Sgt. Bond asking specifically for help:

'Q All right.

'A And he didn't answer. He said to the effect, 'Well, if I'm free this weekend I'll probably come down.' He didn't say yes or no.'

Bond was an Air Force Master Sergeant of 22 years experience. Bond's claimbing experience included once climbing a tall wooden pole in the Air Force in 1955 as well as routinely inspecting fuel tanks for the Air Force in his current job. These fuel tanks were approximately forty feet high and reached by climbing. Bond testified that after he arrived at the stadium:

'Q Now, something I'm not clear on and I may have misunderstood your answer. It is your testimony, Mr. Bond, that someone asked you to climb the pole? Someone said, 'Mr. Bond, will you please climb up this pole?'

'A No, sir, it was put to me more in a question, not as a--would you please climb this pole.

'Q As a matter of fact, Mr. Bond, the question simply was from Mr. Arnold, 'Jim, or Mr. Bond, are you going to climb the pole?' That's about what it amounted to isn't it?

'A Yes.

'Q No one ever asked you to go up the pole, did they?

'A No, sir.

'Q When you were asked whether you were going to go up the pole, you said you couldn't see any reason why not, correct?

'A Right, sir.

* * *

* * *

'Q You started to answer a question when Mr. Hofmann cut you off and sort of rephrased it a bit. When he asked you the question 'Were you under any compulsion to climb the pole'? you testified you had no orders, as if you were in the Air Force and someone were ordering you to do something, but did you feel some type of compulsion? What was your answer to that question that you started?

'A Yes, sir, I did feel that since I had been asked to help that--and my boy was in the little league that I should do something to help, and what was needed I would try to do.

'Q So you didn't have any military orders--

'A No, sir.

'Q--pushing you but you felt some sort of social pressure?

'A Right, sir.'

When Bond was three-quarters of the way up the pole of the lights, he began to feel muscle spasms in his shoulders and he decided it was best to descend. On the way down, he suddenly lost his ability to grip in his left hand and fell down the remaining forty feet.

The defendant moved for a directed verdict which was denied.

The jury was properly instructed as to contributory negligence and assumption of risk. The jury returned a verdict for the plaintiff in the amount of $100,000 and judgment was entered therein. On 14 September 1972, the trial court filed its memorandum and order reading in part as follows:

'* * * McRae, who at the time of the accident was a vice president of Cartwright, testified that he asked plaintiff if he was going to climb a pole and the plaintiff responded that he was, that 'he had done this before.' This testimony was uncontradicted.

'An inexperienced person who has obtained employment by pretending to an experience which he has not had cannot recover for an injury caused by his inexperience. Stanley v. Chicago and WM Ry. Co. (Mich.) (101 Mich. 202,) 59 N.W. 393 (1894). No one directed plaintiff to climb the pole. He did it voluntarily. He cannot now complain that Cartwright violated a duty owed to him when he represented, in effect, that he met the qualifications required by the contract for persons who were to remove the lights. Only he, not Cartwright, was in a position to know whether the representation was true.

'The motion for judgment notwithstanding the verdict must be granted.

'Where motions for judgment notwithstanding the verdict and for new trial are joined and the motion for judgment notwithstanding the verdict is granted, the court must also rule on the motion for new trial by determining whether it should be granted if the judgment is thereafter vacated or reversed. Rule 50(e), Rules of Civil Procedure. Cartwright made timely objections to three instructions given to the jury: that an employer owes an employee the duty to provide a reasonably safe place to work and to warn the employee of dangers inherent in the place of employment (Plaintiffs' Requested Instruction No. 1 as modified); that the scope of the duty to warn varies with the facts of a particular case (Plaintiffs' Requested Instruction No. 6 as modified); and that an employer has a duty to use ordinary care to protect its employees from unnecessary harm or risks in the service (Plaintiffs' Requested Instruction No. 3 as modified). The court feels that it was error to have given these three instructions because they suggested to the jury that it could hold Cartwright liable by finding that Cartwright had not provided a reasonably safe place to work, had failed to warn plaintiff of dangers inherent in the place of employment and had failed to use ordinary care to protect plaintiff from unnecessary harm or risk. * * *

'IT IS ORDERED granting the defendant Cartwright Little League's motion for judgment notwithstanding the verdict.

'IT IS FURTHER ORDERED that in the event that the order granting judgment notwithstanding the verdict is reversed, a new trial will be granted because of the error in including in the court's instructions Plaintiffs' Instructions 1, 3 and 6, all as modified.

'IT IS FURTHER ORDERED denying Plaintiffs' motion for additur.'

From these orders plaintiff appeals.

WHAT WAS THE RELATIONSHIP BETWEEN THE LITTLE LEAGUE AND BOND?

The Cartwright Little League, Inc., contends that Bond was a mere volunteer...